Merryfield v. Kansas Dept. for Aging & Disability Svcs.

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NOT DESIGNATED FOR PUBLICATION

No. 116,392

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUSTIN J. MERRYFIELD,
Appellant,

and

RICHARD A. QUILLEN,
Petitioner,

v.

KANSAS DEPARTMENT FOR AGING AND DISABILITY SERVICES,
Appellee.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed March 24,
2017. Reversed and remanded with directions.

Dustin J. Merryfield, appellant pro se.

Jessica F. Conrow, of Kansas Department for Aging and Disability Services, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: The Pawnee County District Court improperly entered judgment
against Plaintiff Dustin J. Merryfield in this civil action when it ruled without a motion
from Defendant Tim Keck, the Secretary of the Kansas Department on Aging and
Disability Services, and without giving Merryfield an opportunity to be heard on the
contemplated legal bases for the ruling. We, therefore, reverse and remand with
directions that the district court reinstate Merryfield's petition for further proceedings.
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Merryfield has been adjudicated a sexually violent predator and is now detained in
a treatment program housed on the grounds of Larned State Hospital. In March 2016,
Merryfield drafted and filed a petition under Chapter 60 seeking temporary and
permanent injunctive relief to block implementation of two policies affecting participants
in the treatment program. Merryfield alleged the policies would interfere with his
constitutionally protected rights, although the precise cause of action is difficult to
discern from the petition. We would infer the claim to be brought under 42 U.S.C. § 1983
for impairment of constitutionally protected liberty interests or property rights without
due process. The action was not one for habeas corpus relief under K.S.A. 60-1501.
Richard A. Quillen joined as a plaintiff in the district court, but he has not pursued an
appeal.

Secretary Keck, through counsel for the Department, filed an answer to the
petition that denied liability and requested judgment in his favor. The answer responded
to the allegations of the petition as required under K.S.A. 2016 Supp. 60-208(b). But the
answer asserted neither affirmative defenses nor preserved defenses enumerated in
K.S.A. 2012 Supp. 60-212(b) and instead included a lengthy and procedurally improper
narrative argument as to why injunctive relief would be unwarranted. See K.S.A. 2016
Supp. 60-208(b)(1) (party answering pleading must "[s]tate in short and plain terms [his
or her] defenses to each claim asserted . . . and . . . admit or deny the allegations asserted
against [him or her] by an opposing party").

Secretary Keck filed no dispositive motions under K.S.A. 2016 Supp. 60-212(b) or
for summary judgment as provided in K.S.A. 2016 Supp. 60-256. Without a pending
motion from Secretary Keck—or (obviously) a response from Merryfield—the district
court entered a memorandum decision and order on July 29, 2016, dismissing the action
with prejudice on the grounds that Merryfield had failed to exhaust administrative
remedies, an omission it treated as barring subject matter jurisdiction. The district court
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also suggested Merryfield had failed to establish a basis for injunctive relief. The district
court's memorandum decision does not identify just what it considered in arriving at that
conclusion. Merryfield has timely appealed.

We reverse and remand because a district court should not unilaterally dismiss a
civil action without first giving the adversely affected party notice and an opportunity to
respond. To do otherwise, as the district court did here, undermines basic fairness. Cf.
Kansas East Conf. of the United Methodist Church v. Bethany Med. Ctr., 266 Kan. 366,
381-82, 969 P.2d 859 (1998) (denial of due process for district court to enter permanent
injunction without notice to parties and opportunity to be heard). In exceedingly rare
instances, a court could act on its own to strike pleadings that are frivolous, abusive, or
scurrilous. But even then, the district court should be cautious in doing so without some
form of notice. See K.S.A. 2016 Supp. 60-211(c) (district court may impose sanctions
upon notice and opportunity to be heard if party files pleading for improper purpose or
without factual or legal basis); K.S.A. 2016 Supp. 60-212(f) (district court may strike
from pleadings "any redundant, immaterial, impertinent or scandalous matter").

Here, the district court addressed what it perceived to be a substantive legal
deficiency in Merryfield's case—the failure to exhaust administrative remedies, resulting
in a lack of subject matter jurisdiction. The district court should have invited the parties
to comment on the issue before ruling. We question whether the failure to exhaust
administrative remedies, as mandated in K.S.A. 2015 Supp. 59-29a24a(a), deprives a
district court of subject matter jurisdiction over a sexually violent predator's Chapter 60
action. See Chelf v. State, 46 Kan. App. 2d 522, 530-33, 263 P.3d 852 (2011) (discussing
when exhaustion requirements are jurisdictional). But the answer to the jurisdictional
question is ultimately beside the point.

Even if exhaustion were a jurisdictional prerequisite, the district court could not
simply raise and decide the issue without notice to the parties and an opportunity for
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them to be heard. To be sure, a district court has an obligation to question subject matter
jurisdiction even when the parties have not. Ryser v. State, 295 Kan. 452, 456, 284 P.3d
337 (2012). But that does give the district court license to decide the issue without input
from the parties. To the contrary, a court should afford the parties—particularly the one
about to be deprived of a judicial forum for relief—the opportunity to present legal
authority and, if necessary, evidence on the issue. McCann v. Newman Irrevocable Trust,
458 F.3d 281, 290 (3d Cir. 2006) ("A court can evaluate its jurisdiction without an
evidentiary hearing 'so long as the court has afforded [the parties] notice and a fair
opportunity to be heard.'" [quoting Tanzymore v. Bethlehem Steel Corporation, 457 F.2d
1320, 1323-24 (3d Cir. 1972)]); Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235
(10th Cir. 2003) (appellate court holds district judge erred in dismissing action because it
"did not afford the parties a full and fair opportunity to litigate the question of subject-
matter jurisdiction"; error treated as harmless because parties then fully argued issue on a
motion to alter or amend judgment); Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.
1981) (When considering dismissal for lack of subject matter jurisdiction, "the district
court must give the plaintiff an opportunity for discovery and for a hearing that is
appropriate to the nature of the motion to dismiss."). The United States Court of Appeals
for the Fifth Circuit addressed the issue under the federal rule comparable to K.S.A. 2016
Supp. 60-212(b)(1): "When considering [a] Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the district court must give the plaintiff an opportunity to be
heard, particularly when disputed factual issues are important to the motion's outcome."
In re Eckstein Marine Service L.L.C., 672 F.3d 310, 319 (5th Cir. 2012). The court added
that "an oral hearing is not always necessary if the parties receive an adequate
opportunity to conduct discovery and otherwise present their arguments and evidence to
the court." 672 F.3d at 619-20.

The Kansas Supreme Court routinely invites supplemental briefing from the
parties when it has recognized a possible lack of subject matter jurisdiction. See Ryser,
295 Kan. at 456-57 (court requests supplemental briefs on subject matter jurisdiction);
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Funk Mfg. Co. v. Franklin, 261 Kan. 91, 94-95, 927 P.2d 944 (1996) (same). We see
nothing in K.S.A. 2015 Supp. 59-29a24a(b)(2) that dispenses with a requirement for
notice and an opportunity to be heard when a district court believes a civil action filed by
a sexually violent predator fails to state a claim or might otherwise be subject to
dismissal.

The district court's alternative ground for dismissing the petition—Merryfield has
not shown a right to injunctive relief—also is procedurally infirm. First, if the district
court lacked subject matter jurisdiction, it could decide no more than that precisely
because it had no jurisdiction, and any other rulings by a court without jurisdiction have
no legal force. See In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161
(2010) (decisions of court without subject matter jurisdiction "have no legal force or
effect"); In re T.A.B., No. 113,609, 2015 WL 8590161, at *1 (Kan. App. 2015)
(unpublished opinion) ("A court without subject matter jurisdiction has the authority to
decide only its lack of authority to decide anything else.").

Putting that problem aside, the district court should not have ruled on some
hypothetical motion to dismiss for failure to state a claim under K.S.A. 2016 Supp. 60-
212(b)(6) or for summary judgment under K.S.A. 2016 Supp. 60-256 without first giving
the parties notice and an opportunity to be heard. Even having done so, a district court
then dismissing an action for failure to state a claim should give the plaintiff a chance to
amend his or her petition to cure the deficiencies unless an insuperable legal bar appears
on the face of the pleading. See Dutoit v. Board of Johnson County Comm'rs, 233 Kan.
995, 1002-03, 667 P.2d 879 (1983); Yagman v. Garcetti, ___ F.3d ___, 2017 WL 242562,
at *5 (9th Cir. 2017) ("A district court ordinarily must grant leave to amend when it
dismisses claims under Rule 12[b][6]" unless the deficiency could not be eliminated
through the pleading of additional facts.); Frey v. City of Herculaneum, 44 F.3d 667, 671-
72 (8th Cir. 1995) (same, applying Fed. R. Civ. P. 12[b][6]); Wright, Miller & Kane, 5B
Fed. Prac. & Pro. Civ. § 1357 (3d ed. 2010) ("[T]he cases make it clear that leave to
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amend the complaint [in the face of a motion to dismiss] should be refused only if it
appears to a certainty that the plaintiff cannot state a claim."). Merryfield was not given
that chance. If the district court effectively granted summary judgment, it neither had the
parties identify uncontroverted facts nor made findings of fact and conclusions of law.
See Supreme Court Rule 141 (2017 Kan. S. Ct. R. 204). Without an identification of
disputed and undisputed facts, we have no sound basis to review the ruling as one
granting summary judgment. See Sperry v. McKune, 305 Kan. 469, 384 P.3d 1003, 1017
(2016). Accordingly, the district court's alternative ruling also requires reversal and
remand.

We, therefore, reverse the judgment entered against Merryfield and remand with
directions that his petition be reinstated for further proceedings consistent with this
opinion.