In re Quillen

• Decision Date: 05 March 2021
• Docket Number: No. 120,184,120,184
• Court: Kansas Supreme Court
• Parties: In the MATTER OF the Care and Treatment of Richard A. QUILLEN.

481 P.3d 791

In the MATTER OF the Care and Treatment of Richard A. QUILLEN.

No. 120,184

Supreme Court of Kansas.

Opinion filed March 5, 2021.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for appellant.

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

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

Richard A. Quillen was civilly committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA) in 2006. Several years later, he petitioned to be placed in transitional release over the objection of the Secretary for the Kansas Department of Aging and Disability Services (KDADS). The district court eventually held a jury trial to determine whether Quillen was safe to be placed on transitional release, and the jury found Quillen's mental abnormality or personality disorder remained such that he was not safe to be placed in transitional release, and if transitionally released, he was likely to engage in repeat acts of sexual violence. See K.S.A. 2019 Supp. 59-29a08. Quillen appealed, arguing the district court erred when it denied his request to instruct the jury that it must find Quillen had serious difficulty controlling his behavior and this instructional error violated his substantive due process rights. The Court of Appeals agreed with Quillen, vacating the verdict and remanding for a new trial.

This appeal requires us to determine the due process standard to be applied at transitional release hearings under the KSVPA and decide whether the district court's jury instructions satisfied this standard. We hold that once a respondent committed under the KSVPA has demonstrated probable cause to believe that he or she is no longer mentally ill and/or dangerous, substantive due process requires the State to show the respondent continues to meet the criteria justifying initial commitment, including proof that the respondent has serious difficulty controlling his or her dangerous behavior, in order to deny transitional release. We also hold that at a transitional release hearing, substantive due process requirements are satisfied when the jury instructions, taken as a whole, require the jury to necessarily and implicitly find the respondent continues to have serious difficulty controlling his or her dangerous behavior. Finally, we conclude that the jury instructions given at Quillen's transitional release hearing were constitutionally adequate under this standard. Therefore, we affirm the Court of Appeals in part, reverse in part, and affirm the judgment of the district court based on the jury verdict.

FACTS AND PROCEDURAL BACKGROUND

Quillen's Initial Commitment as a Sexually Violent Predator

In the 1990s, Quillen was convicted of multiple sex crimes involving children. He was set to be released from prison in 2006 after completing the sentence for his most recent conviction. Before his release, the State petitioned to have Quillen civilly committed as a sexually violent predator under the KSVPA. Quillen eventually entered a consent decree stipulating he was a sexually violent predator. The district court acknowledged the consent decree and found Quillen to be a sexually violent predator. The court committed Quillen to the custody of the Secretary of Social and Rehabilitation Services and sent him to the Larned State Security Hospital Sexual Predator Treatment Program (the Program). The custody of all sexually violent predators was later transferred to the Secretary of KDADS. L. 2014, ch. 115, §§ 214-16; see K.S.A. 2014 Supp. 59-29a02 ; K.S.A. 2014 Supp. 59-29a07 ; K.S.A. 2014 Supp. 59-29a11.

Like all respondents committed under the KSVPA, Quillen was entitled to an annual review of his current mental condition. K.S.A. 2019 Supp. 59-29a08(a). Ordinarily, if a respondent contests his or her annual report and petitions for transitional release over the Secretary's objection, he or she is entitled to an annual review hearing at which the respondent bears the burden to "show probable cause to believe the person's mental abnormality or personality disorder has significantly changed so that the person is safe to be placed in transitional release." K.S.A. 2019 Supp. 59-29a08(d). However, as part of Quillen's consent decree, the State waived the requirement of a probable cause hearing and agreed to hold a full hearing if Quillen ever petitioned for transitional release. At a hearing for transitional release, the State bears the burden to "prove beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in repeat acts of sexual violence." K.S.A. 2019 Supp. 59-29a08(g).

Quillen's 2013 Annual Review and Subsequent Proceedings

In 2013, Quillen contested his annual report and requested a hearing to determine if he should be placed in transitional release over the Secretary's objection. The district court denied his request without setting a hearing, and Quillen appealed. In re Care and Treatment of Quillen , No. 114,708, 2016 WL 7324416, at *1 (Kan. App. 2016) (unpublished opinion). After Quillen moved for summary disposition of his appeal, the State suggested the Court of Appeals should construe his motion as a motion for remand. The State also suggested that " ‘on remand, [Quillen] be given a hearing pursuant to K.S.A. 59-29a08, with all attendant rights, including the right to request a jury, the right to counsel, and the right to an independent examination.' " 2016 WL 7324416, at *1. The Court of Appeals agreed and summarily reversed and remanded to the district court for a hearing.

On remand, the district court appointed counsel for Quillen and authorized Quillen to obtain an independent evaluation from Dr. Robert Barnett. Before the trial for Quillen's 2013 annual review could take place, Quillen petitioned for an annual review hearing on his 2014 annual report. The court consolidated the hearings on the 2013 and 2014 annual reports and set the matter for jury trial in July 2015.

Several weeks before Quillen's jury trial, Senate Bill 12 went into effect, resulting in significant changes to the KSVPA. Specifically, Senate Bill 12 amended K.S.A. 59-29a08, to eliminate a respondent's right to trial by jury. 2016 WL 7324416, at *1-2 ; see L. 2015, ch. 95, § 8. At a pretrial conference, the State argued Quillen did not have a right to a jury trial on his petition for transitional release under the amended version of K.S.A. 2015 Supp. 59-29a08. The district court agreed. After a bench trial, the court held Quillen's " ‘mental abnormality and/or personality disorder remains such that he is not safe to be placed in transitional release, and that if [he] was placed in transitional release, he would be likely to engage in acts of sexual violence.' " 2016 WL 7324416, at *2. Accordingly, the court ordered Quillen to remain in the custody of the Secretary of KDADS.

Quillen again appealed. Among other claims of error, he argued the district court erred by applying Senate Bill 12 retroactively to deny his right to trial by jury. The Court of Appeals agreed and remanded Quillen's case to the district court for a jury trial. 2016 WL 7324416, at *1, 6.

Before the second trial could take place, Quillen suffered a stroke. As a result, he had difficulty speaking and was partially paralyzed on his right side, impairing his ability to walk and write. In late 2017, Quillen moved for discharge from the Program under K.S.A. 2017 Supp. 59-29a25 because of the physiological changes caused by his stroke. After a hearing, the district court denied the motion, finding Quillen had failed to carry his burden to prove he had a permanent physiological change that rendered him unable to commit a sexually violent offense.

Quillen's Transitional Release Hearing

In April 2018, Quillen's case proceeded to trial. The State presented testimony from several witnesses who had either worked with or evaluated Quillen. Brad Base, owner and president of Sunflower Psychological Services, had conducted Quillen's annual reviews in 2016 and 2017. He diagnosed Quillen as suffering from "pedophilic disorder, attracted to females, nonexclusive type," and "other specified personality disorder with borderline and antisocial features."

Base conducted two assessments to determine Quillen's risk of reoffending. One assessment, known as the Static-99R, considered static factors, such as the sex of an offender's victims, that influence the likelihood that a sex offender will reoffend. The other assessment, known as the Sex Offender Treatment Intervention and Progress Scale (SOTIPS), considered both static and dynamic factors to determine the likelihood that a sex offender will reoffend. Base testified Quillen had an above average risk of reoffending according to the Static-99R and a moderate risk of reoffending according to the SOTIPS.

Base explained that around 2016, the Program switched to a three-tier system. In Tier 1, offenders focus on acquiring skills to cope with the thoughts, emotions, and behaviors that led to their offense, and they develop a relapse prevention program. After completing Tier 1, offenders advance to Tier 2, in which they participate in highly structured, supervised outings. Once offenders have demonstrated adherence to their relapse prevention program while on these outings, they advance to Tier 3. In Tier 3, offenders move into a reintegration facility and spend more time in the community at large while still being closely monitored by staff. Offenders generally spend a year or two in the reintegration facility before they are ready for transitional release.

Base testified that Quillen remained in Tier 1. While Quillen had completed a relapse prevention program and generally complied with basic program requirements, such as attending classes,...