2012-M-210           Ben Braylock, Appellant, vs. Lucinda Jesson, Commissioner of Human Services, Respondent, Hennepin County, Respondent.

The question presented in this case is whether a statutory amendment to Minn. Stat. § 253B.19, subd. 2(d), effective on August 1, 2010, applies to appellant Ben Braylock’s November 2008 petition for provisional or full discharge from civil commitment as a sexually dangerous offender.  Braylock argues that retroactive application of the amended statute to his petition is improper because the amendment introduced a new, higher burden for a petitioner seeking provisional or full discharge than the version of the statute that was operative when he filed his petition.  The court of appeals affirmed the Supreme Court Judicial Appeal Panel’s decision to deny Braylock’s petition.  We affirm the court of appeals.

Appellant Ben Braylock is an 80-year-old, civilly committed, Level-3 sex offender.  Braylock was convicted of burglary in 1968, second-degree murder in 1981, third-degree criminal sexual conduct in 1988, and first-degree criminal sexual conduct in 1991.  In 2005, the Minnesota Department of Corrections, through the Hennepin County Attorney, petitioned the Hennepin County District Court to involuntarily commit Braylock as a sexually psychopathic personality(“SPP”) and a sexually dangerous person (“SDP”), as defined by Minn. Stat. § 253B.02, subds. 18b-18c (2010).  See Minn. Stat.§ 253B.185 (2010) (permitting the indeterminate civil commitment of persons classified as SPPs or SDPs).  The district court granted the petition and ordered Braylock indeterminately committed as a SDP.  In November 2008, Braylock petitioned the Special Review Board (“Review Board”) for a provisional or full discharge from his civil commitment.  Minn. Stat. § 253B.18, subd. 4(c) (2010) (authorizing the Review Board to hear and consider petitions for full or provisional discharge from involuntary civil commitment).  Respondents Hennepin County and the Commissioner of Human Services opposed Braylock’s petition.

We are convinced that the pre-amendment and post-amendment versions of subdivision 2(d) require the petitioner to meet only a burden of production.  In both versions of the statute, the ultimate burden of persuasion remains at all times with the party opposing the petition to prove, by clear and convincing evidence, that a full or provisional discharge should be denied.  Compare Minn. Stat. § 253B.19, subd. 2(d) (2008) (amended 2010) (“The party opposing discharge bears the burden of proof by clear and convincing evidence.”), with Minn. Stat. § 253B.19, subd. 2(d) (2010) (“If the petitioning party has met this burden [the burden of going forward with the evidence], the party opposing discharge or provisional discharge bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied.”).  Because the 2010 amendment to subdivision 2(d) did not substantively change the law by altering the burden of production or burden of persuasion applied to petitions for discharge under Chapter 253B, we conclude that the amendment merely clarified preexisting law.

Stras (Gildea, Page, Paul Anderson, Meyer, Barry Anderson, and Dietzen)

[MURDER] [CRIME] [SEX] [COMMITMENT]