This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Clark A. Kruger, et al.,





Tim Pawlenty, individually, and in his official capacity, et al.,



Filed February 1, 2005


Randall, Judge


Ramsey County District Court

File No. C2-03-10155



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


Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)



            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal appellant argues that (1) the district court erred by applying the standard for failure to state a claim for which relief can be granted under Minn. R. Civ. P. 12.02(e), rather than the standard for summary judgment under Minn. R. Civ. P. 56, and (2) that Minn. Stat. § 246.0141 (Supp. 2003) violates a number of constitutional provisions.  We affirm.


            In 2003, the Minnesota Legislature enacted Minn. Stat. § 246.0141, prohibiting the possession or use of tobacco in state-operated facilities, including regional treatment centers, the Minnesota Security Hospital, and the Minnesota Sex Offender Program.  See 2003 Minn. Laws 1st Spec. Sess. ch. 14, art. 7, § 67.  The legislature also amended the language of the previously existing smoking ban in health care facilities, removing the exemption for mental health and chemical dependency programs. 

Appellants are private citizens confined within the Minnesota Security Hospital as civilly committed sex offenders.  Appellants filed a suit seeking to enjoin enforcement of Minn. Stat. § 246.0141, which provides in part:

No patient, staff, guest, or visitor on the grounds or in a state regional treatment center, the Minnesota Security Hospital, the Minnesota sex offender program, or the Minnesota extended treatment options program may possess or use tobacco or a tobacco-related device.


Minn. Stat. § 246.0141.[1]  Specifically, appellants claimed that the statute violated a number of constitutional rights under both the United States and Minnesota Constitutions.[2]   Respondents, Tim Pawlenty, Governor of the State of Minnesota and Kevin Goodno, Commissioner of the Department of Human Services, brought a motion to dismiss for failure to state a claim pursuant to rule 12.02(e) of the Minnesota Rules of Civil Procedure.  The district court found for the respondents and granted the Rule 12.02(e) motion.  This appeal followed.



Appellants first argue that the district court erred by applying the standard for failure to state a claim for which relief can be granted under Minn. R. Civ. P. 12.02(e), rather than the standard for summary judgment under Minn. R. Civ. P. 56.  Where a case involves a motion for judgment on the pleadings, and the court considers more than the pleadings, the appellate court reviews the district court’s determination under a summary judgment standard.  Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn. App. 1989), review denied (Minn. Mar. 8, 1990). 

Appellants argue that the district court incorrectly applied rule 12.02(e) in considering “matters outside the pleadings;” when respondents referred to testimony presented before the Senate Health and Family Security Committee of the 2003 Legislative Session, and when the court relied on the testimony of Dr. Maureen Hackett.[3]  However, courts may consider legislative history or other matters of public record in making a determination because the information is not evidence outside of the record.  See, e.g, Central Lakes Educ. Ass’n v. Indep. Sch. Dist. No. 743, 411 N.W.2d 875, 881 (Minn. App. 1987) (holding that legislative history was relevant and responsive to assertions in respondent’s brief, and was not “evidence” outside of the record), review denied (Minn. Nov. 13, 1987).

Here, the district court used Dr. Hackett’s testimony in conducting its legal analysis and, specifically, in determining legislative intent behind enactment of the statute.  The court concluded that, “[t]he statute was enacted for the purpose of enhancing the health of individuals in regional treatment centers by eliminating the possession or use of tobacco products by any staff, guest, visitor, or patient on the grounds of any state regional treatment center.”  We affirm the district court’s use of legislative history in making its legal determination.


Appellants next argue that Minn. Stat. § 246.0141 violates a number of constitutional provisions.  We evaluate a statute’s constitutionality as a matter of law. Granville v. Minneapolis Pub. Schs., 668 N.W.2d 227, 230 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue.  Modrow v. J.P. Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). 

Minnesota statutes are presumed constitutional and are declared unconstitutional only “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  If a legislative act is reasonably susceptible of two different constructions, one of which will render it constitutional and the other unconstitutional, the former must be adopted.  Federal Distillers, Inc. v. State, 304 Minn. 28, 39, 229 N.W.2d 144, 154 (1975).

A.        Single subject and title provision

Appellants first challenge the constitutionality of Minn. Stat. § 246.0141 by arguing that it violates Minn. Const. art. IV, § 17, which requires that “[n]o law shall embrace more than one subject, which shall be expressed in its title.”  As Justice William Mitchell stated, the purpose is to prevent what is called “log rolling legislation” or “omnibus bills” by which a number of different and disconnected subjects are united in one bill, and then carried through by a combination of interests.  Johnson v. Harrison, 47 Minn. 575, 577, 50 N.W. 923, 924 (1891).  The Constitution does not require that the title serve as an index of a law, only that it give notice of the general subject.  Wass v. Anderson, 312 Minn. 394, 402-03, 252 N.W.2d 131, 137 (1977).  The common thread that runs through the various sections of a law need only be a mere filament to withstand the single subject restriction.  Blanch v. Suburban Hennepin Reg’l Park Dist., 449 N.W.2d 150, 155 (Minn. 1989).  Along these lines, this court has stated that,

[t]he practice of bundling controversial, volatile provisions with germane and less-controversial laws is not impermissible logrolling.  Rather, it is the nature of the democratic process where you have major and minor political parties, partisan politics, and an independent executive branch.  The negotiations and the constant give and take are historical, purely legal, and purely permissible; there is no impermissible logrolling provided that the independent provisions in a bill ultimately signed into law are not so wholly unrelated to each other that not even a common thread can be found.


Defenders of Wildlife v. Ventura, 632 N.W.2d 707, 714-715 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  “Historically, Minnesota courts have rarely invalidated laws for a violation of the single-subject requirement.”  Id. at 712.  Being honest, judicial interpretation of this restriction on the legislature has, historically, been broadly construed out of deference to the lawmaking branch of government.

Appellants argue that the title contained no language regarding the “tobacco” legislation.  Appellants rely on Associated Bldrs. & Contr. v. Ventura, 610 N.W.2d 293 (Minn. 2000) for their claim that Minn. Stat. § 246.0141 is in violation of both the single subject and single title rules.  In Associated, the court found that a prevailing construction or remodeling wage law, which was inserted into an omnibus tax bill related to tax relief and reform, violated the single subject rule.  Id. at 304.  The court noted that if it were to uphold the amendment on wage law, which had no connection to the other subjects and required that the wages be paid regardless of whether the project was publicly funded or not, it “would push the mere filament to a mere figment.”  Id. at 302-03. 

Here, Bill, S.F. 1329 was connected to the majority of other bills because they were related to Health and Human Services.  We can find “the mere filament.”  Further, the title concerns state government, and, in particular, public benefits, health care, and human services within the state government.  See 2003 Minn. Laws 1st Spec. Sess. Ch. 14.  The bill covers 11 headings, which reflect the state health care and human services scheme.[4]  Id.  Under the “Health Miscellaneous” heading, the bill contains the language denying smoking privileges:

No patient, staff, guest, or visitor on the grounds or in a state regional treatment center, the Minnesota security hospital, the Minnesota sex offender program, or the Minnesota extended treatment options program may possess or use tobacco or a tobacco related device.  For the purposes of this section, “tobacco” and “tobacco related device” have meanings given in section 609.685, subdivision 1.  This section does not prohibit the possession or use of tobacco or a tobacco related device by an adult as part of a traditional Indian spiritual or cultural ceremony.  For purposes of this section, an Indian is a person who is a member of an Indian tribe as defined in section 260.755, subdivision 12.


Id. at 487.  While there are a large number of topics presented in this bill, they do reflect a “mere filament” of a common theme relating to health and human services.  The topic of tobacco use in state-run mental health facilities was properly included within the text of the bill.  The district court properly found that Minn. Stat. § 246.0141 does not violate Minn. Const. art. IV, § 17. 

B.        Privacy

Appellants next argue that the trial court erred in finding they have no privacy rights to possess or use tobacco.  Under the Minnesota Constitution, there is a right of privacy.  See State v. Gray, 413 N.W.2d 107, 111 (Minn. 1987).  “The right begins with protecting the integrity of one’s own body and includes the right not to have it altered or invaded without consent.” Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988).  The right to privacy, though, is not absolute.  State Bd. of Health v. City of Brainerd, 308 Minn. 24, 36, 241 N.W.2d 624, 631 (1976) (holding that “[w]hether one’s right to bodily integrity is designated a right of personal privacy or not, though, does not alter [the] conclusion that the right, like other constitutional rights, is not absolute”).  “When there is an allegation of interference by the state with a protected right of privacy,” we must, “balance the interest in the privacy against the state’s need to intrude on that privacy.” LaChapelle v. Mitten, 607 N.W.2d 151, 164 (Minn. App. 2000), review denied (Minn. May 16, 2000). 

Appellants rely on a number of cases to support their privacy claim.  See, eg., Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278, 110 S. Ct. 2841, 2851 (1990) (finding that a competent person has a constitutionally protected right to refuse unwanted medical treatment); Vitek v. Jones, 445 U.S. 480, 494, 100 S. Ct. 1254, 1264 (1980) (holding that the transfer of a prisoner to a mental hospital for involuntary psychiatric treatment along with a mandatory behavior modification constitutes a deprivation of liberty); Jarvis, 418 N.W.2d at 148 (finding that a privacy right exists to protect a person’s bodily integrity from forced administration of neuroleptic drugs); Cornfeldt v. Tongen,262 N.W.2d 684, 699 (Minn. 1977) (holding that a cause of action for negligence exists where a physician does not properly inform a patient of the risks of a medical procedure); Mohr v. Williams, 95 Minn. 261, 271, 104 N.W. 12, 16 (1905) (holding that a surgical operation is unlawful without the patient’s consent), rev’d on other grounds, Genzel v. Halvorson, 248 Minn. 257, 80 NW.2d 854 (1957).  We understand the cases, but we do not understand appellants’ claim that they affect his issue.  The cited cases involve forced bodily invasion and/or alteration with the use of drugs or other measures.  Here, the deprivation of tobacco as one experiences in hospitals, clinics, and more and more commercial buildings, is not close to a “forced invasion.”

In Price v. Sheppard, cited by both parties, the court addressed the balance that must be struck between the right of personal autonomy and the necessity of a state’s right to legislate.  307 Minn. 250, 257, 239 N.W.2d 905, 910 (1976).  Specifically, the Price court concluded,

At the core of the privacy decisions, in our judgment, is the concept of personal autonomy--the notion that the Constitution reserves to the individual, free of governmental intrusion, certain fundamental decisions about how he or she will conduct his or her life.  Like other constitutional rights, however, this right is not an absolute one and must give way to certain interests of the state, the balance turning on the impact of the decision on the life of the individual.  As the impact increases, so must the importance of the state’s interest.  Some decisions, we assume, will be of little consequence to the individual and a showing of a legitimate state interest will justify its intrusion; other decisions, on the other hand, will be of such major consequence that only the most compelling state interest will justify the intrusion.

Id.  Here, the confinement of individuals in state-run hospitals is, by its nature, controlled and provides less freedom for patients. 

The legislature determined that tobacco use in state-run facilities should be prohibited.  As the district court concluded, the enactment of the statute is “for the purpose of enhancing the health of individuals in regional treatment centers by eliminating the possession or use of tobacco products by any staff, guest, visitor, or patient on the grounds of any state regional treatment center.”  This reasoning is valid taking into consideration the medical care costs commonly associated with use of tobacco, especially in a state-sponsored facility with long-term commitments, where the state ultimately bears the burden of medical costs.  The district court did not err in finding that no constitutional privacy rights exist to use or possess tobacco within these state-run facilities.

C.        Due process

            Appellants next claim that the district court erred in concluding that Minn. Stat. § 246.0141 does not violate their due process rights.  Substantive due process requires that unless a fundamental right is limited or a classification is based on a suspect class, minimal judicial scrutiny of legislation is appropriate.  Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 806 (Minn. App. 1999), review denied (Minn. Mar. 18, 1999).  The legislation is constitutional if it is not unreasonable, arbitrary, or capricious and bears a rational relation to the public purpose it seeks to promote.  Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 288 (Minn. App. 1996), review
(Minn. Oct. 29, 1996); Grussing v. Kvam Implement Co., 478 N.W.2d 200, 202 (Minn. App. 1991).

            Tobacco users have never been recognized as members of “a suspect class” (they do tend to see themselves as a “picked upon class”).  We cannot find a “fundamental right” to use cigarettes, cigars, pipes, and chewing tobacco.  Thus, a rational-basis review will be applied.  Legislation will fail rational-basis review only when it rests on grounds irrelevant to the achievement of a plausible governmental objective.  Heller v. Doe, 509 U.S. 312, 324, 113 S. Ct. 2637, 2645 (1993).  Here, while the purpose of the law, as reflected in the legislative history, is for enhancing health; any number of other plausible governmental objectives can be found, such as: protecting the nonsmoking rights of guards and inmates, elimination of potential fire hazards, providing a clean living environment, and preventing damage to state property which results from tobacco use.  The district court did not err when it found that appellants do not have a “due process” right to use or possess tobacco that overrides a state’s right to legislate[5] tobacco use. 

D.        Equal protection

Appellants next argue that the district court erred in concluding that Minn. Stat. § 246.0141 does not infringe upon their right to equal protection.  The Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution provides in relevant part “[no state shall] deny to any person within its jurisdiction the equal protection of laws.” U.S. Const. amend. XIV, § 1. Article I, section 2, of the Minnesota Constitution provides “[n]o member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const. art. I, § 2.  Both clauses have been analyzed under the same principles and begin with the mandate that all similarly situated individuals shall be treated alike, but only “invidious discrimination” is deemed constitutionally offensive.  In re Estate of Turner, 391 N.W.2d 767, 769 (Minn. 1986). 

Additionally, unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, this court reviews the challenge under a rational-basis standard under both the state and federal constitutions.  Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn. 2002).  Legislation will not be set aside if any state of facts reasonably may be conceived to justify it.  Blue Earth County Welfare Dept. v. Cabellero, 302 Minn. 329, 343, 225 N.W.2d 373, 382 (1974) (citation omitted). 

            Appellants argue that they are similarly situated yet treated differently from patients in other types of state-run facilities, such as nursing homes, boarding care homes, veterans’ homes and veterans’ hospitals.  We apply a rational-basis review to this argument.  As stated previously, there are a number of reasons, which could serve as legitimate state interests and that could satisfy a rational-basis analysis, (ie., enhancing health, protecting the nonsmoking rights of guards and inmates, elimination of potential fire hazards, providing a clean living environment, and preventing damage to state property).  Finally, within equal protection, under a rational-basis analysis, the state is not required to apply the law so that there is absolute and complete coverage to all similarly situated groups.  Equal protection does not compel a legislature to prohibit all the evils or none. See Federal Distillers, Inc. v. State, 304 Minn. 28, 43, 229 N.W.2d 144, 156 (1975).  That a state or federal government allows a limited smoking section in a V.A. hospital does not impair the right of a state or federal government to ban smoking in its entirety, as, for instance, in a prison.  The elimination of smoking in regional treatment centers is a step toward a legitimate state goal of curtailing smoking.

            The district court did not err in finding that Minn. Stat. § 246.0141 is not in violation of appellants’ equal protection rights. 


[1]  Regional treatment centers are defined as “any state-operated facility for persons who are mentally ill, mentally retarded, or chemically dependent under the direct administrative authority of the commissioner [of human services].” Minn. Stat. § 253B.02, subd. 18 (2002).  The Minnesota Security Hospital is a secure treatment facility for civilly committed persons, persons transferred there by the commissioner of human services, and for persons who are found to be mentally ill and dangerous.  Minn. Stat. § 253.20 (2002).  The Minnesota Sex Offender Program provides care and treatment in secure treatment facilities to persons committed by the courts as sexual psychopathic personalities or sexually dangerous persons.  Minn. Stat. § 246B.02 (2002).  The Extended Treatment Options Program was established to serve Minnesotans who have mental retardation and exhibit severe behaviors that present a risk to public safety.  Minn. Stat. § 252.025, subd. 7 (2002).

[2] Free Speech, Due Process, Privacy, and Equal Protection.  As well as, the Minnesota constitutional single subject and title rule under art. IV, § 17.

[3] Dr. Maureen Hacket is a forensic psychiatrist and former clinical director of the Minnesota Security Hospital.

[4]  Welfare reform; Long term Care; Continuing Care For Persons With Disabilities; Children’s Services; Occupational Licenses; Human Services Licensing, County Initiatives, and Miscellaneous; Health Miscellaneous; Local Public Health Grants; Child Care and Miscellaneous Provisions; Child Support Federal Compliance; Community Services Act; Health Care.

[5]  For years, the debate on partial or full bans on smoking in restaurants revolved around accommodating smokers with “smoking sections” or limiting the restriction only to places that serve food and to allow smoking in establishments that only serve alcohol.  There are other measures debated, but these two are typical.  The debate always runs around “accommodating smokers.”  No one seriously challenged the state or the municipality’s right to fully ban smoking if they wanted to.