In re Care and Treatment of Sporn

• Decision Date: 18 September 2009
• Docket Number: No. 99,757.,99,757.
• Parties: In the Matter of the CARE AND TREATMENT OF Randy SPORN.
• Court: Kansas Supreme Court

215 P.3d 615 In the Matter of the CARE AND TREATMENT OF Randy SPORN. No. 99,757. Supreme Court of Kansas. September 18, 2009.

[215 P.3d 616]

Marc Bennett, special assistant attorney general, was on the brief for the appellant.

Gregory K. Barker, of Wichita, was on the brief for the appellee.

The opinion of the court was delivered by JOHNSON, J.:

The State appeals the district court's dismissal of its petition filed against Randy Sporn, pursuant to K.S.A. 59-29a01 et seq., the Sexually Violent Predator Act (SVPA). The State claims that the district court misinterpreted the SVPA and erred in finding that the issue of whether Sporn was a sexually violent predator was res judicata. On the facts of this case, we affirm the dismissal.

In 1999, Sporn was sentenced to prison for his convictions of aggravated criminal sodomy, aggravated indecent liberties with a child, and indecent solicitation of a child in Case No. 96 CR 739. In August 2005, Sporn reached his prison release date but was detained further because the Kansas Attorney General (AG) commenced proceedings to have Sporn committed as a sexually violent predator under the SVPA. That case was designated Case No. 05 PR 0795. However, in May 2006, a jury found in favor of Sporn, i.e., that Sporn was not a sexually violent predator under the SVPA. Accordingly, the SVPA proceeding was terminated, and Sporn was released from prison for postrelease supervision.

The following year, in April 2007, Sporn violated certain conditions of his postrelease supervision, ostensibly viewing pornography and sexually explicit websites on his computer. After Sporn was returned to prison, the AG once again began the procedure for committing Sporn as a sexually violent predator, filing a SVPA petition, with the multidisciplinary team report attached, in July 2007. The assigned district court case number was 07 PR 0716. On July 18, 2007, Judge Clark V. Owens II apparently made the requisite probable cause finding to send Sporn to the Larned State Security Hospital for evaluation. Interestingly, the body of the journal entry in the record on appeal misidentifies the respondent as another individual. However, Sporn's attorney signed the journal entry and raises no issue about that discrepancy.

The matter was originally set for trial on September 10, 2007, before Judge Gregory L. Waller. Prior to that trial date, Sporn filed a motion to dismiss, claiming the matter had previously been litigated in his favor in Case No. 05 PR 0795 and a retrial was barred by res judicata. In the alternative, Sporn requested an order in limine precluding

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the State from introducing the same evidence or relitigating the same issues that were decided in the prior jury trial. The trial date was continued, as was a scheduled hearing on Sporn's motion. Ultimately, the motion hearing was conducted by Judge Terry L. Pullman on September 28, 2007.

Judge Pullman reviewed the definition of a sexually violent predator, contained in K.S.A. 59-29a02(a), noting that it must be a "person who's been convicted of or charged with a sexually violent offense." The court further noted that the first SVPA action in 2005 had relied upon the convictions in 96 CR 739 to meet the definition of sexually violent predator but that action had resulted in a jury verdict that Sporn was not a sexually violent predator. The court then reviewed the petitions which had been filed in the 2005 and the 2007 cases, finding them "almost identical with very few differences." One of the differences was an allegation in the 2007 petition that Sporn's mental abnormality was pedophilia, in contrast to the 2005 petition's allegation of paraphilia, which the State had identified as a typographical error in the 2007 petition. However, the court found that the 2007 petition did not allege that Sporn had been convicted of or charged with a sexually violent crime after the favorable adjudication of the 2005 case. Therefore, the court opined:

"The request in both cases, the petition in both cases were to determine whether or not Mr. Sporn met the criteria of a sexually violent predator and ultimately seeking to have him committed accordingly if in fact he did meet the criteria of a sexually violent predator. I'm going to find that the 05 PR 795 case was an adjudication on the merits of that issue and that issue, notwithstanding the allegations of internet surfing and accessing pornographic material, while it might be a violation of probation, is not a conviction nor a charge of a new crime under the statute I've cited. I'm going to find res judicata applies."

Judge Pullman dismissed the case and ordered Sporn released from custody. Subsequently, the judge signed a written order of dismissal that was filed October 10, 2007, which contained the following finding:

"4. There is an identity in 05PR0795 and 07PR0716 in that they are the (1) the same parties, (2) the same cause of action, (3) the same things are sued for, (4) the same quality of person against whom the claim is made; and therefore the principles of `Res Judicata' apply in this case."

The State filed a timely notice of appeal. The case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). The State raises two issues on appeal. First, it contends that under the SVPA the sole predicate to filing a petition seeking sexually violent predator status is the respondent's pending release from confinement. Second, the State argues that res judicata's identical cause of action element was not met, because a person's mental status can change and the subsequent petition sought determination of Sporn's then current mental status in 2007.

PREREQUISITE FOR CAUSE OF ACTION

The State argues that it is K.S.A. 59-29a03(a) which "sets forth the circumstances that trigger the operation of the [SVPA]." The parties agree that we have an unlimited review over this issue. "The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation." LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).

K.S.A. 59-29a03(a)(1) provides, in relevant part:

"(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02 and amendments thereto, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection (d), 90 days prior to:

(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than 90 days as a result of revocation of post-release

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supervision, written notice shall be given as soon as practicable following the person's readmission to prison."

The State notes that the provision explicitly recognizes that the AG can seek determination of sexually violent predator status for eligible inmates whose postrelease supervision has been revoked for even less than 90 days. It contends that the district court's finding...