Frank’s MSOP ruling extends Larson’s legacy

“Those who cannot remember the past are condemned to repeat it” —George Santayana, “The Life of Reason” (1906)

The sweeping decision in mid-June by U.S. District Court Judge Donovan Frank deeming the Minnesota Sex Offender Program (MSOP) unconstitutional and giving state officials a “last time” opportunity to repair it was hardly unexpected or, for that matter, unusual.

The holding was preceded by a number of transparent hints by the St. Paul-based federal jurist on multiple occasions during the prolonged litigation, which began in late 2011 as a class action on behalf of 14 individuals confined in state-run institutions for criminal offenders subsequently deemed in civil proceedings to be sexually dangerous. Although somewhat breathtaking in its potential scope, the decision does not necessarily break new ground, but extends case law with similar outcomes in challenges to state operated confinement in other circumstances and facilities.

Much of that lore is traceable to litigation that ran its course in the 1970s, presided over by one of Judge Frank’s predecessors, Judge Earl R. Larson. He oversaw nearly a decade-long litigation challenging the conditions of confinement and treatment at six state-run institutions for mentally and developmentally disabled individuals, a legacy that was a forerunner of the MSOP case.

Program problems

Judge Frank’s 76-page decision has been well-chronicled. See M. Mosedale, “Judgment Day for MSOP,” in the June 22, 2015 edition of Minnesota LawyerBasically, after 3½ years of litigation and a six-week bench trial this winter, Judge Frank found the Sexual Offender Program, which had been overhauled by the Legislature in 1991, laden with problems of a constitutional dimension. Karsjens v. JessonCiv. No. 11-3659 (DWF/JJK) (June 17, 2015). Adjudicating the status of about 700 men who are civilly confined as sex offenders in secure facilities in Moose Lake and St. Peter pursuant to the Civil Commitment and Treatment Act, Minn. Stat. 1253B.01, et seq. Judge Frank did not pull any punches.

Rather the judge was brutally frank in his assessment of the problems of the program. He noted “the stark reality [of] … something very wrong with this state’s method of dealing with sex offenders.” The gravamen centered on confining offenders indefinitely without allowing them access to courts or other protection of the criminal justice system, as reflected in the “reality” that the 20 years that the program has been in place, only three individuals have been conditionally released and none left the program unconditionally. If MSOP had a theme song, it might be “No One Gets Out of Here Alive,” the 1968 ballad by Jim Morrison of the Doors.

While not addressing monetary relief, because none was sought, Judge Frank urged state officials to fix the problems, which presumably means enactment of new legislation and the devotion of significant resources,i.e. money, from the Legislature, to repair a system that, in prior rulings, he termed “draconian.” In light of that observation, and others of similar ilk during the long litigation, Judge Frank’s post-trial disposition was about as foreseeable as fireworks on the Fourth of July. The judge expressed his exasperation by the failure of the authorities to act in the past to cure these deficiencies, warning that he was giving them an opportunity “one last time” before he imposes remedial action. In the meantime, he offered more than a dozen suggestions on how to improve the program, which he condemned as undermining the “moral credibility of the criminal justice system.”

Earlier in the case, a year before the trial, Judge Frank implored the politicians of “this great state [to] ask themselves if they will act to revise a system that is clearly broken” or stand idly by and do nothing, awaiting court intervention, which is likely to be the next layer of litigation.

The decision, even its caustic language, could not come as a surprise to anyone, including Gov. Mark Dayton, who responded by declaring the program to be sound policy and the system constitutional. In conjunction with the Attorney General’s Office, which defended the program, he vowed to appeal promptly. But the governor did say he would defer a planned trade mission to Mexico to respond to Judge Frank’s call for a conference next month to explore remedies.

‘Cambridge Case’

Judge Frank’s ruling in the Karsjens case owes a debt to Judge Larson’s handling of litigation four decades ago in Welsch v. Likins373 F. Supp. 487 (D. Minn. 1974), located on other grounds and remanded. 550 F.2d 1122 (8th Cir. 1977). That case set the framework not only for Judge Franks’ case, but a number of other rulings around the country dealing with the constitutionality of confinement in state institutions, penal, as well as in quasi-civil settings. Like Karsjens, it was a class action involving state-imposed civil confinement upon a severely and profoundly disabled individuals at the half-dozen state hospitals generally committed by family members or other relatives through court action pursuant to the commitment statutes, whom Judge Larson found had a constitutional right to  “adequate treatment … to be cured or to improve [their] mental conditions.” That conclusion, following a 12-day bench trial, was reached under the due process clause of the 14th Amendment to the U.S. Constitution, eschewing determining whether the circumstances of confinement also transgressed the Eighth Amendment prohibition of cruel and unusual punishment, which also had been pleaded in the case by the Legal Aid Society lawyers who represented the claimants.

Judge Larson toured one of the six institutions involved in the litigation, the state hospital in Cambridge, which gave the lawsuit its informal application: the “Cambridge Case.” Recognizing the right of those residing in the hospital to a “humane and safe living environment,” Judge Larson directed state officials to undertake “good faith” attempts to provide them “suitable and appropriate” living conditions.

His determination was also stoutly opposed by the state, which appealed some subsequent remedial rulings to the 8th Circuit Court of Appeals, where they generally affirmed. In overseeing post-trial remedies, Judge Larson found that the legislative response was inadequate despite the “good faith efforts” by the named state officials. Dissatisfied with the state’s response, Judge Larson drew upon a large body of case law giving district court judges the authority to “impose standards” with respect to such institutions, including requiring the expenditure of “vast amounts of money” to fix the problems. The case was finally settled with a consent decree in 1980, eight years after it began, with new patient staffing requirements, changes in some modes of treatment, and amelioration of harsh conditions, among other matters.

The litigation preceded a new public consciousness in how to treat individuals with developmental disabilities, coupled with a decline in some institutional support due to government policies seeking to limit government involvement and expenditures and a movement towards de-institutionalization of these individuals under the rubric of “least restrictive alternatives,” a tenet Judge Larson embraced. While some 16,000 Minnesotans were confined in institutions of this type in the 1960s, 50 years later, the number had shrunk to about 2,000, as the state tried to develop plans to reduce the number of confined individuals with developmental disabilities and to treat them better under a so-called Olmstead Plan, derived from the Supreme Court decision in Olmstead v. Lee, 527 U.S. 581 (1996), requiring more humane treatment of institutionalized individuals.

There are, of course, a number of parallels between the cases now being presided over by Judge Frank and Judge Larson’s litigation and six weeks for Judge Frank’s case. As in the Welschcase, Judge Frank’s decision was met with stiff resistance by the state, which would lead to a lengthy and costly appellate process.

Larson legacy

The “Cambridge” lawsuit, cited some 17 times by legal authorities, was the predicate for a number of cases throughout the country involving the constitutional rights of individuals confined to state institutions, like theKarsjens matter.

It was not Judge Larson’s only legal legacy. The esteemed jurist, who died in 2001 at age 89, was pivotal in a number of other high-profile, transformative cases about restructuring troubled institutions. He presided for some 12 years over a school desegregation case involving Minneapolis Public Schools, ordering efforts to be undertaken to reduce racial disparity and bolster integration in Booker v. Special School District No. 1, 451 F. Supp. 659 (1972), aff’d 585 F.2d 487 (8th Cir. 1978), cert. den’d. 433 U.S. 915 (1979).

That case, like the “Cambridge” case, would ultimately settle. While desegregation is still imperfect in the school district, Judge Larson’s handling of the case went a long way toward ameliorating some of the most problematic social disparities.

In a similar vein, his decision in Carter v. Gallagher, 337 F. Supp. 626 (D. Minn. 1971) brought integration to the Minneapolis Fire Department, which previously had been lily-white. His ruling ordering the hiring of African-American firefighters was affirmed by the Eighth Circuit Court of Appeals, 452 F.2d 315 (8th Cir. 1972).

But Judge Larson’s rulings were not confined solely to constitutional civil rights matters. He had more than his share of other major decisions that affected the law not only in Minnesota, but around the country as well. One of the most significant was his decision deeming the National Football League (NFL) to have violated the Sherman Anti-Trust Act by prohibiting players from leaving teams after their contracts expired, pursuant to the so-called “Rozelle Rule,” named after the League’s vaunted commissioner. In Mackey v. NFL, 407 F. Supp. 1000 (1975), he deemed the restriction illegal, which the 8th Circuit affirmed. 543 F.2d 606 (1976). That decision was at the heart of the removal of restrictions on mobility of professional athletes in other professional sports, leading to the rise of free agency for professional athletes and bringing about a sea change with accompanying salary escalation across the professional athletic landscape.

But Judge Larson took a different view in a pro football anti-trust case in Laing v.Minnesota Vikings, 379 F. Supp. 5901 (D. Minn. 1973), aff’d. 492 F.2d 1981 (8th Cir. 1924, 1973), aff’d. He rejected a claim that the requirement by the Vikings emulated by many other pro clubs, to purchase inferior pre-season ducats as part of a season ticket package constituted an illegal tie-in violative of the Sherman Act because the arrangement lacked the “critical element of consumer compulsion” to constitute an anti-trust offense.

These rulings also established Minnesota as “ground zero” for professional football litigation, as reflected in a number of high profile lawsuits that have been brought in this jurisdiction, including lawsuits pertaining to the NFL player lockout work stoppage in 2011, among other matters. E.g. Brady v. National Football League,644 F.3d 661 (8th Cir. 1978).

The lore emanating from Judge Larson’s courtroom, on the sixth floor of the old U.S. Courthouse, now owned and used by Hennepin County for its Family Justice Center, has ongoing impact in this jurisdiction. Its legacy continues to hover, as reflected in the recent ruling by Judge Frank across the river at the Warren Burger Courthouse in downtown St. Paul, too.

*Originally published in Minnesota Lawyer.

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