Opinion
Nos. 109,175 109,187 109,194.
2013-12-6
Timothy J. BURCH, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department on Agrng and Disabilities, Appellee.
Appeal from Pawnee District Court; Bruce T. Gattermans, Judge. Gerald E. Wells, of Lawrence, for appellant. Corrine E. Johnson, litigation counsel, of Kansas Department for Aging and Disability Services, for appellee.
Appeal from Pawnee District Court; Bruce T. Gattermans, Judge.
Gerald E. Wells, of Lawrence, for appellant. Corrine E. Johnson, litigation counsel, of Kansas Department for Aging and Disability Services, for appellee.
Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy J. Burch, a civilly committed sexually violent predator, is a patient in the custody of the Secretary of the Kansas Department for Aging and Disability Services (Secretary) pursuant to the Sexually Violent Predator Act, K.S.A. 59–29a01 et seq. During 2012, Burch filed three petitions for habeas corpus under K.S .A.2012 Supp. 60–1501. The district court stayed the cases and ordered him to exhaust his administrative remedies prior to proceeding in the district court. Prior to the expiration of the stay order, Burch filed motions for relief that were ultimately denied by the district court. Although his habeas corpus petitions were not dismissed, Burch filed the present appeal.
On appeal, Burch contends that the enactment of K.S.A.2012 Supp. 59–29a24 excuses him from his obligation to exhaust appropriate administrative remedies prior to filing a petition seeking a writ of habeas corpus. The Secretary disagrees with Burch's contention. Moreover, the Secretary argues that this court does not have jurisdiction over Burch's appeal because no final order was entered by the district court. The State also argues that appellate counsel should not have been appointed to represent Burch in this appeal. We agree with the Secretary, and we dismiss Burch's appeal for lack of jurisdiction.
Facts
The facts of this case are not in dispute. During August and September 2012, Burch—who is a patient in the Sexual Predator Treatment Program at Larned State Hospital—filed three petitions in Pawnee County District Court seeking writs of habeas corpus pursuant to K.S.A.2012 Supp. 60–1501. In late September and early October 2012, the district court filed an order in each case staying the proceedings for 90 days pending proof that Burch exhausted his administrative remedies pursuant to K.S.A.2012 Supp. 60–1501.
Before the expiration of the 90 days, Burch filed a motion for relief in each case. He argued that the provisions of K.S.A.2012 Supp. 59–29a24—which was enacted by the 2012 Kansas Legislature—exempted him from the requirement that he exhaust appropriate administrative remedies prior to seeking a writ of habeas corpus under K.S.A.2012 Supp. 60–1501. On December 5, 2012, the district court denied each of Burch's requests for relief. It did not, however, dismiss Burch's habeas corpus petitions. Shortly thereafter, Burch appealed, and appellate counsel was appointed to represent him on appeal.
Analysis
The Secretary contends that there is no jurisdiction over this appeal because the district court did not dismiss Burch's habeas corpus petitions. The right to appeal is statutory. See Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609–10, 244 P.3d 642 (2010); Flores Rentals v. Flores, 283 Kan. 476, 480–81, 153 P.3d 523 (2007). Thus, “[w]hether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.” Svaty, 291 Kan. 597, Syl. ¶ 1.
Under K.S.A.2012 Supp. 60–2102(a)(4), we have appellate jurisdiction over a “final decision in any action.” A final decision is one that “generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court.... [It] is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case.” In re T.S.W., 294 Kan. 423, 433, 276 P.3d 133 (2012).
Here, the district court stayed Burch's habeas corpus actions for 90 days until he exhausted his administrative remedies. But instead of exhausting his administrative remedies, Burch filed motions for relief in the district court, contending that K.S.A.2012 Supp. 59–29a24(d) removed any exhaustion requirement in habeas corpus actions filed pursuant to K.S.A.2012 Supp. 60–1501. Although the district court denied the motions for relief, it did not dismiss Burch's habeas corpus petitions. Likewise, nothing in the record on appeal reveals that the district court ever terminated the stay.
Generally, a stay is not a final decision. See Harsch v. Miller, 288 Kan. 280, 289–90, 200 P.3d 467 (2009) (citing a number of cases recognizing that a stay is generally not a final decision for appeal purposes); Turner v. Steele, 47 Kan.App.2d 976, Syl. ¶ 11, 282 P.3d 632 (2012) (“A stay order does not terminate a lawsuit; it merely postpones the disposition.”); Kansas Pipeline Partnership v. Kansas Corporation Comm'n, 22 Kan.App.2d 410, 418, 916 P.2d 76,rev. denied 260 Kan. 994 (1996) (“By entering a stay, the KCC did not issue a final order in the proceeding.”). Accordingly, we find that the stay order was not a final decision for appeal purposes.
Furthermore, we find that neither the stay nor the denial of the motions for relief constitute a collateral order subject to immediate appeal. The collateral order doctrine is a narrow and sparingly used exception to the final order rule. “[T]o be collaterally appealable, the order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Svaty, 291 Kan. 597, Syl. ¶¶ 8–9, 612. An order is “effectively unreviewable” when it implicates “ ‘rights which could be lost or irreparably harmed if immediate review were denied.’ “ Reed v. Hess, 239 Kan. 46, 54, 716 P.2d 555 (1986) (quoting Coleman v. Sherwood Medical Industries, 746 F.2d 445, 446 [8th Cir.1984] ).
Here, we find that the first two factors have been satisfied. First, the district court conclusively found that Burch was required to exhaust administrative remedies prior to filing his K.S.A.2012 Supp. 60–1501 petitions. Second, the issue of exhaustion is separate and distinct from the merits of Burch's claim. The closer question is whether the issue of exhaustion would “be effectively unreviewable on appeal from a final judgment.”
Burch could have responded to the district court's order denying his motions for relief in several ways. He could have exhausted his administrative remedies and proceeded to the district court for a decision on the merits. Then, depending on the outcome, he could have appealed the final order to this court and challenged the exhaustion requirement. Another option would have been for Burch to decline to exhaust his administrative remedies, which would have resulted in dismissal of his petitions. He then could have appealed the dismissal to this court and challenged the exhaustion requirement as the appellant did in Stanley v. Sullivan, 49 Kan.App. ––– 2d ––––, –––P.3d ––––, No. 109,388 (December 6, 2013).
Either of these options would have created a final appealable order and would have led to our review of the issue of exhaustion of administrative remedies. Of course, Burch also had the option to request leave to file an interlocutory appeal from a nonfinal order. See K.S.A.2012 Supp. 60–2102(c); Svaty, 291 Kan. at 612 (noting that there is no need to liberalize the collateral order doctrine considering the opportunity for interlocutory appeal). But there has been no request for leave to file an interlocutory appeal.
Under these circumstances, we do not find the district court's ruling on the issue of exhaustion of administrative remedies to be effectively unreviewable on appeal from a final judgment. In fact, Burch can still obtain a final judgment from the district court. Accordingly, we do not find that the order staying the litigation for exhaustion or the order denying Burch's motions for relief fall within the narrow class of collateral rulings that are appropriately deemed final for the purposes of appeal.
As a practical matter, we note that this court has decided the legal issue presented by Burch in an opinion issued today in Stanley v. Sullivan, 49 Kan.App.2d –––, –––– P.3d ––––, No. 109,388 (December 6, 2013). In Stanley, we held that except when administrative remedies are inadequate or would serve no purpose, a civilly committed sexually violent predator committed to the custody of the Secretary must exhaust such remedies before seeking a writ of habeas corpus in a K.S.A.2012 Supp. 60–1501 proceeding. Finally, because we are dismissing this appeal for lack of jurisdiction, we do not reach the other issues presented by the Secretary in his brief.
Appeal dismissed.