This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








Wayne Nicolaison, petitioner,





Cal Ludeman, Commissioner of Human Services,




Filed April 3, 2007


Toussaint, Chief Judge

Concurring specially, Randall, Judge


Carlton County District Court

File No. 09-CV-06-1087


Wayne Nicolaison, 1111 Highway 73, Moose Lake, MN 55767 (pro se appellant)


Lori Swanson, Attorney General, Daniel S. Goldberg, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)


            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Wayne Nicolaison challenges the district court’s denial of his petition for writ of habeas corpus requesting discharge from his commitment as a psychopathic personality.  Because the record demonstrates that the district court did not err in denying appellant’s petition, we affirm.


This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold its findings on appeal if they are reasonably supported by the evidence.  State ex rel. Allen v. Fabian, 658 N.W.2d 913, 915 (Minn. App. 2003).  This court, however, reviews questions of law de novo.  Id.

            A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.”  Minn. Stat. § 589.01 (2004).  Habeas is an appropriate remedy if the relief to which a petitioner may be entitled is immediate release.  Kelsey v. State ex rel. McManus, 309 Minn. 560, 560-61, 244 N.W.2d 53, 54 (1976).  A writ of habeas corpus is not generally available to a “person committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction.”  Minn. Stat. § 589.01; see Minn. Stat. § 589.15 (2006) (stating that, where the petitioner is in custody under a valid civil process of a court, the petitioner can be discharged only under specific conditions). 


            In his petition, appellant argued that the conditions of his confinement were unconstitutional.  This court’s review of a habeas petition is limited to (1) whether the committing court acted without jurisdiction; (2) whether the law pursuant to which his proceedings were taken was unconstitutional and therefore void; and (3) whether his detention constitutes a violation of his constitutional rights.  State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964); see also Kelsey v. State, 283 N.W.2d 892, 894-95 (Minn. 1979) (explaining situations in which petitioner may use habeas corpus).  Appellant has the burden of producing evidence to justify his release from his commitment as a psychopathic personality.  State ex rel. Fife v. Tahash, 261 Minn. 270, 271, 111 N.W.2d 619, 620 (1961).

            The district court found that appellant challenges the conditions of his confinement in the Minnesota Sex Offender Program’s behavior therapy unit, “complaining about the Unit’s rules, expectations, privileges, restrictions, and disciplinary procedures.”  The district court did not err in concluding that none of appellant’s claims is appropriate for habeas corpus review and that appellant did not allege facts implicating the prohibition against cruel and unusual punishment.


Appellant argues that the district court should have “at the least” ordered an evidentiary hearing.  A petitioner has the burden of establishing the illegality of a detention.  Loyd v. Fabian, 682 N.W.2d 688, 690 (Minn. App. 2004).  To obtain a writ of habeas corpus, a petitioner must set forth sufficient facts to establish a prima facie case for discharge.  Fife, 261 Minn. at 271, 111 N.W.2d at 620.  The allegations in the petition must be more than argumentative assertions without factual support.  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).  A petitioner is entitled to an evidentiary hearing only when the petition establishes the existence of a factual dispute.  Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988).

In his petition appellant requested an evidentiary hearing but failed to assert the existence of a factual dispute.  Thus, the district court did not err in denying appellant’s request for an evidentiary hearing.


            Appellant argues that his due-process rights were violated because the conditions of his confinement in the behavior therapy unit are harsher than the conditions in other units.  To state a due-process claim, appellant must allege that the state has deprived him of a constitutionally protected interest.  Kentucky Dep’t of Corr. V. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989) (holding that, to establish due-process violation, it must be shown that state took some arbitrary action and deprived individual’s protected property or liberty interest).  Respondent contends that appellant’s argument should fail because he has not alleged infringement of a protected-property or liberty interest. 

            The Minnesota Sex Offender Program may limit certain statutory rights provided in the patient’s rights provisions in Minn. Stat. §§ 144.651 and 253B.03.  Minn. Stat. § 253B.185, subd. 7 (2004).  These rights “may be limited only as necessary to maintain a therapeutic environment or the security of the facility or to protect the safety and well-being of patients, staff, and the public.”  Minn. Stat. § 253B.185, subd. 7(a) (2004).  Specifically, rights pertaining to patient personal privacy, private communications, patient use and retention of personal property, management of personal financial affairs, meeting with visitors, participating in groups, corresponding with others, receiving visitors, and making telephone calls may be limited.  See Minn. Stat, § 253B.185, subd. 7(b).

            Here, appellant contends that his due-process rights and the order of commitment were violated when he was moved to the behavior therapy unit because that unit is harsh, punitive, and discriminatory.  Appellant argues that his “confinement is now more onerous and punitive than either a prisoner or jail detainee,” and he states that he is “denied the simple right to purchase a candy bar or a soda pop.”  Other alleged violations of appellant’s due-process rights are restricting him to non-contact visits and punitively moving him to the behavior therapy unit because of his non-compliance with treatment requirements.[1]  But appellant was placed in the behavior therapy unit because of his disruptive behavior, which had to be dealt with to ensure a safe environment for other patients.  The restrictions that appellant complains of fall well within Minn. Stat, § 253B.185, subd. 7(b).

            Appellant also argues that his civil commitment is punitive, but he fails to allege facts demonstrating that the policies and practices in the behavior therapy unit are punitive.  A secure facility may impose restrictions and conditions upon its patients as long as the restrictions do not amount to “punishment.”  Bell v. Wolfish, 441 U.S. 520, 536-37, 99 S. Ct. at 1873 (1979).  “Loss of freedom of choice and privacy are inherent incidents of confinement.”  Id.  If a restriction or condition is reasonably related to a legitimate governmental objective, it does not, without more, constitute “punishment.”  Id. 441 U.S. at 539, 99 S. Ct. at 1874.   Appellant argues that, because there are more restrictions in the behavior therapy unit, moving him to that unit amounted to punishment.  But the most dangerous and aggressive patients reside in the behavior therapy unit, and its restrictions are related to the legitimate purpose of maintaining a secure and therapeutic environment that adequately protects patients, staff members, the public, and the facility. 


Appellant next argues that his commitment is preventative detention, which violates his due-process rights.  But civil commitment does not amount to preventative detention:  “[E]ven when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling.  So long as civil commitment is programmed to provide treatment and periodic review, due process is provided.”  In re Blodgett, 510 N.W.2d 910 (Minn. 1994).  Minnesota’s commitment system provides for periodic review and reevaluation of the need for continued confinement; persons committed as psychopathic personalities may petition for transfer, provisional discharge, or full discharge, and they have the right to proper care and treatment under state law.  Id. 

As a matter of law, appellant’s preventative detention argument fails because the commitment statute does not violate due process.  Id.; see also Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (holding that statutory discharge criteria do not violate due process).  Appellant has access to treatment, although he consistently refuses it; and he may petition the special review board for full or provisional discharge or transfer, and he may seek judicial review of the board’s decisions.  See Minn. Stat. §§ 253B.18-19.  Appellant’s due-process rights have not been violated.


            Appellant argues that his commitment is punitive and preventative.  These claims are unfounded.  Commitment of an individual for treatment as a psychopathic personality does not violate the constitutional prohibition against double jeopardy.   Call, 535 N.W.2d at 319-20.  “[O]ur decision in Blodgett clearly establishes that commitment under the psychopathic personality statute is remedial and does not constitute double jeopardy because it is for treatment purposes and is not for purposes of preventative detention.”  Id.  The supreme court has similarly rejected ex post facto claims.  See, eg., In re Linehan, 557 N.W.2d 171, 187-89 (Minn. 1996) (rejecting double jeopardy and ex post facto challenges to sexually dangerous persons law). 

            Appellant failed to assert any facts to establish that his conditions of confinement rise to the level of unconstitutional punishment.  The district court did not err in rejecting appellant’s double jeopardy and ex post facto claims.



RANDALL, Judge (concurring specially).

            I concur in the result.  Sexual psychopath and sexual predator “civil” commitments are a legalized form of preventive detention.  We have carved out that exception in our constitutional right to only be confined for crimes that we did, not crimes that we “might” do in the future.  The law is settled.  I acknowledge that.  But the law is a deviation from the Bill of Rights.[2]  See Joelson v. O’Keefe, 594 N.W.2d 905, 918 (Minn. App. 1999) (Randall, J., concurring specially), review denied (Minn. July 28, 1999) (“As a husband and a father, I could be persuaded that preventive detention of sexual predators, despite being a violation of the Bill of Rights, is good public policy.  It is just that as a judge, I hate lying about it.”); In re Linehan, 544 N.W.2d 308, 321 (Minn. App. 1996) (Randall, J., dissenting), aff’d, 557 N.W.2d 171 (Minn. 1996), vacated and remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999); Matter of Mattson, No. C5-95-452, 1995 WL 365374, at * 4 (Minn. App. June 20, 1995) (Randall, J., concurring specially), review denied (Minn. Aug. 30, 1995).

            Like Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896), this issue will have to be revisited, rethought, debated, and redebated, and then, down the road, finally made right.

[1] He also complains that $10,000 of his personal property was confiscated and destroyed by the Moose Lake facility staff.  This statement is not supported by the record.

[2]  U.S. Const. amend. I-X.