Opinion
No. 112195.
2015-03-13
Dustin J. MERRYFIELD, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, Appellee.
Appeal from Pawnee District Court; John E. Sanders, Sr., Judge.Dustin J. Merryfield, appellant pro se.Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging Disability Services, for appellee.
Appeal from Pawnee District Court; John E. Sanders, Sr., Judge.
Dustin J. Merryfield, appellant pro se. Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging Disability Services, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is Dustin J. Merryfield's appeal of the district court's summary dismissal of his habeas corpus petition. We affirm the dismissal of his petition, but reverse in part, vacate the order assessing costs, and remand with directions.
Merryfield complains about the rules of the Sexual Predator Treatment Program.
Dustin J. Merryfield is a resident of the Sexual Predator Treatment Program established at Larned State Hospital. Merryfield filed a petition for writ of habeas corpus in the district court, complaining about the Program resident rulebook and handbook. Merryfield alleged the rulebook and the handbook unlawfully restricted his rights and was illegally promulgated. The district court ordered Merryfield to provide proof of exhaustion of administrative remedies or to seek a reasonable extension. Merryfield obtained two extensions of time.
In an effort to provide proof of exhaustion, Merryfield submitted to the court over 500 pages in 15 separate documents.
Merryfield filed an amended petition for writ of habeas corpus, alleging 32 claims for relief. Merryfield claimed the resident rulebook and handbook were not properly promulgated and the grievance system was inadequate. The district court initially issued a writ of habeas corpus on September 23, 2013, but then, on July 11, 2014, summarily dissolved the writ, dismissed the petition, and assessed the costs to Merryfield.
The district court held Merryfield failed to state a cause of action or allege an injury and, therefore, lacked standing. The district court also held Merryfield failed to exhaust administrative remedies.
In our ruling we look to four issues. First, we question if Merryfield had to exhaust administrative remedies before filing a petition for habeas corpus relief. Second, we look to see if the court erred when it summarily dismissed Merryfield's claims, especially in light of the fact that Merryfield failed to show how he was injured by these rules. Next, we see if the district court abused its discretion by granting Secretary Sullivan an extension of time to answer Merryfield's petition. Finally, we examine the court's assessment of costs to Merryfield in light of the statute and prior rulings on this point.
Precedent controls the issue of exhaustion of administrative remedies.
Merryfield argues he was not required to exhaust administrative remedies. A recent Kansas Supreme Court ruling supports his argument. In Stanley v. Sullivan, 300 Kan. ––––, Syl. ¶ 4, 336 P.3d 870 (2014), the court ruled: “By enacting K.S.A.2013 Supp. 59–29a24, the legislature did away with any requirement that patients in the custody of the Secretary of the Kansas Department for Aging and Disability Services must exhaust administrative remedies before filing for habeas corpus relief.”
Merryfield is a patient in the custody of the Secretary and, thus, had no legal requirement to first exhaust administrative remedies before seeking habeas corpus relief. The district court erred on this point, and we reverse that ruling.
We see no error in summarily dismissing Sullivan's claims.
Merryfield argues that Secretary Sullivan was required to promulgate the resident handbook and rulebook in conformity with the Rules and Regulations Filing Act, K.S.A. 77–415 et seq. Merryfield contends he was denied his right to due process because the handbook and rulebook were not properly promulgated. He further contends the district court erred by summarily dismissing any claims relating to the promulgation.
In its order on this point, the district court stated: “Essentially, [Merryfield] fails to allege any specific injury or denial of rights as a result of the Handbook and Rulebook provisions he challenges.” The district court went on to say:
“As to other matters raised by Merryfield, he claims he did not receive due process before the Handbook and Rulebook were implemented. It is difficult to discern exactly what rights, constitutionally or otherwise, petitioner believes he has to pre-approve the rules or strike out those blanket policies and regulations that are not to his liking and he cites nothing in support. The Court sees nothing shocking or intolerable about not providing such a process that would only be a futile exercise over a non-existent right.”
The district court also held Secretary Sullivan was not required to personally promulgate the rules.
A review of the cases provides some perspective on this point. To state a claim for relief under K.S.A. 60–1501, a petition must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). If, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists, then summary dismissal is proper. K.S.A.2013 Supp. 60–1503(a); 289 Kan. at 648–49. An appellate court exercises unlimited review of a summary dismissal. 289 Kan. at 649.
To us, Merryfield also fails to allege an injury or a deprivation of rights. Merryfield's vague claims are:
“i. The Resident Handbook and Resident Rulebook are unlawfully promulgated.
“ii. The Resident Handbook and Resident Rulebook have deprived Petitioner of his rights under Kan. Stat. Ann § 59–29a22, through blanket bans and prohibitions, without providing any form or part of Due Process.
“iii. The Resident Handbook and Resident Rulebook have deprived Petitioner of several constitutional rights without any form or part of Due Process.
“iv. Petitioner was denied his Constitutional right to access the Court and justice without delay due to the Resident Grievance Process.”
There is nothing concrete here. He makes no real statement of harm or injury to himself because of the promulgation of these rules.
The district court regarded this as an issue of standing. We see the court's point. In a prior ruling by a panel of this court, the court held:
“Generally, to demonstrate common-law or traditional standing, a person suing individually must show a cognizable injury and establish a causal connection between the injury and the challenged conduct. To establish a cognizable injury, a party must establish a personal interest or stake in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct. [Citations omitted.]” Herd v. Kansas Dept. of Health & Environment, No. 110,552, 2014 WL 2747718, at *3 (Kan.App.2014) (unpublished opinion).
Following the reasoning in Herd, we too question Merryfield's standing because he has shown us neither a cognizable injury nor a causal connection between the injury and the challenged conduct.
We see no error in the district court's ruling that Merryfield had no standing to complain about the rule promulgation.
In passing, we note that at least two panels of this court have addressed the issue of rule promulgation. In Lovingood v. Kansas Social and Rehabilitation Services, No. 105,225, 2011 WL 3250595 (Kan.App.2011) (unpublished opinion), this court held that one of the Program's policies was not subject to the Rules and Regulations Filing Act because the policies were not a general order with general application. 2011 WL 3250595, at *3. In reaching that decision, this court noted that the policy was limited to cover only the people committed to the Program. With such limited application, this court held that it did not fall within the definition of a rule or regulation that must be printed in the Kansas Register. Lovingood, 2011 WL 3250595, at *3.
This court also applied the rationale of Lovingood in Merryfield v. Sullivan, No. 108,805, 2013 WL 4404416 (Kan.App.2013) (unpublished opinion). Similar to the current case, Merryfield argued his property was unlawfully detained because the handbooks and policies allowing for the removal of his property were illegally promulgated. That panel held:
“Here, like in Lovingood, the policies and handbook that Merryfield complains about are not rules of general application. In fact, the policies and handbook only apply to the limited number of residents in the SPTP program. As stated earlier, “ ‘[r]ule and [r]egulation” means a standard, requirement or other policy of general application that has the force and effect of law ... issued or adopted by a state agency to implement or interpret legislation.’ K.S.A. 77–415(c). Therefore, the policies and handbook do not fit within the definition of a rule or regulation. Moreover, the SPTP policies and handbook do not have the force and effect of law.” 2013 WL 4404416, at *4.
Because the Program handbook and rulebook are not subject to the Rules and Regulations Filing Act, the district court did not err by summarily dismissing Merryfield's petition for writ of habeas corpus, including the claims of unlawful promulgation.
There is no abuse of discretion in granting a brief extension.
Merryfield argues the district court lacked jurisdiction over Secretary Sullivan's answer and motion to dismiss, contending Sullivan failed to show good cause for an extension of time to file the answer and the motion to dismiss.
A motion for extension of time is reviewed for an abuse of discretion. Capital One Bank v. Hall, No. 104,056, 2011 WL 768006, at *2 (Kan.App.2011) (unpublished opinion). District courts are granted broad discretion in managing their docket and in ruling on continuances should consider such matters as diligence and the timetable established in resolving the lawsuit. 2011 WL 768006, at *2. A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
Indeed, Secretary Sullivan filed a motion for extension of time to file an answer to Merry field's petition for writ of habeas corpus on October 30, 2013. Sullivan stated the answer was not due until November 4, 2013. Additionally, Sullivan provided the following in support:
“2. Counsel for [Sullivan] has an extensive case load, including four new cases filed by [Merryfield] and numerous cases in the Court of Appeals. For these reasons, counsel requests a brief extension of time to review the documents needed to adequately prepare a response to [Merryfleld's] arguments.
“3. [Sullivan was] not able to consult with [Merryfield] prior to filing this motion.”
This motion was filed prior to the expiration of the original time to answer, and the district court found there was good cause to grant the motion for extension of time. See K.S.A.2013 Supp. 60–206(b).
We see no particular harm to Merryfleld's cause in granting this extension, and the court was able to have the issues fully framed by a complete answer being filed by Secretary Sullivan. We see no abuse of discretion here.
The statute controls the assessment of costs here.
This issue raises a question of which statute applies to this case. Merryfield contends that because he is a sexually violent predator, the costs associated with a petition for writ of habeas corpus must be assessed in accordance with K.S.A.2013 Supp. 59–29a23. Under that statute the costs related to the prosecution and defense of such petition shall be taxed to the county responsible for the costs. K.S.A.2013 Supp. 59–29a23(a). Section (c) of that statute defines “county responsible for the costs” as the county where the person was determined to be a sexually violent predator under K.S.A. 59–29a01, et seq.
On the other hand, Secretary Sullivan claims the district court did not err when it assessed the costs to Merryfield because this was appropriate under K.S.A.2013 Supp. 60–1503(a).
In Merryfield v. Sullivan, 50 Kan.App.2d 313, 314, 324 P.3d 1132 (2014), aff'd in part and vacated in part 301 Kan. ––––, ––––, –––– P.3d –––– (February 27, 2015), this court held (and the Supreme Court affirmed) that the district court erred when it assessed court costs to Merryfield. This panel held it was erroneous for the district court to rely on K.S.A.2013 Supp. 60–1505 when it assessed costs. According to this panel:
“[K.S.A.2013 Supp. 60–1505] is a general statute dealing with the costs that arise in ordinary habeas corpus cases. Because K.S.A.2013 Supp. 59–29a23 is a more specific statute, it controls over K.S.A.2013 Supp. 60–1505. A specific statute controls over a general statute. Likewise, a specific provision within a statute controls over a more general provision within the statute. [Citation omitted.]”
In Merryfield v. Sullivan, No. 111, 318,2014 WL 6676190, at *5 (Kan.App.2014) (unpublished opinion), the panel also held the district court erred when it assessed costs under K.S.A.2013 Supp. 60–1505. This panel held: “Here, K.S.A.2013 Supp. 60–1505 applies generally to all petitioners for a writ of habeas corpus, while K.S.A.2013 Supp. 59–29a23(a) is more specific and controls how costs are assessed for residents of [the Program].” We agree. Costs should be assessed under K.S.A.2013 Supp. 59–29a23(a).
When the legislature enacted K.S.A. 59–29a23, it did so with the understanding of the existing habeas corpus laws, including those requiring the district court to assess the costs of a dismissed habeas petition to the petitioner. Had the legislature intended to exempt civilly committed sexually violent predators from this mandate, it could have done so explicitly in K.S.A. 59–29a23, but it did not.
We adopt the reasoning of the two cases cited above and vacate the district court's order assessing the costs to Merryfield. We remand the issue for assessment of the costs according to K.S.A.2013 Supp. 59–29a23.
Affirmed in part, reversed in part, costs award vacated, and remanded with directions consistent with this opinion.