This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Clark A. Kruger, petitioner,





Kevin Goodno,

Commissioner of Human Services,



Filed April 23, 2004


Toussaint, Chief Judge


Nicollet County District Court

File No. C9-03-951



Clark A. Kruger, 2100 Sheppard Drive, St. Peter, MN  56082 (pro se appellant);


Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This appeal is from an order denying appellant Clark Kruger’s petition for a writ of habeas corpus challenging the effect on Kruger’s commitment as a psychopathic personality of an executive order issued on July 10, 2003.  Appellant argues that the order prolongs his commitment in violation of current law.  We affirm.    


            Kruger, formerly known as Clark Bailey, was sentenced in 1977 to consecutive indeterminate sentences of 0–20 years and 0-40 years.  Bailey v. State, 414 N.W.2d 503, 504 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).  Shortly after his sentencing, he was civilly committed as a psychopathic personality.  On August 23, 2003, the last of Kruger’s criminal sentences expired, and he was transferred to the Minnesota Security Hospital at St. Peter pursuant to the civil commitment.

            On July 10, 2003, Governor Timothy Pawlenty issued an executive order restricting future administrative releases of sexual offenders committed as sexually dangerous persons (SDP) or sexual psychopathic personalities (SPP). Executive Order 03-10, 28 Minn. Reg. 57 (July 21, 2003).  Kruger filed a petition for a writ of habeas corpus contending that the effect of the executive order was to transform his indeterminate civil commitment into a lifetime punitive detention by foreclosing any possibility of release or discharge.[1]    The district court in dismissing the petition, however, concluded that Kruger had not shown “that he is presently being denied a request for a pass into the community, provisional discharge, or other release to which he would be entitled absent the Governor’s Executive Order.”  The court also concluded that the order did not prevent such passes, releases, or discharges “if required by law.”   


This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings on appeal if they are reasonably supported by the evidence.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  This court, however, reviews questions of law de novo.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

The executive order requires state agencies to “fulfill their responsibilities under Minnesota law” with respect to civilly committed sex offenders “with the primary consideration of providing protection to the public.”  Exec. Order 03-10, 28 Minn. Reg. 57 (July 21, 2003).  It states that state agencies and respondent Commissioner of Human Services “will ensure that” sexual predators are not granted passes, provisional discharges, or other forms of release “unless required by law or ordered by a court of competent jurisdiction.”  Id.  The order directs the commissioner to implement a review of the department’s policies and procedures to make sure they “comply with applicable law and this Executive Order.”

Kruger argues that the executive order removes the discretion accorded to the commissioner and the MSOP staff by statute to recommend and approve passes, discharges, and releases for SDP and SPP patients.  This argument would distinguish between those administrative acts (passes, discharges and releases) that the executive order acknowledges are “required by law,” and those that are merely discretionary, i.e., allowed by law.  The only statutory provision that arguably mandates release or discharge is the provision for discharge when it “appears to the satisfaction of the commissioner,” based on a favorable recommendation of the special review board,

that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.


Minn. Stat. § 253B.18, subd. 15 (2002).  This provision, however, appears to vest discretion in the commissioner, not to define a discharge that is “required by law.”  And, although release or discharge from commitment may be constitutionally required when the continued commitment no longer bears a reasonable relation to the purpose of initial commitment, it is not clear that the executive order refers to constitutional requirements when it acknowledges releases or discharges may be “required by law.”  See generally Foucha v. Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 1785 (1992) (holding due process requires continued commitment bear some reasonable relation to purpose of initial commitment).

Habeas corpus may be used to challenge the conditions of confinement under a civil commitment.  See generally Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).  But, as the district court found, Kruger has not shown that he has requested a pass, discharge, or release.  More significantly, the record presented by Kruger does not establish that he is even at a stage in the MSOP program where he would be considered by respondent’s staff for a pass, discharge, or release.

This court has declined to review constitutional challenges to statutes when the party making the challenge cannot show “direct and personal harm” resulting from the statute.  Nordvick v. Comm’r of Pub. Safety, 610 N.W.2d 659, 663 (Minn. App. 2000).  This same reluctance to address a premature constitutional challenge to the acts of another branch of government should apply in this case.  Kruger, who has been confined solely under his civil commitment only since August 2003, has made no showing that he would be considered eligible for release or discharge if the executive order were declared invalid.  Therefore, we decline to address the proper construction of the order or to decide whether the order is unconstitutional. 


[1] The executive order by its terms applies to SDP and SPP patients; it does not expressly apply to patients committed as psychopathic personalities.  The SPP statute replaced the former psychopathic personality category.  1994 Minn. Laws 1st Spec. Sess. Ch. 1, art. 2, § 29.  Whether the order applies to psychopathic personalities was neither raised nor decided below.