In the Matter of the Civil Commitment of: Edward Eugene Dooley.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0645

In the Matter of the Civil Commitment of:
Edward Eugene Dooley.

Filed November 8, 2021
Affirmed
Segal, Chief Judge

Commitment Appeal Panel
File No. AP19-9167

John E. Mack, New London Law, P.A., New London, Minnesota (for appellant)

Keith Ellison, Attorney General, Leonard J. Schweich, Assistant Attorney General,
St. Paul, Minnesota (for respondent commissioner)

Shane D. Baker, Kandiyohi County Attorney, Julianna Passe, Assistant County Attorney,
Willmar, Minnesota (for respondent county)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Gaïtas, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges the denial of his petition for a provisional discharge or transfer
from his indeterminate civil commitment to the Minnesota Sex Offender Program as a
sexually dangerous person. Because appellant failed to make out a prima facie case t o
support his petition for provisional discharge and failed to prove by a preponderance of the
evidence that he is entitled to a transfer, we affirm.

2
FACTS
Appellant Edward Dooley was committed in 2014 on an indeterminate basis to the
Minnesota Sex Offen der Program (MSOP) as a sexual ly dangerous person (SDP). In
September 2018, Dooley petitioned the Special Review Board ( review board) seeking a
provisional or full discharge from civil commitment, or a transfer to Community
Preparation Services1 (preparation services).
A hearing was held on the petition in October 2019 . In its findings of fact and
recommendation, the review board summarized Dooley’s diagnoses as including: other
specified paraphilic disorder, non -consenting individuals, in a controlled environment;
voyeuristic disorder, in a controlled environment; and exhibitionistic disorder, in a
controlled environment. The review board noted that “Dooley’s sexually abusive conduct
victimized prepubescent to adult males” and that Dooley had acknowledged “sexual
activity with prepubescent males” and attempted sexual “penetration of an unconscious
adult male.”
At the time of the hearing, Dooley was in Phase II of MSOP’s three-phase treatment
program.2 The review board noted that Dooley had at first made minimal progress in
Phase II but had shown “dramatically improved motivation for change since July 2018 ,”

1 Minn. Stat. § 246B.01, subd. 2a (2020), defines “community preparation services” as
“specialized residential services or programs” that are located “outside of a secure
treatment facility ” and “ are designed to assist civilly committed sex offenders in
developing the appropriate skills and resour ces necessary for an eventual successful
reintegration into a community.”

2 Dooley was placed into Phase II of the treatment program in April 2016.
3
and was consistently adhering to rules and supervision, attending treatment groups,
exhibiting awareness of his treatment needs, an d demonstrating conflict-resolution and
stress-management skills. The review board, however, also found that Dooley still had
several remaining Phase II treatment needs, was not forthcoming about his sexual thoughts,
and had an above average static risk of reoffending.
Based on the record at the October 2019 hearing, t he review board recommended
granting the transfer to preparation services but denied provisional or full discharge. With
regard to the transfer, the review board commented that, while “Mr. Dooley’s progress in
treatment is less than ideal for a move to [preparation services ],” because he has
“demonstrated consistent adherence to rules and supervision for a relatively long time, his
need for security and institutionalization could be met at [preparation services ].” The
review board thus concluded that even though “[i]t would be preferable if Mr. Dooley had
petitioned for a reduction in custody after he had made more progress in treatment, . . . on
balance he satisfies statutory criteria for Transfer. ” The review board added that “[i]t is
the [review board]’s hope and expectation that he will continue to make treatment progress
while awaiting an opening at [preparation services ].” In denying his request for a
provisional or full discharge, the review board stated that , because “Mr. Dooley has
ongoing needs for treatment and supervision[,] it is unlikely that his current needs could be
met in any community -based setting.” The review board thus concluded that Dooley “ is
not yet capable of making an acceptable adjustment to open society [and he] remains
dangerous to the public.”
4
Both Dooley and the Commissioner of Human Services petitioned the Commitment
Appeal Panel (appeal panel) for rehearing and reconsideration. Dooley so ught
reconsideration of the review board ’s recommendation denying provisional or full
discharge, and the commissioner sought reconsideration of the review board ’s
recommendation granting the transfer request to preparation services.
The appeal panel hearing took place in February 2021.3 Dooley testified on his own
behalf and submitted several exhibits, including a sexual -violence risk assessment,
quarterly and annual treatment reports, a list of discharge plan conditions, and the review
board’s findings and recommendations. The commissioner also submitted various exhibits
including updated reports, mental-health and tier -level assessments, and progress notes,
along with behavioral expectation and incident reports.
At the close of Dooley’s case, th e commissioner moved for dismissal under Minn.
R. Civ. P. 41.02(b). The appeal panel granted the commissioner’s motion, ruling that
Dooley failed to produce evidence sufficient to establish a prima facie case for provisional
discharge and failed to prove by a preponderance of the evidence that he is entitled to a
transfer. In connection with its ruling on the transfer issue, the appeal panel noted that
Dooley had regressed in his pro gress in the 18 months between the review board and the
appeal panel hearings. Dooley now appeals.

3 Dooley withdrew his appeal of the review board ’s denial of a full discharge , but
maintained his appeal of the provisional discharge denial.
5
DECISION
Dooley argues that the appeal panel erred by granting the commissioner’s motion
to dismiss. A person who is committed as an SDP may petition the review board for a
reduction in custody. Minn. Stat. § 253D.27, subd. 2 (2020). In the event of an adverse
ruling from the review board , the committed person may seek reconsideration of that
determination from the appeal panel. Minn. Stat. §§ 253B.185, subd. 9(f), .19, subd. 2(b)
(2020).
If the commissioner wishes to challenge a committed person’s entitlement to relief
after he rests his case at the appeal panel hearing, the commissioner may move to dismiss
the petition pursuant to rule 41.02(b) of the rules of civil procedure.4 See Coker v. Jesson,
831 N.W.2d 483, 489 -91 (Minn. 2013 ) (addressing motions to dismiss in the context of
petitions for discharge) . Because of differences in the statutory burdens placed on
committed persons for discharge petitions and petitions for a transfer, different standards
apply in evaluating the evidence. See Foster v. Jesson , 857 N.W.2d 545, 548 -49 (Minn.
App. 2014) (addressing these differences).
On a petition for discharge, the committed person “bears the burden of going
forward with the evidence, which means presenting a prima facie case with competent
evidence to show that the person is entitled to the requested relief.” Minn. Stat. § 253B.19,
subd. 2(c) (2020). The burden on the committed person is a “burden of production,” not

4 Minn. R. Civ. P. 41.02(b) provides that a defendant may move for a dismissal of an action,
at the close of the plaintiff’s case, “ on the ground that [,] upon the facts and the law, the
plaintiff has shown no right to relief.”
6
persuasion. Coker, 831 N.W.2d at 486. And the supreme court has held that, on a motion
to dismiss a discharge petition at the close of the peti tioner’s case, the appeal panel must
“view the evidence . . . in a light most favorable to the committed person.” Id. at 491.
By contrast, on a petition for transfer, the person seeking the transfer has the burden
of establishing “by a preponderance of the evidence that transfer is appropriate.” Minn.
Stat. § 253D.28, subd. 2(e) (2020). The committed person’s burden on a petition for
transfer is thus one of both production and persuasion. Foster, 857 N.W.2d at 548.
As a result of these two different types of burdens in proceedings before the appeal
panel, w e review the grant of a commissioner’s motion to dismiss a discharge petition
de novo, while we review the findings of fact relating to a transfer petition for clear error.
Id.; Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).
I.
We turn first to Dooley’s challenge to the dismissal of his petition for provisional
discharge. He maintains that he satisfied his burden of making out a prima facie case and
that the appeal panel erred in holding that his testimony by itself was insufficient to satisfy
the burden. He also argues that, even if his testimony alone was not sufficient, he submitted
corroborating evidence through his exhibits and that th is plainly satisfied his burden of
production. We are not persuaded.
A person who is committed as an SDP “shall not be provisionally discharged unless
[he] is capable of making an acceptable adjustment to open society.” Minn. Stat.
§ 253D.30, subd. 1(a) (2020). The two statutory criteria that guide this assessment are:
7
(1) whether the committed person’s course of treatment
and present mental status indicate there is no longer a need for
treatment and supervision in the committed person’s current
treatment setting; and
(2) whether the conditions of the provisional discharge
plan will provide a reasonable degree of protection to the
public and will enable the committed pers on to adjust
successfully to the community.
Id., subd. 1(b) (2020).
To withstand a motion to dismiss a petition under Minn. R. Civ. P. 41.02 (b) for
failure to present a prima facie case, the committed person must provide competent
evidence on both facto rs. Minn. Stat. § 253D.28, subd. 2(d) (2020); see also Coker, 831
N.W.2d at 485-86. But, as discussed above, the appeal panel “may not weigh the evidence
or make credibility determinations.” Coker, 831 N.W.2d at 490.
The appeal panel reviewed the evi dence in the light most favorable to Dooley and
found it lacking. The appeal panel summarized Dooley’s own positive assessment of his
need for treatment and supervision, but noted that Dooley “admitted that he has had six
[behavioral expectation reports] since the [review board] hearing and his tier level of
privileges were reduced from 5 to 4.” The appeal panel also noted that the risk assessments
and other reports and documents Dooley submitted as exhibits show that, instead of
“demonstrat[ing] consistent adherence to rules and supervision” as was the case at the time
of the review board hearing, his “adherence to rules and supervision has lapsed and he is
now receiving scores [in his treatment progress reports] of mostly ‘Needs Attention.’”
The appeal panel concluded that “[t]he only evidence supporting provisional
discharge and discharge was Petitioner’s own testimony . . . .” The appeal pane l’s
8
conclusion is supported by the record. This court has held that “conclusory assertions by
a committed person,” standing alone, are insufficient to avoid dismissal of a discharge
petition under rule 41.02(b). In re Civil Commitment of Poole, 921 N.W.2d 62, 69 (Minn.
App. 2018), rev. denied (Minn. Jan. 15, 2019). Dooley has thus failed to “satisfy the burden
of production as to th e statutory criteria.” 5 And we t herefore affirm the appeal panel’s
grant of the commissioner’s motion to dismiss Dooley’s petition for provisional discharge.
II.
We turn next to the dismissal of Dooley’s transfer petition. A person who is
committed as a n SDP may be transferred to preparation services only if “the transfer is
appropriate.” Minn. Stat. § 253D.29, subd. 1(a) (2020). In determining whether a transfer
is appropriate, the appeal panel must consider five factors:
(1) the person’s clinical progress and present treatment
needs;
(2) th e need for security to accomplish continuing
treatment;
(3) the need for continued institutionalization;
(4) which facility can best meet the person’s needs; and
(5) whether transfer can be accomplished with a
reasonable degree of safety for the public.

5 Dooley also argues that the appeal panel erred because there is no evidence that Dooley
continued to be dangerous. We reject this argument and note that an assessment of ongoing
dangerousness is subsumed in the two statutory criteria for determining whether discharge
is appropriate —the need for ongoing treatment and supervision and whether the
provisional discharge plan “will provide a reasonable degree of protection to the public.”
Minn. Stat. § 253D.30, subd. 1(b).
9
Id., subd. 1(b) (2020). Because the committed person bears the burden of persuasion on a
petition for transfer, the appeal panel need not view the evidence in a light most favorable
to the committed person when considering a motion to dismiss . Foster, 857 N.W.2d at
548. Instead, we “examine the record to determine whether the evidence as a whole
sustains the appeal panel[’s] findings.” Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App.
1985) (quotation omitted).
Here, the appeal panel discussed each of the five statutory factors and determined
that Dooley did not meet the statutory criteria for transfer. In reaching that conclusion, the
appeal panel focused on the fact that Dooley had regressed in his compliance since the
October 2019 review bo ard hearing. As noted above, his matrix scores for treatment
progress declined to “needing attention” in most areas instead of the mostly positive scores
he had as of the time of the review board hearing. In addition, since the review board
hearing, Dooley had received several major behavioral expectation reports, which led him
to lose his vocational placement, and his level of privileges was reduced from tier 4 to 5.
The appeal panel noted positive progress by Dooley, including the fact that Dooley
had passed a full disclosure polygraph, “an important treatment milestone.” But the appeal
panel ultimately agreed with the recommendations of both the forensic examiner and the
sexual risk assessor that transfer to preparation services was not appropriate as of the date
of the appeal hearing.
Dooley contends that the appeal panel clearly erred in finding that he had failed to
submit sufficient evidence to support his petition for a transfer to preparation services. He
points to the fact that the review board granted his transfer request. He also points to the
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quarterly treatment reports he submitted that describe Dooley’s “hard work in meeting his
treatment goals ” and that he consistently earn ed “satisfactory” marks on his treatment
evaluations. But the review board determination was based on evidence that was current
as of the October 2019 hearing date. The appeal board, in reaching the opposite conclusion,
relied on the significant decline in Dooley’s behavior that occurred in the 18 months since
the review board hearing. The appeal panel concluded that “his recent struggles with rule
breaking and disrupting relationships demonstrates that he is no t ready for transfer to
[preparation services].” Based on this evidence and the fact that both the risk assessor and
the forensic examiner opined that transfer to preparation services would not be appropriate,
the appeal panel found that Dooley “failed to demonstrate by a preponderance of the
evidence that transfer to a less restrictive facility is appropriate at this time.”
On this record, we discern no clear error in the appeal panel’s findings and affirm
the dismissal of his transfer petition.
III.
For the first time on appeal, Dooley contends that he was being subjected to
unconstitutional punishment and this supports his petition for a transfer to preparation
services. Constitutional challenges to a statute genera lly may not be raised for the first
time on appeal. State v. Frazier , 649 N.W.2d 828, 839 (Minn. 2002). Because Dooley
11
failed to first raise this constitutional argument to the appeal panel, the argument is forfeited
on appeal.6
Affirmed.

6 Even if we were to address Doole y’s argument, we are not persuaded by it for two
reasons. First, Dooley asks us to apply a test expressed in an Eighth Circuit case, Karsjens
v. Lourey, 988 F.3d 1047, 1053 (8th Cir. 2021). And we are not bound by Eighth Circuit
precedent. See Citizens for a Balanced City v. Plymouth Congregational Church , 672
N.W.2d 13, 20 (Minn. App. 2003) (recognizing that this court is only bound by decisions
of the United States Supreme Court and the Minnesota Supreme Court) . Second, Dooley
failed to bring forward evidence sufficient to satisfy the test that he is asking this court to
apply. His argument would thus fail even if we were to address it and apply the Karsjens
test.