In Re the Care & Treatment of Zishka, 343 P.3d 558

Paul Dale Zishka was involuntarily committed in 2008 under the Kansas Sexually Violent Predator Act and is confined at Larned State Hospital pending progress in the Sexual Predator Treatment Program.
The Act requires an annual court review of a committed person's mental condition, with written notice to the person and the court, and a right to be represented by counsel at the review hearing.
For the 2014 review, the Secretary's examiner concluded Zishka was not safe for transitional release; the Secretary notified Zishka of that conclusion and of his right to petition the court or waive further proceedings.
Zishka filed two written requests with the district court asking for appointed counsel and an independent expert exam; the court found him indigent but did not appoint counsel or order an independent examiner.
The district court entered the State's proposed order keeping Zishka in treatment without giving Zishka notice of, or holding, an annual review hearing required by statute.
The Court of Appeals reversed, holding the district court violated Zishka's statutory and due-process rights by failing to appoint counsel and failing to hold the required hearing; the case was remanded for appointment of counsel and a hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court violated Zishka's right to appointed counsel at the annual review	Zishka argued the court erred by not appointing counsel despite written requests and statutory right to counsel at the hearing	State implicitly relied on paper review and the Secretary's report; no appointment was made	Reversed: statute grants right to counsel at annual review; court must appoint counsel
Whether the district court violated the right to an annual review hearing and notice	Zishka argued he was entitled to notice and a hearing rather than the court signing the State's proposed order	State proceeded by submitting proposed order and no hearing was held	Reversed: court must provide notice and hold the statutory hearing
Whether the court erred by not appointing an independent examiner for an indigent committed person	Zishka requested a qualified examiner to establish probable cause for transitional release	State's report did not recommend release; no court-ordered independent exam was appointed	Remanded: court should consider appointing an expert when indigent person requests one to establish probable cause
Whether other appellate issues should be resolved now without counsel and an evidentiary hearing	Zishka raised other issues on appeal	State opposed delay of some issues	Court declined to decide other issues until counsel is appointed and hearing held

In re Burch, 296 Kan. 215 (2012) (annual review procedures and probable-cause standard for transitional release)
In re Care & Treatment of Ontiberos, 295 Kan. 10 (2012) (due-process right to effective counsel in Act proceedings)
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985) (due process requires notice and opportunity to be heard when liberty is restrained)
Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding constitutionality of Kansas Act and noting protections including yearly review)
In re Miles, 42 Kan. App. 2d 471 (2009) (committed person has right to attorney at annual-review hearings)