Brull v. Keck

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NOT DESIGNATED FOR PUBLICATION

No. 118,720

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARK D. BRULL,
Appellant,

v.

TIM KECK, Secretary of the Kansas Department for
Aging and Disability Services, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed October 5, 2018.
Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Kelly G. Cunningham, senior litigation counsel, Kansas Department for Aging and Disability
Services, for appellee.

Before ATCHESON, P.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Mark D. Brull appeals the Pawnee County District Court's dismissal
without prejudice of 12 pending cases filed by Brull under K.S.A. 60-1501. Brull, now in
federal custody serving a sentence outside of Kansas, argues the district court confused
mootness with jurisdiction and the dismissals were error. We find no error by the district
court and affirm.


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FACTS AND PROCEDURAL BACKGROUND

Brull was convicted of two sex crimes in Shawnee County in the mid-1990s. He
later stipulated he was a sexually violent predator, as alleged in a petition filed under the
provisions of the Kansas Sexually Violent Predator Act (KSVPA) K.S.A. 59-29a01, et
seq. As a result, the district court committed Brull to the custody of the Kansas
Department of Social and Rehabilitation Services. The responsibility for custody of Brull
and others classified in the same way was later transferred to the Kansas Department for
Aging and Disability Services (KDADS). Between 2009 and 2012, Brull filed numerous
cases in the Pawnee County District Court alleging violations of his constitutional rights
as a person subject to the Sexual Predator Treatment Program (SPTP). These cases
included:

 09CV41, alleging the SPTP violated his rights to phone access and visitation;
 09CV53, alleging the SPTP's treatment did not provide him a realistic chance
of regaining his freedom and the denial of his use of his property;
 09CV75, alleging the "point system" utilized by the Intensive Treatment Unit
is "a roller coaster ride, of indecision, uncertainty, biases and fundamental
unfairness";
 09CV85, alleging the SPTP denied him a safe and secure environment, broke
confidentiality, and denied him care and treatment;
 10CV1, alleging the SPTP denied him access to his family, restricted his phone
access, and refused him due process;
 10CV8, alleging the SPTP illegally placed a blanket prohibition on certain
magazines;
 10CV34, alleging unsanitary and unmaintained living conditions, and inability
to practice his chosen religion;
 10CV42, alleging unsanitary conditions, exposure to health risks, and the
denial of mail;
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 10CV48, alleging the SPTP violated his constitutional rights by performing
room searches, denying mail access, and denying freedom of association,
among other allegations;
 11CV4, alleging the SPTP denied him the ability to go outside at various
points, denied him privacy by opening mail in view of other residents, and
forced him to live in unsanitary conditions, among other claims.

The district court consolidated these cases and appointed counsel for Brull. In
2012, Brull filed two additional habeas corpus petitions, though writs had not been issued
nor counsel appointed. In 12CV26, he alleged the SPTP destroyed some of his property
and that the SPTP's policies were devoid of basic human rights, among other claims. In
12CV30, Brull alleged cruel and unusual punishment, negligent handling of his property,
and that the SPTP violated confidentiality and refused to address his psychological and
physical needs.

While Brull was a participant in the SPTP, the federal government charged him
with soliciting or enticing a minor to engage in sexually explicit conduct and with
receiving sexually explicit material from the same minor. Brull pled guilty and was
placed in the custody of the Federal Bureau of Prisons. In his brief, Brull reported he was
incarcerated at the Federal Correctional Institution in Petersburg, Virginia, with a release
date in July 2021.

In 2013, KDADS filed a motion to dismiss 09CV53 and its consolidated cases
because Brull no longer was confined as a part of the SPTP. It also asked the district
court to dismiss 12CV26 and 12CV30 without issuing a writ. Brull argued the case either
should proceed or be stayed because he remained in custody under the KSVPA.

Although Brull was not present, his counsel was present on his behalf at the
district court's hearing on the KDADS motion to dismiss. KDADS argued the district
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court no longer had jurisdiction to consider Brull's habeas actions because he was no
longer detained, confined, or restrained of his liberty in Kansas. It also argued Brull's
habeas petitions were moot because he no longer was in its care or custody. Brull
contended that jurisdiction had existed at the time the habeas petitions were filed, giving
the district court jurisdiction even though he was no longer in state. Additionally, he
argued the cases were not moot because KDADS had filed a detainer and retained a legal
hold. After hearing argument from KDADS and Brull's attorney, the district court
dismissed Brull's K.S.A. 60-1501 habeas corpus petitions without prejudice.

Brull timely appeals.

ANALYSIS

Brull contends the district court "confuse[d] jurisdiction with mootness" then
committed error by dismissing his K.S.A. 60-1501 petitions "merely because he was no
longer present" in Kansas. He seeks reversal of the dismissal and remand.

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015).
Furthermore, to the extent resolution of this issue requires statutory interpretation, this
court's review is unlimited. See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349
P.3d 469 (2015).

Jurisdiction

The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to
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ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016).

K.S.A. 2017 Supp. 60-1501(a) states, in relevant part:

"Subject to the provisions of K.S.A. 60-1507, and amendments thereto, any
person in this state who is detained, confined or restrained of liberty on any pretense
whatsoever, and any parent, guardian, or next friend for the protection of infants or
allegedly incapacitated or incompetent persons, physically present in this state may
prosecute a writ of habeas corpus in the supreme court, court of appeals or the district
court of the county in which such restraint is taking place." (Emphases added.)

KDADS argues the district court lost jurisdiction to consider Brull's petitions
when he was removed from the state to serve his federal prison sentence and directs us to
In re Habeas Corpus Application of Lancaster, 19 Kan. App. 2d 1033, 879 P.2d 1143
(1994). In that case, Lancaster pled guilty in Kansas to three counts of aggravated
robbery. While on bond pending sentencing, he was imprisoned in Missouri for crimes he
committed during that gap in his Kansas case. He faced a 30-year sentence in Missouri.
Through a petition for a writ of habeas corpus, Lancaster sought dismissal of his untried
Kansas cases because of the delay after a detainer was filed against him, as well as
dismissal of the three convictions, based on the delay in sentencing. The district court
denied his petition on its merits.

On Lancaster's appeal, this court questioned the district court's jurisdiction to
consider his habeas corpus petition because he was imprisoned in Missouri. It concluded:
"Under the plain language of 60-1501, the petitioner's presence in this state is a
prerequisite to the exercise of habeas corpus jurisdiction." 19 Kan. App. 2d at 1035.
Since Lancaster was not present in the state, the district court did not have jurisdiction to
consider his petition and this court did not have jurisdiction over the appeal. 19 Kan.
App. 2d at 1035.
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Brull argues Lancaster is distinguishable because Brull was in Kansas at the times
he filed his petitions for writs of habeas corpus, while Lancaster was outside the state
when he filed. We are not persuaded that presence when filing, followed by absence
before resolution of the petition, supports a result different from the one in Lancaster.

The restriction in K.S.A. 2017 Supp. 60-1501(a) requires no interpretation. It
plainly states only a "person in this state" may "prosecute" a writ of habeas corpus.
According to Black's Law Dictionary 1416 (10th ed. 2014), to "prosecute" means more
than the simple initiation of a cause of action. Instead, in relevant part, it states
"prosecute" means: "To commence and carry out (a legal action)." (Emphasis added.)
"Prosecute," used in this sense, is found elsewhere in K.S.A. 2017 Supp. 60-241(b),
which states a cause of action may be dismissed for failure to prosecute.

The requirement of the statute is clear—for jurisdiction to exist under K.S.A. 60-
1501(a), the person seeking relief must be in Kansas not only to file, but to see the case
through. That requirement is consistent with the obvious purpose of the statute—to
provide an avenue for a person to claim relief from conditions under which the person is
being "detained, confined, or restrained" in this state. If the person is not detained,
confined, or restrained in Kansas, our courts have no basis upon which to order relief. We
fail to see a distinction between this case and Lancaster, and find the district court
correctly dismissed Brull's cases.

Mootness

Although we see no evidence supporting Brull's claim the district court was
"confused" about whether the dismissal was for jurisdiction or mootness, the two are
related under the present facts. Because of Brull's anticipated lengthy absence, the district
court found he "cannot show that the condition at SPTP . . . will be the same in 7 plus
years at the first opportunity for which [Brull] could return to the custody of SPTP." Brull
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only argues two of his cases—09CV53 and 09CV75—are not moot; he has not
challenged this aspect of the district court's order on the remaining cases. Issues not
briefed by the appellant are deemed waived or abandoned. Superior Boiler Works, Inc. v.
Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). Therefore, Brull has abandoned this
issue for all cases except 09CV53 and 09CV75.

Mootness is a doctrine of court policy, which was developed through court
precedent, and appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 (2012). The mootness doctrine recognizes that the role of the court is
to "'determine real controversies relative to the legal rights of persons and properties
which are actually involved in the particular case properly brought before it and to
adjudicate those rights in such manner that the determination will be operative, final, and
conclusive.' [Citations omitted]." Stano v. Pryor, 52 Kan. App. 2d 679, 682-83, 372 P.3d
427 (2016) (quoting Hilton, 295 Kan. at 849).

The mootness test has been described as a determination whether "it is clearly and
convincingly shown the actual controversy has ended, the only judgment that could be
entered would be ineffectual for any purpose, and it would not impact any of the parties'
rights. [Citation omitted.]" Wiechman v. Huddleston, 304 Kan. 80, 84, 370 P.3d 1194
(2016).

As a general rule, Kansas appellate courts do not decide moot questions or render
advisory opinions. An exception to the general rule relating to mootness is recognized
when the case involves a question of public interest even though the case has become
moot as to the present parties. That exception, however, is narrow: "Public importance
means more than that certain members of the general public are interested in the decision
of the appeal from motives of curiosity or because it may bear upon their individual
rights or serve as a guide for their future conduct. [Citation omitted.]" State v. Hayden, 52
Kan. App. 2d 202, 206, 364 P.3d 962 (2015), rev. denied 305 Kan. 1255 (2016).
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In Shanks v. Nelson, 258 Kan. 688, 907 P.2d 882 (1995), the Kansas Supreme
Court addressed whether Shanks' habeas action was moot since he was no longer present
in the state. Shanks had filed a 60-1501 petition challenging his confinement in
administrative segregation as a violation of his liberty interest. However, while on appeal,
Shanks was transferred from administrative segregation to conditional release in Texas.
Further, if he returned to serve the balance of his sentence, he would not be subject to the
administrative segregation order he had been confined under. Since Shanks only
challenged his administrative segregation, and he would not be returned to administrative
segregation under the existing order if he returned to Kansas, Shanks' habeas action was
moot. The Kansas Supreme Court concluded:

"We acknowledge that resolution of the issues raised by the petitioner may be
beneficial to the Department of Corrections and both counsel, who frequently work in
this area of the law. However, while the issue is important, it is not of extreme public
importance. The actual controversy generating this case has ceased to exist, and any
judgment entered would have no effect on the parties and would be an idle act insofar as
rights involved in the action concerned." 258 Kan. at 693.

In 09CV75, Brull alleged the "point system" utilized by the Intensive Treatment
Unit (ITU) is "a roller coaster ride, of indecision, uncertainty, biases and fundamental
unfairness." He challenged only the point system used in the ITU. But the ITU has since
been disbanded. See Merryfield v. Sullivan, No. 109,556, 2014 WL 1707654 (Kan. App.
2014) (unpublished opinion) (noting the ITU no longer existed). Paralleling Shanks, Brull
is not subject to that point system upon his return to the SPTP because the unit no longer
exists. Since the controversy no longer exists, judgment would have no effect on the
parties. Accordingly, 09CV75 is moot.

Brull argues his other case, 09CV53, is not moot because it concerns whether the
treatment gives him a realistic opportunity to improve or cure his condition and whether
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it fails to address his individual needs. He contends the issues about which he complains
in 09CV53 also affect other individuals placed in civil confinement.

In Johnson v. State, 289 Kan. 642, 655, 215 P.3d 575 (2009), the Kansas Supreme
Court declined to address whether the SPTP program would have provided
constitutionally adequate treatment if residents who willingly failed to comply with
treatment had complied with their treatment program. The Kansas Supreme Court held
that answering the question would require an advisory opinion. 289 Kan. at 655.

While Brull is not refusing treatment, neither is he actually receiving treatment
from the SPTP at this point, because he is in federal custody. He is not scheduled for
release from that custody until at least 2021, more than 12 years after he filed 09CV53.
The district court may not speculate whether any treatment Brull might receive in 2021
would violate his constitutional rights. And, since Brull is not currently receiving
treatment, "[t]he actual controversy generating this case has ceased to exist, and any
judgment entered would have no effect on the parties and would be an idle act insofar as
rights involved in the action concerned." Shanks, 258 Kan. at 693. Thus, this case also is
moot. Further, the district court may not deliver an advisory opinion concerning the effect
on others of the circumstances Brull cited in his petition.

The district court dismissed Brull's cases without prejudice. The court commented
"if Mr. Brull on a future date can satisfy jurisdictional requirements, and satisfy the
doctrine of mootness, and can show that circumstances are the same as of that date as to
when he originally filed, he could elect to re-file." If, when Brull returns to the SPTP, he
chooses not to refile but has complaints about the conditions of his confinement, he can
address those actual conditions at that time. There was no error by the district court.

Affirmed.