In re Care & Treatment of Barnett

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NOT DESIGNATED FOR PUBLICATION

No. 114,923

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE CARE AND TREATMENT OF
MICHAEL D. MELLON, JR.


MEMORANDUM OPINION

Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed September 30,
2016. Appeal dismissed.

P. Bernard Irvine, of Morrison, Frost, Olsen, Irvine & Schartz, LLP, of Manhattan, for appellant.

Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., MCANANY and GARDNER, JJ.

Per Curiam: Michael D. Mellon, Jr., an involuntary participant in the Sexual
Predator Treatment Program, appeals the district court's denial of his pro se motion
pertaining to his annual review. Mellon seeks release from the program as a remedy for
the district court's failure to hold a hearing and order his commitment following his 2014
review. But because Mellon received an evidentiary hearing and an order of commitment
following his 2015 review, we dismiss his appeal as moot.

Procedural background

Mellon is an involuntary participant in the Sexual Predator Treatment Program
(SPTP) housed at Larned State Hospital. For Mellon, as for each involuntary participant
in the SPTP, the Kansas Department for Aging and Disability Services (KDADS) is
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required to file an annual report on the status of the committed person's mental condition.
See K.S.A. 2015 Supp. 59-29a08(a). KDADS has done so since Mellon's commitment in
2003.

Mellon's 2014 annual report reviewed his progress from June 2013 to May 2014
and concluded it was unsafe to place Mellon in transitional release at that time. Following
the report, the Secretary of KDADS provided Mellon with the option to acknowledge
receipt of the annual notice or to acknowledge receipt and waive his rights to further
proceedings under the annual review process. Mellon did not waive his rights but signed
the acknowledgment on June 3, 2014, which provided:

"I hereby acknowledge receipt of the Secretary's Notice. If I desire to pursue
further proceedings in this matter, I understand I must initiate those separately from this
Response. I either have my own attorney or I understand I may request that the Court
appoint an attorney to advise me further."

The record does not reflect that the district court made a probable cause
determination on the 2014 annual report or ordered Mellon's continuing commitment.
Essentially, it appears that neither the district court nor Mellon, who was represented by
counsel at the time, did anything further for nearly 11 months.

On April 30, 2015, Mellon filed a pro se motion for immediate release or, in the
alternative, a proper annual review. Mellon claimed that the district court had received
his 2014 annual report but had not held a hearing, appointed counsel, determined whether
an independent examiner was necessary, or ordered Mellon recommitted. Just 2 weeks
later, on May 12, 2015, the 2015 Annual Examination of Resident's Mental Condition
was completed. It was faxed with the Secretary's recommendation that Mellon was not be
released to the district court on June 8, 2015. So by the time the State filed a response to
the motion referencing his 2014 report—on May 13, 2015—his 2015 Annual Report had
been completed. That report reviewed Mellon's progress from May 2014 to May 2015,
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and informed Mellon of his right to petition for release over the Secretary's objection. On
June 8, 2015, Mellon signed the acknowledgment of his right to petition for release from
treatment.

Following a brief hearing on October 5, 2015, regarding the motion related to
Mellon's 2014 Annual Review, the district court denied the motion. Its order, filed
November 15, 2015, found Mellon had not met his burden to establish probable cause as
required by K.S.A. 2015 Supp. 59-29a08. The district court stated two reasons in support
of that conclusion. First, Mellon's motion was untimely filed because he waited
"approximately 9 months after the annual review was issued," and by the date that motion
could be heard, the 2015 annual review had already been completed. Second, Mellon had
been put on notice by signing the acknowledgment that no further proceedings on his
confinement in the SPTP would occur unless Mellon initiated them. The district court
held it was not the court's "burden to initiate the annual review hearing." The court denied
Mellon's requests associated with the 2014 review and stated "the parties are to move
forward with the claims made by Respondent and/or his counsel concerning the 2015
annual review's conclusions. Those matters will be calendared for argument at a later
date."

Although our statute does not require an evidentiary hearing to determine whether
probable cause exists to transitionally release a patient, in this case the district court
nonetheless provided one. See K.S.A. 2015 Supp. 59-29a08(a); In re Care & Treatment
of Burch, 296 Kan. 215, 221, 291 P.3d 78 (2012). In such a hearing, the committed
person carries the burden to establish probable cause to justify transitional release; that is,
the person "must present facts . . . that are sufficient to cause a person of ordinary
prudence and action to conscientiously entertain a reasonable belief that the person's
mental abnormality or personality disorder has so changed that he or she is safe to be
placed in transitional release." Burch, 296 Kan. 215, Syl. ¶ 7.

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At the evidentiary hearing, held on February 8, 2016, Mellon was represented by
appointed counsel as required by K.S.A. 2015 Supp. 59-29a08(a). Four persons testified:
Mellon's therapist at the time of his 2015 report; Mellon's therapist at the time of the
hearing, and two others.

After reviewing Mellon's 2015 report and hearing the testimony, the district court
held that Mellon failed to meet his burden to show that probable cause existed to believe
his mental abnormality or personality disorder had so changed that he was safe to be
placed in transitional release:

"[Mellon] has failed to show that probable cause exists to believe that [his] mental
abnormality or personality disorder has so changed that he is safe to be placed in
transitional release. The Court opines that in 2012 he did think there was a basis for
probable cause, however based on the testimony and report today it seems that this is a
situation where it is not possible to simply march in place. The Respondent is in exactly
the same place as 2012 due to a lack of active participation in the program and is
reportedly not participating because he is frustrated. The Court discussed the static nature
of the situation and stated Respondent is not going forward and it can be inferred he is
going backwards. The Court in addressing its 2012 decision stated because the
Respondent is not engaged, he could go ten years and try to rely on the 2012 decision,
which is not proper. The Court states the Respondent has to engage and there has to be
engagement with him. There is no probable cause to just assume Respondent has
remained where he was in 2012."

Accordingly, the district court ordered Mellon's commitment to continue. We note
that even if the court had found probable cause, Mellon would not necessarily have been
discharged or transitionally released. Instead, he would have been provided an
evidentiary hearing under K.S.A. 2015 Supp. 59-29a08(c)(3), at which the State would
have had the burden to prove beyond a reasonable doubt that Mellon's mental
abnormality or personality disorder remained such that he was not safe to be placed in
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transitional release and if transitionally released was likely to engage in acts of sexual
violence. See Burch, 296 Kan. at 222.

Mellon timely appeals, challenging the district court's proceedings related solely to
his 2014 annual review.

Jurisdiction

Before we reach Mellon's claims of error, we address a preliminary issue. The
State contends that we lack jurisdiction to hear this case because the order Mellon appeals
was not a final, appealable order. The State argues that the challenged order not only
denied Mellon's pro se motion regarding his 2014 annual review, but also ordered the
parties to move forward on Mellon's 2015 annual review—thus contemplating further
action and precluding finality.

The right to appeal is purely statutory and if the record shows that the appellate
court does not have jurisdiction, the appeal must be dismissed. Whether jurisdiction
exists is a question of law over which this court's review is unlimited. Kansas Medical
Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). An appeal may be taken
to the Court of Appeals, as a matter of right, from any "final decision." K.S.A. 2015
Supp. 60-2102(a)(4). "The term 'final decision' is self-defining and refers to an order that
definitely terminates a right or liability involved in an action or that grants or refuses a
remedy as a terminal act in the case. In re T.S.W., 294 Kan. at 433." Kaelter v. Sokol, 301
Kan. 247, 250, 340 P.3d 1210 (2015). Under Kansas law, a judgment is final and
appealable only if it finally decides and disposes of the entire merits of the controversy
and leaves no further questions or possibilities for future directions or actions by the
lower court. Kaelter, 301 Kan. at 249-250.

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We find the order appealed from to be final. Although that order denied Mellon's
motion regarding the 2014 annual review and directed the parties to move forward on the
claims concerning the 2015 annual review, that order did not bind the district court to do
anything further or in the future. The court's order would have been just as effective had
it omitted the language regarding the 2015 annual review. Its language contemplated
further action by the parties, but not by the court, demonstrating the court's action with
regard to the 2014 annual review was completed, and urging the parties to move on to
any issues regarding the 2015 review. The district court's order denying Mellon's motion
thus "definitely terminate[d] a right or liability involved in the action." See Flores
Rentals v. Flores, 283 Kan. 476, 482, 153 P.3d 523 (2007).

Under these circumstances, Mellon had to take a timely appeal to preserve his
interest. Mellon did so, limiting his appeal to his 2014 annual review and making no
claims regarding the 2015 review. We thus find this to be a final decision, vesting us with
jurisdiction to consider this appeal.

Mootness

Mellon argues the district court erred by failing to hold a hearing and failing to
issue any order continuing his commitment following his 2014 annual review, in
violation of K.S.A. 2015 Supp. 59-29a08 and unspecified "constitutional rights." Mellon
argues the procedural rights he seeks to enforce are analogous to the speedy trial
requirements set forth in the United States Constitution and the Kansas statutes, thus he
seeks the remedy for speedy trial violations—immediate release.

The State contends that Mellon's appeal is moot because the motion prompting this
appeal was "for immediate release or, in the alternative, a proper annual review," and
Mellon received a proper annual review and an order of continued commitment after his
2015 annual report, which found Mellon had failed to show probable cause that his
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mental abnormality or personality disorder had so changed that he was safe to be placed
in transitional release. We agree.

Because mootness is a doctrine of court policy, which was developed through
court precedent, appellate review of this issue is unlimited. State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 (2012). As a general rule, an appellate court does not decide moot
questions or render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d
866 (2012). "An appeal will not be dismissed for mootness, unless 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." McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009).

Mellon's motion was, in part, "for immediate release." To the extent that relief
may remain at issue, Mellon fails to brief how not receiving the hearing and order of
continued commitment contemplated by the civil commitment statute is comparable to
not receiving the speedy trial guaranteed by our statutes or Constitution, warranting
immediate release. "[A]n issue not briefed is deemed waived or abandoned." Cooke v.
Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Further, Mellon fails to show this
court that it would have any authority to release him from civil commitment without his
having completed the SPTP and complying with the statutory requirements for release.
Thus his desired remedy of immediate release is merely speculative and is not concrete
enough to save this appeal from mootness.

Mellon's motion alternatively sought a proper annual review. He has received one.
Because the district court conducted a proper annual review following the 2015 report,
and that hearing addressed Mellon's condition from 2012 to 2015, any remand for a new
hearing regarding the 2014 report would serve no purpose.

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There is nothing more this court can do. Mellon's complaints—that the district
court ordered his commitment to continue in 2014 without holding a hearing, appointing
counsel (although Mellon was represented by counsel), or determining whether an
independent examiner was necessary, are procedural. If we were to agree that the district
court failed to comply with the applicable statutes, the only relief we could provide to
Mellon is to remand the case to the district court with instructions to comply with the
applicable statutes. The issue presented by Mellon is now moot because he already
received the only remedy (a second review hearing) a court is authorized to provide.

The actual controversy generated by this appeal no longer exists; thus, any
judgment entered by the court would have no effect on the parties and would be an idle
act insofar as the rights involved in this action are concerned. See Shanks v. Nelson, 258
Kan. 688, 693, 907 P.2d 882 (1995); accord State v. Torres, 293 Kan. 790, 792, 268 P.3d
1197 (2012) (finding defendant's claim of error in his original sentencing hearing was
rendered moot by vacation of sentence imposed at such hearing and conduct of second
sentencing hearing).

We are not unsympathetic to Mellon's argument that the district court cannot
ignore the statutory requirements for years on end, then try to cure that error by holding
one hearing which covers the intervening years. Our cases recognize that the
constitutionality of the Act depends on its procedural protections. See, e.g., In re Care &
Treatment of Twilleger, 46 Kan. App. 2d 302, 315, 263 P.3d 199 (2011) (Greene, C.J.,
concurring); Merryfield v. State, 44 Kan. App. 2d 817, 818, 825, 241 P.3d 573 (2010);
see also Kansas v. Hendricks, 521 U.S. 346, 372, 117 S. Ct. 2072, 138 L. Ed. 2d 501
(1997) (Kennedy, J., concurring) (emphasizing the law's "protections, including yearly
review and review at any time at the instance of the person confined"). But that scenario
is not present in this case which indicates, at most, the district court's mere oversight
which Mellon could have challenged earlier, rather than the district court's repeated or
intentional disregard for our statutes.
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Mellon fails to specify which constitutional right he believes may have been
violated here. For purposes of our mootness discussion, we presume it is the right to
procedural due process. But even assuming a violation of that right, the remedy is not
release, but remand for the district court to hold an annual review hearing. See
In re Care & Treatment of Zishka, 51 Kan. App. 2d 242, 246, 343 P.3d 558 (2015).

No remand is necessary or would be helpful here. Unlike a substantive due process
claim, a constitutional violation of procedural due process is not complete unless and
until the State fails to provide due process. Zinermon v. Burch, 494 U.S. 113, 126, 110 S.
Ct. 975, 108 L. Ed. 2d 100 (1990). When the State does provide a hearing at some point
in the course of administrative or judicial proceedings, the failure to hold a hearing at an
earlier point in the proceedings generally becomes moot or is considered cured.
McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994), cert. denied 513 U.S. 1110
(1995). See Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 690, 784
S. E. 2d 392 (2016). State v. Murray, 302 Kan. 478, 490, 353 P.3d 1158 (2015) (finding a
retrospective competency hearing could rectify the district court's alleged failure to hold a
competency hearing or an adequate competency hearing in the defendant's underlying
case); Cf. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 799, 133 P.3d 104 (2006)
("[A] de novo hearing before the district court . . . cures any procedural due process
defects at the administrative hearing level."); Ryan v. Sullivan, No. 112,293, 2015 WL
5036932, at *2 (Kan. App. 2015) (unpublished opinion) (finding claim by person
committed to SPTP that he had not been afforded the entire administrative appeals
process was sufficiently remedied by subsequent de novo hearing on the merits of his
substantive and procedural due process claims), rev. denied 303 Kan. 1079 (2015).

As the Kansas Supreme Court has found in an analogous case, an error in failing
to hold a hearing, even if not subject to harmless error review, may nonetheless be cured
retrospectively by holding a subsequent hearing:
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"Although the first district court judge failed to suspend the proceedings until the
court-ordered competency report was received and until a competency determination was
made, under certain circumstances the State may rectify the error by a retrospective
competency hearing. As the court stated in Ary, 118 Cal. App. 4th at 1028:

"'While it is certainly the case that the trial court's error in failing to hold a
competency hearing when one is warranted is not subject to harmless error
review, this does not mean that the procedural due process violation can never be
cured retrospectively, under appropriate circumstances, as the United States
Supreme Court has suggested.'" State v. Davis, 281 Kan. 169, 180-181, 130 P.3d
69 (2006), overruled on other grounds by State v. Ford, 302 Kan. 455, 353 P.3d
1143 (2015).

Thus even if we assume, without finding, an error by the district court in not complying
with the requirements of K.S.A. 2015 Supp. 59-29a08, that error has been cured.

Because we find Mellon's claim moot, we cannot address any other issues raised
on appeal.

Appeal dismissed.