Pew v. Sullivan

• Decision Date: 06 December 2013
• Docket Number: 109,190.,109,180,Nos. 109,178,s. 109,178
• Citation: 313 P.3d 837
• Parties: Floyd W. PEW, Jr., Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department on Aging and Disabilities, Appellee.
• Court: Kansas Court of Appeals

313 P.3d 837

Floyd W. PEW, Jr., Appellant,

v.Shawn SULLIVAN, Secretary of the Kansas Department on Aging and Disabilities, Appellee.

Nos. 109,178, 109,180, 109,190.

Court of Appeals of Kansas.

Dec. 6, 2013.

Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.

Floyd W. Pew, Jr., pro se appellant.

Corrine E. Johnson, litigation counsel, of Kansas Department for Aging and Disability Services, for appellee.

Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.

MEMORANDUM OPINION

PER CURIAM:

Floyd W. Pew, Jr., a civilly committed sexually violent predator, is a patient in the custody of the Secretary of the Kansas Department for Aging and Disability Services (Secretary) pursuant to the Sexually Violent Predator Act, K.S.A. 59–29a01 et seq. During 2012, Pew filed three petitions for habeas corpus under K.S.A.2012 Supp. 260–1501. The district court stayed the cases and ordered him to exhaust his administrative remedies prior to proceeding in the district court. Prior to the expiration of the stay order, Pew filed motions for relief that were ultimately denied by the district court. Although his habeas corpus petitions were not dismissed, Pew filed the present appeal.

On appeal, Pew contends that the enactment of K.S.A.2012 Supp. 59–29a24 excuses him from his obligation to exhaust appropriate administrative remedies prior to filing a petition seeking a writ of habeas corpus. The Secretary disagrees with Pew's contention. Moreover, the Secretary argues that this court does not have jurisdiction over Pew's appeal because no final order was entered by the district court. We agree with the Secretary, and we dismiss Pew's appeal for lack of jurisdiction.

Facts

The facts of this case are not in dispute. During August 2012, Pew—who is a patient in the Sexual Predator Treatment Program at Larned State Hospital—filed three petitions in Pawnee County District Court seeking writs of habeas corpus pursuant to K.S.A.2012 Supp. 60–1501. In late September 2012, the district court filed an order in each case staying the proceedings for 90 days pending proof that Pew exhausted his administrative remedies pursuant to K.S.A.2012 Supp. 60–1501.

Before the expiration of the 90 days, Pew filed a motion for relief in each case. He argued that the provisions of K.S.A.2012 Supp. 59–29a24—which was enacted by the 2012 Kansas Legislature—exempted him from the requirement that he exhaust appropriate administrative remedies prior to seeking a writ of habeas corpus under K.S.A.2012 Supp. 60–1501. On December 5, 2012, the district court denied each of Pew's requests for relief. It did not, however, dismiss Pew's habeas corpus petitions. Shortly thereafter, Pew appealed.

Analysis

The Secretary contends that there is no jurisdiction over this appeal because the district court did not dismiss Pew's habeas corpus petitions. The right to appeal is statutory. See Kansas Medical Mut Ins. Co. v. Svaty, 291 Kan. 597, 609–10, 244 P.3d 642 (2010); Flores Rentals v. Flores, 283 Kan. 476, 480–81, 153 P.3d 523 (2007). Thus, “[w]hether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.” Svaty, 291 Kan. 597, Syl. ¶ 1.

Under K.S.A.2012 Supp. 60–2102(a)(4), we have appellate jurisdiction over a “final decision in any action.” A final decision is one that “generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court.... [It] is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case.” In re T.S.W., 294 Kan. 423, 433, 276 P.3d 133 (2012).

Here, the district court stayed Pew's habeas corpus actions for 90 days until he exhausted his administrative remedies. But instead of exhausting his administrative remedies, Pew filed motions for relief in the district court, contending that K.S.A.2012 Supp. 59–29a24(d) removed any exhaustion requirement in habeas corpus actions filed pursuant to K.S.A.2012 Supp. 60–1501. Although the district court denied the motions for relief, it did not dismiss Pew's habeas corpus petitions. Likewise, nothing in the record on appeal reveals that the district court ever terminated the stay.

Generally, a stay is not a final decision. See Harsch v. Miller, 288 Kan. 280, 289–90, 200 P.3d 467 (2009) (citing a number of cases recognizing that a stay is generally not a final decision for appeal purposes); Turner v. Steele, 47 Kan.App.2d 976, Syl. ¶ 11, 282 P.3d 632 (2012) (“A stay order does not terminate a lawsuit; it merely postpones the disposition.”); Kansas Pipeline Partnership v. Kansas Corporation Comm'n, 22 Kan.App.2d 410, 418, 916 P.2d 76,rev. denied 260 Kan. 994 (1996) (“By entering a stay, the KCC did not issue a final order in the proceeding.”). Accordingly, we find that neither the stay nor the denial of Pew's motions for relief constituted final decisions for the purpose of appeal.

We recognize that the collateral order doctrine is a narrow and sparingly used exception to the final order rule. “[T]o be collaterally appealable, the order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Svaty, 291 Kan. 597, Syl. ¶¶ 8–9, 612. An order is “effectively unreviewable” when it implicates “ ‘rights which could be lost or irreparably harmed if immediate review were denied.’ “ Reed v. Hess, 239 Kan. 46, 54, 716 P.2d 555 (1986) (quoting Coleman v. Sherwood Medical Industries, 746 F.2d 445, 446 [8th Cir.1984] ).

Here, we find that the first two factors have been satisfied. First, the district court conclusively found that Pew was...