In the Matter of the Care and Treatment of TODD ELLISON.
No. 112,256
Court of Appeals of Kansas
July 24, 2015
359 P.3d 1063 | 751
Opinion
filed July 24, 2015.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
ATCHESON, J.: The State appeals an order of the Sedgwick County District Court dismissing its action to have Todd Ellison involuntarily committed as a sexually violent predator. The case had languished for more than 4 years as Ellison sat in the Sedgwick County jail awaiting a trial—a delay the district court held violated his cоnstitutional rights. We agree that Ellison was constitutionally entitled to a timely adjudication of the State‘s petition. But the district court failed to correctly apply the legal standards for assessing Ellison‘s asserted constitutional deprivation. We, therefore, reverse and remand for further proceedings to allow the district court to do so.
In June 2009, the State filed a рetition to commit Ellison under the Sexually Violent Predator Act,
As provided in the Act, a person may be adjudged a sexually violent predator and indefinitely committed for treatment to a secured facility on the grounds of the Larned State Hospital or elsewhere. Based on an initial determination from a multidisciplinary team and a review committee that a convicted sex offender meets the definition of a sexually violent predator, the attorney general may file a petition to have the person committed.
To prevail at trial on a commitment petition, the State must prove that the individual: (1) has been convicted of or charged with a crime designated as a sexually violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to commit an act of sexual violence because of that abnormality or disоrder; and (4) displays serious difficulty controlling his or her dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see
Both the adjudicatory process, including mandatory pretrial detention, and a commitment under the Act substantially impair a liberty interest protected in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Foucha v. Louisiana, 504 U.S. 71, 78-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (government effort to involuntarily commit individual because of mental illness implicates substantive liberty rights and triggers procedural due process protections); In re Care & Treatment of Foster, 280 Kan. 845, 854, 127 P.3d 277 (2006). In turn, the government‘s attempt to commit someone as a sexually violent predator must be accompanied by procedural due process protections aimed at preventing a wrongful deprivation of liberty. As outlined by the United States Supreme Court, constitutionally sufficient procedural due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of “lifе, liberty, or property.”
Those constitutional principles apply to the State‘s efforts to commit Ellison and others as sexually violent predators. We perceive no particular disagreement between the parties on that much of the governing law. The issue at hand is how to measure a delay in the trial of a sexually violent predator case against those constitutional principles to determine if thе rights of the respondent, here Ellison, have been violated. So framed, the matter presents a question of law wholly divorced from the evidence the State might use to prove its case.
The United States Supreme Court has developed a multifactor test to assess constitutional speedy trial rights protected in the Sixth Amendment to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Although the Sixth Amendment right pertains to criminal cases and the commitment proceedings for sexually violent predators are civil, the due process considerations here bear on the deprivation of liberty, lending more than a passing similarity. Courts have drawn on the Barker model to analyze due process issues arising from delayed hearings in civil proceedings. See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983); People v. Litmon, 162 Cal. App. 4th 383, 395-406, 76 Cal. Rptr. 3d 122 (2008) (applying the Barker factors in a due process claim involving undue delay in commencing a civil commitment proceeding); Morel v. Wilkins, 84 So. 3d 226, 246 (Fla. 2012) (assuming Barker test applied to a claim of delay in a civil commitment proceeding and deciding case on that basis); In re Lamb, 368 Mass. 491, 500, 334 N.E.2d 28 (1975) (recognizing speedy trial cases, including Barker, as relevant to timeliness of commitment hearing under Massachusetts law for sexually dаngerous person).
In Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, the Court found the Barker model for measuring prompt adjudication to be wholly apt in a civil forfeiture action involving a government taking of property. The Court explained that “the Fifth Amendment claim here—which challenges only the length of time between the seizure and the initiation of the forfeiture trial—mirrors the concern of undue dеlay encompassed in the right to a speedy trial.” Id. at 564. In turn, the Court found: “The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time.” Id. at 564.
We, therefore, agree with the district court‘s decision to apply the Barker model to determine whether the delay in this case deprived Ellison of constitutional due process. But we part ways with the district court in how that assessment should be performed. The Barker Court identified four considerations in evaluating the lapse of time in bringing a criminal defendant to trial: (1) the length of delay; (2) the reasons for the delay; (3) the defendant‘s assertion of the constitutional right; and (4) the prejudice to the defendant arising from the delay. 407 U.S. at 530; see State v. Weaver, 276 Kan. 504, 506, 78 P.3d 397 (2003) (applying Barker to Sixth Amendment speedy trial challenge). The factors should not be applied in a way that isolates each
As discussed in Barker and since applied elsewhere, the length of delay operates, in part, as a gatekeeper to the remaining factors. That is, a party, in light of the circumstances of his or her case, must show that the delay may be considered likely or presumptively prejudicial. Barker, 407 U.S. at 530-31; Waldrup, 46 Kan. App. 2d at 679. We suppose that gatekeeping principle to be applicable in a civil commitment proceeding. The requirement for something more than a minimal delay prevents what otherwise might be a wave of motions claiming constitutional error based on a matter of days or weeks. But a sufficient “triggering” delаy abides no strict measurement in months or years imposed across a range of cases. See State v. Hayden, 281 Kan. 112, 128, 130 P.3d 24 (2006); Weaver, 276 Kan. at 509-10; Waldrup, 46 Kan. App. 2d at 679. As the Barker Court pointed out, a delay that might be tolerable for a “serious, complex conspiracy charge” would be wholly unacceptable for “an ordinary street crime.” Barker, 407 U.S. at 530-31. We see no bright-line measure for presumptive prejudice in a civil action fоr involuntary commitment.
In the district court, the State conceded about 325 days of the delay of well over 4 years could be attributed to its requests for continuances or other pretrial maneuverings. The district court roughly assessed just over 500 days to the State. Everybody concedes the delay attributable to the State, even limited by its own admission, was presumptively prejudicial, allowing Ellison to pass through the gate for a full evaluation of the constitutional implications of his wait for a trial. We agree.
The district court, however, seemed to treat that presumptive prejudice alone as a legally sufficient ground to grant Ellison relief. But it simply triggers a full judicial review of the circumstances to assess the claimed constitutiоnal deprivation.
The district court did not make findings addressing the Barker factors with any particularity and seemed to more or less rest its decision on the overall length of the delay without considering the reasons for the glacial pace of the litigation or the prejudice to Ellison. Absent findings on those factors, we cannot affirm the district court‘s decision that the State violated Ellison‘s due process rights. Nor can we say the district court erred in its ultimate conclusion. We, therefore, must remand for further proceedings entailing, at the very least, more specific findings tailored to the Barker considerations.
On remand, the district court should undertake a more particularized analysis of how much of the overall delay should be attributed to the State‘s conduct and how much to Ellison, acting through his lаwyers. We recognize the task may be a challenging one given the length of the delay and what may be each party‘s arguments for deflecting responsibility to the other. By the same token, however, the district court need not arrive at a formal ac-counting ascribing each day of the 4-year delay to either the State or Ellison. What the law requires is a reаsonable allocation based on the available evidence. We leave to the district court any decision about entertaining additional written or oral argument or reopening the evidentiary record.
As a general matter, the delay caused by a court-ordered continuance ought to be attributed to the party requesting the additional timе. Weaver, 276 Kan. at 508 (time attributable to defense continuances given limited significance in constitutional speedy trial determination); United States v. Erenas-Luna, 560 F.3d 772, 778 (8th Cir. 2009) (same). Continuances Ellison sought to prepare for trial or to accommodate his lawyer‘s schedule ought not be attributed to the State. Those delays would have been for his benefit. But that wouldn‘t invariably be true. If, for example, the State prоduced documents long after they should have been provided to Ellison, Ellison‘s request for some reasonable extension to review them might fairly be attributed in whole or in part to the State. Those considerations spill over into the second Barker factor—the reasons for the delay—and illustrate the seamlessness of the ultimate constitutional determination.
When thе district court considered Ellison‘s motion for release, the trial in a sexually violent predator commitment was to be held no later than 60 days after a probable cause determination on the petition, absent continuances granted for good cause.
As to reasons for the delay, the State may not get a pass by arguing its lawyers simply couldn‘t devote sufficient time to this case because of other specific cases or the overall press of the business on the attorney general‘s office. That is a matter of prioritizing and allocating personnel and resources. Here, Ellison had been detained without bond to determine whether he posed a sufficient risk of engaging in sеxually violent acts in the future that he should be involuntarily committed for treatment. The issue was not whether Ellison had committed a crime for which he should be punished but whether he suffered from a mental aberration that left him unable to control specific antisocial impulses to engage in specific kinds of especially harmful acts. The State cannot give that sоrt of proceeding a low priority while the subject sits in jail awaiting a final disposition.
The third Barker factor takes account of when the individual expressly asserts his or her constitutional right to a timely adjudication. The district court found Ellison did so in mid-2012. On June 21, 2012, Ellison filed a motion in this case for immediate release in part because he had been held for more than 3 years without a trial. On July 23, Ellison filed a petition for habeas corpus under
After Ellison asserted his due process right to a timely adjudication, any delays attributable to the Statе should be weighed heavily against the State and in his favor unless he affirmatively agreed to a specific continuance or extension. The delays before Ellison asserted his right to a prompt disposition of the case have less significance in the constitutional analysis. They should not, however, be ignored. To do so would impermissibly attribute to Ellison a backhanded waiver of his due process right. See Barker, 407 U.S. at 525 (Court declines to presume waiver of Sixth
The fourth Barker factor looks at prejudice to the individual resulting from the delays attributable to the State. The Court identified several types of prejudice in a criminal prosecution: oppressive pretrial incarceration; a defendant‘s anxiety and concern sparked by the ongoing proceedings; and possible impairment of the defense. Barker, 407 U.S. at 532; Rivera, 277 Kan. at 118. Those forms of prejudice are applicable in an action to involuntarily commit a person as a sexually violent predator. The emotional impact on Ellison is fact specific, so we don‘t elaborate on that consideration. Likewise, how the extended delay may have impaired Ellison‘s ability to marshal evidence or to otherwise oppose the petition is a fact-based determination for the district court‘s evaluation.
The conditions of Ellison‘s pretrial detention present some considerations different from those in criminal cases. First, the conditions of confinement in a jail or prison are more restrictive than those imposed on someone committed for trеatment as a sexually violent predator. So the length of pretrial detention in these cases should be minimized to the extent reasonably possible. In criminal cases, a convicted defendant typically will receive credit against a sentence of imprisonment for the time spent in jail awaiting trial. There is no comparable benefit to someоne adjudicated a sexually violent predator. The individual is detained for treatment and, thus, will be held for an indeterminate period theoretically dependent on progress made in the therapeutic regimen. The individual‘s pretrial detention is effectively lost for that purpose. No treatment is provided in jail—both because the facility isn‘t staffed to do sо and because the individual hasn‘t been adjudicated a sexually violent predator. Those circumstances render pretrial confinement more oppressive in a civil commitment proceeding than in a criminal prosecution and weigh against extended delays in adjudicating a commitment petition.
Apart from our discussion of the Barker factors, we reject the State‘s argument that because Ellison opposed its motion to the district court for additional findings of fact, we should, therefore, infer facts adverse to him. The State cites no authority for such a result, and we find the suggested remedy gratuitous. More naturally in that situation, we ought not invoke against the State the presumption that a district court has made all necessary findings supporting its conclusions in the absence of a party‘s objection, even if some findings have not been stated on the record. See O‘Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).
In conclusion, we hold the district court did not render adequate findings, taking account of the Barker factors, to support its determination that Ellison was deprived of a due process right to a timely adjudication of the State‘s petition to involuntarily commit him as a sexually violent predator. We, therefore, reverse the order dismissing the petition and remand for further proceedings consistent with this decision.