This opinion will be unpublished and

may not be cited except as provided by

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




Clark A. Kruger,



Michael O'Keefe,

Commissioner of Human Services,


Filed July 20, 1999


Parker, Judge[*]

Hennepin County District Court

File No. PP-68556

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

Mike Hatch, Attorney General, Paul M. Landskroener, Assistant Attorney General, 445 Minnesota St., Suite 900, St. Paul, MN 55101-2127 (for respondent Commissioner of Human Services)

Amy Klobachar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Clark Kruger was convicted of first-degree criminal sexual conduct, kidnapping, and second-degree murder and the district court committed him indeterminately as a psychopathic personality in 1977. Kruger, who is presently completing his criminal sentences in prison, petitioned the Commissioner of Human Services for transfer from prison to the Minnesota Sexual Psychopathic Personality Treatment Center. After the commissioner denied his request, Kruger sought review from the judicial appeal panel, which held it had no jurisdiction to consider the petition. Kruger appeals, contending that the judicial appeal panel had jurisdiction to consider his transfer and, in the alternative, seeking discharge. We affirm.[1]


Whether a court has jurisdiction is a question of law subject to independent appellate review. State v. Behl, 564 N.W.2d 560, 563 (Minn. 1997). "Minnesota courts have consistently recognized that statutory requirements limiting a court's jurisdiction are threshold requirements that must be complied with before a court can exercise jurisdiction." State v. Rojas, 569 N.W.2d 418, 420 (Minn. App. 1997).

Kruger argues that the judicial appeal panel has authority to order his transfer from the Department of Corrections prison to the Department of Human Services treatment facility. While he acknowledges that there is no direct authority for this proposition, he contends the ambiguity that arises when the statute is silent on the topic should be construed in his favor. See In re Grafstrom, 490 N.W.2d 632, 636 (Minn. App. 1992) (noting ambiguities in commitment law construed in favor of person who is being deprived of liberty).

The legislature created the judicial appeal panel with limited authority to review decisions by the Commissioner of Human Services upon petition by the committed person or the county attorney. Minn. Stat. § 253B.19, subds. 1, 2 (1998). The commissioner's authority over a person committed indeterminately as a psychopathic personality[2] is limited to considering transfers "out of a secure treatment facility" under these circumstances. Minn. Stat. § 253B.18, subd. 6 (1998); see Minn. Stat. § 253B.185, subd. 1 (1998) (providing chapter 253B.18 applies to sexual psychopathic personality commitments). "Secure treatment facility" is defined as the Minnesota Security Hospital or the Minnesota Sexual Psychopathic Personality Treatment Center. Minn. Stat. § 253B.02, subd. 18a (1998).

"A statute is ambiguous if it is susceptible to more than one interpretation." See State by Beaulieu v. RSG, Inc., 552 N.W.2d 695, 701 (Minn. 1996). When it is unambiguous, a court will apply the plain meaning. Id. The statute unambiguously authorizes the commissioner to order a transfer only from a secure treatment facility. Minn. Stat. § 253B.18, subd. 6. The judicial appeal panel can do no more than review such a decision. The mere fact that an action is not prohibited does not render it ambiguous. Here, the meaning is unambiguous. Consequently, the appeal panel has no jurisdiction to consider a petition for transfer from a Department of Corrections facility.

Kruger argues that if he is not transferred, he should be discharged from his commitment. He contends that he is being deprived of due process because he is not receiving treatment while in prison. But prisoners have no right to treatment while in prison unless officials show deliberate indifference to a serious medical need. Long v. Nix, 86 F. 3d 761, 765 (8th Cir. 1996). There has been no showing here of deliberate indifference. Instead, appellant appears to be seeking a transfer to, in effect, shorten his prison term. But he must complete his sentence as punishment for his crimes, unless the Commissioners of Corrections, in his discretion, decides to transfer Kruger to a human services facility. Minn. Stat. § 241.07 (1998). Otherwise, when his sentence is completed, he will be transferred to the DHS facility for treatment.

Kruger next contends that because the appeal panel did not hold the hearing within the statutorily-required 45 days, he should be discharged. See Minn. Stat. § 253B.19, subd. 2 (1998) (providing that hearing before appeal panel shall be held within 45 days of filing of petition, and that extension may be granted for good cause). While Kruger raised this issue to the appeal panel, it did not reach the issue. If a "court lacks jurisdiction over the subject matter, it never reaches the area of rights." State Board of Medical Examiners v. Olson, 295 Minn. 379, 388, 206 N.W.2d 12, 18 (1973). Consequently, the appeal panel properly did not reach the merits of this issue.

Kruger also raises constitutional challenges to the Sexually Dangerous Person (SDP) commitment act. As to his challenge to the discharge procedures, the supreme court has already upheld its constitutionality. Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995). As to his argument that under Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), that his commitment is now unconstitutional, this court has very recently rejected these challenges. Joelson v. O'Keefe, ___ N.W.2d ____ (Minn. App. May 18, 1999), pet. for review filed (Minn. June 10, 1999). Any remaining issues likewise have no merit.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] This court has recently affirmed a district court order denying Kruger's petition for a writ of habeas corpus in which he raised similar arguments. In re Lee, CX-99-651 (Minn. App. June 8, 1999) (addressing Kruger's and Lee's consolidated appeals).

[2] In 1994, the legislature repealed the provisions under which Kruger had been committed as a psychopathic personality, reenacted them in chapter 253B, and renamed the commitment "sexual psychopathic personality." 1994 Minn. Laws 1st Spec. Sess. Ch. 1, art 1, § § 2, 4, 6. The legislature explicitly provided that the act was not intended to change the interpretation or application of the law. Id., § 5(a).