Cathryn Middlebrook, Legal Assistance to Minnesota Prisoners, Vincent I. Breza, Certified Student Attorney, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, Kari Jo Ferguson, Assistant Attorney General, Suite 1100, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Halbrooks, Judge.

PETERSON, Judge

In this appeal from an order denying a petition for a writ of habeas corpus, appellant argues that because his posttraumatic stress disorder (PTSD) was not considered by the Department of Corrections (DOC) when it created his "corrections plan," he could not be disciplined for failing in sex offender treatment. We affirm

Appellant Mark Englund was sentenced to 81 months in prison for first-degree criminal sexual conduct. Englund is a Gulf War veteran who was diagnosed in 1995 as suffering from PTSD. In an affidavit accompanying his petition, Englund stated that he identified himself on his inmate intake form at Stillwater prison as a combat veteran diagnosed with PTSD. Englund also stated that he informed a staff member at Stillwater about his PTSD diagnosis and that he repeated the information on another inmate intake form when he was transferred from Stillwater to Lino Lakes.

A program review team evaluated Englund's treatment needs when he entered Stillwater prison and determined that Englund should be required to complete sex offender and chemical dependency treatment while in prison. The DOC determined that Englund was an appropriate candidate for transfer to Lino Lakes for enrollment in the treatment programs there. At Lino Lakes, Englund completed a form on which he stated that he was a veteran and described his military experience as alternately grueling and boring. Beverly Welo, Englund's primary therapist in the Lino Lakes sex offender program, stated in her affidavit that Englund never raised the issue of his PTSD while he was in the sex offender treatment program.

Englund was twice cited for violating sex offender treatment program rules. He waived a disciplinary hearing, and as punishment for the violations, he received disciplinary confinement time added (DCTA), which means that his period of confinement was increased. Englund then requested voluntary termination from the program, which resulted in another violation and a sanction of 360 days of DCTA.

Englund filed a petition for a writ of habeas corpus challenging the disciplinary sanctions imposed against him. He argued that he could not be disciplined for failing in sex offender treatment because DOC staff violated Minn. Stat. § 243.251 by not taking his PTSD into account when developing his treatment plan. The district court denied the petition. The court found that the PTSD issue raised under section 243.251 is separate from the disciplinary sanction and concluded that Englund's obligation to participate in treatment was not affected by the DOC's alleged failure to consider his PTSD.

The findings of a district court considering a petition for a writ of habeas corpus are entitled to great weight. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). If the petition raises an issue of statutory construction, however, this court's review is de novo. Id.

The PTSD statute states:

When an inmate who is a veteran * * * is confined in an adult correctional institution under the control of the commissioner of corrections, the chief executive officer shall require the director of inmate classification to determine if the inmate's military duty * * * was unusually stressful. If the director determines that the inmate's military duty * * * was unusually stressful, the director shall consider that fact in developing a corrections plan for the inmate.

Minn. Stat. § 243.251(b) (1998) (emphasis added).

Minn. Stat. § 241.67, subd. 1 (1998), establishes sex offender treatment programs in the adult correctional system. Minn. Stat. § 241.67, subd. 3(a) (1998), provides that "[p]articipation in any program is subject to the rules and regulations of the department of corrections." The DOC may impose a disciplinary confinement sanction if an inmate refuses to participate in treatment. Minn. Stat. § 244.05, subd. 1b (b) (1998).

Englund's reliance on the PTSD statute as a defense to his failure to progress in sex offender treatment presupposes that the PTSD statute is mandatory and imposes an enforceable duty on the DOC, rather than merely directory. As the state argues, however, there is no language in Minn. Stat. § 243.251 (1998) stating the consequences for failing to comply with the statute. Minn. Stat. § 243.251(b) requires only that the DOC "consider" the inmate's PTSD in developing a "corrections plan."

Where a statute or rule does not explicitly declare the consequences of a failure to comply, we construe the language as directory only. Violation of a directory statute does not result in the invalidity of the action taken.

Carl Bolander & Sons Co. v. City of Minneapolis, 488 N.W.2d 804, 809-10 (Minn. App. 1992) (quotations omitted), aff'd, 502 N.W.2d 203 (Minn. 1993).

Because the PTSD statute does not state the consequences for failing to consider an inmate's PTSD when developing a corrections plan, the statute is directory. The DOC's alleged violation of the directory statute does not invalidate Englund's corrections plan or the disciplinary sanctions imposed against Englund for failing to complete treatment.

Englund also argues that the PTSD statute is inextricably linked with Minn. Stat. § 241.67 (1998) because both statutes were passed at the same legislative session and because the term "corrections plan" used in the PTSD statute encompasses the narrower term "treatment program" as used in section 241.67. Neither of these arguments is persuasive.

There is no rule of construction that makes statutes in pari materia simply because the statutes were enacted during the same legislative session. There is logical merit to Englund's argument that the term "corrections plan" is broader than, and therefore encompasses, the term "treatment program." But the term "corrections plan" is found only in the PTSD statute. No other statute uses the term, and none of the DOC rules uses it. Therefore, use of the term "corrections plan" in Minn. Stat. § 243.251(b) merely demonstrates the vagueness of the statute, and its directory rather than mandatory nature.

The legislative history of the PTSD statute also supports our conclusion that the statute is directory. See Minn. Stat. § 645.16 (1998) ("object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature"). The author of the measure referred to it as an "alerting mechanism" to help ameliorate the problems of prisoners with PTSD. Hearing on S.F. No. 590 Before the Senate Comm. on Veterans & Military Affairs (Feb. 28, 1989) (statement of Sen. Diessner). The bill originally focused on identifying PTSD defendants, beginning with the presentence investigation. S.F. 590, first & second engrossments (1989); Hearing on S.F. No. 590 Before the Senate Judiciary Comm., Criminal Law Div. (Apr. 7, 1989) (statement of Sen. Diessner). The DOC, which did not oppose the bill, requested funding for its obligation under the bill to identify PTSD prisoners. Hearing on S.F. No. 590 Before the Senate Judiciary Comm., Criminal Law Div. (Apr. 7, 1989) (statement of DOC Deputy Comm'r McManus). The DOC did not construe the bill as requiring any treatment of PTSD prisoners beyond the treatment already provided in cooperation with the Veteran's Administration. Id. Although the bill at one point required the DOC to provide PTSD prisoners with "appropriate medical and mental health care," that language was deleted. S.F. 590, second & third engrossments.

There is a longstanding practice of judicial reluctance to involve the courts in matters of prison administration. See, e.g., John Does 1-100 v. Boyd, 613 F. Supp. 1514, 1531 (D. Minn. 1985) (prison officials are entitled to a significant degree of deference in the administration of prisons).[1] The PTSD statute itself reflects this deference by directing only that prison officials "consider" PTSD in developing a corrections plan. Thus, there is no basis to conclude that the legislature intended the PTSD statute to provide a defense in a disciplinary proceeding against an inmate who has failed in a sex offender treatment program.

Englund's due process argument rests on the assumption that Minn. Stat. § 243.251 gave him a fundamental right to PTSD treatment, or at least accommodation of his PTSD in the sex offender treatment program. Because this statutory argument is without merit, the due process argument also fails. A statutory requirement that the DOC "consider" PTSD is too vague to create a fundamental right.

Englund also argues that he was entitled to an evidentiary hearing to establish a connection between his PTSD and his failure in sex offender treatment. But because the PTSD statute is not mandatory and a violation of the statute does not provide a legal defense to disciplining Englund for failing treatment, the factual issues are irrelevant. Even if Englund could show a causal connection between his PTSD and his failure in treatment, there would be no grounds to vacate the disciplinary sanction. The district court properly denied Englund an evidentiary hearing.

Affirmed.

[1] There is an exception where constitutional rights are at stake. See Turner v. Safley, 482 U.S. 78, 89-91, 107 S. Ct. 2254, 2261-62 (1987) (setting forth analysis to apply when prison regulation impinges on inmates' constitutional rights). Also, the Americans with Disabilities Act does apply to state prisons, Pennsylvania Dep't of Corrections v. Yeskey, 118 S. Ct. 1952, 1956 (1998). But Englund does not claim a constitutional or federal statutory right to PTSD treatment.