Burch v. Lynch

• Decision Date: 07 June 2013
• Docket Number: No. 108,798.,108,798.
• Citation: 302 P.3d 45
• Parties: Timothy J. BURCH, Appellant, v. Kathleen M. LYNCH, Twenty–Ninth Judicial District Judge, et al., Appellees.
• Court: Kansas Court of Appeals

302 P.3d 45

Timothy J. BURCH, Appellant,

v.Kathleen M. LYNCH, Twenty–Ninth Judicial District Judge, et al., Appellees.

No. 108,798.

Court of Appeals of Kansas.

June 7, 2013.

Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.

Timothy J. Burch, appellant pro se.

Stephen Phillips, assistant attorney general, for appellee Kathleen M. Lynch.

Kimberly M.J. Lynch, senior litigation counsel of the Kansas Department for Aging and Disability Services, for appellees Office of the Kansas Attorney General, the State of Kansas, and the Kansas Department for Aging and Disability Services.

Before PIERRON, P.J., BRUNS and POWELL, JJ.

MEMORANDUM OPINION

PER CURIAM.

Timothy J. Burch appeals the summary dismissal of his petition for writ of habeas corpus filed pursuant to K.S.A. 60–1501. Burch is a sexually violent offender committed to the Larned State Security Hospital (Larned). His challenges involve rulings in 2009 and 2010 that resulted in his continued confinement.

In 1989, Burch was convicted of three counts of aggravated criminal sodomy, five counts of indecent liberties with a child, and two counts of sexual exploitation of a child. In May 2002, the Wyandotte County District Court placed Burch in Social and Rehabilitation Services (SRS) custody under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq., and committed him to Larned.

In 2008, Burch filed a petition in Wyandotte County District Court for transitional release. The court found that Burch's mental condition had not changed sufficiently to justify placement into transitional release at that time. A panel of this court affirmed the district court's decision. See In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271 (Kan.App.2010) (unpublished opinion). The Kansas Supreme Court granted a petition for review in May 2011 and entered a decision affirming the district court and Court of Appeals on December 28, 2012. The Supreme Court held Burch had failed to establish the requisite probable cause entitling him to a full evidentiary hearing on his petition for discharge or transitional release. In re Care and Treatment of Burch, 296 Kan. 215, 225–29, 291 P.3d 78 (2012).

In the meantime, the State had issued a status report and a notice of the right to petition for release over SRS secretary's objection in July 2009 and August 2010. The Wyandotte District Court subsequently issued orders for continued confinement in July 2009 and August 2010 as well. It does not appear that Burch filed any motions in response to the 2009 ruling. However, in his petition filed in 2011, Burch states that on September 27, 2010, he filed the following documents: (1) Respondent's Pro Se Motion for Relief From Judgment; (2) Respondent's Memorandum of Law in Support of His Motion for Relief From Judgment with Attachments; (3) Respondent's Petition for Transitional Release, Conditional Release, or Final Discharge; (4) Respondent's Objection to Annual Report; (5) Respondent's Memorandum of Law in Support of Objection to Annual Report; (6) Respondent's Motion for Independent Evaluation; (7) Respondent's Motion for Protective Order; and (8) Respondent's Memorandum of Law in Support of Motion for Protective Order.

On September 27, 2010, and May 20, 2011, the Wyandotte District Court sent Burch letters informing him that while appellate review of his case was pending, the appellate court had exclusive jurisdiction. Consequently, the court stated it was without jurisdiction to hear any motions in the case until a substantive ruling from the appellate court. Burch did not appeal from any of the district court rulings or decisions that it lacked jurisdiction to consider his various motions for release.

In 2011, while the Kansas Supreme Court was considering Burch's appeal in the 2008 case, he continued his litigious filings in the district court. On June 28, 2011, Burch filed a petition for writ of habeas corpus under K.S.A. 60–1501 in Wyandotte County. Burch argued he was being unconstitutionally confined at Larned in Pawnee County. The district court summarily denied Burch's petition on July 13, 2011. Burch appealed to this court. On March 2, 2012, we did not address the merits of his arguments and held that Burch filed his petition in the wrong county; pursuant to 60–1501, he should have filed his petition in Pawnee County where he was confined. See Burch v. Lynch, No. 106,612, 2012 WL 718991 (Kan.App.2012) (unpublished opinion).

On March 19, 2012, Burch filed his petition for writ of habeas corpus in Pawnee District Court as summarized below. In his K.S.A. 60–1501 motion, Burch alleged:

1. Judge Lynch signed the order for continued custody on July 29, 2009, only 4 days after the State submitted its paper work. Burch claims a due process violation for not having 21 days to respond under K.S.A. 60–212(a) (20 days to file defenses and objections to petition). He also claims the judge's orders were accepted and signed ex parte—because he received no notice—and they failed to include sufficient findings and conclusions under Kansas Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262) and K.S.A. 60–252.

2. Judge Lynch's order for continued confinement on August 26, 2010, did not list any reasons for denial of Burch's request for an independent examination. Burch also raised similar due process arguments that he was denied time to respond to the State's paper work before Judge Lynch entered her order.

3. The proposed journal entries submitted by SRS in 2009 and 2010 with their recommendation to continue confinement were not properly before the court and denied Burch the right to be heard.

4. Judge Lynch erred in finding that the district court did not have jurisdiction to grant an annual review or the myriad of motions he filed on September 27, 2010, due to the pending appeal in Burch's 2008 annual review and the decision that Burch failed to show probable cause to believe his mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release. Judge Lynch also sent Burch letters on September 27, 2010, and May 20, 2011, stating the district court had no jurisdiction while his 2008 annual review was pending.

5. Judge Lynch allowed the State to file all the documents supporting a continuation of his commitment, but she then unfairly denied him an annual review because the 2008 case was still pending in the Kansas Supreme Court.

6. The SRS reports submitted in 2009 and 2010 did not list any mental abnormality or personality disorder that Burch currently had at the time of the report and also failed to list appropriate details under K.S.A. 60–235(b).

7. The annual review of his case meant that he was on a yearly commitment and if SRS did not file the appropriate documents within a calendar year, he was serving an illegal confinement.

8. Judge Lynch ordered the file stamp on his 2010 objections to be whited-out in order for it to read September 27, 2010, instead of the original date of September 23, 2010.

On September 10, 2012, the Pawnee District Court summarily dismissed Burch's 60–1501 petition, finding he had failed to appeal any of the orders of the Wyandotte District Court for which he now complains and he had not raised any allegations sufficient to establish shocking and intolerable conduct by the defendants. The Pawnee District Court specifically found that Burch had been advised on multiple occasions by the Wyandotte District Court that the appellate courts had exclusive jurisdiction in his civil commitment case and that during the appellate process the Wyandotte District Court was without jurisdiction to hear his motions. The Pawnee District Court concluded:

Under the circumstances expressed in this action as the same relate to Case No. 01PR412, the Petition fails to allege continuing mistreatment of a constitutional stature in that the District Court of Wyandotte County, Kansas has rightfully acknowledged that exclusive jurisdiction in the Wyandotte County case presently rests with the Appellate Court. There is no evidence before the Court that the Petitioner appealed that Order, or otherwise attempted to request partial remand of the Wyandotte County proceedings from the Appellate Court to the District Court of Wyandotte County, Kansas.

The issue of Judge Lynch not being a proper defendant in Burch's K.S.A. 60–1501 proceeding was not raised by the defendants, including the Attorney General, below. Further, they did not file a cross-appeal from any ruling by the district court either. The fact that this 60–1501 case has been to this court before with the same defendants and this is the first challenge to Judge Lynch as a defendant furthers an argument that we should not address the issue. See State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (as a general rule, absent exceptional circumstances, appellate courts do not consider issues on appeal that were not raised by the parties); see also Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985) (appellee's failure to cross-appeal deprived court of jurisdiction to consider appellee's briefed issues). The Attorney General attempts to skirt the issue of whether this issue is properly on appeal by arguing that dismissal as to Judge Lynch was the right result, but for a different reason than expressed by the district court. The Attorney General then insists that we can apply a right for the wrong reason standard to the question. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012) (if a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision).

The Pawnee District Court did not dismiss this case against Judge Lynch. Instead, the court found that Burch had failed to directly appeal any of the 2009 and 2010 issues he now raises on appeal and that he failed to alleged shocking and intolerable conduct by the defendants. The defendants...