Noel, Application of

• Decision Date: 07 August 1992
• Docket Number: No. 66501,66501
• Parties: In the Matter of the Application of Carroll E. NOEL, Jr., for Hearing Pursuant to K.S.A. 22-3428a.
• Court: Kansas Court of Appeals

Page 336

838 P.2d 336

17 Kan.App.2d 303

In the Matter of the Application of Carroll E. NOEL, Jr. for Hearing Pursuant to K.S.A. 22-3428a.

No. 66501.

Court of Appeals of Kansas.

Aug. 7, 1992.

Syllabus by the Court

1. By the clear and unambiguous language of K.S.A.1991 Supp. 22-3428a(3), the district court, after finding the committed patient likely to cause harm to self or others if unconditionally discharged, may still consider a conditional discharge.

2. K.S.A.1991 Supp. 22-3428 and K.S.A.1991 Supp. 22-3428a must clearly be considered "in pari materia." K.S.A.1991 Supp. 22-3428a provides that, in a hearing initiated by the committed patient, the district court may make any order it is empowered to make pursuant to sections (3), (4), and (5) of K.S.A.1991 Supp. 22-3428.

3. There is every reason to believe that the legislature, in enacting K.S.A.1991 Supp. 22-3428a, intended that due consideration be given by the district court to protection of the public when deciding whether to grant conditional release. K.S.A.1991 Supp. 22-3428(3) states that the court "may" (not "shall") grant conditional release. Therefore, conditional release pursuant to K.S.A.1991 Supp. 22-3428a is a decision left to the discretion of the district court.

4. When K.S.A.1991 Supp. 22-3428a is read in conjunction with K.S.A.1991 Supp. 22-3428(3) and (4), it is clear the legislature intended that the district court grant conditional release only when the conditions of the release will adequately insure that the patient will not be likely to cause harm to self or others. If adequate safeguards cannot be crafted, then the patient should not be discharged.

5. K.S.A.1991 Supp. 22-3428a(1) states that a hearing pursuant to that statute is to "determine whether or not the person will be likely to cause harm to self or others if discharged." K.S.A.1991 Supp. 22-3428a(3) provides that at this hearing the court is empowered to make any order authorized by K.S.A.1991 Supp. 22-3428(3), (4), and (5). None of these provisions authorize the court to consider a transfer to a less restrictive setting or to consider any other issues other than discharge, conditional release, or recommitment.

6. K.S.A.1991 Supp. 22-3428(2) states: "Whenever it appears to the chief medical officer of the state security hospital that a person committed under this section is not dangerous to other persons, the officer may transfer the person to any state hospital." Transfer under this section is left to the discretion of the chief medical officer.

7. A fundamental rule of statutory construction is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retrospectively.

8. The legislature is aware of the Kansas Supreme Court's established rules of statutory construction. The legislature is aware, and has, on many occasions, used specific language to clearly set forth whether a statute is to be applied prospectively or retrospectively.

9. An exception to the fundamental rule of prospective operation of statutes is that if a statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retrospectively.

10. L.1992, ch. 309, § 3 clearly creates a substantive right to transfer upon the proper findings, and so is not merely procedural or remedial in nature.

11. The current Kansas statutory scheme used to determine the need for continued commitment of insanity acquittees violates the Due Process and Equal Protection Clauses of the 14th Amendment by not placing the burden of proof upon the State to show by clear and convincing evidence both the committed person's continued insanity and dangerousness. As required by Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), we engraft such requirements into the Kansas statutory scheme.

Terry R. Fuller, Kinsley, for appellant Noel.

Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee State of Kansas.

Before RULON, P.J., and REES and PIERRON, JJ.

RULON, Presiding Judge:

Carroll E. Noel, Jr., petitioner, participated in a hearing pursuant to K.S.A.1991 Supp. 22-3428a to determine whether he was eligible for release from Larned State Security Hospital. The district court found that petitioner was dangerous to others and ordered that he remain committed. Petitioner appeals, raising multiple issues.

We must determine: (1) if the district court erred by failing to consider petitioner's conditional release; (2) if the district court erred by failing to order that petitioner be placed in a less restrictive environment; and (3) the significance of recently enacted amendments to K.S.A.1991 Supp. 22-3428 and the recently decided United States Supreme Court case of Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). We remand with instructions for further proceedings.

Factual History

In 1973, petitioner brutally stabbed and killed the postmaster of the Kansas City, Kansas, post office. In an opinion filed by our Supreme Court in 1979 in relation to an earlier application for discharge, the court summarized the facts concerning petitioner's case as follows:

"Noel, a black male, has never married. He was approximately 38 years old at the time of commitment. Prior to the homicide, he was described as a quiet man who apparently had never broken the law, even to the point of acquiring a traffic ticket. Throughout his life he was characterized as a 'loner', unable to make friends or trust anyone. These characteristics began in childhood and became more pronounced as the years went by. Feelings of persecution developed, with Noel believing that people were laughing at him, ridiculing him, and plotting against him. In time, the feelings of persecution deepened and became the dominant factor in his life. In 1972 he was working for the United States Post Office in Wyandotte County. By this time his condition had deteriorated to such a degree that outsiders were noticing that something was wrong. In 1972 Noel was complaining to the union steward and other authorities at the post office about plots against him and his sisters. The union steward concluded Noel had a serious psychiatric problem and urged Noel's family to seek psychiatric treatment for him. As a result thereof, in June, 1972, Noel became a patient in the psychiatric ward of a Veterans Administration Hospital.

"In the V.A. Hospital Noel's illness was diagnosed as paranoid schizophrenia. Even as early as 1972, the object of Noel's delusions was the United States Postal Service. With tranquilizing medication, Noel's symptoms were controlled. He was discharged from the hospital after a short stay, with instructions to continue taking the medication. Noel stopped taking the medication, apparently, shortly after his discharge. The delusions resurfaced with ever increasing intensity. Noel concluded the post office was going to force his sisters into prostitution; he saw postal trucks and their drivers as being armed with machine guns; and he believed a great postal conspiracy existed to harm him and his sisters. The postmaster, in Noel's mind, became the head of the conspiracy and his chief tormentor. Voices told him he must kill the postmaster to end the danger.

"On November 29, 1973, after some two weeks of planning, Noel drove to the Kansas City, Kansas, post office, lawfully parked his car, concealed a long knife on his person, walked into the postmaster's office, and stabbed the postmaster to death (inflicting nine separate wounds). After having completed the task he came to do, he remained in the office and offered no resistance when arrested.

"Noel was originally charged with murder in the federal court. Subsequently, this charge was dismissed and he was charged with first degree murder in the state court. While the federal charge was pending, Noel was examined, at federal request, by Dr. William V. McKnelly, Jr. Dr. McKnelly contacted the V.A. Hospital and obtained the data on Noel's prior hospitalization. He testified at the state trial. The doctor concurred with the V.A. diagnosis of paranoid schizophrenia and characterized the V.A.'s release of Noel as a blunder. Dr. McKnelly's testimony was thorough and showed extensive knowledge of Noel's background and condition. The bottom line of the McKnelly opinion is that Noel is and always will be a paranoid schizophrenic; that his is an extreme case of the disease; that Noel's potential for violent acts will remain; and that the disease may be suppressed in a structured setting with a low stress factor and daily appropriate administration of tranquilizing medication.

"At trial Noel was found not guilty because of insanity and he was committed to the State Security Hospital at Larned. He was admitted to that facility on March 20, 1974." In re Noel, 226 Kan. 536, 541-42, 601 P.2d 1152 (1979).

On April 13, 1990, petitioner filed a K.S.A. 60-1501 petition in the Pawnee County District Court. The petition alleged: (1) that he was being held on "[f]alse and trumped up charges"; (2) that his confinement and restraint was unlawful; and (3) that he had been denied annual hearings for a 10-year period. For reasons which are not clear from the record, the district court did not directly consider petitioner's action as a habeas corpus proceeding. Instead, the court appointed an attorney to represent petitioner and a notice was sent to the Clinical Director of the Larned State Security Hospital indicating that petitioner had requested an annual hearing to which he was entitled pursuant to K.S.A.1991 Supp. 22-3428a.

At the hearing on the petition, the court considered a written Forensic Staff Conference Summary from members of the staff of the State Security Hospital dated April 20, 1990, and a written summary of an independent psychiatric evaluation performed by Dr. William S. Logan, a psychiatrist and director of the ...