Stock photo: Ekaterina Bolovtsova, Pexels.com
Court of Appeals remands Ashman case back to Commitment Review Panel
An appointed judicial panel can—and must—review a civilly committed sex offender’s revoked transfer to a less-secure facility, Minnesota’s Court of Appeals ruled Monday. (Ruling here.)
The finding overrides the position of the Department of Human Services commissioner, whose legal team argued that an appointed trio of judges, the Commitment Appeals Panel (CAP), lacks authority to review Minnesota Sex Offender Program transfer revocations.
Monday’s ruling entitles Charles Randal Ashman, 63, to a new hearing before CAP judges.
Though it is far from certain they would do so, the CAP panel could overturn a Special Review Board’s recommendation, which upheld Ashman’s revoked transfer out of St. Peter’s MSOP facility. That could place him back into St. Peter’s much less restrictive Community Preparation Services (CPS) program.
Offenders at CPS are not released to the community. But they are—as assistant Attorney General Aaron E. Winter put it during March 17 Court of Appeals oral arguments—“outside the razor wire.”
Case background
Ashman was first convicted of sexually assaulting a 14-year-old in 1981. According to court records, on the day after he received a stayed sentence for that offense, he attempted to sexually assault a different woman, after entering her house under false pretenses.
In 1985, he pleaded guilty to the third-degree sexual assault of yet another woman, according to a 2001 Court of Appeals ruling affirming Ashman’s indefinite civil commitment.
In 1991, while on supervised release for the 1985 assault—and while enrolled in outpatient sex-offender treatment—Ashman molested a 13-year-old girl. That crime landed him a 120-month prison sentence as a “pattern offender.” In 2000, he was indeterminately committed to MSOP, a facility run by DHS.
Monday’s Court of Appeals ruling, written by Judge Randall J. Slieter, says that Ashman was granted a 2016 transfer out of the secure St. Peter facility. He then entered the less restrictive CSP program, which aims to help offenders transition back to open society.
He apparently didn’t fare terribly well there. In 2019, Slieter writes, Ashman voluntarily returned to MSOP after continuing to “act aggressively.” He was also having problems with a GPS monitor—Ashman’s attorney said he accidentally broke it—and demonstrating “poor motivation for treatment,” Slieter writes.
MSOP’s executive director revoked Ashman’s 2016 transfer a month later, according to Slieter’s ruling, which was joined by Court of Appeals judges Carol Hooten and Matthew E. Johnson.
Ashman appealed to DHS’ Special Review Board (SRB), a group comprising one attorney and two mental health professionals. Simultaneously, Ashman petitioned the board for a new transfer back into CPS. The board recommended upholding the director’s 2016 revocation and denying the new transfer.
Ashman then sought reconsideration by CAP judges. They upheld the rejection of the new transfer; Ashman did not contest that finding. But the CAP panel declined even to review the revocation of his previous transfer, saying it lacked statutory authority to do so.
Ashman appealed the latter issue to the Court of Appeals.
Simple question
The major question before the court was whether CAP judges have authority to review revocation recommendations by the Special Review Board.
Yes they do, Slieter’s unanimous court found. And because of that, the court ruled, Ashman must be given another CAP hearing, this time to review of his transfer revocation.
The Court of Appeals reached its conclusion after analyzing the Minnesota Commitment and Treatment Act (Minn. Stat. Chapter 253D). It found that the statute does authorize CAP judges to review transfer revocations.
At oral arguments on March 17, both Ashman’s attorney Jill Avery and Assistant Hennepin County Attorney Annsara Lovejoy Elasky took that same position. They said the law’s plain language requires the Special Review Board to make revocation recommendations for CAP judges’ review.
But Winter, arguing for the DHS commissioner, said the law provides authority for no such review. Winter’s argument, Slieter’s ruling notes, relied almost entirely on a non-precedential 2019 Court of Appeals ruling, In re Dority.
In Dority, the court analyzed nearly identical statutory language from Minn. Stat. Chapter 253D.30, a law dealing with revocation of provisional discharges back to the community. That court concluded that a CAP panel lacked authority to review a recommendation to deny a provisional discharge.
Carrying forward Dority’s logic, Winter argued that absent any specific directive in Minn. Stat. § 253D.29, CAP panels similarly lack authority to review Special Review Board transfer-revocation recommendations.
“Dority was and is the most applicable authority for the question that was presented,” Winter told the court. “And we feel like the CAP was bound to apply that [precedent], unpublished though it may be,”
But as Slieter’s ruling points out, the statute actually suggests something different. It says:
“The [SRB] shall review the circumstances leading to the revocation and, after considering the factors in subdivision 1, paragraph (b), shall recommend to the [CAP] whether or not the revocation shall be upheld.” (Slieter adds the brackets and emphases in his ruling.)
During oral arguments, Judge Carol Hooten challenged Winter’s position, citing the statute.
“Why would that be there?” she asked Winter. “Why would the CAP panel need that information if they are not considering whether the revocation was appropriate?”
The answer to that question, Winter replied, is determined by whether one agrees with the commissioner’s interpretation of Dority.
The Court of Appeals doesn’t.
“We are not persuaded by the commissioner’s reliance on this court’s unpublished Dority decision in support of her interpretation of section 253D.29,” the ruling says.
Instead, the court leans on its own interpretation of the three relevant, intertwining statutes (Minn. Stat. §§ 253D.27, 253D.28 and 253D.29). They deal with petitioning for a custody reduction, the judicial appeal panel and factors to consider when weighing whether to grant or revoke a transfer.
Perhaps the most significant finding from the court’s analysis is its conclusion that Minn. Stat. §253D.29 “unambiguously directs” CAP judges to review the board’s revocation-of-transfer recommendations—a step omitted in Ashman’s case.
Writes Slieter:
“Interpreting this provision as urged by the commissioner—to deny the CAP authority to review the recommendation which the SRB is obligated to make to the CAP—would render this provision superfluous. We reject this interpretation.”
Court of Appeals Judge Randall J. Slieter
Summary
Ashman timely appealed to the Special Review Board, seeking both a review of his earlier transfer’s revocation and asking for a new transfer, Slieter writes.
The board in turn recommended to the three-judge CAP panel that it uphold the revocation of Ashman’s 2016 transfer and deny him a new transfer petition. Ashman timely petitioned the CAP, seeking review of the SRB’s revocation-of-transfer recommendation.
In short, according to the court, the procedures were followed—but for one.
Writes Slieter:
“The CAP had authority and was required to review the SRB’s transfer revocation recommendation. It did not do so. We therefore remand to the CAP for a hearing on the SRB’s revocation recommendation.”
The court further decided that, because the law governing transfer revocations echoes the statute governing revoked provisional discharges, Monday’s precedential ruling equally authorizes CAP panels to review those cases.
