This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







In the Matter of the Civil Commitment of:

Clark Albert Bailey a/k/a Clark Kruger.



Filed November 7, 2000


Toussaint, Chief Judge


Hennepin County District Court

 File No. P377368556



Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

In 1977, appellant Clark Kruger was convicted of criminal sexual conduct in the first degree and kidnapping.  He was committed as a psychopathic personality for an indeterminate amount of time to the Minnesota Security Hospital. 

            In 1999, appellant moved to vacate the 1977 commitment or for a new trial.  Appellant claimed that (1) the committing court lacked subject matter jurisdiction because a petition for commitment had never been filed; (2) the committing court failed to consider less restrictive alternatives to commitment; and (3) he was entitled to an evidentiary hearing and a new trial because he had been denied effective assistance of counsel.  The district court denied his motions for a new trial and an evidentiary hearing and he appeals. 

            On appeal, we determine on the merits only the issue of subject matter jurisdiction under a habeas analysis.  The issues of least restrictive alternative or ineffective assistance of counsel are not proper issues for a habeas corpus action and they were not timely raised in a motion to vacate or a motion for a new trial under the Minnesota Rules of Civil Procedure.  We affirm.



            Appellant moved to vacate his commitment, contending that the committing court did not have subject matter jurisdiction over the proceedings.  Subject matter jurisdiction is a question of law which this court reviews de novo.  World Championship Fighting, Inc. v. Janos, 609 N.W.2d 263, 264 (Minn. App. 2000).

            Generally, a challenge as to the legality of the commitment will be brought through habeas corpus.  Joelson v. O'Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Although appellant brought a motion to vacate based on lack of jurisdiction, the supreme court has interpreted such a motion as being in the nature of a habeas corpus proceeding.  State ex rel. Jackson v. Willson, 230 Minn. 156, 159, 40 N.W.2d 910, 911 (1950).

            Issues that may be raised for review by habeas corpus are limited, but include lack of personal or subject matter jurisdiction and violation of fundamental constitutional rights.  State ex rel. Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964).  The court cannot consider any "errors or irregularities in the proceedings, judgment, or process of any competent court having jurisdiction."  Id. at 714 n.5 (citation omitted).  Instead, the court can consider only whether the judgment or process is invalid because the court was without jurisdiction or the action was taken in excess of jurisdiction.  Id.  Habeas corpus is not a substitute for an appeal, nor may it be used to attack a commitment collaterally.  State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).

            Appellant claims that the 1977 committing court lacked subject matter jurisdiction over his commitment because no petition was filed as required by statute. When appellant was committed in 1977, the psychopathic personality commitment law provided that such proceedings were commenced upon the filing of the petition.  Minn. Stat. § 526.10 (1976); see Minn. Stat. § 253B.185, subd. 1 (1998) (current version of psychopathic personality commitment proceedings statute).  Thereupon, the procedures for judicial commitment found in Chapter 253A would apply.  Minn. Stat. § 526.10.  But rather than commencing the 1977 proceedings upon the filing of a petition, the district court issued an order for a hearing on appellant's commitment.  At issue is whether the lack of a formal filing of a petition deprives the court of jurisdiction.

“Jurisdiction depends on the filing of the petition and not upon notice.”  Scott v. Whitely, 168 Minn. 74, 76, 209 N.W. 640, 641 (1926).  One purpose of a petition is to provide a patient with notice of the type of commitment.  In re Grafstrom, 490 N.W.2d 632, 636 (Minn. App. 1992).  If the patient's rights are protected, technical deficiencies will not render a petition insufficient.  Id.

Here, although no formal petition was filed, appellant repeatedly requested to be civilly committed rather than sent to prison, despite the county attorney's disagreement. The district court ordered the probate court to examine appellant and to commit him directly if he was found to be mentally ill and dangerous or to have a psychopathic personality.  The district court's order contained all of the relevant information that is required to be in a petition for civil commitment, except for the county attorney's approval, which appellant explicitly waived.

Because appellant voluntarily submitted to the jurisdiction of the court and the notice purpose of the statute was satisfied, we conclude that the absence of the filing of the formal petition did not affect the probate court’s jurisdiction in this matter.  Therefore, the district court did not err in denying appellant’s motion to vacate for lack of subject matter jurisdiction.


            Appellant argues that the district court violated his due process rights in denying his motion to vacate because the committing court in 1977 failed to consider the least restrictive alternative to indeterminate commitment as a psychopathic personality.

The supreme court recently interpreted Minn. Stat. § 253B.185, governing commitment procedures for a sexual psychopathic personality or sexually dangerous person, not to require commitment to the least restrictive alternative.  In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998).  The law under which appellant was committed is substantially the same as that considered in Senty-HaugenSee Joelson, 594 N.W.2d at 908 (noting that although appellants were committed under earlier version of law, the legislature did not intend to change meaning of law when rectifying it).  Under the applicable law in 1977, the committing court was not required to consider or commit appellant to the least restrictive alternative.  Senty-Hagen, 583 N.W.2d at 269.  Appellant does not have a statutory right to a consideration of the least restrictive alternative and has not demonstrated a violation of his due process rights.  Because appellant’s claim has not demonstrated a constitutional violation, we decline to address it further under the limited review of a habeas corpus proceeding.

            Appellant's motion to vacate is also untimely.  A party’s motion to vacate must be made "within a reasonable time."  Minn. R. Civ. P. 60.02.  Because appellant's motion to vacate was brought some 22 years after the judgment was entered, it was not made "within a reasonable time." 


            Finally, appellant contends that he was entitled to an evidentiary hearing and a new trial on the issue of whether he received ineffective assistance of counsel.  The claim of ineffective assistance of counsel often arises in the criminal area.  Under Minnesota law, convicted persons can attack their convictions collaterally in postconviction proceedings.  Minn. Stat. § 590.01, subd. 1 (Supp. 1999).  The district court may then summarily dismiss the petition or consider evidence.  Minn. Stat. § 590.04, subd. 3 (1998). "Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal." State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).

            In 1977, as now, persons subject to commitment had the right to counsel.  Minn. Stat. § 253A.07, subd. 15 (1976); accord In re Cordie, 372 N.W.2d 24, 28 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).  In evaluating a claim of ineffective assistance of counsel, an analogy to the standard in criminal proceedings is used, because, although commitment proceedings are civil in nature, they result in a loss of liberty.  Cordie, 372 N.W.2d at 28.

            There is no precedent in commitment cases to guide us in determining whether the issue of ineffective assistance of counsel may be raised in a habeas corpus-type proceeding.  In general, in commitment cases, the patients have raised the issue in a timely motion for a new trial, timely motion to vacate under Rule 60.02, or in a direct appeal.  See In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987) (addressing claim of ineffective assistance of counsel to district court in timely motion for a new trial after initial commitment judgment, and to appellate court in direct appeal from commitment), review denied (Minn. Mar. 25, 1987); Cordie, 372 N.W.2d at 28 (noting that motion for new trial was untimely, but considered rule 60.02 motion brought about five months after commitment).  Because the claim of ineffective assistance of counsel may be raised in an appeal or a timely motion for a new trial and there is no case law in which ineffective assistance of counsel is considered in a habeas corpus action, we decline to consider it here as a habeas corpus action.

            Under the Minnesota Rules of Civil Procedure, a motion for a new trial must be brought within 15 days of the verdict or notice of filing of the decision.  Minn. R. Civ. P. 59.03.  The district court does not have jurisdiction to hear an untimely motion for a new trial, particularly one brought 22 years after the judgment.  See Differt v. Rendahl, 306 N.W.2d 813, 814-15 (Minn. 1981) (finding that the motion for a new trial was untimely where more than 15 days had elapsed following notice of filing of decision); Cordie, 372 N.W.2d at 28 (noting that district court denied motion for new trial raising ineffective assistance of counsel claim as untimely when brought more than 5 months after initial commitment).  We thus decline to consider appellant’s motion for a new trial.