*1 79,440 No. Kansas, Petitioner, v. Steven R. Honorable
State III, Court, 27th Div. Becker, the District Judge District, Respondent. Judicial 627) (958P.2d filed 1998.
Opinion April cause, D. assistant Alan attorney, Timothy county argued Hughes, J. Chambers, him on was with the brief attorney, petitioner. county Zinn, defender, cause, R. Steven R. deputy argued appellate Jessica Kunen, defender, chief with him the brief for on David respondent appellate Proctor. was delivered court opinion mandamus, this for writ of the State seeks Davis, petition J.: 22-3428(1)(a) a declaration from court has been on that a criminal defendant who mandates 22-3221 be com- basis of mental defect or disease under K.S.A. State to the Lamed mitted safekeeping Hospital Security *2 Honorable Steven this court to direct the The State asks treatment. defendant, Proctor, under the David to commit the R. Becker pro- 22-3428(l)(a). visions had in David Proctor been
The facts are not diagnosed dispute. had on medication and been as from depression suffering unipolar to the incident for this condition years prior approximately condition on for the same in this case. He had been hospitalized occasions. six prior wife that was the defendant told his something August himself to the Hutchinson He admitted Hospital psychiatric
wrong. conferred with Dr. Eve him unit. His dúring Hohly, psychiatrist, 9, 1996, testified that the she his On the stay. morning August He was with some delusions. defendant was religious preoccupied did not to be im- room at the time and not in appear security himself. to the staff or minently dangerous the de- received a Later that same Dr. day, Hohly report the into a window. She directed that fendant had ran or jumped Ahrens, an in a room. Donald defendant be orderly security placed unit, room. the defendant in the security helped psychiatric room, Ahrens in the the defendant became Once agitated. security him, his room to to calm but the defendant went into the put try stated, then in his ears and refused to listen. The defendant fingers the and halt the and word.” “Go nation ye preach announced and Ahrens testified that the jumped up the The nurse he to kill the nurse on duty. pushed going Ahrens backed out to summon additional button” help, “panic came of the room The defendant out room. began ran to the fire The defendant then at Ahrens. throwing punches door, welded to the off a stainless steel bar that been ripped door, Ahrens. beat severely He waived with
The defendant was battery. charged aggravated defense. The trial and notice of to a gave jury trial, to the com- with the defendant case stipulating proceeded of a letter from to the admission and the State plaint stipulating occurred, the defendant that when the incident Dr. Hohly stating and should that he was Satan a delusional belief was under fighting his actions. held not be responsible evidence, court found that district Based stipulated he the defendant had committed while battery, aggravated with The case then insanity. proceeded guilty by disposition. State, the from the
Without presented objection well as the of Karen Brown of Dr. as testimony testimony Hohly Soden, State Dr. a nurse at Lamed Hohly Hospital. practitioner incident, the defend- that after the testified police transported Brown Soden testified that the ant to the Lamed State Hospital. die defendant was into hospital protective custody brought the time the defendant had been was evaluated. During hospital- ized, that he was from a disorder it was discovered suffering bipolar *3 Brown Soden testified that the rather than unipolar depression. that for for disorder is different from treatment bipolar unipolar disorder. testified that the defendant had been
Dr. Hohly previously an disorder but not on an- on antidepressant unipolar placed medication. She stated that someone with bi- placing tipsychotic that disorder on an alone can increase person’s polar antidepressant manic behavior. She testified that with the new med- antipsychotic ication, the defendant is well stabilized and has been able to return defendant was to work. She testified asymptomatic Further, be of little it could that a return to Lamed would help. be in that it would take his which is counterproductive away job, influence in his life. stabilizing
Brown Soden testified that the defendant to his new responded and his condition stabilized. He was released medication quickly from the on an basis 17 after the incident. hospital outpatient days A court order was filed in Reno District Court County mandating that the receive treatment. Brown Soden also outpatient that a return to Lamed would be detrimental to the de- testified fendant’s because it would his In her stability impair employment. the defendant was not a to himself or others at the danger opinion, Soden, time to Brown if the defendant of his release. According Lamed, he would were sent back to evaluation similar undergo his would be sent one he had undergone, reports previously re- who earlier the same to and approved person approved lease from Lamed. that under Becker
At close testimony, recognized Judge 22-3428, the de- he was to commit K.S.A. 1997 Supp. required However, case determined the defendant’s fendant. the judge Lamed, committed in that he been already unique he to himself that was no Lamed had determined longer danger others, determination that the there had been or judicial Becker, there- did not need to be Judge hospitalized. fore, had been satisfied that the of 22-3428 determined purpose release under and that the defendant was for conditional eligible conditional re- 22-3428(4). defendant on Becker placed Judge lease. as a reserved. How- filed this State initially appeal
ever, writ it dismissed instead brought petition appeal of mandamus. “a mandamus as
K.S.A. 60-801 defines
proceeding
compel
court, tribunal, board,
or
or some
some inferior
person
corporation
office,
from the
which
results
duty,
duty
perform specified
directed,
trust,
to whom the order
or official state of
party
3 of the Kansas Constitution
or from
law.” Article
operation
§
in this court for
man
proceedings
jurisdiction
provides original
However,
State
rel.
relief in mandamus is
ex
damus.
discretionary.
567,
808 “When a in defendant is answers affirmative acquitted jury 22-3221, asked to K.S.A. the defendant shall he com- special question pursuant mitted to the state treatment. A security hospital safekeeping finding in the affirmative to the asked jury answering special question thereto, to K.S.A. 22-3221 and amendments shall he prima facie that the is to cause harm to or others.” acquitted presently likely self added.) (Emphasis The the issue in this case and crystalize above-emphasized phrases whether, call for an answer to under the facts of question case, we writ of mandamus ought grant ordering Judge Becker to commit the defendant to the Lamed State Hos- Security ' 22-3428(l)(a). under pital
The State that we must the writ because 22- argues grant 3428(1) (a) establishes clear to commit once a criminal duly defendant has been on the of a basis mental defect or acquitted circumstances, disease under K.S.A. 22-3221. Under these 22- 3428(l)(a) defendant shall be committed to the provides and treatment. The defend- safekeeping ant that the same statute in its second sentence argues provides that an under the conditions set forth is evi- acquittal prima facie dence that he is Thus, cause harm self or others. he likely 22-3428(l)(a) him an to rebut the argues provides opportunity facie evidence and if based such evidence the court prima others, determines that no he is to harm himself or longer likely the court him. release law, aof statute is a and this interpretation Robinson,
court’s
unlimited.
review is
See State v.
261 Kan.
(1997).
seems clear. A who under conditions set
809 treatment. How- committed for “shall” be forth safekeeping in 1980 raises the ever, added to the statute sentence second facie evidence” contem- of the term whether use “prima to if defendant to determine presently likely hearing plates case, was held to self or others. A cause harm hearing evidence, that the de- determined the trial court based such upon others. harm to himself or was no to cause fendant longer likely and Brown that the evidence of Dr. Hohly argues arose because of his facie evidence that Soden rebutted the prima him. He con- released and that the trial court properly acquittal circumstance would confinement under this that continued tends Louisiana, v. 504 U.S. under Foucha violate his due rights process Foucha, 437, In 2d S. Ct. 1780. L. Ed. 112 118 that an Court determined United States insanity acquit- Supreme ill and as as he or she is both tee be held only long at 77. but ho 504 U.S. dangerous, longer. to consider
We have had a argument prior opportunity commitment of whether the insanity acquittees, pur- mandatory 22-3428, a defendant denied to 1979 suant K.S.A. equal Supp. cruel and unusual or constituted of law or due process protection 90, 110, 612 P.2d In re Jones, punishment. did not violate (1980), we held that such mandatory re was decided of a defendant. In the constitutional rights amendment in to its of 22-3428 based prior provisions upon decision. before the Foucha and 12 years 22-3428, commitment the 1980 amendment Prior to Moreover, the at 109-10. com- Kan. mandatory. acquittal duration, the defendant was of indefinite mitment although at which time he or she hearing annually, right request of the evi- show had the by preponderance attempt and, thus, or others to self that he or she dence danger 22-3428a. The See K.S.A. 1979 awin discharge. Supp. officer if chief medical after a be
could also discharged could and the defendant was warranted that such a felt discharge or others. to self he or she was not to the court that danger prove 22-3428a(3). 22-3428(2); See K.S.A. 1979 *6 the time In re court, decided the At was this by Jones effect, 22-3428(1) amendment had taken although 22-3428(1). decided on the 1979 version of inter- uncertainty into the 22-3428 1980 amendment was noted jected by by Justice Holmes in his dissenting opinion: note, however, “It is that the amendment in ‘A interesting provides part: finding of not because of shall be evidence that the guilty insanity prima acquitted facie is self or others or of others.’ presently person dangerous person’s property added.) As facie evidence’ creates a (Emphasis Query: ‘prima merely presumption (in statute,
which
be overcome
evidence from the other
the
by
party
does not the new amendment
or
insanity acquittee),
imply
contemplate
prior
to allow the
evidence’ to be rebutted or contradicted? Black’s
hearing
‘prima facie
(4th
1968).
Law
1353-1354
ed. rev.
This is a determination which will
Dictionary
be before this court at some later date.”
As a in was changed present procedure one, defendant, which that while a being acquitted provides defect, must be com- reason of a mental disease or mandatorily by commitment is mitted to the state such only security hospital, a to allow the state to evaluate the such time as security hospital Such an evaluation must be made defendant’s current mental state. the defendant’s a to the court within 90 issued days report Thereafter, a must be held within admission. hearing days at which time the defendant may present receipt report, that he or she is not ill. If the court currently mentally ill, he or she must finds that the defendant is not currently mentally defendant is still be released. If the court finds ill, or released. See he or she be committed conditionally Thus, 22-3428(l)(b), (c), (d). 22-3428 K.S.A. 1997 provides a limited commitment for for a following precommitment hearing evaluation purposes. to 22-3428 was to
The of the 1993 amendment provide purpose ac- deal with a defendant who has been a uniform to procedure to due the defendant’s reason of insanity, including quitted by Yet, amendment the 1980 within such language procedure. process in the affir- of not answering jury “[a] finding 22-3221 asked mative to the special question be evidence that thereto, shall amendments prima facie to cause harm to or oth- likely presently self defendant ers” remains. amendment which remains of the 1980 the language
Arguably, in addition to the a remedy specific today provides to 22-3428. If the forth in the 1993 amendment set procedure amendment, intended, the 1993 provide pro- legislature eval- committed for cedure the defendant mandatorily whereby that it left the it is uation without hearing, puzzling purposes intact in the 1980 amendment. language However, that we resolve this issue in order it is not necessary case, that the trial court to decide the instant for it is clear recog- 22-3428(l)(a) to be committed. nized that required case, in that the trial that this was court then noted unique commitment, that of allow- to be served the mandatory purpose evaluate and the chief medical the state ing the defendant’s mental officer to render an on present opinion therefore, court, health, saw little been already completed. and the defendant benefit jump through forcing hospital instead, and, these converted sentencing proceed- hoops again 22- mental state under to a on the defendant’s ing (d). 3428(l)(b), the State to the There was no objection by hearing. *8 evidence, of the chief medical Substantial including opinion at demonstrated that the defendant officer Lamed State Hospital, evidence, was not a or others. Based on this to himself danger release as authorized court the defendant on conditional by placed 22-3428(1)(d) 22-3428(4). the trial court’s characteri-
Our of the record reading supports zation of the facts in this case as unique. following Immediately incident of rise battery, giving charge aggravated State He defendant was taken to Lamed Hospital by police. and for the committed for his safety safety involuntarily his to fit his condition. After others. His medication was changed Lamed, officer de- the chief medical evaluation treatment at termined that the defendant was no to himself or longer danger time, others him. Within a short he was tried and discharged based aggravated battery upon plea insanity. Based the uncontroverted evidence before the trial court that others, the defendant was no to himself or longer danger court him on conditional as authorized 21- placed probation by 3428(l)(d) 21-3428(4). facts,
Under these there is a serious whether unique question continued confinement in the Lamed State Security Hospital would have violated the defendant’s due as outlined rights process However, the United States Court in Foucha. we need Supreme not resolve this because we believe mandamus unwar- ranted. we discussion,
As
stated at the
of our
relief man-
beginning
State ex rel.
damus is
v.
discretionary.
Stephan
Finney,
at
redress,
567.
is not a common means of
“[Mandamus[
obtaining
cases,
resort,
but is available
in rare
and as a last
for causes
only
are
State
rel.
which
ex
v.
Stephan O’Keefe,
really extraordinary.”
Writ denied.
McFarland, C.J., dissenting. I dissent from the J., dissenting: LOCKETT, respectfully major- determination that David Proctor is not to the man- ity’s subject of K.S.A. 1997 22-3428. datory provision Supp. 8,1996, On Proctor checked himself into the Hutchinson August unit. The next he beat Hospital psychiatric day, severely orderly 10,1996, with a metal bar. On Proctor commit- August civilly ted the district court to Lamed State under K.S.A. Hospital 59-2945 et the Care and Treatment Act for Men- seq., 111Persons as a If Proctor had been tally “psychiatric emergency.” with a crime at this he would have been sent to charged point, Lamed State which is on the situated same Security Hospital, as Lamed State for evaluation. K.S.A. 22-3303. grounds Hospital, After Proctor was medicated and then evaluated at Lamed civilly
814 Lamed State district court. returned to the he was
State Hospital, with Proctor. no further contact Hospital State 26, 1996, Lamed on the evaluation based On by August that Proctor district court determined “[was] Hospital, and treatment make decisions ill regarding [lacked] capacity commence Proctor to ordered outpatient judge placement.” center, Health Horizons Mental health mental care at private order, Hutchinson, civil Proctor was Center, Under the Kansas. Eve treated Dr. Hohly, private psychiatrist, Janice in clinical a Master’s who has degree psychology. Beougher, 19, 1996, issued Proc- On charging complaint September waived was arrested. Proctor Proctor with tor battery. aggravated trial, to a and his examination to a jury right preliminary 22,1997, Proc- On defense. filed notice of January insanity at both evidence as Proctor’s to trial. The tor went only conditional release and at the time of his of the offense the time who saw of Dr. Eve Becker was the Hohly, testimony Judge month, and once a Proctor about Beougher. Janice its was found not Proctor insanity. petition guilty by mandamus, had no asserts that Becker the State for writ of Judge K.S.A. 1997 release Proctor because to conditionally authority who has 22-3428(l)(a) that a criminal defendant mandates or disease under the basis of a mental defect on been acquitted for safe- to the state 22-3221 be committed security hospital order State and treatment. The judge requested keeping for safe- committed the defendant 22-3428(1). and treatment as mandated by keeping 22-3428(1), rule is that the fundamental When interpreting ascertained, where it can be intent of the governs legislature, have ex- a statute. The construction of legislature presumed it scheme its intent statutory language through pressed another when a statute enacted. Stated unambig- plain way, intention of the uous, effect to the the court must legislature give or should what the law should rather than determine as expressed, that which the not read into a statute not be. The court will leg- U.S.D. No. excluded. Brown v. Kan. islature has plainly 134, 141-42, P.2d
815 22-3428(1) K.S.A. 1997 provides: “(a) When a defendant is and the answers the affirmative to acquitted jury thereto, asked to K.S.A. 22-3221 special and pursuant amendments the defendant shall be committed to the state safekeeping and treatment. A of not in the finding affirmative jury answering asked to K.S.A.22-3221 special question and amendments pursuant thereto shall be evidence that the is prima to acquitted presently likely facie cause harm to or others. self “(b) admission, Within 90 of the defendant’s days the chief medical officer of the state shall send to the security court a written hospital evaluation report. Upon of the the court shall set a to receipt report, determine whether or not hearing the defendant is ill shall currently mentally be held within person. heating after the the court days of the chief medical receipt by officer’s report. “(c) The court shall notice of the to give the chief medical officer of hearing the state the district or security hospital, the defendant and county attorney, defendant’s The court shall inform the attorney. defendant that such defendant is entitled to and counsel that counsel will be the defendant appointed represent if the defendant is not able to financially as in K.S.A. employ attorney provided 22-4503 et and amendments thereto. The seq. shall remain at the state security hospital pending hearing. “(d) At the the defendant shall have the hearing, evidence present and cross-examine witnesses. At the conclusion of the if the court finds hearing, clear and by evidence that the defendant convincing is not currently mentally ill the court shall dismiss the criminal person, the de- proceeding discharge fendant, otherwise the court commit the defendant may to the state hos- security for treatment or pital defendant on conditional release place (4).” added.) subsection (Emphasis
In an effort to
David Proctor is not
to man
explain why
subject
circumstances,
commitment under these
even
com
datory
though
mitment
cites Foucha v. Lou
statutorily required,
majority
isiana,
71, 118
437, 112
504 U.S.
(1992),
L. Ed. 2d
S. Ct. 1780
In re
Kan.
Article shall that a notated person provided committed, re- court was After be committed. person at which that hold to then person promptly quired does not he of she the burden of society. danger pose showing was re- Code, mental illness no Under the Louisiana finding different This is whatsoever. State had no burden quite quired. State to show 22-3428, burden on the which from places ill. defendant is that a clear convincing later, where Foucha die *11 Four facility years superintendent that Foucha be held recommended Following discharged. release, formed Louisiana superintendent procedure condition. Foucha’s mental to determine three-member panel admission, the since his of mental illness no evidence panel Finding released. that Foucha be recommended conditionally satisfied, a second two-mem- court commissioned Not the trial three members of of two of the ber original comprised panel had suffered a doctors that Foucha probably opined panel. con- that when he was admitted. Although drug-induced psychosis doctors, had an anti- Foucha dition passed, according and is not a mental disease This condition is social personality. in remission that Foucha “is untreatable. They presently reported that he would not cannot mental illness from certify [but] [w]e 504 U.S. at or others if released.” a menace to himself constitute court, Court of 74-75. The Louisiana district Supreme Appeals, burden of had not carried his Court found Foucha showing nor neither his due he was not and that equal process dangerous were violated. rights protection certiorari and over- Court
The United States Supreme
granted
courts,
turned the Louisiana
holding:
reasonable re-
commitment bear some
“Due
that the nature of
process requires
individual is committed.
[Citations omitted.]
lation to the
for which the
purpose
court,
Here,
in the trial
Foucha
to the
at the
testimony
hearing
according
given
held,
not
If he is to be
he should
from a mental disease or illness.
suffering
The Foucha court noted that one civil commit- exception ment due is where a criminal defendant is process requirements reason of The Foucha Court held: acquitted by insanity. “When a with committed crime is found not person charged having guilty by however, a State commit that insanity, without person satisfying Texas, 418, 323, (1979),] 441 U.S. 60 L. Ed. 2d Addington [v. S. Ct. 1804
burden with
to mental illness and
Such
respect
dangerousness. [Citation omitted.]
verdict,
States,
we observed in
United
[v.
U.S.
77 L. Ed. 2d
(1983)],
(i)
818 to the State
commitment following acquittal security hospital of on the insanity. grounds (1) as to the defendant’s court found:
The district present proffer when commitment it is irrelevant was not admissible because sanity (2) not establish a rebuttable 22-3428 did presump- mandatory; rather, it establishes tion as to procedure insanity, present (3) it commitment; in that does not and is constitutional 22-3428 due of without a defendant process liberty unreasonably deprive district denied motion or The of law judge equal protection. Jones’ of 22-3428. to determine applicability to the case was transferred and the ultimately appealed, Jones Court. Kansas Supreme his commitment contended that mandatory Jones due to statute violated rights pro- was of his contention of law and basis cess equal protection. unlike with no due commitment resulted prior process, per- sons committed. civilly if the defense success- court observed that Jones asserted, the are proceedings governed
fully subsequent 22-3428a. The 22-3428 and K.S.A. Supp. Jones (1) the found: statute’s commitment court mandatoiy provision and related to proper reasonably rationally accomplishment (2) the was not or arbitrary leg- purpose capricious; legislative a reasonable balance between islative scheme constituted pub- from a class of lic’s be protected potentially dangerous the class to be individuals members of pro- rights confinement; (3) of in- from the classification tected improvident as a from class subject separate apart persons sanity acquittees was not or commitment to civil involuntary arbitrary procedures ends to be related to legislative sought capricious proper attained; (4) the of insanity acquittees mandatoiy the law. 228 due or Kan. did not deny process equal protection at 109-10. conclusion, the noted the court After reaching in the to 22-3428 was to be effective
amendment publication *13 based the statute book. resolved existing Although Jones 22-3428(1) law, provided: Supp. “When a is on the that such person acquitted insane at the ground person of time the commission of the crime the verdict shall be ‘not alleged because guilty of so shall be committed to insanity/ person the state acquitted security and treatment. A not hospital safekeeping reason in- finding guilty by of of shall constitute a that the
sanity committed finding an act con- acquitted person crime, or an act a lesser stituting charged included constituting except offense that the did not criminal person intent. A possess requisite finding guilty of because shall be evidence that insanity prima is acquitted person facie or others or presently dangerous others.” persons property (Emphasis self amendment.) indicates
The
court found that the 1980 amendment was demon-
Jones
strative of
intent of
for an in-
legislative
mandatory
dividual found not
and the result
guilty by
reached in
was not inconsistent with the 1980 amendment.
Jones
proceeding
mandatory
insanity acquittees,
22-3428,
to K.S.A. 1979
on consti-
challenged
tutional
commitment did not constitute
grounds,
mandatory
(1) a
law;
denial of
(2)
of the
a denial of due
equal protection
(3)
or
cruel and unusual
The support vague majority’s Jones Neither case calls into the result are here troubling. fact, of 22-3428. In expressly approved constitutionality Jones in contained K.S.A. 1979 Supp. mandatory procedure 22-3428 22-3428a and the 1980 amendment to K.S.A. amendment, 22-3428(a). the 1980 majority analyzing and now asserts that the finding legislature disregards it does not seems precommitment hearing although require ma- make this determination to result. necessary justify decided to overrule but rather rélied instead Jones, jority upon facts” of this case. “unique It commit- There is about statute. mandates nothing vague of in- ment to the reason acquittal by reaches a decision that sanity. majority wholly unsupported or law. It is not within the of this court to by precedent province reach the statute precedent “right ignore unambiguous result.”