In re Ellison

• Citation: 385 P.3d 15
• Decision Date: 09 December 2016
• Docket Number: No. 112,256,112,256
• Parties: In the MATTER OF the Care and Treatment of Todd ELLISON.
• Court: United States State Supreme Court of Kansas

385 P.3d 15

In the MATTER OF the Care and Treatment of Todd ELLISON.

No. 112,256

Supreme Court of Kansas.

Opinion filed December 9, 2016.

Natalie Chalmers, assistant solicitor general, argued the cause and was on the briefs for appellant.

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

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

Todd Ellison is a convicted sex offender. The State seeks to have him involuntarily committed under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq . To do that, it must prevail at trial. See K.S.A. 59–29a06. But Ellison waited in jail more than 4 years without a trial, so the district court ordered him released after weighing the speedy trial factors set out in Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (length of delay, reason for the delay, assertion of right to speedy trial, and prejudice to the defendant). Our question on appeal is whether the State denied Ellison due process when it detained him for that extraordinary length of time without a trial. On the record before us, we agree with the district court and affirm its order of release.

FACTUAL AND PROCEDURAL BACKGROUND

The KSVPA is a comprehensive statutory scheme for the civil commitment of persons alleged to be sexually violent predators for “potentially long-term control, care and treatment” after they have served their criminal sentences. K.S.A. 59–29a01. The act defines a sexually violent predator as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” K.S.A. 59–29a02(a). When it appears a person within the jurisdiction of the Department of Corrections or Parole Board meets the statutory requirements for such commitment, the agency must notify the attorney general 90 days before that person's release. K.S.A. 59–29a03(a) ; see also K.S.A. 59–29a02(f).

If the attorney general decides to seek commitment, a civil petition must be filed in the district court. See K.S.A. 59–29a04(a). That court must then determine if there is probable cause to believe the person is a sexually violent predator. If so, the court must direct that the person be taken into custody. K.S.A. 59–29a05(a). The alleged sexually violent predator must also be given notice and an opportunity to appear at a hearing to contest the probable cause determination within 72 hours. K.S.A. 59–29a05(b).

If the initial probable cause determination stands, the court must direct that the person be transferred to an appropriate secure facility, including a county jail, for evaluation of whether the person is a sexually violent predator. K.S.A. 59–29a05(d). After that, the person is entitled to a jury trial during which the State must prove its case beyond a reasonable doubt. K.S.A. 59–29a06(c) ; K.S.A. 59–29a07(a).

In Ellison's case, when the petition was filed the KSVPA required his trial to be held within 60 days after the probable cause hearing. See K.S.A. 59–29a06(a). But the statute also permitted a continuance “upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.” K.S.A. 59–29a06(a). The act further provided that the 60–day time limit was not jurisdictional, and the failure to comply did not prevent the attorney general from proceeding. K.S.A. 59–29a06(e).

Involuntary detention under the act must “conform to constitutional requirements for care and treatment.” K.S.A. 59–29a09. Once committed, an individual “shall have a current examination of the person's mental condition made once every year.” K.S.A. 59–29a08(a). In addition, the individual is entitled to annual written notices of the right to petition for release. K.S.A. 59–29a08(a).

The State filed its KSVPA petition against Ellison on June 1, 2009. It alleged he was still in prison finishing out his sentence and that the Department of Corrections had certified he might meet commitment criteria. The appearance docket reflects a probable cause hearing on June 25, 2009, with probable cause found to exist. At some point during this period, Ellison went to the Sedgwick County jail.

Ellison's trial was first set for September 21, 2009. The appearance docket reflects this date was continued by agreement three times to January 19, 2010. Nothing in the record indicates who sought these continuances or for what purposes. Next, Ellison obtained

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four continuances, resulting in a September 20, 2010, trial date. But on September 10, the court granted a pro se motion for new counsel. Three days later, Ellison's current counsel was appointed. Ellison then obtained three more continuances, resulting in an April 25, 2011, trial date. But that trial was then continued by agreement to July 18, 2011. This date was subsequently “[c]ontinued for control purposes—attys to get back with the court.” Ellison's case was assigned to three different district judges between September 20, 2010, and its final assignment to Judge Benjamin L. Burgess in February 2012.

On June 21, 2012, Ellison filed several motions, three of which advocated for his immediate release on these theories: (1) the KSVPA was “facially unconstitutional”; (2) the KSVPA was “altered by the legislature and the Kansas Attorney General to the point that it now acts as a criminal statute”; and (3) the KSVPA violates due process. The third argument was the procedural vehicle the district court ultimately used to dismiss the case and free Ellison.

A month later, on July 23, 2012, Ellison petitioned this court for a writ of habeas corpus, raising the same claims advanced in the district court seeking his release. By this time, Ellison had been awaiting trial for 1,124 days. In his habeas petition, Ellison conceded “a good deal of [time since the State filed its KSVPA petition] is attributable to Mr. Ellison and his attorneys....” We summarily dismissed the habeas action on June 19, 2013.

While the habeas action was pending, the State responded to Ellison's June 2012 motions for release in April and May 2013. On May 6, 2013, the district court held a hearing related to Ellison's June 2012 motions for release, at which it commented:

“[A]s we all know, this petition against Mr. Ellison was filed June 1, 2009. That's four years ago. Here we are still and not—and I understand some of the other pleadings, but I did look this morning too with regard to continuances. There have been seven continuances by the defendant. And there's been other continuances by agreement. So, yes, this case has been on a—well, it's been delayed for a lot of different reasons for probably too long. And I'm—would be the first to agree that Mr. Ellison is entitled to have his day in court eventually and it should be sometime soon.”

More than 9 months later, at a February 10, 2014, hearing, the district court again took up Ellison's June 2012 motions, denying all but the motion claiming the KSVPA violated due process. Turning to that motion, the court recognized Ellison did not have a statutory right to a speedy trial but believed there were “some quasi-criminal issues that ... should be considered with regard to [the due process] motion.” The court calculated that 1,705 days would elapse between Ellison's probable cause hearing in 2009 and the then-scheduled trial date, February 24, 2014. Judge Burgess also produced his own summary of previous hearings, which included his handwritten notes and highlighting reflecting his attempt to track continuances and attribute them to the parties.

First, the court assigned the following causes to the delay: 204 days due to agreed continuances, 461 days due to Ellison's continuances, 331 days due to Ellison's habeas corpus petition, and 709 days unexplained. Then, it proposed three ways to allocate responsibility for this time: (1) 996 days to Ellison (all delays except the unexplained days) and 709 days to the State; (2) 894 days to Ellison (his continuances, the time the habeas corpus petition was pending, and half the agreed continuances) and the remaining 811 days to the State; and (3) 792 days to Ellison (his continuances and the time the habeas corpus petition was pending) and 913 days to the State. In each calculation, the court assigned to the State the delay after the May 6, 2013, hearing because it could not attribute that delay to either party.

The court deferred taking action so the parties could offer their own explanations to allocate responsibility for the postponements. The court told the parties, “[Y]ou can add any other documents you think are necessary or in whatever other way you think is appropriate to clarify how you think the breakdown should be allocated.” In response to that invitation, the State filed a document outlining its view of the reasons for the delay

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in proceeding to trial. The State offered three justifications.

First, under the heading “Justifications for Delay: Continuances by Ellison ,” the State listed all postponements from the probable cause hearing on June 25,...