In re Civil Commitment of Urbanek

In the Matter of the Civil Commitment of: Edward Everett Urbanek.

A19-0340

STATE OF MINNESOTA IN COURT OF APPEALS

November 12, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Larkin, Judge

Concurring specially, Rodenberg, Judge

Otter Tail County District Court

File No. 56-P7-04-001142

Jill Avery, Templeman Law PLLC, Plymouth, Minnesota (for appellant Urbanek)

Keith Ellison, Attorney General, Angela Helseth Kiese, Assistant Attorney General, St. Paul, Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent Otter Tail County)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and Larkin, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges the district court's denial of his motion for relief from his indeterminate commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). He argues that the underlying judgment for commitment is void and that he received ineffective assistance of counsel in the underlying civil-commitment proceeding. We affirm.

FACTS

In June 2004, respondent Otter Tail County (the county) petitioned to civilly commit appellant Edward Everett Urbanek as an SDP and an SPP. The district court appointed counsel to represent Urbanek in the commitment proceeding and held a three-day trial on the county's petition in September 2004.¹ In November 2004, the district court committed Urbanek as an SDP and an SPP under Minn. Stat. § 253B.02, subds. 18b, 18c (2004).² In April 2005, the district court held a 60-day review hearing under Minn. Stat. § 253B.18, subd. 2 (2004). In June 2005, the district court indeterminately committed Urbanek as an SDP and an SPP. Urbanek appealed, represented by the same court-appointed attorney who represented him at the commitment trial. In re Civil Commitment of Urbanek, No. A05-1633, 2006 WL 44358, at *1 (Minn. App. Jan. 10, 2006), review denied (Minn. Mar. 28, 2006). This court affirmed, and the supreme court denied review. Id. at *1, *4.

In April 2018, 12 years after his appeal, Urbanek moved the district court, pro se, for a new trial under rules 59.03³ and 60.02 of the Minnesota Rules of Civil Procedure, claiming that he received ineffective assistance of counsel in the commitment proceeding. Urbanek noted that in 2018, his court-appointed attorney in the commitment proceeding was charged with several felonies, "including but not limited to the sale of methamphetamine, marijuana and other drugs." He argued that those circumstances were "relevant, admissible, and likely to have [had] an effect on the result of [his] civil commitment proceedings." Specifically, Urbanek asserted that his "attorney was under the influence of a mood altering substance, and therefore could not . . . do his duty as an attorney." (Emphasis omitted.)

In June 2018, the district court appointed counsel to represent Urbanek in the proceeding on his new-trial motion, reasoning that "the balance of interests in this matter favors appointment of an attorney on [his] behalf." In doing so, the district court noted that Urbanek's claim was "for ineffective assistance of counsel, which is a claim legitimately brought before the [district] court" and that "the claim cites new evidence in the form of a criminal complaint brought against the trial attorney."

In July 2018, Urbanek filed an "Amended Notice of Motion and Motion for New Trial Pursuant to Rule 60.02(f)." Urbanek again asserted that his commitment attorney ineffectively represented him in his civil-commitment proceeding and that counsel's errors were "highly likely . . . a result of his drug and alcohol addiction."

In September 2018, Urbanek filed a "Second Amended Notice of Motion and Motion for New Trial Pursuant to Rule 60.02(d) and (f)." Urbanek argued that his "indeterminate civil commitment is void" under Minn. R. Civ. P. 60.02(d). Urbanek also reasserted his ineffective-assistance-of-counsel claim as an alternate ground for relief under Minn. R. Civ. P. 60.02(f). The county responded, in part, that the district court should reject Urbanek's motion as untimely.

After a hearing on Urbanek's motion, the district court made the following findings regarding the circumstances that led to the county's petition for commitment. Urbanek was born in 1957. In 1985, he was convicted in Wyoming of four sexual offenses against children and sent to prison. He was released from custody in 1989 and later moved to Minnesota. In 1993, he pleaded guilty to a sexual offense against a child in Hubbard County. Urbanek began a sex-offender treatment program, but he was discharged from the program and sent to prison in 1995. In 1998, he was released from prison with a ten-year period of conditional release. In 2004, he was taken into custody on an alleged conditional-release violation, but it was determined that his ten-year conditional release period was unlawful and that he should have received a five-year conditional release period. Because the five-year conditional release period had expired, Urbanek was immediately released from prison without ordinary end-of-confinement procedures.

The Department of Corrections (DOC) notified the Hubbard County Attorney that Urbanek had been released without review for possible civil commitment as an SDP or an SPP. It appears that the Hubbard County Attorney obtained Urbanek's confidential data and records by court order. The Hubbard County Attorney hired two experts to reviewthose records and make a recommendation concerning the possibility of committing Urbanek as an SDP or SPP. Based on the experts' recommendations and Urbanek's then residence in Otter Tail County, the Hubbard County Attorney forwarded Urbanek's records to the Otter Tail County Attorney, who commenced commitment proceedings in 2004.

The district court denied Urbanek's motions for relief from judgment under rule 60.02 on the merits, assuming without deciding that the motion was timely. This appeal followed.

DECISION

I.

Minn. R. Civ. P. 60.02 provides that "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . , order, or proceeding and may order a new trial or grant such other relief as may be just" and lists various grounds for relief in paragraphs (a) through (f). Rule 60.02 provides that a "motion shall be made within a reasonable time, and for reasons (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken." A district court's denial of a rule 60.02 motion is reviewed for an abuse of discretion. In re Civil Commitment of Johnson, 931 N.W.2d 649, 655 (Minn. App. 2019), review denied (Minn. Sept. 17, 2019).

The county contends that "Urbanek's motions were grossly untimely" because "[a]ll of [his] claims were based on circumstances occurring before or at his trial in 2004." Urbanek counters that "[a]lthough [his] motion came thirteen years after [his] indeterminate commitment, the compelling nature of commitment proceedings provided the basis for the court to consider [his] arguments in the interests of justice, rather thandismiss on technical grounds." Although the issue was raised, the district court did not decide whether Urbanek's rule 60.02 motion was timely.

Generally, this court only reviews issues that were "presented to and considered by the [district] court in deciding the matter before it." Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). However, "this court may consider issues that have been presented to but not decided by the district court when the facts are undisputed and both parties have briefed the issue." Gallaher v. Titler, 812 N.W.2d 897, 901 (Minn. App. 2012), review denied (Minn. July 17, 2012). Because the timing issue was presented to the district court, the facts are undisputed, and the parties have briefed the issue, we address it.

In district court, Urbanek cited paragraphs (d) and (f) of rule 60.02 as grounds for relief.⁴ Under rule 60.02(d), a court may grant relief because "[t]he judgment is void." "A void judgment is one where the court lacks jurisdiction over the subject matter or over the parties." Zions First Nat'l Bank v. World of Fitness, Inc., 280 N.W.2d 22, 25 (Minn. 1979) (quotation omitted). Under rule 60.02(f), a court may grant relief based on "[a]ny other reason justifying relief from the operation of the judgment." "Clause (f) of Rule 60.02 is a residual clause, designed to afford relief only under exceptional circumstances not addressed by clauses (a) through (e)." Johnson, 931 N.W.2d at 655 (quotation omitted). Again, under rule 60.02 the "motion shall be made within a reasonable time, and for reasons (a), (b), and (c) not more than one year after the judgment, order, or proceeding was enteredor taken." "The residual clause is not intended to extend the time limit for granting relief under the other clauses of Rule 60.02." Id. (quotation omitted).

Urbanek relied on rule 60.02(d) for his claim that the civil-commitment judgment is void. What constitutes a reasonable time for bringing a motion under rule 60.02(d) must be determined by "considering all attendant circumstances such as: intervening rights, loss of proof by or prejudice to the adverse party, the commanding equities of the case, the general desirability that judgments be final and other relevant factors." Bode v. Minn. Dep't of Nat. Res., 612 N.W.2d 862, 870 (Minn. 2000) (quotation omitted).

Urbanek's claim under rule 60.02(d) is based on allegations that the Hubbard County Attorney had no authority to move for the production of records prior to filing a commitment petition, that the DOC end-of-confinement review committee illegally disclosed Urbanek's private data and records to the Hubbard County Attorney, that Urbanek either did not have a mandatory prepetition screening or his prepetition screening did not comply with statutory requirements, and that Urbanek did not...