In re the Care & Treatment of Burch
291 P.3d 78
| Kan. | 2012Background
- Burch was convicted of multiple sexual offenses and committed under the SVPA as a sexually violent predator.
- Annual State treatment reports consistently opined that Burch remained a sexually violent predator with an unchanging mental abnormality.
- Burch petitioned for discharge or transitional release under K.S.A. 2011 Supp. 59-29a08(a) in 2005; an independent expert evaluated him in 2008.
- The district court denied the petition; the Court of Appeals affirmed the probable-cause denial, and this court granted review.
- The issue is whether probable cause existed to believe Burch’s mental condition had changed so he could be safely placed in transitional release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for probable cause | Burch argues de novo review is appropriate for the probable-cause determination. | State argues de novo review is appropriate; panel agreed. | De novo review applies to the probable-cause determination. |
| Burden of proof at annual review | Burch bears the burden to prove probable cause for transitional release. | State bears the burden or burden is not clearly assigned. | Burden lies with the petitioner seeking transitional release; must show probable cause. |
| Probable cause whether mental abnormality changed to permit transitional release | Petitioner’s evidence could support change in mental abnormality making release safe. | State reports show no such change; continued risk remains. | Petitioner failed to show probable cause of change to safety for transitional release. |
| Effect of Dr. Peterson's report on probable cause | Peterson’s findings could support change and safety for release. | Peterson’s report did not explicitly recommend safety for transitional release and omitted crucial change in primary diagnosis. | Peterson’s report did not establish probable cause under 59-29a08(c)(1). |
| Application of 59-29a08(c)(2) in this context | Evidentiary hearing could be warranted if there is a current physiological change or other change since last hearing. | This subsection does not apply unless both conditions are met and does not independently authorize a hearing here. | District court lacked discretion to grant a hearing under 59-29a08(c)(2); focus remained on (c)(1). |
Key Cases Cited
- In re Sipe, 44 Kan. App. 2d 584, 239 P.3d 871 (2010), 44 Kan. App. 2d 584, 239 P.3d 871 (2010) (de novo review of probable cause; burden on petitioner; light of favorable evidence)
- In re Miles, 47 Kan. App. 2d 429, 276 P.3d 232 (2012), 47 Kan. App. 2d 429, 276 P.3d 232 (2012) (reports showing no longer pedophile support probable cause analysis)
- In re Care & Treatment of Hay, 263 Kan. 822, 953 P.2d 666 (1998), 263 Kan. 822, 953 P.2d 666 (1998) (initial SVPA probable cause precedent)
- State v. Berg, 270 Kan. 237, 13 P.3d 914 (2000), 270 Kan. 237, 13 P.3d 914 (2000) (preliminary/probable cause standard; review implications)
- State v. Bell, 268 Kan. 764, 1 P.3d 325 (2000), 268 Kan. 764, 1 P.3d 325 (2000) (preliminary hearing and favorable-inference rule)
- In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 263 P.3d 199 (2011), 46 Kan. App. 2d 302, 263 P.3d 199 (2011) (SVPA treatment phases and transition framework)
- In re K.E., 294 Kan. 17, 272 P.3d 28 (2012), 294 Kan. 17, 272 P.3d 28 (2012) (burden of proof generally on movant)