Opinion
No. 112101.
08-14-2015
Billy D. NOBLE, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, Appellee.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Michele E. Kraak, litigation counsel, of Kansas Department for Aging and Disability Services, for appellee.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Michele E. Kraak, litigation counsel, of Kansas Department for Aging and Disability Services, for appellee.
Before SCHROEDER, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Billy D. Noble appeals the denial of his K.S.A. 60–1501 habeas corpus petition over the right to cover the interior side of the door window to his room (the window) as a violation of his right to privacy. Noble also appeals the assessment of the costs of this action against him. Our careful review of the district court's decision reflects it correctly determined Noble did not suffer a substantive-due-process or statutory violation of his right to privacy because he was not allowed to have a curtain on the window. We also find the district court erred in assessing the costs of this action to Noble as the costs should have been charged to the county that committed Noble to the Sexual Predator Treatment Program (SPTP). Affirmed in part and reversed in part.
Factual and Procedural Background
Noble is a current resident of the SPTP at Lamed State Hospital in Pawnee County. Noble filed his petition for a writ of habeas corpus arguing a policy change regarding the ability to cover the window violated his liberty interest pursuant to K.S.A.2014 Supp. 59–29a22(b)(19) and violated his constitutional rights. A writ was issued by the district court. The district court denied SPTP's motion to summarily dismiss Noble's petition and appointed Noble counsel. The district court found in the light most favorable to Noble that Noble had sufficiently raised a question involving a liberty interest protected by the Due Process Clause of the United States Constitution. A trial was held on the merits of Noble's petition. For purposes of the trial, Noble's petition was consolidated with a habeas petition filed by Cecil Emerson. Emerson's appeal is currently docketed in another case. At the hearing, the district court heard testimony from Noble, Emerson, and Ben Ramsey, the program director for the SPTP.
The district court took the matter under advisement and issued its decision. The district court found that while Noble did retain a limited statutory and constitutional right to privacy, those rights were:
“[S]ubject to restriction due to the compelling interest of the State in the treatment of sexually violent predators and the legitimate interest of the State to monitor residents of SPTP in order to insure the safety of all residents, the safety of the public, and the advancement of individual treatment goals.”
The district court found Noble had failed to meet his burden of proof to establish a statutory violation under K.S.A. 59–29a22(b)(19). In addition, the district court found Noble had failed to establish a substantive-due-process violation by SPTP. “A valid and rational connection exists between the policies and rules, and the identified legitimate governmental interest of safety and security.” Furthermore, the district court found that even if a due process right was implicated, SPTP provided Noble a sufficient amount of process and he was not entitled to a hearing to challenge the implementation of a blanket policy applying to all residents. The district court dismissed the petition with prejudice and assessed the costs of this action against Noble.
On April 2, 2014, Noble filed a motion for leave to file an untimely notice of appeal. In his motion, Noble claimed he rad informed his attorney he wanted to appeal the district court's decision, but his attorney failed to file a notice of appeal.
On July 15, 2014, Noble filed a motion for permission to docket out of time with this court, which was granted on July 25, 2014. This court ordered each party to show cause as to why the appeal should not be dismissed for lack of jurisdiction. Noble argued the exceptions in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), applied to his case; however, a panel of this court found Ortiz was inapplicable to civil cases and dismissed the appeal.
Noble filed a motion for reinstatement which this court denied. Noble then filed a petition for review with the Kansas Supreme Court. The Kansas Supreme Court granted Noble's petition stating that if Noble's trial attorney had failed to perfect a requested appeal, then Noble should be allowed to file an out-of-time appeal. The Kansas Supreme Court reinstated the case and remanded it to this court to consider on its merits. We shall proceed.
Did the district court err in dismissing Noble's K.S.A. 60–1501 petition on the merits?
Noble argues his statutory and constitutional privacy rights were violated by SPTP's policy prohibiting him from placing a curtain over the window while he was toileting and bathing. Noble argues due process requires the conditions of treatment bear some reasonable relation to the purpose for which a person is confined; however, “despite statutory and administrative protection of privacy for the residents, [SPTP] continually violates that statutory and administrative rule of protection under the guise of [the] ‘safety’ of the residents of SPTP.” At trial, Noble asked the district court “to find it unconstitutional for SPTP to disallow him from covering the window from the inside when he uses the toilet facilities within his room, and, that his prior write-up for covering his window from the inside during times when he is using his toilet facilities should be removed from his record.” Noble's petition alleged SPTP's policy violates both his procedural and substantive-due-process rights; however, on appeal, Noble only advanced his substantive-due-process rights. An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). We deem Noble's failure to brief his claim of procedural due process rights results in the claim being waived and abandoned.
As we proceed to consider Noble's remaining claim of a substantive-due-process violation, we review a district court's decision to determine whether the factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law in dismissing Noble's K.S.A. 60–1501 petition. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
To state a claim for relief under K.S.A. 60–1501, a petition must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.”Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). Noble alleges SPTP's policy deprives him of liberty and violates K.S.A.2014 Supp. 59–29a22(b)(19), which provides that a resident of SPTP has the right to a reasonable protection of privacy in toileting and bathing.
“Protected liberty interests arise from two sources: (1) the Due Process Clause and (2) the laws of the states. Shepherd v. Davies, 14 Kan.App.2d 333, 335, 789 P.2d 1190 (1990). To constitute a protected liberty or property interest for 14th Amendment purposes, an individual must have a legitimate claim of entitlement to it. The interest must be more than an abstract need or desire and more than a unilateral expectation. [Citations omitted .]” Merryfield v. Sullivan, No. 110,373, 2014 WL 4081987, at *3 (Kan.App.2014) (unpublished opinion), rev. ienied 300 Kan. _____ (April 29, 2014).
In order to implicate constitutional substantive-due-process rights, Noble had to show he lost a liberty which went beyond that to be expected in confined treatment. See Merryfield v. Sullivan, No. 109,558, 2014 WL 1707675, at *2 (Kan.App.2014) (unpublished opinion), rev. denied ––– Kan. –––– (2015).
Since Noble's treatment program requires confinement similar to that of prisoners, we will analyze the policy's impingement upon his constitutional rights under the rational basis test originally defined by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 89–91, 107 S.Ct. 2254, 96 L.Ed.2d 26 (1987), to determine if it is “reasonably related to legitimate [treatment] interests.” Pool v. McKune, 267 Kan. 797, 804, 987 P.2d 1073 (1999). The four Turner factors that have been recognized as relevant in evaluating a regulation's reasonableness are:
“(1) whether a valid and rational connection exists between the regulation and a legitimate governmental interest, (2) wether an alternative means of exercising the constitutional right at issue remains available to inmates, (3) the impact of accommodation of the asserted right upon guards, other inmates, and the allocation of prison resources, and (4) the absence of ready alternatives to the course of action taken in the regulation. [Citations omitted.]” Washington v. Werholtz, 40 Kan.App.2d 860, 863, 197 P.3d 843 (2008), rev. denied 289 Kan. 1286 (2009).
The Turner factors are applicable to substantive-due-process claims of SPTP residents. See Chubb v. Sullivan, 50 Kan.App.2d 419, 440–45, 330 P.3d 423, rev. denied 300 Kan. 1103 (2014). In addition, panels of this court have also recognized “that a fifth factor applies in this context: since the person is civilly committed, not incarcerated after a criminal conviction and sentencing, the government interest at issue cannot be punitive. [Chubb, ] 50 Kan.App.2d at 440, 444.” Merryfield v. Sullivan, No. 111,204, 2015 WL 326652, at *6 (Kan.App.2015) (unpublished opinion), petition for rev. filed February 13, 2015.
When the Turner factors are applied to this case, it is clear there is no substantivedue-process violation. First, the restriction is rationally related to an important governmental interest—protecting the safety and security of the residents and staff of SPTP. The State has a compelling interest in the treatment of sexually violent predators and SPTP is charged with preserving the safety of the residents and the staff of SPTP during the treatment process. Providing a way for the SPTP staff to ensure the residents are not incapacitated from self-harm or accidental harm is rationally related to an important governmental interest.
Second, an alternative method of protecting Noble's privacy is available. Under the new policy, Noble is still allowed to lock his door and was provided a state-issued curtain to place over the outside of his room window. With the exception of a staff member safety check approximately every 30 minutes, Noble has complete privacy.
Third, while Noble argues that it would be easy to accommodate his request to place a curtain on the window while he is toileting, this system has already been previously tried and found ineffective. Under the former policy, residents were allowed to cover the inside of the window for no more than 15 minutes when requiring privacy but were required to respond verbally during a security check. This policy was specifically changed because of safety issues—i.e., it allowed residents to plan time periods for selfharm, and also increased the staff response time for helping incapacitated residents.
Fourth, there is an absence of readily available alternatives. At trial, Ramsey testified the purpose of the new policy was to allow staff to carry out required security and safety checks in the least invasive way possible to ensure the residents were okay from self-harm and were not incapacitate d. Noble has not proposed a readily available, less invasive way, to accomplish these goals. Under the current policy, SPTP residents are still allowed to lock their doors and cover their windows from the outside thus allowing for privacy while still allowing the staff to quickly perform required safety checks.
With regard to the fifth factor specified in Merryfield, 2015 WL 326652, at *6, there is no indication in the record this policy was enacted for punitive reasons. Noble has failed to demonstrate his substantive-due-process rights were violated by SPTP's policy that the door windows could only be covered from the outside of the door.
Noble also argues the policy violated his privacy rights under K.S.A.2014 Supp. 59–29a22(b)(19), which provides that each SPTP resident has the right to “[r]easonable protection of privacy in such matters as toileting and bathing.”
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Cady, 298 Kan. at 738. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Cady, 298 Kan. at 739.
SPTP's policy provides Noble with a reasonable amount of privacy. Evidence at trial showed that Noble was free to come and go from his room and he could lock his door. While Noble was not allowed to cover the window from the inside, it was covered at all times on the outside by a state-issued curtain. The only time the curtain was moved was by a staff member approximately every 30 minutes for a safety check. This provides a reasonable amount of privacy to Noble while also allowing for safety-related checks by the staff.
The district court's factual findings are supported by substantial competent evidence in the record and are sufficient to support the district court's conclusions of law. The district court did not err in denying Noble's petition.
Did the district court err in assessing the costs against Noble?
Noble argues the district court erred in assessing the costs of this action against him. This issue has recently been decided by the Kansas Supreme Court. The plain language of K.S.A.2014 Supp. 59–29a23 provides that when a person who is civilly committed as a sexually violent predator files a petition for relief, the costs incurred are to be assessed to the county from which the patient was committed. Merryfield v. Sullivan, 301 Kan. 397, 401–02, 343 P.3d 515 (2015).
With the Kansas Supreme Court's recent decision, we find the district court erred. The costs should have been assessed to the county from which Noble was found to be a sexually violent offender.
Affirmed in part and reversed in part for the costs of the action to be assessed against the county of commitment.