Next, the commissioner argues that the burden for one opposing pass-eligible status should not be clear and convincing. He contends that the clear and convincing standard applies to discharges because they involve a liberty interest. Minn.Stat. 253B.19, subd. 2; Linder v. Com'r. of Human Servs., 394 N.W.2d 824, 826 (Minn.App. 1986). In contrast he asserts that pass-eligible status, like transfer, is a form of treatment and that the preponderance of the evidence standard should apply.
Preponderance of the evidence was the common law standard previously applied to transfer requests under commitment statutes. See Linder v. Comm'r of Human Servs., 394 N.W.2d 824, 827 (Minn.App.1986). In evaluating whether a petitioner has demonstrated the appropriateness of transfer by a preponderance of the evidence, “[t]he panel must address the statutory factors.”
In its conclusions of law, the appeal panel stated that "[t]he statute and case law require that the party seeking a transfer must prove that the transfer is appropriate by a preponderance of the evidence," citing Plotter v. Steffen, 490 N.W.2d 915 (Minn.App. 1992), review denied (Minn. Nov. 17, 1992), and hinder v. Comm'r of Human Servs., 394 N.W.2d 824 (Minn.App. 1986). But Linder and Plotter predate the 1994 amendment to Minn. Stat. § 253B.19, subd. 2, and do not fully state the requirements of the subsequent statute.
The petitioner has the burden of proof by a preponderance of the evidence. Linder v. Commissioner of Human Servs., 394 N.W.2d 824, 827 (Minn.App. 1986). The order of the appeal panel supersedes the order of the Commissioner.