Merryfiled v. Sullivan

• Decision Date: 21 November 2014
• Docket Number: 111,318.
• Citation: 338 P.3d 23 (Table)
• Parties: Dustin J. MERRYFILED, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, Appellee.
• Court: Kansas Court of Appeals

338 P.3d 23 (Table)

Dustin J. MERRYFILED, Appellant
v.
Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, Appellee.

111,318.

Court of Appeals of Kansas.

Nov. 21, 2014.
Review Denied March 12, 2015.

Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.

Ryan W. Thornton, litigation counsel, and Kimberly M.J. Lynch, senior litigation counsel and special assistant attorney general, of Kansas Department for Aging and Disability Services, of Topeka, for appellee.

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

MEMORANDUM OPINION

PER CURIAM.

Dustin J. Merryfield appeals the district court's denial of his habeas corpus writ. The district court correctly determined there was no violation of Merryfield's constitutional right to receive treatment in the way class assignments were allocated or his right to receive mail. Finally, we note the district court should have assessed the costs of this action pursuant to K.S.A.2013 Supp. 59–29a23(a) to the county where Merryfield was found to be a violent sexual offender, not pursuant to K.S.A.2013 Supp. 60–1505(d). Affirmed in part, reversed in part, and remanded with directions.

Facts

Merryfield, a resident of the Sexual Predator Treatment Program (SPTP) located at Lamed State Hospital (Lamed), filed a writ of habeas corpus. At an evidentiary hearing, Merryfield's claims were narrowed to two alleged constitutional violations: A substantive due process violation of his right to receive treatment and a procedural due process violation of his right to receive mail.

Merryfield testified he had trouble enrolling in required education and activity courses on December 21, 2010, and March 24, 2011. Specifically, the classes he wanted were not available, and he was required to enroll in classes he did not want to take in order to meet a minimum number of quarterly course hours. Merryfield testified he “more than likely” did not attend the classes he did not want to take. The record reflects that Merryfield's poor attendance history during previous quarters determined his ability to pick and choose enrollment for future classes. Merryfield also testified he was denied his right to receive mail:

“Well, the way that transpired is that normally a lot of the classes that I take are in the afternoons between 3:00 and 5:00, because I do a lot of the yard sessions and physical activities which are between 3:00 and 5:00. Between 3:00 and 5:00 is mail call. So, if you miss mail call, then you have to wait until the next day or the next day or the next day.

“But unfortunately for me, it was five days a week where I was going 3:00 to 5:00. So, getting mail was not that easy. Now, there is a—there is a procedure in place supposedly, for getting your mail in the mornings, but that policy once again, was not being followed by the property or mail officers and today even they don't even follow that. So, it is either give up going to class and taking that unexcused absence [or] not get mail.”

Merryfield asserted mail call did not always last the full 2 hours because “the property or mail officer left early because they wanted to.”

On cross-examination, Merryfield admitted he was not enrolled in any course or combination of courses that took up the full 2–hour period of mail call. On recross-examination, Merryfield conceded that if he missed mail call, he was able to pick up his mail the following day.

David Stute, a property officer, was called to testify about how mail call was handled at SPTP. Stute testified mail call was usually finished by 4:30 p.m. but occasionally property officers stayed past 5 p.m. to complete mail call. Stute testified residents have 5 days to pick up mail before it is returned. He also clarified that if mail call was missed, residents could arrange to pick up their mail the next morning or during the next day's mail call. Stute testified there was “[n]o reason” a resident would not be able to pick up his mail between 4 p.m. and 5 p.m. if he had class from 3 p.m. to 4 p.m.

The district court denied Merryfield's writ of habeas corpus, finding his substantive due process complaint against the adequacy of his treatment (regarding how his class options were determined) was not reviewable due to his lack of compliance with the program requirements and his procedural due process complaint about receiving his mail was not supported by the evidence. The district court also assessed Merryfield court costs in the amount $178.

Merryfield timely appealed. Shawn Sullivan, Secretary of the Kansas Department for Aging and Disability Services, cross-appealed but failed to brief the issue, and we deem the cross-appeal waived and abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

Analysis

Substantive Due Process—The Right to Adequate Treatment

Merryfield argues his right to adequate care and treatment was denied by being forced to enroll in classes he did not like and which were also scheduled at the same time as mail call. Merryfield does not argue how his choice of class assignments amounted to a constitutional violation of his treatment. Sullivan argues Merryfield cannot argue his right to adequate care and treatment was denied because “[a] challenge to the efficacy of the treatment program is without merit” where the patient “[does] not participate in that treatment,” citing Johnson v. State, 289 Kan. 642, 655–56, 215 P.3d 575 (2009) ( “noncompliance with the program hinders the ability to ascertain whether the SPTP, as applied to [the patient], has been or will be effective”).

An appellate court reviews a district court's decision on a K.S.A.2013 Supp. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).

Substantive due process protects a narrow range of fundamental liberty interests that are not otherwise enumerated in the United States Constitution. See Taylor v. Kansas Dept. of Health &...