Merryfield v. State

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No. 103,394

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUSTIN J. MERRYFIELD,
Appellant,

v.

STATE OF KANSAS, et al.,
Appellees.


SYLLABUS BY THE COURT

1.
A person involuntarily confined in the Kansas Sexual Predator Treatment Program
may file a habeas-corpus petition under K.S.A. 60-1501 for a declaration that the
confinement is wrongful. To avoid summary dismissal, the petition must allege either (1)
shocking or intolerable conduct or (2) continuing mistreatment of a constitutional nature.
The petition may be summarily dismissed if it does not make such allegations or if it can
be established from incontrovertible facts that no cause for granting relief exits.

2.
The allegations in this case, which include allegations that the treatment provided
is so inadequate that there is no realistic chance for the petitioner to regain his freedom,
sufficiently allege continuing mistreatment of a constitutional nature to avoid summary
dismissal.


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3.
Once a person involuntarily confined in the Kansas Sexual Predator Treatment
Program has filed a habeas-corpus petition under K.S.A. 60-1501 that presents
allegations serious enough to avoid summary dismissal, the person has a right to counsel
in the proceeding.

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed October 22,
2010. Reversed and remanded with directions.

Dustin J. Merryfield, of Larned, appellant pro se.

C. William Ossmann, chief of litigation, and Danny J. Baumgartner, litigation attorney, of Kansas
Department of SRS, for appellees.

Before MCANANY, P.J., BUSER and LEBEN, JJ.

LEBEN, J.: For more than a decade, Dustin Merryfield has been confined at the
Larned State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01
et seq. He has filed a habeas-corpus petition under K.S.A. 60-1501 raising claims that go
to the core of the Kansas treatment program for sexual predators: Merryfield claims that
the program is run so poorly that it doesn't offer a realistic opportunity to cure or improve
the mental abnormality for which he has been involuntarily confined. We must reverse
the district court summary dismissal of Merryfield's petition because it raises
constitutional claims of potential merit.

We also reverse the district court's decision refusing to appoint counsel to
represent Merryfield in this habeas action. While there is no general right to counsel in
civil habeas cases, the constitutionality of the Kansas Sexually Violent Predator Act
depends upon the procedural rights given to those who are involuntarily committed under

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its provisions. The Kansas Legislature has explicitly provided a right to counsel to such
persons during annual review hearings and has explicitly provided a right to counsel in
K.S.A. 60-1501 proceedings to those involuntarily committed under other similar
statutes. We therefore conclude that in the case of habeas actions brought by persons
confined pursuant to the Kansas Sexually Violent Predator Act, those persons have a
constitutional right to counsel if the district court determines that their petitions cannot be
summarily dismissed.

FACTUAL BACKGROUND

Since December 2000, Dustin Merryfield has been confined under the Kansas
Sexual Predator Treatment Program at Larned State Hospital. He was put in the
program's intensive-treatment unit after he hit a staff member, verbally threatened other
staff members, and destroyed property during a routine room search. See Merryfield v.
Turner, 2008 WL 4239118, at *1 (Kan. App. 2008) (unpublished opinion), rev. denied
288 Kan. 832 (2009). The intensive-treatment unit seeks to help patients with anger,
stress tolerance, and decision-making so that they can be successful upon return to the
regular treatment program.

Merryfield's current K.S.A. 60-1501 petition claims the treatment program does
not provide constitutionally adequate care and treatment for his mental and personality
disorders. After serving the petition, Merryfield made several discovery requests of the
Department of Social and Rehabilitation Services, seeking both documents and
admissions. At the department's request, the district court delayed discovery until it had
determined whether Merryfield's petition stated any potentially valid clams. The district
court also deferred ruling on Merryfield's request for an attorney until the department
responded to the petition.

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The department filed a motion to dismiss, claiming that Merryfield's petition failed
to meet the standards for a viable constitutional claim, i.e., that he hadn't alleged either
shocking or intolerable confinement conditions or continuing mistreatment of a
constitutional nature. The district court agreed and summarily dismissed Merryfield's
petition because Merryfield had not presented a substantial question of law or a factual
dispute requiring trial. The district court then denied appointment of counsel because
Merryfield hadn't presented a substantial question of law or factual dispute requiring trial.
The district court determined that the request for discovery was moot because the petition
was being dismissed. Merryfield has appealed all of these rulings to our court.

I. Because Merryfield Has Alleged Continuing Mistreatment of a Constitutional
Nature, His Petition Cannot Be Summarily Dismissed.

Merryfield's petition raises a litany of claims asserting that the Kansas Sexual
Predator Treatment Program can't give him the appropriate treatment that could lead to
his release. He specifically claimed that: (1) the program's therapists weren't adequately
trained; (2) the intensive-treatment unit forces treatment by withholding items of comfort
if the patient refuses treatment; (3) it isn't effective to show him obscene materials during
therapy sessions to achieve the goal of teaching that possessing such materials is wrong;
(4) individual therapy sessions are needed but not provided; and (5) effective treatment
methods are hindered by overriding security measures and the lack of funds and
resources.

A person involuntarily confined in the Kansas Sexual Predator Treatment Program
may petition the court under K.S.A. 60-1501 for a declaration that the confinement is
wrongful. Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). To avoid summary

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dismissal, the petition must allege either (1) shocking or intolerable conduct or (2)
continuing mistreatment of a constitutional nature. 289 Kan. at 648. The petition may be
summarily dismissed if it does not make such allegations or if it can be established from
incontrovertible facts that no cause for granting relief exists. 289 Kan. at 648-49. On
appeal from a summary dismissal, we review the matter without any required deference
to the district court because we have equal access to the petition and court files. See 289
Kan. at 649.

Merryfield's allegations do not meet the standard for shocking conduct. To meet
that test, the United States Supreme Court has said that the governmental actor's behavior
must be "so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 140 L. Ed. 2d 1043,
118 S. Ct. 1708 (1998). That standard is a bit subjective, but the Johnson case provides
some guidance. If the state hospital staff showed a complete indifference to their
obligation to provide treatment to Merryfield, that could qualify as outrageous conduct.
See Johnson, 289 Kan. at 653. But as was the case in Johnson, the allegations here are
primarily that treatment is being provided, but it's ineffective. That does not show
conduct so outrageous as to shock the contemporary conscience. 289 Kan. at 652-53.

As to the alternative grounds for relief—continuing mistreatment of a
constitutional nature—the United States Supreme Court has not said what specific
elements or characteristics comprise a constitutionally adequate civil-commitment
program for sex offenders who are a continuing risk to society. See Johnson, 289 Kan. at
653-54. We must balance the individual's liberty interest against the government's
reasons for restraining liberty. Youngberg v. Romeo, 457 U.S. 307, 320-21, 73 L. Ed. 2d
28, 102 S. Ct. 2452 (1982). In balancing these interests in the context of treatment
programs for civilly confined sex offenders, one federal appellate court has held that the

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treatment programs must provide a realistic opportunity for the offenders to be cured or
improve the condition for which they were committed, see Sharp v. Weston, 233 F.3d
1166, 1172 (9th Cir. 2000), while another held that the conditions and duration of
confinement must at least bear a reasonable relationship to providing treatment rather
than mere preventive detention. Cross v. Harris, 418 F.2d 1095, 1106-07 (D.C. Cir.
1969). Indeed, the United States Supreme Court's decision upholding the constitutionality
of the original Kansas law for civil commitment of sexual predators was based in part on
the provision of appropriate treatment. See Kansas v. Hendricks, 521 U.S. 346, 368-69,
138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). Due 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. Seling v. Young, 531
U.S. 250, 265, 148 L. Ed. 2d 734, 121 S. Ct. 727 (2001). One important purpose of
Merryfield's commitment is for treatment of the mental abnormality that led to his
confinement as a dangerous sex offender. 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. 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. 2009 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's allegations, if true, establish that the treatment program does not
provide a realistic opportunity for him to be cured or to substantially improve his
condition. Those allegations are sufficient to withstand summary dismissal. We have
summarized Merryfield's allegations for the purposes of our opinion, but we note that he
did provide more specific allegations than we have summarized here. For example, he

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made specific allegations about the lack of qualifications of individual therapists and
about the ineffectiveness of some of the treatment methods, such as group sessions and
the showing of obscene materials in treatment sessions. We recognize that courts should
defer to the judgment of professionals in what conditions and treatment methods are
needed. See Youngberg, 457 U.S. at 322-23; Allison v. Snyder, 332 F.3d 1076, 1079 (7th
Cir. 2003). But such a judgment call would not be made at the summary-dismissal stage
when the petition may be dismissed only if incontrovertible facts establish that the
petitioner is not entitled to relief.

In addition to his claim that the treatment actually provided to him has been
constitutionally inadequate, Merryfield made one facial challenge to the overall validity
of K.S.A. 2009 Supp. 59-29a22, the statute under which he has been confined. He argued
that this statute wrongfully limited his right to receive treatment upon the availability of
state and federal funds to provide that treatment. But a facial challenge—in which a party
does not have to show factually that the statute is being applied in an unconstitutional
manner—must fail if "there is any reasonable way to construe the statute as
constitutionally valid." In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169 P.3d 321
(2007). Merryfield correctly notes that the statutory recognition of his "right to receive
prompt and adequate treatment, rehabilitation and educational services appropriate to
[his] condition" is only granted "within the limits of available state and federal funds."
K.S.A. 2009 Supp. 59-29a22(b)(3). But we are to construe statutes to be constitutional if
possible, State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009), and a state may not
withhold needed treatment from a civilly committed sex offender based on a claim that
funds are lacking. Ohlinger v. Watson, 652 F.2d 775, 779 (9th Cir. 1980); Turay v.
Seling, 108 F. Supp. 2d 1148, 1151 (W.D. Wash. 2000). Moreover, K.S.A. 59-29a09
explicitly provides that the confinement "of persons under this act shall conform to
constitutional requirements for care and treatment." We therefore construe K.S.A. 2009

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Supp. 59-29a22(b)(3) to grant the right to adequate treatment meeting constitutional
standards but to condition any treatment beyond that constitutionally required minimum
level upon the availability of funds. Thus, while the statute survives a facial constitutional
challenge, Merryfield still will have the opportunity to prove at a hearing that a lack of
funding has resulted in his treatment falling below constitutional standards.

Merryfield has also contended that the Kansas Sexually Violent Predator Act
violates equal protection by treating sexual predators different than people civilly
committed under the Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et
seq., and the Care and Treatment Act for Persons with an Alcohol or Substance Abuse
Problem, K.S.A. 59-29b45 et seq.

Status as a sex offender is not a suspect class, like race or national origin, for
equal-protection analysis. See United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir.
2001); Hines v. Addison, 117 Fed. Appx. 713, 715 (10th Cir. 2004) (unpublished
opinion). Thus, the Act will be constitutional if the classification bears a rational
relationship to a legitimate government objective. State v. Mueller, 271 Kan. 897, 903, 27
P.3d 884 (2001), cert. denied 535 U.S. 1001 (2002). But to violate equal protection, the
disparity in treatment must be between persons with indistinguishable situations. 271
Kan. at 903. The legislature explicitly recognized that sexually violent predators have
special treatment needs and present special risks to society:

"Because the existing civil commitment procedures under K.S.A. 59-2901 et seq. and
amendments thereto are inadequate to address the special needs of sexually violent
predators and the risks they present to society, . . . a separate involuntary civil
commitment process for the potentially long-term control, care and treatment of sexually
violent predators is necessary." K.S.A. 59-29a01.


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Merryfield argues that this intent shows that the legislature merely wanted to
provide sexually violent predators with specialized treatment, not "a whole new level of
confinement." Contrary to his argument, the legislature further deemed it "necessary to
house involuntarily committed sexually violent predators in an environment separate
from persons involuntarily committed under" the statute for the commitment of the
mentally ill. K.S.A. 59-29a01.

The legislature has declared that sexually violent predators are different from other
civilly committed persons with respect to treatment and risk, and those legislative
findings pass muster on this facial challenge to the statute's constitutionality. Merryfield
had the threshold burden to establish that sexually violent predators are similarly situated
to others confined for mental illness with respect to treatment needs and risks to society.
See People v. Ranscht, 173 Cal. App. 4th 1369, 1372, 93 Cal. Rptr. 3d 800 (2009);
Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009). He has not done so. Thus, the
department can subject those found to be sexually violent predators to treatment and
confinement conditions different from those of other civilly committed persons without
violating the Equal Protection Clause. See In re Detention of Samuelson, 189 Ill. 2d 548,
562-63, 244 Ill. Dec. 929, 727 N.E.2d 228 (2000); In re Detention of Williams, 628
N.W.2d 447, 451-53 (Iowa 2001); Pedersen v. Plummer, 120 Fed. Appx. 665, 666-67
(9th Cir. 2004) (unpublished opinion); Brull v. Kansas Dept. of SRS, 2010 WL 3984998,
at *7 (Kan. App. 2010) (unpublished opinion); but see People v. McKee, 47 Cal. 4th
1172, 1203-04, 104 Cal. Rptr. 3d 427, 223 P.3d 566 (2010) (remanding equal-protection
claim for evidentiary hearing under strict-scrutiny test).

II. Merryfield Is Entitled to the Appointment of Counsel.


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Merryfield sought the appointment of counsel in the district court; that court
denied that request based on its conclusion that Merryfield had not presented a viable
issue for an evidentiary hearing. Because we have reversed that finding, we must
consider whether Merryfield is entitled to counsel on remand. He argues a right to
counsel on both a constitutional and statutory basis.

He bases the statutory argument on K.S.A. 22-4503(a), which provides a right to
counsel in habeas proceedings brought by persons involuntarily committed on account of
mental illness. Because he too is civilly committed, he argues that the statute should
apply to him. If it doesn't, then he argues that he has been denied equal protection
because other similarly situated people have a statutory right to counsel and he doesn't.

K.S.A. 22-4503(a) does not provide a right to counsel to Merryfield. By its terms,
only "[a] person subject to an order or commitment pursuant to K.S.A. 22-3428 or K.S.A.
59-2965" is given a right to counsel in habeas proceedings. Merryfield is confined under
K.S.A. 59-29a07, part of the Kansas Sexually Violent Predator Act, not under K.S.A. 22-
3428 (applicable to persons acquitted in criminal cases on account of mental disease or
defect) or K.S.A. 59-2965 (applicable to persons committed on account of mental
illness).

Of course, our inquiry does not stop with the statute; Merryfield has also claimed a
constitutional right to counsel. Before discussing that in detail, we must place his habeas
petition under K.S.A. 60-1501 in context. The writ of habeas corpus allows a person held
by the government to challenge the lawfulness of the confinement, a quintessential right
in our nation. When used by a person already convicted of a crime, the habeas petition is
usually a collateral attack on the fairness of the procedures used to obtain that conviction.
In that context, in which a defendant has already had a right to counsel through the

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criminal case, including an appeal, there generally is no constitutional right to counsel in
the postconviction habeas case, which is civil in nature, not criminal. See Pennsylvania v.
Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Brown v. State, 278
Kan. 481, 483, 101 P.3d 1201 (2004) (citing Finley).

But the traditional habeas context at issue in Finley, in which a person is held in
custody based on conviction for a crime, is not Merryfield's case at all. He is detained not
as punishment for a crime but for purposes of treatment and public safety. He has been
involuntarily committed in a civil proceeding, not a criminal one. The United States
Supreme Court has recognized a limited right to counsel under the Fourteenth
Amendment's Due Process Clause in some civil proceedings. See In re Gault, 387 U.S. 1,
41, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) (holding that a juvenile has a constitutional
right to counsel in delinquency proceedings despite designation of such proceedings as
civil in nature). But Merryfield's case also differs from Gault and most other cases in
which a right to counsel has been recognized because the right to counsel usually has
been recognized in the case resulting in the initial deprivation of liberty, not a later
proceeding raising a collateral attack. E.g., Project Release v. Prevost, 722 F.2d 960, 976
(2d Cir. 1983) ("A right to counsel in civil commitment proceedings may be gleaned
from the Supreme Court's recognition that commitment involves a substantial curtailment
of liberty and thus requires due process protection."); Jenkins v. Director, Va. Ctr. for
Behav. Rehab., 271 Va. 4, 15-16, 624 S.E.2d 453 (2006) (person subject to involuntary
civil commitment, including sexually violent predator, has constitutional right to counsel
at all significant stages of the proceeding).

We conclude that Merryfield's situation differs substantially from the traditional
habeas context at issue in Finley where no constitutional right to counsel exists and that a
constitutional right to counsel must be recognized whenever a person in his position has

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presented a petition under K.S.A. 60-1501 that is not subject to summary dismissal. As
our court emphasized in In re Care & Treatment of Miles, 42 Kan. App. 2d 471, 476, 213
P.3d 1077 (2009), the rights available to persons confined under the Kansas Sexually
Violent Predator Act are critical to the constitutionality of the entire statutory scheme.
Merryfield's issues here go to the heart of the program's constitutionality. His liberty
interest is manifest, and he contends—with sufficient basis to warrant an evidentiary
hearing—that the treatment provided to him is so ineffective that it could never give him
the help he would need to regain his freedom. A person like Merryfield, who has been
involuntarily committed in a civil proceeding that explicitly recognizes that the detention
may be for a long-term period—more than a decade so far for Merryfield—must be
entitled to the assistance of counsel in the resolution of such substantial claims.

This result is supported by both due-process and equal-protection analysis. Courts
have recognized a constitutional due-process right to counsel at all significant stages of
the proceedings in states where there wasn't a statutory right to counsel in the initial
commitment stage. E.g., United States v. Abregana, 574 F. Supp. 2d 1123, 1140-41 (D.
Hawaii 2008); Jenkins, 271 Va. at 16 (2006); State ex rel. Seibert v. Macht, 244 Wisc. 2d
378, 387-89, 627 N.W.2d 881 (2001). A K.S.A. 60-1501 petition must present a claim of
constitutional mistreatment, and the failure to provide appropriate procedural rights for
the presentation of such claims in Merryfield's circumstance would violate due process.
We therefore conclude that when the K.S.A. 60-1501 claims of a civilly committed
sexual predator are not subject to summary dismissal, counsel must be appointed to
represent the petitioner. Merryfield's claim that the treatment program is so poor that he
will never regain his liberty is certainly among the most significant that could be brought
by a person confined under the Kansas program for treatment of sexually violent
offenders.


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With respect to equal protection, we have already noted that the right to counsel in
habeas cases is provided to persons civilly committed after being found guilty of certain
offenses based on a claim of mental defect and to those civilly committed for general
mental illness. The right to counsel in habeas cases is also provided in Kansas to inmates
who have been imprisoned after felony convictions when their habeas motions under
K.S.A. 60-1507 cannot be summarily dismissed. See K.S.A. 22-4506(b). In this situation,
we are looking not at the different treatment needs or risk profiles of these groups; rather,
we are looking at their ability to access the courts with the assistance of counsel. The
legislature has not explicitly noted any difference between these groups with respect to
their need for counsel to assist in presenting claims of unconstitutional confinement or
treatment in court. With respect to assistance of counsel in presenting such claims, the
legislature treats these groups differently: those who have been committed to the
treatment program for sexual predators, those civilly committed for mental illness, and
inmates convicted of felonies.

We will assume for purposes of our analysis that the most deferential equal-
protection analysis—the rational-basis test—applies. Even under that test, however, we
can discern no rational purpose for denying counsel to those in the sexual-predator
treatment program while providing it to all of the others we've mentioned. Civilly
committed sexually violent predators are constitutionally guaranteed more considerate
confinement conditions than prisoners. Hendricks, 521 U.S. at 363. There is no rational
basis for making it fundamentally more difficult for those committed to the sexual
predator treatment program to seek court redress for unconstitutional conduct—including
conduct that suggests the constitutionality of the entire program may be questioned—than
other civilly committed individuals or inmates. See Macht, 244 Wisc. 2d at 387-89
(basing right to counsel in part on equal-protection analysis).


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One provision in the Kansas Sexually Violent Predator Act, K.S.A. 59-29a06(b),
provides a right to counsel "[a]t all stages of the proceedings" under that Act. But it's
unclear whether the issues Merryfield has raised here can be raised in those proceedings,
which are focused on the mental condition of the person confined or proposed for
confinement, not upon the treatment provided while confined. Either way, the existence
of that statute also supports our equal-protection analysis. If the claims that Merryfield
has brought in this K.S.A. 60-1501 petition could be raised during the annual review
hearings provided under the Kansas Sexually Violent Predator Act, it would be
unreasonable that Merryfield could receive the assistance of counsel for such claims in
that annual review hearing but not at any other time. More likely, because the annual
review hearings are focused on the mental status of the person confined, the issues
Merryfield has raised in his K.S.A. 60-1501 petition would not properly be considered
during an annual review hearing. Yet these issues are integral to the constitutionality of
the program, and—if his allegations are proved true—the annual review hearings would
become an empty exercise. Again, there is no rational basis to deny a right to counsel in
the K.S.A. 60-1501 proceeding in this circumstance, yet grant counsel for the annual
review hearings.

III. The District Court's Discovery Ruling Is Subject to Reconsideration on Remand.

Merryfield also claims on appeal that the district court should not have dismissed
his claims without first allowing discovery. The department did not respond to this point,
but we have already determined that the case must be remanded for an evidentiary
hearing. The district court denied Merryfield's discovery request solely on the basis that
Merryfield had not submitted a claim that survived summary dismissal, so the district
court will have further opportunity to consider whether discovery will be allowed on
remand.

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We have held that ordinary civil discovery methods do not apply in the context of
a habeas proceeding under K.S.A. 60-1507 in which an inmate is confined and the habeas
action challenges the former criminal proceeding that resulted in imprisonment. See
LaPointe v. State, 42 Kan. App. 2d 522, 550-51, 214 P.3d 684 (2009), rev. denied 290
Kan. ___ (2010); see also Bankes v. Simmons, 265 Kan. 341, Syl. & 1, 963 P.2d 412, cert.
denied 525 U.S. 1060 (1998). But part of the basis for that rule is that the relevant facts
are primarily tied to a record that had already been developed in the underlying criminal
case, 42 Kan. App. 2d at 551, yet Merryfield's challenge to his civil confinement involves
his current treatment, not the record of a past proceeding. We express no opinion
regarding whether formal discovery mechanisms like requests for documents or
admissions may—or should—be granted to Merryfield on remand. That issue has not
been briefed by the parties to this appeal.

We reverse the district court's judgment and remand the case for further
proceedings consistent with this opinion.