This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Robert A. Kunshier,





Cal Ludeman,

Commissioner of Human Services,




Filed March 6, 2007


Hudson, Judge


Judicial Appeal Panel

File No. AP0509020


David A. Jaehne, 60 East Marie Avenue, #109, West St. Paul, Minnesota 55118 (for appellant)


Lori Swanson, Attorney General, Barry R. Greller, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127 (for respondent Acting Commissioner of Human Services)


Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, 300 South Sixth Street, Suite A-2000, Minneapolis, Minnesota 55487 (for respondent Hennepin County)


            Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the Judicial Appeal Panel’s denial of his petition for provisional or conditional discharge from civil commitment as a sexually dangerous person.  Appellant argues that he produced sufficient evidence to show that he met the statutory requirements for provisional or full discharge pursuant to Minn. Stat. § 253B.18, subds. 7, 15 (2004).  Because the panel’s findings are reasonably supported by the evidence, and because appellant has not provided sufficient evidence to establish a prima facie case for provisional or full discharge, we affirm.


Appellant Robert A. Kunshier has an extensive history of sexual offenses dating back to when he was 15 years old.  He has described his typical sexual-abuse cycle as follows:

I would get out of prison and place myself in an area where I didn’t know anyone or have contact with anyone unless I went to see them.  I would feel lonely and bored.  I was having deviant fantasies, using drugs and alcohol.  I wasn’t working and stealing or shoplifting to pay for my drugs and alcohol.  I would feel hopeless and worthless, some of the thinking was “why bother, prison ain’t so bad, etc.” 


On May 6, 1993, after completing a prison sentence for first-degree criminal sexual conduct, appellant was civilly committed as a sexually dangerous person.  On April 4, 1994, the district court made appellant’s commitment indeterminate.  This court affirmed on May 18, 1995.  Appellant is currently in the Minnesota Sex Offender Program (MSOP) at Moose Lake. 

In 2003, after competing all four phases of the MSOP, appellant was transferred to the state hospital at St. Peter to participate in a transitional program.  But on October 14, 2004, appellant was removed from the transitional program for violating institutional rules by altering his time card in order to get paid for hours he did not work.  After returning to Moose Lake, appellant again violated institutional policy by possessing recordable computer discs, which he knew were considered contraband.

On March 30, 2005, appellant filed a petition seeking full or provisional discharge from commitment.  He attached to his petition his provisional-discharge plan, which indicated that appellant had not established employment or a place to live.  The MSOP opposed appellant’s petition.

After a hearing, the Special Review Board (SRB) recommended that his petition be denied.  The Commissioner of Human Services adopted the SRB’s recommendation and denied appellant’s petition.  Thereafter, appellant petitioned the Judicial Appeal Panel for a rehearing and reconsideration of the commissioner’s decision. 

            In preparation for the hearing, the Judicial Appeal Panel ordered Dr. Roger Sweet to examine appellant.  Dr. Sweet diagnosed appellant with paraphilia[1] and antisocial personality disorder and concluded that it was “not possible for [him] to recommend a full or provisional discharge for [appellant].”

At the Judicial Appeal Panel hearing, appellant, Dr. Amanda Powers, and Dr. Sweet testified.  Both doctors were appellant’s witnesses.  Appellant testified that if discharged he would live with his family, but this claim was unsubstantiated as his parents had not confirmed this arrangement.  Appellant admitted that it would be in his and the public’s best interests if he got some transitional assistance, but he admitted that he did not know of any community-based programs that would accept sexual-psychopathic persons or sexually dangerous persons.  Appellant testified that he was unhappy in the St. Peter transitional program after some of his privileges had been withdrawn and that he would have rejected the opportunity to return there, had it been offered.

Dr. Powers, who worked at Moose Lake, was not personally familiar with appellant but had read part of his file.  She testified that she believed that the MSOP did not support appellant’s petition.  She recommended that appellant complete one additional program, following which he would be reevaluated for progression to the transitional program again.  She also testified that she did not believe that the MSOP would support a provisional or full discharge until appellant completed the transitional program.

Dr. Sweet testified that appellant had “not met the conditions for the discharge” and that before he would support appellant’s petition he would “want to see [appellant] go through a transitional program.”  But he stated that he did not know of any outpatient or inpatient community-based programs that would accept a person with appellant’s diagnosis.  Dr. Sweet also testified that generally the type of rule violations and dishonest acts that appellant recently committed would negatively affect a decision regarding whether a patient was ready for some type of discharge.

At the end of appellant’s presentation of evidence, respondent moved for dismissal under Minn. R. Civ. P. 41.02(b).  The Judicial Appeal Panel dismissed appellant’s petition and affirmed the commissioner’s order, concluding that appellant had failed to establish a prima facie case for full or provisional discharge.  This appeal follows. 


An appellate court will reverse a Judicial Appeal Panel decision only if the decision is clearly erroneous.  Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985).  In reviewing a Judicial Appeal Panel decision, the appellate court “is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the appeal panel’s findings.”  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992) (quotation omitted).  The existence of a prima facie case is a question of law, which we review de novo.  Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000).

When aggrieved by the commissioner’s decision, a committed patient may petition to the Judicial Appeal Panel “for a rehearing and reconsideration.”  Minn. Stat. § 253B.19, subd. 2 (2004).  The petitioner “bears the burden of going forward with the evidence.”  Id.  The petitioner must produce sufficient evidence that would allow the panel to make a factual determination or would constitute conclusive evidence; merely filing a petition does not suffice.  Caprice v. Gomez, 552 N.W.2d 753, 757–58 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

A committed person may be discharged only if

it appears to the satisfaction of the commissioner, after a hearing and a favorable recommendation by a majority of the special review board, that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.


In determining whether a discharge shall be recommended, the special review board and commissioner shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community.  If the desired conditions do not exist, the discharge shall not be granted. 


Minn. Stat. § 253B.18, subd. 15 (2004).  A provisional discharge may be granted only if


it appears to the satisfaction of the commissioner, after a hearing and a favorable recommendation by a majority of the special review board, that the patient is capable of making an acceptable adjustment to open society. 


The following factors are to be considered in determining whether a provisional discharge shall be recommended: (a) whether the patient’s course of hospitalization and present mental status indicate there is no longer a need for treatment and supervision in the patient’s current treatment setting; and (b) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community. 


Minn. Stat. § 253B.18, subd. 7 (2004). 


After appellant completed the presentation of his case, respondent moved for dismissal on the ground that “upon the facts and the law, [appellant] has shown no right to relief.”  Minn. R. Civ. P. 41.02.  The panel granted the motion, concluding that appellant had failed to establish a prima facie case for a full or provisional discharge.  Specifically, the panel concluded that appellant (1) is not capable of making an acceptable adjustment to open society; (2) continues to be dangerous to the public; (3) continues to need inpatient treatment and supervision; and (4) his provisional-discharge plan is insufficient to provide a reasonable degree of protection to the public or assist him in adjusting to open society.  Because the record supports the panel’s decision, we affirm. 

It is uncontested that appellant has an extensive history of committing serious sexual offenses and is currently diagnosed with paraphilia and antisocial personality disorder.  The evidence shows that a lack of residential and occupational stability played a significant role in appellant’s history of criminal sexual conduct.  But appellant has not offered any credible evidence that he has established a residence or a comprehensive strategy for finding employment—key components of his ability to break his typical sexual-abuse cycle.  Consequently, the panel found that neither his provisional—nor his full—discharge plan was sufficient to address his needs or ensure the public’s safety.  On this record, we conclude that the evidence as a whole sustains the panel’s findings.

Furthermore, the evidence shows that appellant has recently committed rule violations and acted dishonestly, both of which negatively affect the amount of trust that can be extended to him.  This supports the panel’s finding that appellant has not shown that he can handle increased privileges nor follow the rules absent close supervision.  In addition, neither of appellant’s doctors or his treatment team supports appellant’s petition for full discharge or provisional discharge.  Each doctor testified that appellant needs to complete a viable transitional program and appellant acknowledges that transitional assistance would be in his and the public’s best interest.  Thus, at this time, on this record, the parties’ testimony clearly indicates that it would be prudent for appellant to work toward re-entering the MSOP transitional program and successfully complete it.

Because appellant has failed to provide sufficient evidence that he no longer poses a threat to the public and is not in need of treatment at a secure facility, appellant has not established a prima facie case for full or provisional discharge, and the panel’s decision to dismiss appellant’s petition and affirm the commissioner is not clearly erroneous.



[1] Paraphilia is defined as socially prohibited sexual practices; among its features are behaviors involving the suffering or humiliation of one’s partner.  See B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 820 n.3 (Minn. 2003).