IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,132
STATE OF KANSAS,
Appellee,
v.
GERMAINE R. VAN HOET,
Appellant.
SYLLABUS BY THE COURT
1. The interpretation of a statute is a question of law, and the appellate court's review is unlimited.
2. The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.
3. The United States Supreme Court has recognized that in light of the uncertainty of diagnosis in the mental health field and the tentativeness of professional judgment, the courts should pay particular deference to reasonable legislative judgments.
4. Legislative history and relevant case law reveal that the purpose of the 1993 amendment to K.S.A. 22-3428 was to provide a uniform procedure to deal with a defendant who has been acquitted by reason of insanity (now, mental disease or defect), including the defendant's right to due process within such procedure.
5. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. A statute must clearly violate the Constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.
6. Although K.S.A. 2003 Supp. 22-3428 provides for a mandatory commitment in subsection (1)(a), when the provisions of K.S.A. 2003 Supp. 22-3428 are read as a whole, it becomes apparent that the legislature, concerned about due process rights of a defendant acquitted by mental disease or defect provided in subsections (1)(b), (c), and (d) for a timely hearing on the issue of whether the defendant is a currently mentally ill person.
7. The 90-day period between the defendant's acquittal by reason of a mental disease or defect and the defendant's commitment to the state security hospital, with an evaluation report of his or her condition to the court, is necessary to provide the medical experts with a reasonable opportunity to observe the defendant. Without such an evaluation, a trial court would be forced prematurely to determine the potential danger the acquittee poses to himself, herself, or others.
8. Although a defendant may avoid the ordinary criminal penalty by successfully relying on the defense of a mental disease or defect, it is not unreasonable for the legislature to provide for the means by which the State can determine whether the defendant no longer suffers from the same mental abnormality that caused the criminal acts. In this fashion, the commitment of such an acquittee bears a rational relationship to legitimate State purposes so as to comply with equal protection of the law.
9. The Kansas Legislature, in its 1993 amendment of K.S.A. 22-3428, consistent with due process, struck a reasonable balance between the citizens' rights to be secure and protected against the potential dangers posed by a defendant acquitted by reason of a mental disease or defect and that defendant's right to be free at such time as he or she is no longer a danger to himself, herself, or society.
10. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.
11. K.S.A. 2003 Supp. 22-3428 contemplates a procedure whereby the court must hold a hearing to determine whether the defendant is currently a mentally ill person within 30 days after the receipt of a report from the chief medical officer of the state security hospital on the defendant's present mental condition. Any evidence presented by the defendant in that full evidentiary hearing may be considered by the court in making its determination whether to dismiss criminal charges and discharge the defendant, commit the defendant to the state security hospital for treatment, or place the defendant on conditional release subject to provision of the statute.
Appeal from Johnson district court, STEPHEN R. TATUM, judge. Opinion filed May 14, 2004. Affirmed.
James T. Barker, of Kansas City, Missouri, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Patrick A.N. Carney, assistant district attorney, Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The question we must answer is whether K.S.A. 2003 Supp. 22-3428 requires a trial court to commit a defendant who has been acquitted of a criminal charge by reason of a mental disease or defect to the state security hospital for an evaluation for up to 90 days, or whether such a defendant is entitled to an immediate hearing to determine whether he or she is a harm to himself, herself, or others. Our answer is that the Kansas Legislature mandates that the defendant be sent to the state security hospital under the provisions of K.S.A. 2003 Supp. 22-3428(1)(a). We therefore affirm the trial court.
Background
Germaine R. Van Hoet was charged with one count of domestic battery and one count of assault arising out of an incident that occurred on August 31, 2001. The defendant was appointed counsel and pled not guilty to both counts in the amended complaint.
The defendant filed a notice of intent to rely upon the defense of insanity, a request for a psychiatric evaluation, and a motion to determine competency to stand trial. On October 23, 2001, the district court found reason to believe the defendant was incompetent to stand trial and referred her to the Johnson County Mental Health Center for evaluation. Upon its recommendation for further evaluation, the district court committed the defendant to the Osawatomie State Hospital (OSH) for a competency evaluation pursuant to K.S.A. 22-3302.
While at OSH, the defendant was diagnosed as suffering from schizoaffective disorder, bipolar type; personality disorder, not otherwise specified with narcissistic and antisocial features; and hypothryroidism and hypercholesterolemia. OSH staff psychiatrist Pia A. Sharp concluded that although the defendant suffered from schizoaffective disorder, bipolar type, her capacity to understand the proceedings against her and to assist in her defense were not substantially impaired.
On January 4, 2002, the defendant appeared before the trial court, was found competent to stand trial, and was released on bond. On February 22, 2002, the defendant filed a request for the appointment of a licensed psychologist to conduct an examination to determine whether she was sane at the time the offenses were committed.
On March 4, 2002, the defendant was evaluated by licensed psychologist James Ryabik. In his report dated April 3, 2002, Dr. Ryabik indicated that the defendant had deteriorated to a psychotic state when she did not take her medication. He opined that the defendant's failure to take her medication on the date of the incident exacerbated her schizoaffective disorder. Thus, the report indicated that the defendant was not likely to have willfully caused bodily harm to another or willfully and purposely placed one in apprehension of bodily harm. Dr. Ryabik also noted that the defendant should be in psychotherapy and monitored by a responsible professional as she was capable of being out of touch with reality if not on an efficient treatment regimen. Moreover, Dr. Ryabik concluded that the defendant needed help with "self-concept, self-image, and her paranoid ideation."
The defendant waived her right to a jury trial, and the State stipulated that the defendant was insane at the time of the offense. Upon her October 4, 2002, arraignment, the defendant admitted the actions supporting the charges but denied by reason of her mental condition the ability to form the requisite intent to support the charges. The trial court found the defendant not guilty by reason of mental disease or defect. The parties were given the opportunity to file briefs, and the matter of appropriate disposition was set for November 21, 2002.
Upon hearing, the defendant argued she was entitled to a precommitment hearing under K.S.A. 2003 Supp. 22-3428(1)(a) to determine whether she was a mentally ill person as defined by K.S.A. 2003 Supp. 22-3428(7)(b). On her behalf, counsel argued that if a full hearing was granted, the court would have a difficult time finding the defendant mentally ill because she had sought out treatment for her mental illness after being released on bond in January 2002, because she had attended regular counseling sessions at Wyandot Mental Health Center, and because she had taken her prescribed medications. However, no proffer of any such evidence was made to the trial court on November 21, 2002, or at any time before the trial court entered its order on December 10, 2002, committing the defendant to the Larned State Security Hospital (Larned) under the provisions of K.S.A. 2003 Supp. 22-3428.
After consideration of this court's decisions in In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980), and State v. Becker, 264 Kan. 804, 958 P.2d 627 (1998), the trial court ordered the defendant committed under the provisions of K.S.A. 2003 Supp. 22-3428, reasoning as follows:
"The Becker case did not send--in that case the facts were the defendant was not sent to Larned State Hospital. And they said that she did not have to go to Larned State Hospital because the person has been fully evaluated by state psychiatrists from Larned. But it's a narrow exception. Becker supports the clear language of the statute and supports, as well, State v. Jones. Even though the standard for the not guilty is changed, the Jones ruling and holding is good law.
"Here's what Becker says, 'As a result, in 1993, the procedure was changed to the present one, which provides that while a defendant, upon being acquitted by reason of mental disease or defect, must be mandatorily committed to the state security hospital, such commitment is only for such a time as to allow the state security hospital to evaluate the defendant's current mental state. Such an evaluation must be made and a report issued to the court within ninety days'--and we've been through that. 'If the court finds that the defendant is not currently mentally ill, he or she must be released. If the court finds that the defendant is still mentally ill, he or she may be committed or conditionally released.'
"And those are the same conditions, Mr. Barker, that you talked about. . . .
"Frankly, after having heard all the arguments and after reading the cases and after having the matter researched and reading the language of the statute, I'm satisfied that it's mandatory upon finding of not guilty by mental defect, which we have in this case, I must commit the defendant to the state security hospital for an evaluation with a report to be brought back to the court within ninety days and a hearing within thirty days thereafter."
On December 24, 2002, the trial court filed a journal entry finding the defendant not guilty by lack of mental state pursuant to K.S.A. 2003 Supp. 22-3428. See K.S.A. 22-3220. The court ordered the defendant committed to the state security hospital for safekeeping and treatment pursuant to K.S.A. 2003 Supp. 22-3428(1). The court ordered the chief medical officer to submit a written evaluation within 90 days of the defendant's admission, and the court stated it would then set a hearing to determine whether the defendant was currently mentally ill within 30 days of receipt of the report. The defendant's appeal of this order was transferred to this court pursuant to K.S.A. 20-3018(c).
Legislative History and Case Law Relating to K.S.A. 2003 Supp. 22-3428
On appeal, the defendant argues that K.S.A. 2003 Supp. 22-3428(1)(a) grants her a right to an immediate hearing after her acquittal by reason of mental disease or defect on the issue of whether she is a harm to herself or others. According to her argument, if the provisions of K.S.A. 2003 Supp. 22-3428(a) are interpreted otherwise, the statute is unconstitutional on its face in that it denies her and all persons similarly situated due process of law and equal protection. The defendant also contends that if K.S.A. 2003 Supp. 22-3428(1)(a) is interpreted to deny her an immediate hearing, its provisions are unconstitutional as applied to her.
While the defendant limits her arguments to the first subsection of 22-3428 viz., subsection (1)(a), we believe it is necessary to consider the entire statute, including all subsections. A familiar maxim of statutory interpretation provides: "In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]" State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001). However, before examining the entire statute, it is helpful to consider earlier provisions of K.S.A. 22-3428(1), its evolution over time, and supporting Kansas case law interpreting the statute as discussed by this court in Becker.
K.S.A. 1979 Supp. 22-3428(1) provided in relevant part:
"(1) When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be 'not guilty because of insanity,' and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment."
As indicated in Becker, this 1979 version of the statute may have raised due process concerns. See 264 Kan. at 810-13. K.S.A. 1979 Supp. 22-3428 mandated commitment of a defendant acquitted by reason of insanity for a period of indefinite duration. Such an acquitted defendant had the right to request a hearing annually, at which time he or she had the right to attempt to show by a preponderance of the evidence that he or she was not a danger to himself, herself, or others. Thus, a defendant committed under this provision could be held in the state security hospital for a full year without a hearing. See K.S.A. 1979 Supp. 22-3428a. However, the statute did provide for another means of discharge in a case where the chief medical officer of the state security hospital felt that such a discharge was warranted and the defendant could prove to the court that he or she was not a danger to himself, herself, or others. See K.S.A. 1979 Supp. 22-3428(2); K.S.A. 1979 Supp. 22-3428a(3).
In 1980, the Kansas Legislature acknowledged its concern with the indefinite commitment provisions of K.S.A. 1979 Supp. 22-3428(1) by amending the statute to include the following language:
"A finding of not guilty because of insanity shall be prima facie evidence that the acquitted person is presently dangerous to the person's self or others or property of others." L. 1980, ch. 105, sec. 1.
Viewing this amendment in conjunction with its legislative history, we recognized in Becker that the amendment arguably created a right to a precommitment hearing at which time the defendant could attempt to show that he or she was not presently likely to cause harm to himself, herself, or others. See Becker, 264 Kan. at 810-12 (discussing legislative history of the 1980 amendment).
In Jones, decided before the effective date of the 1980 amendment, this court held that a mandatory commitment of indefinite duration under K.S.A. 1979 Supp. 22-3428(1) did not deny the insanity acquittee due process of law or equal protection of the law. 228 Kan. at 109-10.
The Jones court noted that although it was deciding the case upon the existing law, the 1980 amendments to K.S.A. 22-3428 were "demonstrative of legislative intent and the result reached herein is not inconsistent therewith." 228 Kan. at 110. However, Justice Holmes in a dissent asked the following question concerning the 1980 amendment:
"As 'prima facie evidence' merely creates a presumption which may be overcome by evidence from the other party (in this statute, the insanity acquittee), does not the new amendment imply or contemplate a prior hearing to allow the 'prima facie evidence' to be rebutted or contradicted?" 228 Kan. at 114.
It appears that the Kansas Legislature by its above 1980 amendment to K.S.A. 22-3428(1) did contemplate a due process hearing prior to commitment. See Memorandum to 1979 Special Committee on Judiciary regarding Proposal No. 28, p. 4 (recommending changes to the bill after noting the recent trend in federal and state courts of requiring a due process hearing prior to commitment). However, no Kansas case arose testing the 1980 amendment prior to the United States Supreme Court's 1992 decision in Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992), and the Kansas Legislature's subsequent adoption of a complete revision of K.S.A. 22-3428 in 1993. See L. 1993, ch. 247.
In Foucha, the Court found that a Louisiana statute which allowed an insanity acquittee to be committed to a mental institution indefinitely until he was able to demonstrate that he was not dangerous to himself and others even though he did not suffer from any mental illness, violated the Due Process Clause of the United States Constitution. 504 U.S. at 83. The problem with the Louisiana law was that it allowed an insanity acquittee to be detained even after the acquittee had regained his or her sanity. The Court found that a State may commit an insanity acquittee without satisfying the civil commitment procedures, but the committed acquittee is entitled to release when he or she has regained sanity or is no longer dangerous. 504 U.S. at 76-77.
The Court reasoned that a verdict of not guilty by reason of insanity establishes two facts: "'(i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness.'" 504 U.S. at 76 (quoting Jones v. United States, 463 U.S. 354, 363, 77 L. Ed. 2d 694, 103 S. Ct. 3049 [1983]). From these two facts, it could be inferred that at the time of the verdict the defendant was still mentally ill and dangerous and could be committed. 504 U.S. at 76. In a concurring opinion, Justice O'Connor further noted:
"It might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if, unlike the situation in this case, [where Louisiana determined that the inference of dangerousness drawn from a verdict of not guilty by reason of insanity continues even after a clinical finding of sanity] the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness. [Citations omitted.]
. . . .
"Today's holding follows directly from our precedents and leaves the States appropriate latitude to care for insanity acquittees in a way consistent with public welfare." 504 U.S. at 87-90.
In response to Foucha, the Kansas Legislature modified the entire procedure under K.S.A. 22-3428 in its 1993 amendment. In 1995, the Kansas Legislature amended the statute to abolish the defense of insanity and replace it with a mental disease or defect defense. The statute now provides:
"(1)(a) When a defendant is acquitted and the jury answers in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, the defendant shall be committed to the state security hospital for safekeeping and treatment. A finding of not guilty and the jury answering in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, shall be prima facie evidence that the acquitted defendant is presently likely to cause harm to self or others.
"(b) Within 90 days of the defendant's admission, the chief medical officer of the state security hospital shall send to the court a written evaluation report. Upon receipt of the report, the court shall set a hearing to determine whether or not the defendant is currently a mentally ill person. The hearing shall be held within 30 days after the receipt by the court of the chief medical officer's report.
"(c) The court shall give notice of the hearing to the chief medical officer of the state security hospital, the district or county attorney, the defendant and the defendant's attorney. The court shall inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney as provided in K.S.A. 22-4503 et seq. and amendments thereto. The defendant shall remain at the state security hospital pending the hearing.
"(d) At the hearing, the defendant shall have the right to present evidence and cross-examine witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant, otherwise the court may commit the defendant to the state security hospital for treatment or may place the defendant on conditional release pursuant to subsection (4)." K.S.A. 2003 Supp. 22-3428.
"In any case in which the defense has offered substantial evidence of a mental disease or defect excluding the mental state required as an element of the offense charged, and the jury returns a verdict of 'not guilty,' the jury shall also answer a special question in the following form: 'Do you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?' The provisions of this section shall be in force and take effect on and after January 1, 1996." K.S.A. 22-3221.
In Becker, this court discussed the reasoning behind the 1993 comprehensive procedural amendment:
"In 1993, the legislature modified the entire procedure under 22-3428. S.B. 10 sought to correct what was perceived as a constitutional deficiency by allowing for a hearing to be held after the verdict to determine the defendant's present mental state. See Minutes of the Senate Committee on Judiciary, January 26, 1993. According to the legislative history, there was grave concern that the system then in effect, with its automatic commitment and presumption of mental illness, was unconstitutional in light of the United States Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71. See Testimony of Brenda West Hagerman, Legal Services, Larned State Hospital, before the Senate Judiciary Committee, January 26, 1993.
"As a result, in 1993, the procedure was changed to the present one, which provides that while a defendant, upon being acquitted by reason of a mental disease or defect, must be mandatorily committed to the state security hospital, such commitment is only for such a time as to allow the state security hospital to evaluate the defendant's current mental state. Such an evaluation must be made and a report issued to the court within 90 days of the defendant's admission. Thereafter, a hearing must be held within 30 days of the receipt of the report, at which time the defendant may present evidence that he or she is not currently mentally ill. If the court finds that the defendant is not currently mentally ill, he or she must be released. If the court finds that the defendant is still mentally ill, he or she may be committed or conditionally released. See K.S.A. 1997 Supp. 22-3428(1)(b), (c), (d). Thus, 22-3428 provides for a precommitment hearing following a limited commitment for evaluation purposes." 264 Kan. at 811.
In Becker, we were faced with many of the arguments raised by the defendant in this case regarding K.S.A. 1997 Supp. 22-3428. Becker was taken to Larned by police immediately after the incident giving rise to an aggravated battery charge. He was involuntarily committed to Larned, evaluated, and treated, which included a change in his medication to fit his condition. Prior to his commitment, Becker's mental condition was aggravated by his taking prescribed medication inconsistent with his mental condition. At the end of his extended commitment he was discharged based upon the chief medical officer's determination that he was no longer a danger to himself or others. Within a short time, Becker was tried and acquitted of the charged aggravated battery based upon his plea of insanity. The district court converted the sentencing proceeding to a hearing on the defendant's mental state under 22-3428(1)(b) and (d), and he was placed on conditional release.
On appeal, the State sought a declaration from this court that 22-3428(1)(a) mandates that a criminal defendant who has been acquitted on the basis of a mental defect or disease under K.S.A. 22-3221 be committed to the state security hospital for safekeeping and treatment. This court reviewed the legislative history of the statute and the relevant case law and concluded that the purpose of the 1993 amendment was "to provide a uniform procedure to deal with a defendant who has been acquitted by reason of insanity, [now mental disease or defect] including the defendant's right to due process within such procedure." 264 Kan. at 811-12. Of relevance to this case, the court went on to note:
"Arguably, the language of the 1980 amendment which remains today provides a defendant a remedy in addition to the specific procedure set forth in the 1993 amendment to 22-3428. If the legislature intended, by the 1993 amendment, to provide a procedure whereby the defendant is mandatorily committed for evaluation purposes without a hearing, it is puzzling that it left the language intact in the 1980 amendment." 264 Kan. at 812.
However, the court concluded that it was not necessary to resolve this issue because it was clear that the district court recognized that 22-3428(1)(a) required a defendant to be committed, but this was a unique case in that the purpose to be served by the mandatory commitment, i.e., allowing the state security hospital to evaluate and the chief medical officer to render an opinion on the defendant's present mental state, had already been completed. Recognizing that relief in mandamus is discretionary, Becker denied the State's application for a writ of mandamus under the unique facts of that case. 264 Kan. at 812-13.
Statutory Interpretation
The interpretation of a statute is a question of law, and the appellate court's review is unlimited. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
"The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. [Citation omitted.] Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.] The legislative intent is to be determined from a general consideration of the entire act, and effect must be given, if possible, to the entire act and every part thereof, and it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]" Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the legislature does not intend to enact useless or meaningless legislation. See Davey v. Hedden, 260 Kan. 413, 419-20, 920 P.2d 420 (1996); Galindo v. City of Coffeyville, 256 Kan. 455, 464-65, 885 P.2d 1246 (1994). The court should avoid interpreting a statute in such a way that part of it becomes surplusage. See State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
The defendant argues that the district court ignored these rules of statutory construction by not construing K.S.A. 2003 Supp. 22-3428(1)(a) to require an immediate hearing to determine whether the acquitted defendant is presently "likely to cause harm to self or others." Specifically, the defendant contends that the district court ignored the second sentence of K.S.A. 2003 Supp. 22-3428(1)(a), which provides that an acquittal by reason of mental disease or defect "shall be prima facie evidence that the acquittee is presently likely to cause harm to self or others." The defendant further argues that Justice Holmes' dissent in In re Jones, 228 Kan. 90, 114, 612 Kan. 1211 (1980), supports her interpretation by suggesting that such language contemplates a prior hearing to allow the defendant to rebut the prima facie evidence. Finally, the defendant argues that reliance on Jones is misplaced because it was decided under the prior version of 22-3428 when Kansas recognized an insanity, rather than a mental disease or defect, defense.
The defendant's argument is narrowly based upon K.S.A. 2003 Supp. 22-3428(1)(a) without consideration of the statute as a whole. While a persuasive argument may have been made in 1980 that the language stating that an acquittal by reason of insanity shall be prima facie evidence that