Attorney General Opinion No.
Background
- BIDS may be required to pay attorney fees for indigent habeas corpus petitioners confined under the SVPA seeking relief under K.S.A. 60-1501.
- SVPA commits indigent predators to SRS custody for treatment until safe to be at large; allows habeas relief challenges to confinement conditions.
- Habeas corpus petition can be filed in a court of competent jurisdiction; right to counsel exists for petitioners confined under SVPA, but not under BIDS statutes.
- K.S.A. 60-2003 lists taxable costs but does not include attorney fees; K.S.A. 2009 Supp. 60-2001(d) allows court-approved additional costs including attorney fees.
- Rayborn held counties pay attorney fees for SVPA defense as expenses of operating the district court; related to who bears costs for appointed counsel.
- Court concludes K.S.A. 20-348 authorizes taxing the county for attorney fees in habeas challenges by SVPA-indigent petitioners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who pays attorney fees for SVPA habeas petitioners? | SVPA petitioner bears no statutory obligation on BIDS. | County funds should cover district court expenses including defense fees. | County bears the fees. |
| Does 60-1501 create a right to appointed counsel for SVPA habeas petitioners? | Petitioner has a constitutional right to counsel. | BIDS statutes do not require appointed counsel for SVPA habeas petitioners. | Right to counsel recognized, but not tied to BIDS funding obligations; focus shifts to county funding under 20-348. |
| Is BIDS liable for attorney fees under 60-2003 or 60-2001(d)? | Fees may be charged as costs under statute. | No statutory provision places attorney fees on BIDS for SVPA habeas petitions. | No statutory authority for BIDS to pay; proceed to county liability under 20-348. |
| Does K.S.A. 20-348 make counties responsible for SVPA habeas costs? | Rayburn factors apply to who pays costs. | State may cover some costs, not counties. | County is responsible; 20-348 authorizes taxing the county for such fees. |
Key Cases Cited
- Rayborn, In re, 259 Kan. 813 (1996) (SVPA appointment of counsel; county pays defense costs as district court expenses)
- Merryfield v. State, 241 P.3d 573 (2010) (habeas right to counsel context; distinguishable from BIDS funding statutes)
- Johnson v. State, 289 Kan. 642 (2009) (habeas corpus standard and appointment of counsel considerations)
- Holt v. Saiya, 28 Kan. App. 2d 356 (2000) (general rule on costs and attorney fees in civil proceedings)