Care and Treatment of Hendricks, Matter of

• Decision Date: 01 March 1996
• Docket Number: No. 73039,73039
• Citation: 259 Kan. 246,912 P.2d 129
• Parties: , 64 USLW 2596 In the Matter of the CARE AND TREATMENT of Leroy HENDRICKS, Appellant.
• Court: Kansas Supreme Court

Page 129

912 P.2d 129

259 Kan. 246, 64 USLW 2596

In the Matter of the CARE AND TREATMENT of Leroy HENDRICKS, Appellant.

No. 73039.

Supreme Court of Kansas.

March 1, 1996.

Stay Granted April 22, 1996.

See 116 S.Ct. 1540.

Syllabus by the Court

1. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so.

2. A statute must clearly violate the Constitution before the court may strike it down.

3. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that before an individual may be involuntarily committed for control, care, and treatment, the State must prove by clear and convincing evidence that the individual is both mentally ill and dangerous.

4. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., which provides for the commitment for the long-term care and treatment of sexually violent predators, is examined and held to be unconstitutional as a violation of the substantive Due Process Clause of the Fourteenth Amendment to the United States Constitution, as more fully set forth in this opinion.

Appeal from Sedgwick District Court; Gregory L. Waller, Judge.

Thomas J. Weilert, Wichita, argued the cause, and E.J. Greeno, of Greeno & Boohar, Wichita, and Laura B. Shaneyfelt, of Focht, Hughey & Calvert, Wichita, were with him on the brief, for appellant.

David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla Stovall, Attorney General, were with him on the brief, for appellee.

Andrew L. Warren, Overland Park, was on the brief, for amicus curiae American Civil Liberties Union.

David Gottlieb, Lawrence, Jessica R. Kunen, Chief Appellate Defender, Rebecca E. Woodman, Assistant Appellate Defender, and Elizabeth Seale Cateforis, Assistant Appellate Defender, were on the brief, for amici curiae Kansas Defender Project/Appellate Defender Office.

ALLEGRUCCI, Justice:

Leroy Hendricks appeals from a jury finding that he is a sexually violent predator as defined in the Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq., and from the district court's order of commitment, which was issued pursuant to that finding. The Act establishes a procedure, which is stated to be civil, for involuntarily committing sexually violent predators for long-term care and treatment. Hendricks challenges the constitutionality of the Act and also raises various other grounds for reversing the finding and order of the district court. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).

This case was initiated by the district attorney's filing on August 17, 1994, of a petition in the district court seeking commitment of Leroy Hendricks as a sexually violent predator under the Act. The petition recited that it anticipated Hendricks' release from confinement on September 11, 1994, and stated the following criminal history:

"That on the 26th day of November, 1984 respondent Leroy V. Hendricks was convicted in the Eighteenth Judicial District, District Court, Sedgwick County, Kansas, Case No. 84CR1463 of a sexually violent offenses [sic ] involving two victims as defined by law, to wit: K.S.A. 21-3503 Indecent Liberties with a Child; and K.S.A. 21-3503 Indecent Liberties with a Child; and has a history of prior sexual offenses from other jurisdictions, to wit: 1960 Spokane, Washington, Indecent Liberties with a Child; Seattle, Washington (1963 and 1967) Indecent Liberties with a Child (two separate cases)."

The petition further alleged that Hendricks "suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence."

At the time the petition was filed, Hendricks was serving a sentence of 5 to 20 years' imprisonment. The sentence had been imposed in accordance with the State's recommendation pursuant to a plea agreement. Under the agreement, Hendricks pled guilty in November 1984 to two counts of indecent liberties with a child. The State dismissed a third count of indecent liberties and refrained from requesting imposition of the Habitual Criminal Act.

On August 19, 1994, Hendricks appeared with counsel in district court. At the beginning of the hearing, Hendricks presented a motion to dismiss the petition. Counsel argued the following grounds for dismissal: insufficient factual allegations, failure to serve Hendricks with the petition, unconstitutionality of the Act, and breach of the plea agreement. The district court allowed the State to present evidence. In a journal entry filed on August 23, 1994, the district court found no fatal flaws in the petition or its service and reserved ruling on the constitutionality of the Act and the argument that the State was estopped by virtue of the plea agreement. The district court concluded that there was probable cause to believe that Hendricks is a sexually violent predator as defined in the Act and that he should be evaluated at Larned State Security Hospital to determine if he is.

Upon advice of counsel, Hendricks did not participate in the evaluation at the state hospital. As a result, the first report issued by the hospital was based on available records and behavioral observations during his stay. After ruling that the nature of the Act is civil rather than criminal or quasi-criminal so that the privilege against self-incrimination does not apply, the district court granted the State's request for an order compelling discovery. The district court ordered another evaluation and ordered Hendricks to cooperate in it.

A jury trial was conducted October 3-5, 1994. Hendricks was called as a witness by the State. He testified that he was 60 years old, that his history of sexual involvement with children began with his exposing himself to two girls in 1955, and that he had spent approximately half the time since then in prison or in psychiatric institutions. He explained that when he gets "stressed out," he is unable to control the urge to engage in sexual activity with a child. Hendricks agreed that he is a pedophile and that he is not cured of the condition.

The State also called Charles Befort, the chief psychologist at Larned State Hospital. He testified that a personality disorder consists of traits or characteristics which tend to produce in most situations predictable but unacceptable or abnormal behavior. He testified that a pedophile is predisposed to commit sexual acts with children and that pedophilia in and of itself is not considered to be a personality disorder. Dr. Befort testified that during the previous week he had performed an evaluation of Hendricks. Dr. Befort believed it likely that Hendricks would engage in predatory acts of sexual violence or sexual activity with children if permitted to do so. The factors upon which he based this opinion were the aphorism that "behavior is a good predictor of future behavior," his professional knowledge that pedophiles tend to repeat their behavior, and Hendricks' poor understanding of his behavior. He testified that he did not believe Hendricks was mentally ill or had a personalitydisorder but that, as he interpreted the Act, pedophilia was a mental abnormality. He agreed that his interpretation of the statute was open to debate.

William Logan, a forensic psychiatrist, testified on behalf of Hendricks. He testified about re-offense rates for sex offenders, as shown by various studies. Re-offense rates for persons who had received treatment ranged from 3 to 37 1/2 percent; for untreated persons the range was 10 to 40 percent. Dr. Logan expressed the opinion that, based on current knowledge, "a psychiatrist or psychologist cannot predict whether an individual is more likely than not to engage in a future act of sexual predation."

The jury found that Hendricks is a sexually violent predator. He was committed to the custody of the Secretary of Social and Rehabilitation Services (SRS). Hendricks filed a motion to dismiss or, in the alternative, for a new trial which was based in part on evidence that apart from the regular staff of Larned State Hospital, professionals specifically dedicated to a treatment program for sexually violent predators were not available at the hospital. Although it had negotiated with two bidders who proposed to provide care and treatment under the Act, as of October 20, 1994, SRS had not entered into a contract with either. The motion was denied, and the district court ordered that Hendricks be transported to Larned State Security Hospital.

The Act is a product of the 1994 legislative session. It is patterned on a very similar statutory scheme enacted in the state of Washington in 1990. Wash.Rev.Code § 71.09.010 et seq. (1992). A divided Washington Supreme Court held that that state's Act was constitutional in Personal Restraint of Young, 122 Wash.2d 1, 857 P.2d 989(1993). Thereafter, the United States District Court for the Western District of Washington disagreed with the Washington Supreme Court and granted Young's petition for writ of habeas corpus. Young v. Weston, 898 F.Supp. 744 (W.D.Wash.1995). The district court concluded that the Washington act "violates the substantive due process component of the Fourteenth Amendment, the Ex Post Facto Clause, and the Double Jeopardy Clause." Young, 898 F.Supp. at 754. We will revisit these cases later in this opinion.

The legislature's stated reasons for enacting a comprehensive scheme for commitment of sexually violent predators appear in K.S.A. 59-29a01:

"The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, which is intended to...