Opinion
No. 112336.
04-10-2015
Richard A. QUILLEN, Appellant, v. Shawn SULLIVAN, Secretary of Kansas Department for Aging and Disability Services, Appellee.
Richard A. Quillen, pro se appellant. Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging Disability Services, for appellee.
Richard A. Quillen, pro se appellant.
Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging Disability Services, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Richard A. Quillen, a resident of the Sexual Predator Treatment Program (SPTP) at Larned State Hospital appeals the district court's summary dismissal of his K.S.A. 60–1501 petition filed against Shawn Sullivan, Secretary of the Kansas Department for Aging and Disabilities. For the reasons set forth in this opinion, we affirm the district court's dismissal of Quillen's habeas corpus petition. However, we vacate the district court's order assessing costs to Quillen and remand with directions.
On September 10, 2012, Quillen filed a petition for writ of habeas corpus in the Pawnee County District Court pursuant to K.S.A. 60–1501 against Secretary Sullivan. Quillen contends in his petition that the SPTP rulebook and handbook for residents unlawfully restricted his rights and were illegally promulgated. Quillen filed an amended petition on March 14, 2013, alleging multiple claims for relief relating to the rulebook and handbook, including arguing that they were not properly promulgated and asserting that the grievance system was inadequate.
On September 23, 2013, the district court issued a writ of habeas corpus and required Secretary Sullivan to file an answer to Quillen's amended petition. Over Quillen's objections, the district court granted Sullivan additional time to file its answer. Ultimately, Secretary Sullivan filed an answer and a motion for summary dismissal on January 8, 2014.
An order dissolving the writ and granting Secretary Sullivan's motion for summary dismissal was entered on August 1, 2014. In dismissing the amended petition, the district court noted that it was “exactly identical” to a petition filed by another resident of the SPTP, Dustin Merryfield, that had been summarily dismissed on July 11, 2014. The district court then gave three reasons for dismissing the amended petition: (1) Quillen failed to exhaust his administrative remedies; (2) Quillen's habeas corpus petition was exactly the same as Merryfield's petition, so the rulings in that case were res judicata to the issues raised in this case; and (3) Quillen lacked standing because he failed to allege an actual case, controversy, or injury. Accordingly, the district court determined that Quillen's amended petition was frivolous and filed in bad faith. Finally, the district court assessed court costs to Quillen.
Quillen timely filed a notice of appeal on August 7, 2014.
Issues Presented
At the outset, we note that after Quillen filed his brief in this case, the Kansas Supreme Court held that residents in the SPTP are not required to exhaust administrative remedies prior to filing a K.S.A. 60–1501 petition. Stanley v. Sullivan, 300 Kan. 1015, 1018, 336 P.3d 870 (2014) ; see also K.S.A.2014 Supp. 59–29a24(d). As such, we have jurisdiction to consider the merits—or lack thereof—of Quillen's claims. Specifically, we look to three issues. First, whether the district court erred in summarily dismissing Quillen's amended petition. Second, whether the district court abused its discretion by granting Secretary Sullivan an extension of time to answer Quillen's amended petition. Third, whether the district court erred in assessing costs to Quillen.
Summary Dismissal of Quillen's Amended Petition
On appeal, Quillen contends that Secretary Sullivan was required to promulgate the resident handbook and rulebook in conformity with the Rules and Regulations Filing Act, K.S.A. 77–415 et seq. In support of this contention, he argues that he was denied the right to due process because the handbook and rulebook were not properly promulgated. He further argues the district court erred by summarily dismissing any claims relating to the promulgation.
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). If, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed or uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists, then summary dismissal is proper. K.S.A.2014 Supp. 60–1503(a) ; 289 Kan. at 648–49. An appellate court exercises unlimited review of a summary dismissal. 289 Kan. at 649.
To have standing to assert a claim, a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the conduct alleged. A cognizable injury is an “injury in fact”—an injury that is concrete, particularized, actual, or imminent. Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014). Furthermore, in challenging the constitutionality of a procedure used within the SPTP, “a claimant must allege that both on its face and as applied to him or her, implementation of the procedure results in the deprivation of a protected interest in life, liberty, or property without adequate notice and an opportunity to be heard.” Lovingood v. Kansas Social and Rehabilitation Servs., No. 105,225, 2011 WL 3250595, at *3 (Kan.App.2011) (unpublished opinion). Accordingly, to avoid summary dismissal, a K.S.A. 60–1501 petition must allege facts that amount to shocking and intolerable conduct or continuing mistreatment of a constitutional nature. 2011 WL 3250595, at *3.
Likewise, a panel of this court has held:
“Generally, to demonstrate common-law or traditional standing, a person suing individually must show a cognizable injury and establish a causal connection between the injury and the challenged conduct. [Citations omitted.] To establish a cognizable injury, a party must establish a personal interest or stake in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct.
[Citation omitted.]” Herd v. Kansas Dept. of Health & Environment, No. 110,552, 2014 WL 2747718, at *3 (Kan.App.2014) (unpublished opinion).
Here, instead of alleging a concrete, particularized, actual, or imminent injury, Quillen makes vague allegations of an unspecified deprivation of rights as an injury. Moreover, Quillen has not alleged shocking and intolerable conduct of a constitutional nature. He makes no allegation of actual harm or injury to himself because of the promulgation of these rules. Rather, Quillen's allegations are similar to a “preemptive strike” in anticipation that his rights might be denied or that he might suffer injury at some unknown point in the future.
As the district court correctly stated:
“Speculating on future curtailment of rights that may never happen fail[s] to link any injury to [the] complaint. The Court will not give out advisory opinions on future matters that may or may not come to pass. Further he fails to state a claim of denial of due process ... It is not this Court's function to rewrite the rulebook. Neither is it Quillen's. If at some future time, Quillen runs afoul of the regulations and he has a reasonable belief that state action has violated his constitutional rights, he may then seek intervention by this Courtnot before.”
We also note that at least two panels of this court have addressed the issue of rule promulgation. In Lovingood, a panel of this court held that a SPTP policy was not subject to the Rules and Regulations Filing Act because the policy did not have general application. 2011 WL 3250595, at *3. In reaching that conclusion, the panel noted that the policy was limited to cover only the residents of the SPTP. With such limited application, the policy did not fall within the definition of a rule or regulation that must be printed in the Kansas Register. Lovingood, 2011 WL 3250595, at *3.
Similarly, in Merryfield v. Sullivan, No. 108,805, 2013 WL 4404416 (Kan.App.2013) (unpublished opinion), Merryfield argued his property was unlawfully detained because the handbooks and policies allowing for the removal of his property were illegally promulgated. That panel held:
“Here, like in Lovingood, the policies and handbook that Merryfield complains about are not rules of general application. In fact, the policies and handbook only apply to the limited number of residents in the SPTP program. As stated earlier, “ ‘[r]ule and [r]egulation” means a standard, requirement or other policy of general application that has the force and effect of law ... issued or adopted by a state agency to implement or interpret legislation.’ K.S.A. 77–415(c). Therefore, the policies and handbook do not fit within the definition of a rule or regulation. Moreover, the SPTP policies and handbook do not have the force and effect of law.” 2013 WL 4404416, at *4.
Because the SPTP handbook and rulebook are not subject to the Rules and Regulations Filing Act, and because Quillen has shown neither a cognizable injury nor a causal connection between the injury and the challenged conduct, we conclude that the district court properly summarily dismissed Quillen's K.S.A. 60–1501 petition. In light of this ruling on the merits, we will not address the issue of res judicata in this opinion.
Granting of an Extension to Secretary Sullivan
Quillen also contends that the district court lacked jurisdiction over Secretary Sullivan's answer and motion to dismiss, arguing that Sullivan failed to show good cause for an extension of time and that Sullivan could not file a motion to dismiss once the district court issued a writ. Whether the district court erred in granting a motion for extension of time is not a question of jurisdiction. Rather, we review a district court ruling on a motion for an extension of time for abuse of discretion. See In re J.A.H., 285 Kan. 375, 384–85, 172 P.3d 1 (2007).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
K.S.A.2014 Supp. 60–1503(a) requires that a habeas corpus petition is to be examined promptly by the district court and dissolved if it plainly appears from the face of the petition that the petitioner is not entitled to relief. If the district court finds that the petitioner may be entitled to relief, however, a writ must be issued directing “the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate.” K.S.A.2014 Supp. 60–1503(a).
In addition, a defense of failure to state a claim upon which relief can be granted may be included in either a responsive pleading or in a separate motion. K.S.A.2014 Supp. 60–212(b)(6). Further, district courts are granted broad discretion in managing their docket and in ruling on continuances. See Capital One Bank v. Hall, No. 104,056, 2011 WL 768006, at *2 (Kan.App.2011) (unpublished opinion).
In the motion for extension of time—which was timely filed prior to the expiration of the original time to answer—Sullivan's counsel stated that she needed an extension because of an extensive caseload, including four new cases filed by Quillen and several cases pending in the court of appeals. See K.S.A.2014 Supp. 60–206(b). We, therefore, conclude that the district court did not abuse its discretion in granting an extension to Secretary Sullivan or in considering the motion to dismiss on the merits.
Assessment of Costs.
Finally, Quillen contends that because he is a sexually violent predator, the costs associated with the dismissal of his petition for writ of habeas corpus must be assessed in accordance with K.S.A.2014 Supp. 59–29a23. Under that statute the costs related to the prosecution and defense of such petition shall be taxed to the county responsible for the costs. K.S.A.2014 Supp. 59–29a23(a). Section (c) of that statute defines “county responsible for the costs” as the county where the person was determined to be a sexually violent predator under K.S.A. 59–29a01, et seq. On the other hand, Secretary Sullivan claims the district court did not err when it assessed the costs to Merryfield because this was appropriate under K.S.A.2014 Supp. 60–1503(a).
As a general rule, K.S.A.2014 Supp. 60–1503(a) provides that when a habeas corpus petition is dissolved because a petitioner is not entitled to relief, the costs shall be assessed to the petitioner. Nevertheless, K.S.A.2014 Supp. 59–29a23(a) provides:
“Whenever a person civilly committed [in the SPTP], files a petition pursuant to K.S.A. 60–1501 et seq., ... relating to such commitment, the costs incurred, including, but not limited t, ... expenses related to the prosecution and defense of such petition shall be taxed to the county responsible for the costs.”
In turn, K.S.A.2014 Supp. 59–29a23(c) states that “ ‘county responsible for the costs' means the county where the person was determined to be a sexually violent predator....”
Furthermore, the Kansas Supreme Court recently held: “K.S.A.2014 Supp. 59–29a23 requires that, when a person who has been civilly committed as a sexually violent predator files a petition for relief under K.S.A. 60–1501 et seq. , the costs incurred by the filing of the action are to be assessed to the county responsible for the costs.” Merryfield v. Sullivan, 300 Kan. ––––, Syl. ¶ 3, 343 P.3d 515 (2015). In doing so, our Supreme Court reasoned “that K.S.A.2014 Supp. 59–29a23 is the more specific statute and that its plain language provides for the assessment of costs to the county.” 343 P.3d at 518.
We are duty bound to follow precedent from the Kansas Supreme Court. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Accordingly, we vacate the order assessing court costs to Quillen, and we remand this matter to the district court for assessment of the costs according to K.S.A.2014 Supp. 59–29a23.
Affirmed in part, vacated in part, and remanded with directions.