In re Care & Treatment of Wilson

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NOT DESIGNATED FOR PUBLICATION

No. 116,691

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care & Treatment of MARK L. WILSON, a/k/a DAIMION ALLEN.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; KATHLEEN M. LYNCH, judge. Opinion filed June 2, 2017.
Reversed and remanded with directions.

Mark L. Wilson, appellant pro se.

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

Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

Per Curiam: Individuals committed to Kansas' Sexually Violent Predator
Treatment Program are entitled to an annual review hearing. Mark L. Wilson requested
an annual review hearing and appointment of counsel for his hearing 28 days after
receiving his annual review report. In a summary proceeding without presence of
counsel, the district court held that Wilson had failed to initiate proceedings within 30
days of receiving the report. This is clearly erroneous, as Wilson filed his request for an
annual review hearing 28 days after receipt of the report. Both the State and Wilson agree
that his right to have such a hearing was violated. Accordingly, we reverse the district
court's order and remand for the district court to conduct a hearing and provide Wilson's
counsel the opportunity to be present.



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FACTUAL AND PROCEDURAL HISTORY

In 2006, a district court found that Mark L. Wilson was a sexually violent predator
as defined by K.S.A. 59-29a01 et seq. The court committed Wilson to the custody of the
Secretary of the Department of Social and Rehabilitation Services (now the Kansas
Department for Aging and Disability Services) "for control, care and treatment until such
time as it is determined that he is safe to be at large." The Secretary is required to engage
in an annual review of those committed under the Sexually Violent Predator Act and
prepare a report with recommendations on whether the committed individual should be
authorized to petition the court for his or her release. Committed individuals can petition
the court over the objection of the Secretary.

The Secretary provided Wilson his most recent annual review report on July 21,
2016. The report did not recommend transitional release. The Secretary also gave Wilson
his annual notice of his right to petition for release from treatment over the Secretary's
objection. Wilson signed an acknowledgement stating that he received the annual notice
of right to petition for release, but he chose not to waive his right to challenge the
Secretary's decision. On August 18, 2016, Wilson filed a motion for appointment of
counsel and requested placement in transitional release. The district court appointed
counsel the next day. On August 22, 2016, the district court entered an order, without
counsel present, holding:

"3. That more than 30 days have expired since [Wilson's] acknowledgement and [Wilson]
has not filed any proceedings.

"4. Because no proceedings were initiated by [Wilson] and the only evidence before the
court concludes that [Wilson] remains a predator, the Court hereby finds that [Wilson]
remains a sexually violent predator pursuant to the Kansas Sexually Violent Predator
Act."

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Wilson appealed.

On January 17, 2017, the State filed a motion with the district court "requesting a
hearing on Wilson's request for appointment of counsel, which included a request for
placement in transitional release." This motion is not a part of the record, but was
attached to the State's appellate brief.

ANALYSIS

The district court incorrectly stated that Wilson failed to file proceedings within 30
days of his acknowledgement of his right to initiate proceedings. In fact, Wilson's motion
for appointment of counsel and his request to be placed in transitional housing was made
28 days after his acknowledgement. Both the State and Wilson agree that the district
court's decision should be vacated and the case remanded for the district court to conduct
an annual review hearing. The State has already requested such a hearing from the district
court.

Wilson argues that he is "entitled to release from confinement as a Sexually
Violent Predator" on the basis of the district court's violations. However, the appropriate
remedy in this situation is to remand the case to district court to perform the annual
review hearing. In similar case, In re Care & Treatment of Zishka, 51 Kan. App. 2d 242,
246, 343 P.3d 558 (2015), this court reversed the district court's judgment and remanded
the case "with directions to appoint counsel for Zishka and to hold an annual review
hearing." The same result is warranted here.Wilson also raises two civil procedure issues
to argue that none of the documents that the Secretary served on him are legally binding.
First, he argues that the Secretary failed to adhere to K.S.A. 2016 Supp. 60-205(b).
K.S.A. 2016 Supp. 60-205(b) requires service to be made on a party's attorney, if the
party is represented. Wilson argues that the Secretary violated K.S.A. 2016 Supp. 60-
205(b) by personally serving Wilson with documents instead of serving the attorney
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assigned to represent Wilson. However, the Secretary gave Wilson his annual review
report on July 21, 2016. The district court did not appoint an attorney for Wilson until
August 19, 2016. Thus, Wilson did not have an attorney at the time of service and the
Secretary did not violate K.S.A. 2016 Supp. 60-205(b).

Second, Wilson argues that the documents are not legally binding on him because
the Attorney General did not sign the documents before they were filed in violation of
K.S.A. 2016 Supp. 60-211(a). This provision states that "[e]very pleading, written motion
and other paper must be signed by at least one attorney of record in the attorney's
name . . . ." K.S.A. 2016 Supp. 60-211(a). Wilson's brief does not make clear what
"documents" to which he is referring. But, the only documents provided to Wilson were a
copy of his annual report and the notice of his right to petition for release. The medical
professionals who conducted Wilson's evaluation signed his annual report. The Interim
Secretary of the Kansas Department for Aging and Disability Services signed the notice.
Wilson does not cite any caselaw that suggests that K.S.A. 2016 Supp. 60-211(a) applies
to either of these documents.

Clearly, the Code of Civil Procedure as outlined at K.S.A. 2016 Supp. 60-211(a)
requires that documents filed with the court as part of a civil or criminal action be signed
by an attorney. See K.S.A. 60-402 (rules of civil procedure apply to both civil and
criminal cases). But the more specific statute referring to annual reports in Sexually
Violent Predator Act cases, K.S.A. 2016 Supp. 59-29a08(a), requires that "[t]he secretary
shall also forward the annual report, as well as the annual notice and waiver form, to the
court that committed the person under the Kansas sexually violent predator act." Often
agencies or professionals are required to send reports directly to the court, independent of
the attorneys involved in the case. See K.S.A. 2016 Supp. 22-3302(3) (reports sent to
court regarding competency to stand trial); K.S.A. 2016 Supp. 26-504 (filing of appraiser
reports); K.S.A. 2016 Supp. 21-6813 (presentence investigation report prepared and filed
by court services officer); K.S.A. 23-3509 (case manager reports). It is a common rule of
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statutory construction that a specific statute controls over a general statute. Sierra Club v.
Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013).

Moreover, even if the rule applied it does not mean that the documents are not
legally binding. The rule states that "[t]he court must strike an unsigned paper unless the
omission is promptly corrected after being called to the attorney's or party's attention."
K.S.A. 2016 Supp. 60-211(a). Thus, if an attorney is required to sign the annual report or
the notice, then the district court must bring that issue to the attorney's attention and give
him or her an opportunity to sign the document. It has no bearing on the binding nature of
the document itself.

Pursuant to both Wilson and the State's requests, the district court's judgment is
reversed, and the case is remanded with directions to conduct an annual review hearing at
which Wilson's attorney is present.

Reversed and remanded with directions.