Merryfield v. Sullivan
| Citation | 342 P.3d 1 (Table) |
| Decision Date | 16 January 2015 |
| Docket Number | No. 111204.,111204. |
| Parties | Dustin J. MERRYFIELD, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, et al., Appellees. |
| Court | Court of Appeals of Kansas |
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Ryan W. Thornton, Litigation Counsel, of Kansas Department for Aging and Disability Services, for appellees.
Before MALONE, P.J., LEBEN and ATCHESON, JJ.
Dustin Merry field challenges policies of the Kansas Sexual Predator Treatment Program that limit the ability of its resident patients to seek pen pals and exchange letters with certain groups of people, including prison inmates. Merry field claims that adopting these policies without giving him prior notice violated his procedural-due-process rights and that the restrictions on his rights to free speech and association violate his substantive-due-process rights under the First Amendment.
But the district court provided Merryfield an evidentiary hearing and an attorney to represent him, so any violation of Merryfield's procedural-due-process rights was cured. And the clinical director of the Sexual Predator Treatment Program testified that Merryfield still could seek pen pals or contact with otherwise-prohibited individuals through his therapist. We therefore find that his fundamental rights have not been violated.
Since December 2000, Merryfield has been involuntarily confined by court order at the Larned State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59–29a01 et seq. See Merryfield v. State, 44 Kan.App.2d 817, 818, 241 P.3d 573 (2010). He is there as a patient in the hospital's Sexual Predator Treatment Program, which provides treatment to rehabilitate violent sex offenders and protects the public by confining those individuals pending their rehabilitation. See K.S.A. 59–29a01 ; Johnson v. State, 289 Kan. 642, 650–51, 215 P.3d 575 (2009). The Sexual Predator Treatment Program is operated under the authority of the Kansas Department for Aging and Disability Services.
Merryfield's present lawsuit challenges the hospital's policy limiting patients' ability to solicit potential pen pals and to correspond with certain types of people. Merryfield contends that these restrictions interfere with his First Amendment rights to free speech and association and that the manner in which the policies were adopted violated his right to due process.
That policy, called “RIGHT–103” by the hospital, contains two provisions that Merryfield has challenged. The first, paragraph 7, generally prohibits patients from corresponding by mail with inmates in correctional facilities, former inmates sent to a Kansas prison, and residents at Larned State Hospital who are not in the Sexual Predator Treatment Program, though there are exceptions:
Paragraph 7 explicitly provides that exceptions to the prohibitions on contact may be granted by the treatment providers for “exceptional circumstances.”
The second paragraph Merryfield challenges, paragraph 9, prevents patients from soliciting pen pals through media available to the general public, including children:
Merryfield learned of the policy when it was posted in the hospital. He filed a formal complaint about it, arguing that it impermissibly interfered with his right to communicate with people of his choosing and that its implementation without a hearing had denied him due process. The Sexual Predator Treatment Program has a multi-step grievance process, and Merryfield pursued the complaint through that route. All five individuals who reviewed his complaint denied him relief, but none of the responses explained why the restrictions had been imposed.
Merryfield then brought this habeas corpus action under K.S.A. 60–1501. The district court appointed an attorney to represent Merryfield and held an evidentiary hearing on the allegations.
Cory Turner, the director for psychological services, testified that the restrictions had been enacted to protect both the public and the therapeutic environment of the hospital. He said that the pen-pal regulation prevented patients from assuming false identities and from victimizing or manipulating their correspondents, who might be children. He said that an alternative proposed by Merryfield-periodic polygraph tests of residents about their contacts with outsiders-would not prevent these problems; rather, it would at best only discover them after the problems had materialized.
Dr. Austin DesLauriers, the clinical program director, said that the policy had been enacted because some patients had been communicating with the public in dangerous and misleading ways. He also said that the restrictions on communications with other patients or inmates had arisen because of patients who had exchanged inappropriate sexual fantasies, had detailed sexual conversations, or had other inappropriate content in their communications, all of which disrupted the hospital's therapeutic environment.
DesLauriers said that the restrictions were not absolute ones-a patient could get permission to speak with a prohibited individual or could even solicit a pen pal through his therapist.
Merryfield testified about his objections to the policy. He agreed, however, that he had not asked permission from a therapist to correspond with a pen pal or anyone else with whom contact was prohibited under the policy. He also agreed that he had been allowed to correspond with his brother, who was incarcerated, under the family-member exception in the policy.
The district court concluded that Merryfield's rights had not been violated and dismissed the claim. The court said that the policy was “rationally related to the treatment and public safely interest to be protected,” and it noted that the policy itself allows for “an exception to the pen pal prohibition on a case-by-case treatment decision if approved by the primary facilitator/therapist” of the patient. Accordingly, the court found no violation of the patient's First Amendment rights.
Merryfield has appealed to this court.
Merryfield alleges that the policy violates his due-process rights in two ways. First, he claims it violates his right to procedural due process because the restrictions on his ability to communicate with others were adopted without advance notice and an opportunity for him to voice his opinion. Second, he claims the policy violates his substantive-due-process rights by unreasonably restricting his First Amendment rights to free speech and association. These claims are properly before us: A person committed to the Sexual Predator Treatment Program who claims a violation of his due-process rights may bring a habeas corpus action under K.S.A. 60–1501. Johnson, 289 Kan. 642, Syl. ¶ 1. The person may be entitled to relief if he shows continuing treatment that denies a constitutional right. 289 Kan. 642, Syl. ¶ 2.
Merryfield first claims violation of his right to procedural due process. To show a violation, a person must have a fundamental life, liberty, or property interest at stake, and that right must entitle the person to some procedure—usually notice and the opportunity to be heard—that the person wasn't given. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) ; Murphy v. Nelson, 260 Kan. 589, 597–98, 921 P.2d 1225 (1996).
Merryfield has fundamental liberty interests at stake. Patients in the Sexual Predator Treatment Program are civilly committed, not criminally sentenced, and even “[t]he interest of prisoners and their correspondents in uncensored communication by letter ... is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment.” Procunier v....
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