This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).




Clark A. Kruger, petitioner,



Maria Gomez, Commissioner of Human Services,


Filed May 28, 1996


Short, Judge

Judicial Appeal Panel

File No. 74B

David L. Kraker, David L. Kraker & Associates, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, Theresa F. Couri, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Peter J. Fransway, Assistant County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.


SHORT, Judge

Clark A. Kruger seeks review of a judicial appeal panel's denial of discharge from commitment as a psychopathic personality. Kruger argues:  (1) he met the standards for discharge; (2) his due process rights were violated because his hearings were not held in a timely manner; and (3) he is entitled to a stay or dismissal based on newly discovered evidence. We affirm.


A person committed as a psychopathic personality may petition the Commissioner of Human Services for discharge. See Minn. Stat. ' 253B.18, subd. 5 (1994) (authorizing mentally ill and dangerous persons to petition for discharge); see also Minn. Stat. ' 253B.185, subd. 1 (1994) (generally applying provisions regarding the mentally ill and dangerous to psychopathic personalities); Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (applying the discharge procedure for mentally ill and dangerous persons to persons committed as psychopathic personalities). If the Commissioner denies the request, the petitioner may obtain rehearing and reconsideration by a judicial appeal panel. Minn. Stat. ' 253B.19, subd. 2 (1994). In determining whether the discharge should be granted, the appeal panel should consider the discharge criteria set forth in Minn. Stat. ' 253B.18, subd. 15, including whether the person "continues to need in-patient treatment and supervision for his sexual disorder and continues to be a danger to the public." Call, 535 N.W.2d at 319. We review the appeal panel's decision only for errors of law and clearly erroneous findings of fact. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn. 1990) (applying this standard of review to bench trials).


Kruger argues the county and the Commissioner failed to show by clear and convincing evidence that he continues both to need in-patient treatment/supervision and to pose a danger to the public. We disagree. The record demonstrates:  (1) all three experts diagnosed Kruger with a personality disorder and with mixed substance abuse or dependency; (2) two experts characterized Kruger's disorder as an antisocial personality disorder and diagnosed him as suffering from pedophilia; (3) one expert characterized the disorder as a personality disorder not otherwise specified with antisocial and narcissistic features; (4) despite his 1977 commitment, Kruger has smuggled unauthorized drug medications into his facility (1982), used intoxicants (1989), and possessed drug paraphernalia (1990); (5) Kruger has never completed a chemical dependency treatment program and lacks insight into the nature of his chemical dependence; (6) Kruger seduced and sexually abused young children prior to his commitment, and sexually abused a vulnerable adult while at the security hospital; (7) on admission to the security hospital, Kruger admitted a lengthy history of dysfunctional sexual behavior; (8) while in the security hospital, Kruger possessed a photo album containing pictures of nude, pre-adolescent girls; (9) Kruger admitted he had sexual fantasies about young girls; (10) two experts testified Kruger would reoffend if he does not receive sex offender and chemical dependency treatment; (11) an expert testified there is a significant reoffense rate among pedophiles; and (12) Kruger lacks an aftercare program if discharged. These facts provide clear and convincing evidence that discharge is inappropriate at this time.


Kruger also argues he is entitled to a discharge of his commitment as a psychopathic personality because the Commissioner did not provide timely notice of the hearing before the special review board and the appeal panel did not provide a timely hearing. See Minn. Stat. '' 253B.18, subd. 5 (notice of hearing before special review board shall be provided within 45 days of filing of petition), 253B.19, subd. 2 (hearing before judicial appeal panel shall be within 45 days of filing of petition). The record shows:  (1) Kruger filed his discharge petition on August 22, 1994; (2) Kruger received written notice of the hearing on November 14, 1994; and (3) Kruger's petition was heard before the special review board on December 5, 1994. While it is undisputed that the 45-day time period was not met, we are not persuaded that the statute contemplates discharge as a remedy. First, the supreme court has long recognized the rule that "provisions defining the time and mode in which public officers shall discharge their duties * * * are generally deemed directory" and carry no jurisdictional significance. See Heller v. Wolner, 269 N.W.2d 31, 33 (Minn. 1978) (quoting Wenger v. Wenger, 200 Minn. 436, 438, 274 N.W. 517, 518 (1937)). Thus, in the absence of language imposing specific consequences in response to the untimely exercise of a judicial function, we will not hold that tardiness operates as a waiver of continued jurisdiction over an individual. See id. (arriving at this conclusion in a license-revocation proceeding); see also In re Eigenheer, 453 N.W.2d 349, 354-55 (Minn. App. 1990) (refusing to void an untimely administrative order, which would have been "an inappropriate and unduly harsh remedy"). Because Kruger was committed in accordance with appropriate procedures, the statutory time requirement in this case merely provides for the efficient administration of government business and does not implicate the constitutional right to a timely hearing regarding the initial deprivation of a fundamental liberty interest. Cf. Humenansky v. Minnesota Bd. of Medical Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994) (noting that due process requires a timely hearing whenever the government deprives an individual of a liberty interest), review denied (Minn. Feb. 14, 1995). Moreover, even if due process imposes an outer limit on the permissible delay of a hearing on Kruger's petition for release, we doubt that he is entitled to automatic emancipation. See State ex rel. Longman v. Kachelmacher, 255 Minn. 255, 259-60, 96 N.W.2d 542, 546 (1959) (noting that mandamus will lie when it is the clear duty of an officer to perform an act at a particular time and in a particular manner).


Citing newly discovered evidence, Kruger's attorney moved to stay or dismiss the appeal while preserving the right to raise all issues in a subsequent appeal. By letter, Kruger opposed dismissal and requested that we or the appeal panel address the issue of new evidence. However, because our appellate role constrains us to review only those issues actually presented to and decided by the trial court, the matter of newly discovered evidence is not properly before us. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)). We make no judgment about the propriety of Kruger raising this issue before the appeal panel. See Minn. R. Civ. P. 60.02(b) (setting forth the proper mechanism by which to seek post judgment relief based on newly discovered evidence); see also In re Jost, 449 N.W.2d 719, 721 (Minn. 1990) (indicating timely appeals may be taken from post-decisional orders to the same extent permitted in other civil cases).