In re Easterberg

• Decision Date: 29 March 2019
• Docket Number: No. 117,933,117,933
• Citation: 437 P.3d 964,309 Kan. 490
• Parties: In the MATTER OF the Care and Treatment of Thomas EASTERBERG.
• Court: Kansas Supreme Court

309 Kan. 490

437 P.3d 964

In the MATTER OF the Care and Treatment of Thomas EASTERBERG.

No. 117,933

Supreme Court of Kansas.

Opinion filed March 29, 2019.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

Dwight R. Carswell, assistant solicitor general, argued the cause, and Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the brief for appellee.

Per Curiam:

This is an original proceeding in habeas corpus. Thomas Easterberg argues he must be released from confinement because the State has no statutory basis to civilly commit him under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 2017 Supp. 59-29a01 et seq.

On present showing, we hold that there is a fact question for Riley County District Court to resolve in order to determine whether Easterberg's writ should be granted; therefore, we remand this action to the district court with directions.

FACTUAL AND PROCEDURAL OVERVIEW

In 2007, the State charged Easterberg with multiple crimes that included the sexually violent offenses of rape and aggravated criminal sodomy. As part of a plea agreement, the State dismissed these charges in exchange for Easterberg's plea to kidnapping and aggravated battery. Easterberg was sentenced to 114 months' imprisonment for his convictions. On the Sentencing Guidelines Journal Entry of Judgment for these convictions, the district court checked the boxes indicating Easterberg's crimes were not sexually motivated for purposes of the Kansas Offender Registration Act (KORA), K.S.A. 22-4902(c)(14).

Prior to Easterberg's scheduled release from prison, the Kansas Department of Corrections provided notice to the Kansas Attorney General that Easterberg may meet the criteria of a sexually violent predator under the KSVPA. Subsequently, the Attorney General's Office filed a petition seeking to involuntarily commit Easterberg as a sexually violent predator.

Easterberg moved to dismiss the action, arguing that the State had no statutory basis to file the petition for his commitment. He contends that the State may only initiate proceedings under the KSVPA when a person has been: (1) convicted of a sexually violent crime; (2) found incompetent to stand trial; (3) found "not guilty" by reason of insanity; or (4) found "not guilty" by reason of a mental disease or defect. Because none of the statutory means of initiating the commitment process applied to him, Easterberg asserts that his case must be dismissed. Further, Easterberg claims that the fact that the sentencing court in the criminal case specifically found the crimes of conviction were not sexually motivated precludes a contrary finding by the district court in this case.

The district court denied Easterberg's motion to dismiss and found probable cause existed to believe Easterberg was a sexually violent predator. Following that probable cause determination, Easterberg filed this original action. After considering the State's response to the writ of habeas corpus and Easterberg's reply, this court ordered briefing and oral arguments.

ORIGINAL JURISDICTION

The State argues that this court lacks jurisdiction to consider Easterberg's habeas corpus petition. Alternatively, the State asserts that, even if this court has jurisdiction, it should decline to exercise it. Given that our acceptance of either argument would end this matter, we consider them first.

We start with the State's contention that this court does not have jurisdiction to entertain Easterberg's petition for writ of habeas corpus. Recently, in State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016), we sought to rectify the sometimes careless use of jurisdictional arguments. We clarified that subject matter jurisdiction means " ‘the power of the court to hear and decide a particular type of action,’ " and we declared that "the Kansas Constitution dictates the existence of subject matter jurisdiction." 304 Kan. at 784, 813, 375 P.3d 332. In this instance, our constitution is quite explicit in dictating the existence of our jurisdiction in habeas corpus actions, to-wit: "The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law." Kan. Const. art. 3, § 3.

The State acknowledges that constitutional mandate but nevertheless argues that, when our Kansas Constitution was adopted in 1859, Easterberg's petition "would not have been considered a proceeding in habeas corpus." Specifically, the State suggests that, in 1859, "habeas corpus was generally not available to challenge a person's detention pursuant to legal process by a court of competent jurisdiction; instead, the writ was primarily limited to illegal executive detention and detention by courts that lacked jurisdiction." (Emphasis added.) Of course, such equivocal notions as "generally" and "primarily" are inconsistent with the foundational concepts of subject matter jurisdiction, e.g., jurisdiction cannot be waived or stipulated to and a judgment without subject matter jurisdiction is void. See Dunn , 304 Kan. at 784, 375 P.3d 332 ("The existence of subject matter jurisdiction cannot be waived .... A conviction obtained in a court without subject matter jurisdiction is void."). If a court can consider a person's challenge to being unlawfully detained—for instance because of exceptional circumstances or for secondary reasons—that court does not lack subject matter jurisdiction over the cause of action.

The State relies heavily on federal precedent to support its historical argument that this court's original jurisdiction in habeas corpus proceedings is limited to the primary purpose for which that proceeding was used in 1859. For instance, it cites to the dissent in Boumediene v. Bush , 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), a case dealing with the Suspension Clause in the United States Constitution. That minority opinion argued that "[t]he nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding [of the United States]." 553 U.S. at 844, 128 S.Ct. 2229 (Scalia, J., dissenting). Pointedly, however, the State does not mention Boumediene 's majority opinion which noted the inherent shortcomings in the historical record of 18th century habeas proceedings and which, in discussing adequate substitutes for habeas corpus, posited that "common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances." 553 U.S. at 779, 128 S.Ct. 2229 ; see also Jones v. Cunningham , 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ("[Habeas corpus] is not now and never has been a static, narrow, formalistic remedy.").

Nevertheless, we are presented with a question of Kansas constitutional law, which is uniquely ours to decide. Even if one adopts an originalist viewpoint, the touchstone would be what was in the minds of the drafters of our constitution, rather than the intent of our nation's founders nearly a century earlier. Granted, federal decisions may inform this court's interpretation of Kansas law. For instance, in Lonchar v. Thomas , 517 U.S. 314, 322, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), cited by the State, the Supreme Court stated that the "most basic purpose" of the writ of habeas corpus is "avoiding serious abuses of power by a government." And contrary to the State's contention, In re Chapman, Petitioner , 156 U.S. 211, 215, 15 S.Ct. 331, 39 L.Ed. 401 (1895), declared that, although generally a writ of habeas corpus "will not lie where there is a remedy by writ of error or appeal," there are exceptional cases in which the habeas corpus may be used despite the existence of such a remedy.

With respect to this state's caselaw, the parties do not direct our attention to any precedent explicitly discussing article 3, section 3 of the Kansas Constitution in the context of determining the scope of our original jurisdiction to consider an action in habeas corpus. The State points to State v. Shores , 187 Kan. 492, 493, 357 P.2d 798 (1960), which declared that the notion "[t]hat habeas corpus is not a substitute for an appeal is elementary," and to James v. Amrine , 157 Kan. 397, 399, 140 P.2d 362 (1943), which recognized the general rule that a habeas corpus proceeding is not a substitute for direct appeal and "cannot be used to review nonjurisdictional errors and irregularities leading up to judgment." Both cases are factually distinguishable and neither mentions our constitutional grant of jurisdiction.

The State also relies on a decision from our State's first iteration of a Court of Appeals, In re Chapman, Petitioner , 4 Kan. App. 49, 46 P. 1014 (1896). But Chapman , like other cases of that era, was based on statutory law. It specifically cites to section "660 of the code," which at that time provided: "Every person restrained of his liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal." G.S. 1899, ch. 80, art. 30, sec. 660; see also G.S. 1899, ch. 80, art. 1, sec. 1, annot. ("This is chapter 80, G.S. 1868, except as noted at the end of any section."). The court in Ex parte Phillips , 7 Kan. 48, 49-50, 1871 WL 692 (1871), explained that, although this court has original jurisdiction in habeas corpus proceedings, its power is fixed by statute in Section 671 of the Civil Code, which "forbids an inquiry (at this time) into the alleged errors in the proceedings of the district court." That section provided, in relevant part, as follows:

"No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: ... second , upon any process issued on any final

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