In re Emerson

• Decision Date: 07 April 2017
• Docket Number: No. 113,503,113,503
• Citation: 392 P.3d 82
• Parties: In the MATTER OF the Care and Treatment of Cecil W. EMERSON.
• Court: Kansas Supreme Court

392 P.3d 82

In the MATTER OF the Care and Treatment of Cecil W. EMERSON.

No. 113,503

Supreme Court of Kansas.

Opinion filed April 7, 2017

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 Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

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

This appeal raises the question of whether a district court has jurisdiction to authorize the filing of an out-of-time direct appeal after a prior direct appeal by the same litigant had been dismissed by the Court of Appeals. We hold the district court lost jurisdiction when the initial appeal was docketed in the Court of Appeals, and, therefore, the district court could not effectively set aside an order of the Court of Appeals and reinstate an appeal. Because the district court did not have jurisdiction, neither this court nor the Court of Appeals obtains jurisdiction to review the district court's rulings. Accordingly, we dismiss this appeal.

FACTS AND PROCEDURAL BACKGROUND

In August 1999 the State filed a petition against Cecil Emerson pursuant to the Sexually Violent Predators Act (SVPA). A jury found Emerson was a sexually violent predator, and the district court accordingly ordered Emerson to be "committed to the custody of the Secretary of Social and Rehabilitation Services for control, care and treatment until such time as respondent's mental abnormality or personality disorder has so changed that respondent is safe to be at large."

Emerson moved for judgment as a matter of law or in the alternative for a new trial, and the district court denied the motion on January 5, 2001. In February 2001, Emerson filed a notice of appeal; he subsequently docketed the case in the appellate courts by filing several documents with the clerk of the appellate courts, including a docketing statement and a certified copy of his notice of appeal. The Court of Appeals ultimately dismissed Emerson's appeal in 2002 after his counsel failed to file a brief despite four extensions of time and a final warning.

Since that time, as required by K.S.A. 59-29a08, the Secretary of the Kansas Department of Social and Rehabilitation Services or its successor, the Secretary of the Kansas Department for Aging and Disability Services, has conducted a yearly review and reported to the district court regarding Emerson's progress, the current state of his mental condition or personality disorder, and his treatment staff's recommendation as to whether he should be authorized to petition the district court for release with the Secretary's approval. Each year, the Secretary notified Emerson that his mental condition or personality disorder had not changed sufficiently so that it would be safe for him to be at large. Emerson also received annual notice that he had the right to petition for release over the Secretary's objection. In some years, he did not waive his right to further proceedings—although he never actually petitioned the district court for release—and in other years he formally waived further proceedings. And each year, the district court found Emerson should remain in the custody of the Secretary for further care and treatment.

Then, in July 2014, Emerson, represented by new and present counsel, moved the district court to permit an out-of-time appeal of the underlying ruling that he was a sexually violent predator. Counsel argued Emerson's case fell under the third exception permitting an out-of-time appeal set out in State v. Ortiz , 230 Kan. 733, 736, 640 P.2d 1255 (1982) (allowing out-of-time appeal "only in those [criminal] cases where a defendant either [1] was not informed of his or her rights to appeal or [2] was not furnished an attorney to exercise those rights or [3] was furnished an attorney for that purpose who failed to perfect and complete an appeal").

The State responded that the district court lacked authority to permit an out-of-time appeal since it could not amend a notice of appeal filed as long ago as February 2001 or order an appellate court to reinstate the appeal. It also argued the timeliness of a notice of appeal was jurisdictional and Emerson's proposed second notice of appeal would not cure the Court of Appeals' 2002 dismissal of his case. The State also noted that Emerson had been committed since December 13, 2000, and had repeatedly waived further court proceedings and agreed to stay in treatment.

At a hearing on Emerson's motion, the district court stated that although Emerson's case was "a civil action, it is a quasi-criminal affair. The appellate courts have recently mentioned in particular that many of the things that occur within a sexual predator case should be treated as [if] they were criminal." The State reminded the district court that in Emerson's case a notice of appeal had been filed and the Court of Appeals had actually dismissed the case—his case thus did not involve circumstances where a notice of appeal had not been filed in the first instance. The district court ruled that "this case is one that is presently in a status where the Court has jurisdiction" and proceeded to hear testimony from Emerson. After hearing the evidence and counsel's arguments, the district court ruled that it would give Emerson "the right to appeal based upon the fact that his previous counsel did nothing after a notice of appeal was filed and did not communicate with Mr. Emerson that the appeal had been dismissed." The district court then directed Emerson to "prepare a new notice of appeal directed toward this case."

On March 4, 2015, Emerson filed a notice of appeal "from all findings and rulings of the [district court]."

In deciding the appeal, the Court of Appeals noted neither party challenged the district court's conclusion that the third Ortiz exception applied, but it then acknowledged its "duty to question jurisdiction on its own initiative." In re Emerson , 52 Kan.App.2d 421, 423–24, 369 P.3d 327 (2016). Ultimately, the Court of Appeals rejected application of any Ortiz exceptions in Emerson's case, as they did not apply to such civil proceedings. Emerson , 52 Kan.App.2d at 424–25, 369 P.3d 327. Instead, the Court of Appeals applied Albright v. State , 292 Kan. 193, 251 P.3d 52 (2011), which had been filed under K.S.A. 60-1507, to conclude that Emerson's trial counsel's deficiencies "resulted in the loss of the ability to pursue a procedure"—an appeal—and thus Emerson was entitled to an out-of-time appeal based on principles of fundamental fairness. 52 Kan.App.2d at 425–26, 369 P.3d 327. The court then rejected Emerson's arguments. 52 Kan.App.2d at 436–39, 369 P.3d 327. Accordingly, the Court of Appeals affirmed the district court's decision. 52 Kan.App.2d at 439, 369 P.3d 327.

We granted Emerson's petition for review.

ANALYSIS

"It is axiomatic and this court has consistently held that it is our duty to raise the question of jurisdiction on our own motion, and, if the trial court lacked jurisdiction, the appellate court likewise does not acquire jurisdiction over the subject matter of the appeal." Sandlin v. Roche Laboratories, Inc. , 268 Kan. 79, 85, 991 P.2d 883 (1999) ; see Albright , 292 Kan. at 197, 251 P.3d 52 ("A question of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court."); Friedman v. Kansas State Bd. of Healing Arts , 287 Kan. 749, 752, 199 P.3d 781 (2009) (noting that parties cannot confer subject matter jurisdiction by consent, e.g. , or waiver). Before us, the parties focus on whether Ortiz or Albright provides the correct basis for analyzing Emerson's motion. They have essentially abandoned their previous arguments about whether the district court had jurisdiction after the Court of Appeals had dismissed the first appeal.

Nevertheless, exercising our independent duty to review our jurisdiction, we question whether the district court had jurisdiction to order a second direct appeal. We conclude the serial nature of this appeal distinguishes this case from those relied upon by the district court and the Court of Appeals. In this case, the district court lacked jurisdiction because Emerson had previously filed a timely notice of appeal and docketed his direct appeal, which divested the district court of jurisdiction and conferred jurisdiction on the Court of Appeals. A few basic principles of appellate jurisdiction help to explain the basis for this holding.

First, "the right to appeal is entirely statutory," and "the limits of appellate jurisdiction are imposed by the legislature." State v. Berreth , 294 Kan. 98, 110, 273 P.3d 752 (2012) ; see Harsch v. Miller , 288 Kan. 280, 287, 200 P.3d 467 (2009) ("Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute...."). This means that jurisdiction depends on application of statutes and presents a question of law over which this court exercises unlimited review. Berreth , 294 Kan. at 109, 273 P.3d 752.

Second, "[a]n appellate court's jurisdiction depends on several factors, including the timely filing of a notice of appeal." Albright , 292 Kan. at 194, 251 P.3d 52. Pursuant to K.S.A. 59-29a07, a jury's sexually violent predator determination "may be appealed in the manner provided for civil cases," meaning Article 21 of Chapter 60 of the Kansas Statutes. Those statutes address many aspects of an appeal, including when it must be initiated, stating: "When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of judgment." K.S.A. 60-2103(a) (also setting forth a statutory exception to the 30–day timeframe "upon a showing of excusable neglect" by the party, in which case the deadline may be extended by 30 days); Board of Sedgwick County Comm'rs v. City of Park City , 293...