Mashaney v. Bd. of Indigents' Def. Servs.

Decision Date28 August 2015
Docket Number108,353.
Citation355 P.3d 667,302 Kan. 625
PartiesJason MASHANEY, Appellant, v. BOARD OF INDIGENTS' DEFENSE SERVICES, Sarah E. Sweet–McKinnon, and Virginia A. Girard–Brady, Appellees.
CourtKansas Supreme Court

Larry G. Michel, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, argued the cause, and Angela D. Coble, of the same firm, was with him on the briefs for appellant.

Marty M. Snyder, assistant attorney general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee Board of Indigents' Defense Services.

Timothy J. Finnerty, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, argued the cause, and Charles E. Hill, of the same firm, was with him on the briefs for appellee Sarah Sweet–McKinnon.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Sylvia B. Penner, of the same firm, was with him on the briefs for appellee Virginia Girard–Brady.

Opinion

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

This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60–1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents' Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.

We affirm the district court judge's decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.

Factual and Procedural Background

In October 2003, the State charged Jason Mashaney with one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child based on allegations made by the mother of Mashaney's 5–year–old daughter. The State later amended the complaint to add an alternative count of aggravated indecent liberties.

The district court appointed Sarah Sweet–McKinnon of the Sedgwick County Public Defender's Office to serve as Mashaney's trial counsel. After Mashaney's first jury trial ended in a mistrial, the case proceeded to a second jury trial. On July 9, 2004, the jury convicted Mashaney.

Before sentencing, Mashaney filed a pro se motion to set aside the verdict based on ineffective assistance of counsel. Mashaney made a number of general allegations to support his argument that Sweet–McKinnon's representation had been deficient. The district court judge appointed new defense counsel and held an evidentiary hearing on Mashaney's motion on November 17, 2004. The judge denied the motion and sentenced Mashaney to 442 months' imprisonment.

Virginia A. Girard–Brady of the Appellate Defender's Office represented Mashaney in his appeal. The Court of Appeals denied Mashaney relief, and this court denied a subsequent petition for review. See State v. Mashaney, No. 94,298, 2007 WL 1109456 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 949 (2007). Ineffective assistance of trial counsel was not an issue raised on appeal.

On April 11, 2008, Mashaney filed a pro se K.S.A. 60–1507 motion in which he alleged ineffective assistance of both trial and direct appeal counsel. The motion was denied summarily 6 months later. Mashaney appealed the denial to the Court of Appeals. The Court of Appeals reversed and remanded the case to the district court for an evidentiary hearing. See Mashaney v. State, No. 101,978, 2010 WL 3731341 (Kan.App.2010) (unpublished opinion). After the hearing, the district judge granted Mashaney's K.S.A. 60–1507 motion on April 11, 2011. Mashaney's case went back onto the trial calendar.

Mashaney and the State entered a plea agreement on December 28, 2011. Mashaney agreed to enter an Alford plea, see 400 U.S. at 37, 91 S.Ct. 160, on two counts of attempted aggravated battery and one count of aggravated endangering a child. In exchange, the State dropped the original charges. The district judge accepted Mashaney's plea and, on February 24, 2012, sentenced him to 72 months' imprisonment. Because Mashaney had already served more than 72 months of his original 442–month sentence, he was released from custody.

Between entering into the plea agreement and sentencing, on January 13, 2012, Mashaney filed this legal malpractice action against Sweet–McKinnon, Girard–Brady, and BIDS. The bases for Mashaney's claim against Sweet–McKinnon were similar to the grounds for his ineffective assistance of counsel claim in his K.S.A. 60–1507 motion. As to Girard–Brady, Mashaney alleged she had committed malpractice by failing to raise the issue of Sweet–McKinnon's ineffective assistance on direct appeal. On BIDS, Mashaney alleged that it had breached its duty “to provide for effective assistance of counsel to its clients through the selection, training, and supervision of capable attorneys.” Mashaney asserted that he had always denied abusing his daughter. He also asserted that, as a result of defendant's malpractice, he had been “improperly convicted in 2004 and was therefore forced to serve nearly eight (8) years in prison, which would not have occurred had he received proper representation.” Mashaney sought $1,600,000 in economic and non-economic damages.

Sweet–McKinnon and Girard–Brady raised affirmative defenses in their answers to Mashaney's petition. Sweet–McKinnon contended that Mashaney was estopped from pursuing his negligence claim by the 2011 Alford plea. Girard–Brady also asserted that Mashaney's claims were barred by virtue of his guilty plea. In addition, she claimed Mashaney filed his suit beyond the statute of limitations. Both Sweet–McKinnon and Girard–Brady moved for judgment on the pleadings. BIDS moved to dismiss on the ground that it lacked the capacity to be sued.

District Judge Douglas R. Roth granted the defendants' motions. He agreed with BIDS that it lacked the capacity to be sued. He also ruled that Mashaney's Alford plea foreclosed the relief sought. With the parties' blessing, Judge Roth also decided to “tee it up for the appellate court and ruled that Mashaney's claim was time barred.

On appeal to the Court of Appeals, Mashaney challenged each of the three district court rulings. See Mashaney v. Board of Indigents' Def. Servs., 49 Kan.App.2d 596, 313 P.3d 64 (2013). All three panel members agreed that BIDS lacked the capacity to be sued. All three disagreed that Mashaney's claim was time barred, because a criminal defendant's cause of action for legal malpractice does not accrue until the defendant's conviction is overturned. Because Mashaney filed his malpractice suit within 2 years after his K.S.A. 60–1507 motion was granted in district court, the panel ruled that his claim was timely filed. But the panel split on the effect of Mashaney's Alford plea. The majority held that a criminal defendant must prove actual innocence in order to pursue a malpractice action and that Mashaney's plea foreclosed the possibility of marshaling such proof. Judge G. Gordon Atcheson wrote a lengthy dissenting opinion criticizing the majority's reliance on the actual innocence rule. 49 Kan.App.2d at 622–46, 313 P.3d 64.

Mashaney petitioned this court for review of the panel's unanimous holding that BIDS lacked the capacity to be sued and the panel majority's holding that his Alford plea precluded his suit because of the actual innocence rule. BIDS, Sweet–McKinnon, and Girard–Brady cross-petitioned for review of the panel's holding that Mashaney's malpractice action was timely.

We granted Mashaney's petition and the defendants' cross-petitions.

Discussion
BIDS Lacks the Capacity to be Sued

Because the capacity of a subordinate government agency to sue or be sued turns on statutory interpretation, this court's review of the BIDS issue is unlimited. See Cheney v. Poore, 301 Kan. 120, 125, 339 P.3d 1220 (2014) (statutory interpretation question of law subject to unlimited review).

BIDS is a subordinate government agency created within the Kansas executive branch. See K.S.A. 22–4519(a) (creating BIDS).

“Subordinate government agencies, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). The statutory authority [for suit] need not be express, but can be implied. See Board of Library Directors v. City of Ft. Scott, 134 Kan. 586, 588, 7 P.2d 533 (1932).” Lindenman v. Umscheid, 255 Kan. 610, 628–29, 875 P.2d 964 (1994).

Mashaney concedes that there is no express statutory authorization vesting BIDS with the capacity to sue or be sued, but he urges this court to “delve beyond the surface” of the Indigents' Defense Services Act, K.S.A. 22–4501 et seq., to find such authority.

Mashaney primarily relies on K.S.A. 22–4522(a), which requires BIDS to [p]rovide, supervise and coordinate, in the most efficient and economical manner possible, the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute.” According to Mashaney, BIDS had an affirmative duty to provide him with competent counsel and to supervise that counsel. But, as the Court of Appeals noted, K.S.A. 22–4520 expressly forbids BIDS from making any decision regarding the handling of any case and from interfering with counsel in carrying out his or her professional duties. 49 Kan.App.2d at 601, 313 P.3d 64. The supervision contemplated in K.S.A. 22–4522(a) is not the type Mashaney wishes to rely upon to expose BIDS to malpractice liability.

Mashaney also contends that “the forces of equity in the absence of statutory direction demand that BIDS be subject to suit” because “it is repugnant to allow [B...

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