Opinion
No. 111,318.
2014-11-21
Dustin J. MERRYFILED, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, Appellee.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Ryan W. Thornton, litigation counsel, and Kimberly M.J. Lynch, senior litigation counsel and special assistant attorney general, of Kansas Department for Aging and Disability Services, of Topeka, for appellee.
Review Denied March 12, 2015.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Ryan W. Thornton, litigation counsel, and Kimberly M.J. Lynch, senior litigation counsel and special assistant attorney general, of Kansas Department for Aging and Disability Services, of Topeka, for appellee.
Dustin J. Merryfield appeals the district court's denial of his habeas corpus writ. The district court correctly determined there was no violation of Merryfield's constitutional right to receive treatment in the way class assignments were allocated or his right to receive mail. Finally, we note the district court should have assessed the costs of this action pursuant to K.S.A.2013 Supp. 59–29a23(a) to the county where Merryfield was found to be a violent sexual offender, not pursuant to K.S.A.2013 Supp. 60–1505(d). Affirmed in part, reversed in part, and remanded with directions.
Merryfield, a resident of the Sexual Predator Treatment Program (SPTP) located at Lamed State Hospital (Lamed), filed a writ of habeas corpus. At an evidentiary hearing, Merryfield's claims were narrowed to two alleged constitutional violations: A substantive due process violation of his right to receive treatment and a procedural due process violation of his right to receive mail.
Merryfield testified he had trouble enrolling in required education and activity courses on December 21, 2010, and March 24, 2011. Specifically, the classes he wanted were not available, and he was required to enroll in classes he did not want to take in order to meet a minimum number of quarterly course hours. Merryfield testified he “more than likely” did not attend the classes he did not want to take. The record reflects that Merryfield's poor attendance history during previous quarters determined his ability to pick and choose enrollment for future classes. Merryfield also testified he was denied his right to receive mail:
“Well, the way that transpired is that normally a lot of the classes that I take are in the afternoons between 3:00 and 5:00, because I do a lot of the yard sessions and physical activities which are between 3:00 and 5:00. Between 3:00 and 5:00 is mail call. So, if you miss mail call, then you have to wait until the next day or the next day or the next day.
“But unfortunately for me, it was five days a week where I was going 3:00 to 5:00. So, getting mail was not that easy. Now, there is a—there is a procedure in place supposedly, for getting your mail in the mornings, but that policy once again, was not being followed by the property or mail officers and today even they don't even follow that. So, it is either give up going to class and taking that unexcused absence [or] not get mail.”
Merryfield asserted mail call did not always last the full 2 hours because “the property or mail officer left early because they wanted to.”
On cross-examination, Merryfield admitted he was not enrolled in any course or combination of courses that took up the full 2–hour period of mail call. On recross-examination, Merryfield conceded that if he missed mail call, he was able to pick up his mail the following day.
David Stute, a property officer, was called to testify about how mail call was handled at SPTP. Stute testified mail call was usually finished by 4:30 p.m. but occasionally property officers stayed past 5 p.m. to complete mail call. Stute testified residents have 5 days to pick up mail before it is returned. He also clarified that if mail call was missed, residents could arrange to pick up their mail the next morning or during the next day's mail call. Stute testified there was “[n]o reason” a resident would not be able to pick up his mail between 4 p.m. and 5 p.m. if he had class from 3 p.m. to 4 p.m.
The district court denied Merryfield's writ of habeas corpus, finding his substantive due process complaint against the adequacy of his treatment (regarding how his class options were determined) was not reviewable due to his lack of compliance with the program requirements and his procedural due process complaint about receiving his mail was not supported by the evidence. The district court also assessed Merryfield court costs in the amount $178.
Merryfield timely appealed. Shawn Sullivan, Secretary of the Kansas Department for Aging and Disability Services, cross-appealed but failed to brief the issue, and we deem the cross-appeal waived and abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Merryfield argues his right to adequate care and treatment was denied by being forced to enroll in classes he did not like and which were also scheduled at the same time as mail call. Merryfield does not argue how his choice of class assignments amounted to a constitutional violation of his treatment. Sullivan argues Merryfield cannot argue his right to adequate care and treatment was denied because “[a] challenge to the efficacy of the treatment program is without merit” where the patient “[does] not participate in that treatment,” citing Johnson v. State, 289 Kan. 642, 655–56, 215 P.3d 575 (2009) ( “noncompliance with the program hinders the ability to ascertain whether the SPTP, as applied to [the patient], has been or will be effective”).
An appellate court reviews a district court's decision on a K.S.A.2013 Supp. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
Substantive due process protects a narrow range of fundamental liberty interests that are not otherwise enumerated in the United States Constitution. See Taylor v. Kansas Dept. of Health & Environment, 49 Kan.App.2d 233, 244, 305 P.3d 729 (2013), rev. denied 299 Kan. –––– (April 28, 2014). Especially egregious or arbitrary actions of government officials may violate substantive due process protections of the Fourteenth Amendment if they further no legitimate government interest or their character “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 845–47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
We pause to note the lack of guidance from the United States Supreme Court on the “specific elements or characteristics [that] comprise a constitutionally adequate civil-commitment program for sex offenders who are a continuing risk to society.” Merryfield v. State, 44 Kan.App.2d 817, 820, 241 P.3d 573 (2010) (citing Johnson, 289 Kan. at 653–54). Nevertheless, it is clear that “[d]ue process of a civilly committed sex offender requires that the conditions and duration of confinement bear some reasonable relation to the purpose for which the person has been committed.” Merryfield, 44 Kan.App.2d at 821. The purpose of the SPTP is to provide direct supervised control over sexually violent offenders while caring for or attempting to treat the underlying condition for which they were committed. See K.S.A. 59–29a01 (establishing civil commitment process “for the potentially long-term control, care and treatment of sexually violent predators”); K.S.A.2013 Supp. 59–29a07(a) ( “allowing commitment of dangerous sex offenders into state custody “for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large”); K.S.A.2013 Supp. 59–29a22(b)(3) (recognizing committed sex offender's “right to receive prompt and adequate treatment, rehabilitation and educational services appropriate for such patient's condition”).
Merryfield failed to show that the SPTP curriculum does not bear some reasonable relation to the purpose for which he is committed. Merryfield complains about his inability to attain 100% attendance rates, which is preventing him from progressing through course levels and ultimately attaining release from SPTP. However, Merryfield testified he sometimes chooses not to attend the classes.
The district court declined to address Merryfield's argument that he was not receiving adequate care and treatment, relying on Johnson. Merryfield's class attendance records were admitted as exhibits at the hearing. Merryfield stated he did not always attend classes and that fact was supported by substantial competent evidence. Johnson is controlling law, and the district court's legal conclusion was sound. Even if the district court had addressed his claim, Merryfield made no showing that his treatment was not reasonably related to the purposes for which he was civilly committed, nor has he demonstrated a violation of his substantive due process rights
Merryfield maintains on appeal that his right to receive mail “has effectively been denied,” Sullivan characterizes Merryfield's “claim relating to a violation of procedural due process is not that [he] was deprived of receiving his mail, but rather his receipt of that mail was occasionally delayed due to conflicts in his class schedule.”
Due process is a flexible concept rather than a technical one and it requires only such procedural protections as each particular situation demands. Whether due process under the Fourteenth Amendment to the United States Constitution exists in a particular situation is a question of law subject to unlimited review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001).
“Procedural due process concerns appropriate mechanisms to protect against government action erroneously stripping persons of rights or interests derived from some other legal source.” Clark v. Sullivan, No. 110,394, 2014 WL 4627587, at *3 (Kan.App.2014) (unpublished opinion). Procedural due process requires that a person be afforded a right to be heard in a meaningful way before being irrevocably deprived of “life, liberty, or property.” State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) (“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.”).
Residents at SPTP have a right to receive items in the mail under K.S.A.2013 Supp. 59–29a22(b)(14), (15). This court has recognized SPTP residents' right to receive mail as a property right invoking procedural due process protection. Pew v. Sullivan, 50 Kan.App.2d 106, 111–13, 329 P.3d 496, rev. denied 299 Kan. –––– (June 20, 2014).
Framed as a procedural due process issue, Merryfield's challenge simply asks if he has been afforded a full and fair opportunity to be heard on whether his statutory right to receive mail has been impermissibly compromised. The short answer is yes he received due process. The district court held a full evidentiary hearing to address what Merryfield raised in his 60–1501 petition, including mail delivery. Merryfield has not argued the district court denied him the opportunity to submit relevant evidence or to call relevant witnesses. Nor does he suggest he was denied the chance to cross-examine the Department's witnesses or otherwise dispute its evidence. In other words, Merryfield got to air his case in a fairly conducted hearing, and that's what procedural due process is all about. Merryfield's constitutional right was honored.
Moreover, on the merits, Merryfield has failed to show any violation of his statutory right to receive mail. At most, Merryfield sometimes had to pick up his mail a day or two after it arrived at the facility. He concedes no otherwise proper mail was permanently kept from him. The district court correctly concluded: “Merryfield has failed to show any permanent denial or deprivation of his right to receive mail.” On recross-examination, Merryfield admitted he was able to get any mail missed on a different day. Additionally, he testified he was not enrolled in any classes or combination of classes that took up the entire 2–hour period of mail call.
Merryfield's chief complaint here is the classes he was assigned to take conflicted at times with his ability to get mail. Merryfield did not present any evidence showing he was denied access to his mail in a timely manner. Merryfield fails to show a violation of his procedural due process right to receive his mail. The district court's decision is supported by substantial competent evidence.
Merryfield argues the district court erred when it assessed court costs against him, relying on Merryfield v. Sullivan, 50 Kan.App.2d 313, 324 P.3d 1132, rev. granted October 31, 2014. Sullivan argues that case was wrongly decided and includes legislative testimony as an appendix to his appellate brief in support of his contention. Merryfield filed a reply brief urging this court to reject Sullivan's appendices, arguing they “lack foundation.”
Resolution of this issue requires interpreting K.S.A.2013 Supp. 60–1505 and K.S.A.2013 Supp. 59–29a23. Statutory interpretation is a question of law subject to unlimited review. State v. Ballard, 289 Kan. 1000, 1006, 218 P.3d 432 (2009).
K.S.A.2013 Supp. 60–1505(d) provides that if the district court determines the restraint complained of in a K.S.A.2013 Supp. 60–1501 petition “is not wrongful, the writ shall be dissolved at the cost of the plaintiff.” Under this statute, Merryfield could potentially be assessed court costs when the district court dismissed his petition.
However, K.S.A.2013 Supp. 59–29a23(a) provides that when a resident of SPTP files a K.S.A.2013 Supp. 60–1501 petition relating to his or her civil commitment, “the costs incurred, including, but not limited to, costs of appointed counsel fees and expenses, ... and other expenses related to the prosecution and defense of such petition shall be taxed to the county responsible for the costs .” The “county responsible for the costs” is defined as “the county where the person was determined to be a sexually violent predator.” K.S.A.2013 Supp. 59–29a23(c). Under this statute, costs of this action should be assessed to the county causing Merryfield's civil commitment. Clearly, K.S.A.2013 Supp. 60–1501 and K.S.A.2013 Supp. 29a23(a) conflict on how costs are to be assessed.
“When statutes overlap and produce inconsistent results, we may turn to the canon of construction providing that a specific statute controls over a more general statute.” State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012) (citing State v. Chavez, 292 Kan. 464, 466, 254 P.3d 539 [2011] ).
Sullivan's argument that K.S.A.2013 Supp. 60–1505 should apply is not persuasive; although it is true that K.S.A.2013 Supp. 60–1505 addresses costs when a writ of habeas corpus is denied, K.S.A.2013 Supp. 59–29a23(a) applies specifically to residents of the SPTP. 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 SPTP. See Merryfield, 50 Kan.App.2d 313, Syl. ¶¶ 1–2. Because K.S.A.2013 Supp. 59–29a23(a) applies, there is no reason for this court to investigate the legislative history of K .S.A.2013 Supp. 59–29a23(a). See State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012) (appellate court does not speculate about legislative intent where statute is plain and unambigulous). The district court's assessment of costs of this action against Merryfield is reversed.
The district court properly analyzed Merryfield's writ for habeas corpus and denied it. Merryfield failed to show the assignment of classes that occasionally overlapped the time for him to appear at mail call violated his substantive or procedural constitutional due process rights. The district court failed to properly assess the costs of this action to the county where Merryfield was found to be a sexually violent predator, and we remand to the district court for that purpose pursuant to K.S.A.2013 Supp. 59–29a23(a).
Affirmed in part, reversed in part, and remanded with directions.