Nos. 89,061; 89,062; 89,063; 89,064; 89,065;
89,066; 89,067; 89,068; 89,069; 89,070; 89,071; 89,072
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
DONALD HUNT, et al.
SYLLABUS BY THE COURT
1. Statutory interpretation raises a question of law subject to de novo appellate review.
2. During the 2003 session, the Kansas Legislature passed, and the governor signed, House Substitute for Senate Bill No. 27, L. 2003, ch. 152, which contained amendments to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. These amendments specifically provided that none of the time limits in the Act is intended now or ever was intended to be mandatory or to otherwise affect courts' subject matter jurisdiction in commitment proceedings.
3. In determining whether the provisions of any statute apply prospectively or retroactively, the general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise.
4. One exception to the general rule of no retroactivity applies when a statutory amendment affects a court's subject matter jurisdiction. Another applies when an amendment merely clarifies rather than changes a statute. In the unique context of the 2003 amendments to the Sexually Violent Predator Act and previous decisions of this court and the Kansas Supreme Court interpreting the 60-day time limit in K.S.A. 59-29a06 and amendments thereto, neither exception provides for retroactivity here.
5. If the presumption of no retroactivity applies, it can be defeated only if the legislature expressed a clear preference for retroactive application and the court is satisfied, after review of the three factors set forth in Owen Lumber Co. v. Chartrand, 276 Kan. 218, 225, 73 P.3d 753 (2003), that the statutory amendment will not affect substantive or vested rights. If retroactive application would affect substantive or vested rights, it violates due process and will not be permitted.
6. In the unique context of the 2003 amendments to the Sexually Violent Predator Act and earlier Kansas Court of Appeals and Supreme Court interpretations of its 60-day time limit for trial, we conclude that the balance of the three Owen Lumber factors tips in favor of retroactive application. Even if analysis begins with the customary presumption of no retroactive application for new statutes, the legislature has expressed its clear preference for retroactivity and we detect no due process violation. Because the 60-day time limit of K.S.A. 2002 Supp. 59-29a06 is directory and not mandatory, the failure to bring a candidate for sexually violent predator status to trial within 60 days of the determination of probable cause does not divest the district court of subject matter jurisdiction in any properly commenced proceeding. Challenges based on the 60-day provision must be timely raised to be preserved for appellate review. They cannot, like challenges to subject matter jurisdiction, be raised at any time.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion
filed January 23, 2004. Affirmed.
Michael G. Highland, of Bonner Springs, for appellants.
Sheryl A. Bussell, special assistant attorney general, Terra Morehead, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, for appellees.
Before BEIER, P.J., JOHNSON, J., and WAHL, S.J.
BEIER, J.: This consolidated appeal addresses the district court's refusal to dismiss sexually violent predator actions filed against Donald Hunt, William Sells, Sutton Lovingood, Daniel Ingold, Steven Robbins, George Dudley, William Craft, Billy Stanley, George Gilmore, Boyd Huntington, III, Randy Taylor, and Charles Snyder.
Each of these men was found to be a sexually violent predator and civilly committed for treatment pursuant to the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. Each now argues that he should be discharged because his trial did not begin within 60 days of his probable cause hearing, as required by K.S.A. 2002 Supp. 59-29a06, and that the district court therefore lacked jurisdiction.
Factual Background
The nature of the appellant's claims requires us to focus on the timing of events in each case.
Donald Hunt
In September 1995, the State filed its petition against Hunt. His probable cause hearing was September 19, 1995. The court found probable cause existed and ordered that Hunt be transferred to Larned State Security Hospital (LSH) for an evaluation. The order provided trial would be set within 60 days.
On November 6, 1995, 1 week before the 60-day period expired, Hunt orally moved at a hearing to continue his trial pending the decision of the Kansas Supreme Court on the constitutionality of the SVPA. The motion was granted.
On March 1, 1996, the Kansas Supreme Court issued its decision in In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996), rev'd Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), holding the SVPA unconstitutional.
Several weeks later, the United States Supreme Court stayed the mandate in Hendricks, pending further consideration. Kansas v. Hendricks, 517 U.S. 1153 (1996).
On April 26, 1996, within 60 days after the Kansas Supreme Court issued its ruling in Hendricks, the district court held another hearing in Hunt's case. Hunt's attorney again asked for a continuance until the temporary stay of the United States Supreme Court was resolved. The continuance was granted.
On June 17, 1996, the United States Supreme Court granted certiorari. Kansas v. Hendricks, 518 U.S. 1004 (1996).
Hunt's case remained inactive for another 5 months before he was found to be a sexually violent predator at a trial on September 16 and 17, 1996.
In February 2002, Hunt filed a pro se motion to dismiss the case, apparently raising for the first time the State's failure to bring him to trial within 60 days of his probable cause hearing. In March 2002, after a hearing on Hunt's motion and similar motions filed in a number of other SVPA cases, the district court ultimately denied Hunt's motion. The court concluded Hunt's requests for continuance waived his right to a speedy trial.
William Sells
In May 1999, the State filed its petition against Sells. At his probable cause hearing on June 18, 1999, Sells stipulated to the existence of probable cause. The court ordered Sells transferred to LSH for evaluation, and the order provided trial would be set within 60 days.
October 1999 bench notes indicate Sells' trial was continued, apparently on the court's motion, because the court was unable to schedule the matter. These notes were made approximately 120 days after the probable cause hearing. A month later, the State obtained a continuance because its witnesses were not available.
In December 1999, Sells waived his right to jury trial and, after hearing evidence, the district court found he was a sexually violent predator. Sells does not claim on this appeal that he challenged the timeliness of his trial at that point.
In March 2002, Sells filed a motion to dismiss his case because the trial was not held within 60 days of the probable cause hearing. After a hearing, the district court denied Sells' motion, holding Sells waived his claim by stipulating to the court's finding that he was a sexually violent predator.
Sutton Lovingood
In November 1994, the State filed its petition against Lovingood. The district court held a probable cause hearing on November 16, 1994; found probable cause; and ordered Lovingood evaluated. The order provided trial would be scheduled for January 11, 1995.
On January 4, 1995, more than 45 days but fewer than 60 days after the probable cause hearing, the court granted a written motion filed by Lovingood's attorney for a continuance of "at least" 45 days in order to locate an expert witness and complete discovery. The court rescheduled trial for March 20, 1995.
Shortly before the March trial date, Lovingood's attorney filed another motion for continuance, asserting that his expert was unavailable on the scheduled trial date. According to bench notes, the court granted the motion "for good cause shown."
Lovingood was found to be a sexually violent predator after trial commencing May 30, 1995, fewer than 90 days after his second continuance. On the day of trial, Lovingood filed a motion to dismiss the action, claiming the SVPA was unconstitutional, but he did not assert any jurisdictional flaw or violation of a right to speedy trial. Lovingood's claims were rejected on appeal in In re Care & Treatment of Lovingood, Case No. 74,653, unpublished opinion filed April 30, 1999.
In March 2002, Lovingood filed a motion to dismiss his case because he was not brought to trial within 60 days of the probable cause hearing. The district court denied the motion, holding Lovingood had waived any speedy trial claim by requesting two continuances.
Daniel Ingold
In September 2000, the State filed its petition against Ingold. After his probable cause hearing on September 15, 2000, the district court found probable cause and ordered Ingold evaluated. The order scheduled trial for November 13, 2000.
On November 13, 2000, 59 days after the probable cause hearing, the court granted Ingold's motion for continuance for "good cause shown." The matter was rescheduled for January 12, 2001.
On January 12, 2001, Ingold appeared, waived his right to a trial, and stipulated there was sufficient evidence from which to find him a sexually violent predator. The court so found.
In March 2002, Ingold filed a motion to dismiss because he was not brought to trial within 60 days after the probable cause hearing. The court denied the motion, holding Ingold waived his right to assert the argument by stipulating to his status.
Steven Robbins
In September 1996, the State filed its petition against Robbins. The district court held the probable cause hearing on September 27, 1996; found probable cause; and ordered Robbins evaluated. The order provided trial would be set within 60 days.
On November 14, 1996, 48 days after the probable cause hearing, Robbins' counsel requested a continuance; the continuance was granted to allow Robbins to be evaluated by his own expert. The case was apparently reset for trial; but, on February 10, 1997, Robbins' counsel filed a written motion for continuance, asserting he needed additional time for his expert to complete his assessments. Robbins requested at least 30 days' additional time. The court granted the request.
Between February and September 1997, Robbins was actively pursuing written discovery from the State. Robbins served written interrogatories and requests for production of documents, as well as two motions to compel. On September 29, 1997, the parties appeared for trial. At this time, Robbins waived his right to a trial and stipulated that there was sufficient evidence to find him to be a sexually violent predator.
In March 2002, Robbins filed a motion to dismiss the case, claiming the court lacked jurisdiction over him because he was not brought to trial within 60 days of his probable cause hearing. The trial court denied Robbins' motion, holding he waived his right to speedy trial by requesting and obtaining two continuances and by stipulating to the finding he was a sexually violent predator.
George Dudley
In January 2001, the State filed its petition against Dudley. The district court held his probable cause hearing on January 19, 2001; found probable cause; and ordered Dudley evaluated. The matter was set for trial on March 12, 2001.
Approximately 1 week before expiration of the 60-day period, the State requested a continuance because Dudley was still at LSH. The trial court continued the trial for good cause shown until a report from LSH had been received. Dudley claims he objected to this continuance, but the judge's bench notes do not reflect any objection.
On May 7, 2001, 48 days after the prior continuance, Dudley appeared for a trial. Dudley waived trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court so found.
On March 5, 2002, Dudley filed a motion to dismiss based on the 60-day limitation for commencement of trial. The district court denied the motion, holding that trial had been continued for good cause and that Dudley had waived his right to speedy trial by stipulating to the court's ultimate finding.
William Craft
In August 1998, the State filed its petition against Craft. The district court held his probable cause hearing on August 14, 1998; found probable cause; and ordered Craft evaluated. The order provided trial would be set within 60 days.
According to the court's bench notes, on September 24, 1998, within the 60-day period, the court set the case for trial in December "per agreed upon requests for both sides." The transcript from this hearing indicates the State requested the delay because the court's trial docket was full; Craft's attorney had no objection to the continuance and noted he might want Craft to undergo another evaluation anyway.
On December 14, 1998, Craft appeared, waived his right to a jury trial, and stipulated there was sufficient evidence to find him a sexually violent predator. The court made that finding.
In March 2002, Craft filed a motion to dismiss his case, citing the 60-day time limit. In his motion, Craft asserted no continuances had been granted. The district court denied the motion, holding Craft had waived any right to pursue the issue by stipulating to the court's ultimate finding.
Billy Stanley
In April 1999, the State filed its petition against Stanley. The district court held the probable cause hearing on May 7, 1999; found probable cause; and ordered Stanley evaluated. The order provided trial would be set within 60 days.
On June 29, 1999, within the 60-day time limit, the parties and court agreed that the court's calendar would not accommodate a trial before September. A journal entry was signed by attorneys for both sides.
On August 16, 1999, fewer than 50 days after the continuance was ordered, the parties appeared for trial. Stanley waived his right to a trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Stanley filed a motion to dismiss based on the 60-day time limit. The trial court denied the motion, holding Stanley waived his right to advance this issue by stipulating to the court's ultimate finding.
George Gilmore
In April 1999, the State filed its petition against Gilmore. The district court held the probable cause hearing on May 7, 1999; found probable cause; and ordered Gilmore evaluated. The order provided trial would be set within 60 days.
On June 29, 1999, within the 60-day time limit, the parties and court agreed that the court's calendar would not accommodate a trial before September. A journal entry was signed by attorneys for both sides.
On August 16, 1999, fewer than 50 days after the continuance was issued, the parties appeared before the court. Gilmore waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Gilmore filed a motion to dismiss his case based on the 60-day time limit. The district court denied the motion, holding Gilmore waived his right to pursue this issue by stipulating to the court's ultimate finding.
Boyd Huntington, III
In September 2000, the State filed its petition against Huntington. The district court held the probable cause hearing on September 15, 2000; found probable cause; and ordered Huntington evaluated. Trial was set for November 13, 2000.
On November 13, 2000, the day before the 60-day limit expired, the parties appeared before the court. Contemporaneous bench notes state: "Stipulation hearing continued, case to be set for trial at R[espondent's] request."
On January 12, 2001, fewer than 60 days after the continuance was ordered, the parties appeared for trial. Huntington waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
Huntington claims he filed a motion to dismiss his case based on the 60-day time limit in March 2002, but the motion is not included in the record on appeal and the appearance docket does not reflect its filing. However, a journal entry was filed in which the district court denied such a motion. The court held Huntington waived the right to pursue the issue by stipulating to the court's ultimate finding.
Randy Taylor
In February 2000, the State filed its petition against Taylor. On February 18, 2000, the district court held the probable cause hearing, at which Taylor stipulated to the existence of probable cause. The court found probable cause and ordered Taylor evaluated. The order provided trial would be set within 60 days.
On June 1, 2000, approximately 100 days after the probable cause hearing, Taylor waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The district court then made that finding. Taylor's appearance docket reflects no motion for continuance filed before April 18, 2000, when the 60 days from the time of his probable cause hearing would have run. The record also contains no bench notes reflecting any continuances requested or granted orally before that date.
In March 2002, Taylor filed a motion to dismiss because his trial was not held within 60 days of the probable cause hearing. After hearing, the trial court denied Taylor's motion, holding he waived his claim by stipulating to the court's ultimate finding.
Charles Snyder
In July 2000, the State filed its petition against Charles Snyder. The district court held the probable cause hearing on August 18, 2000; found probable cause; and ordered Snyder evaluated. The order set an October 9, 2000, trial date.
On October 2, 2000, within the 60-day limit, the court held a hearing and found its calendar was overcrowded. The court ordered a continuance. Bench notes from several days later indicate the court received a report from LSH.
December 1, 2000, bench notes indicate trial was continued at Snyder's request so he could obtain an independent evaluation.
Six weeks later, on January 12, 2001, the parties appeared for trial. Snyder waived his right to a trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Snyder filed his motion to dismiss based on the 60-day time limit. The district court denied the motion, holding Snyder waived his claim by stipulating to the court's ultimate finding.
Analysis
Each of the appellants contends the district court lost jurisdiction of his case because he was not brought to trial within the 60-day time frame set forth in K.S.A. 2002 Supp. 59-29a06. At the time of the filing of these cases, that statute read:
"Within 60 days after the completion of any hearing held pursuant to K.S.A. 59-29a05 and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced." (Emphasis added.) K.S.A. 2002 Supp. 59-29a06.
The district court's rationale for rejecting appellants' motions to dismiss varied from case to case among three possibilities. The first rationale was that one or more properly granted continuances, sometimes sought by the appellant, tolled the running of the 60 days. The second rationale was that the appellant's ultimate stipulation to his status as a sexually violent predator excused the State from compliance with the 60-day requirement. The third rationale was a combination of the first two.
In order to decide the issue in this case, we must interpret the SVPA, K.S.A. 59-29a01 et seq. Statutory interpretation raises a question of law subject to de novo review. In re Care & Treatment of Brown, 26 Kan. App. 2d 117, 118, 978 P.2d 300 (1999).
Appellants contend that, if the 60-day statutory period expired without the granting of a continuance, the district court lost jurisdiction. They assert that even a later stipulation to their status as sexually violent predators could not cure the jurisdictional defect. If, on the other hand, a timely continuance was granted, they assert that the case had to be brought to trial within 60 days of the continuance order.
Appellants point to several recent Court of Appeals and Supreme Court cases in support of their jurisdictional argument. See In re Care & Treatment of Searcy, 274 Kan. 130, 49 P.3d 1 (2002); In re Care & Treatment of Blackmore, 30 Kan. App. 2d 90, 94, 39 P.3d 89 (2002); In re Care & Treatment of Goracke, 27 Kan. App. 2d 837, 839, 9 P.3d 595 (2000); In re Care & Treatment of Brown, 26 Kan. App. 2d at 120.
The starting point for these cases was the Supreme Court's decision in In re Care & Treatment of Ingram, 266 Kan. 46, 965 P.2d 831 (1998). In Ingram, the Supreme Court interpreted the SVPA's statutory time limit for filing of petitions, interpreting K.S.A. 1997 Supp. 59-29a04. That statute required that a petition be filed within 75 days of the date the attorney general received written notice from the custodial agency holding the person subject to consideration for SVPA proceedings. 266 Kan. at 47-49.
In Ingram, the petition was not filed within the 75-day time limit. The Supreme Court held that the statute was clear and unambiguous. Because it provided the "sole authority" for the State to pursue a SVPA commitment, the court held the 75-day provision "jurisdictional." 266 Kan. at 49. There was, in the court's view, no provision for commencement of an SVPA proceeding beyond that point. 266 Kan. at 49.
Several years later, the Court of Appeals was faced with interpreting the 60-day time limit at issue here. In In re Care & Treatment of Brown, 26 Kan. App. 2d 117, the respondent was not brought to trial within 60 days of the court's finding of probable cause, and no continuances were requested or granted. The respondent filed a pretrial motion to dismiss the case based on the 60-day time limit. The district court held the time limit was merely directory.
A panel of our court reversed, citing Ingram and concluding that, like the 75-day time limit in 59-29a04 for filing a petition, the 60-day time limit for trial in 59-29a06 was "mandatory and jurisdictional." 26 Kan. App. 2d at 120.
Brown did not consider whether Ingram's holding should be distinguished because it dealt with a time limit for commencing an action, i.e., investing the court with jurisdiction, rather than a time limit related to trial scheduling. Brown simply interpreted 59-29a06 to divest a court of jurisdiction even after an action had been properly commenced.
The Brown panel's use of the "jurisdictional" label was unnecessary because the respondent had made a timely objection to the lack of a "speedy trial." In addition, it appears the panel may not have been aware that the 1999 legislature had amended the statute cited in Ingram. After Ingram was filed, the statute was amended to add a subsection specifically stating that the 75-day time limit was not jurisdictional. L. 1999, ch. 140, sec. 4; see K.S.A. 2002 Supp. 59-29a04(b).
The next case to arrive at the Court of Appeals was In re Care & Treatment of Goracke, 27 Kan. App. 2d 837. It presented a slightly different factual scenario. In that case, the State had requested and received one continuance within the 60-day time limit. Thereafter two of the attorneys appointed to represent Goracke withdrew, and a third filed a motion for an independent psychological exam. Approximately 4 months after the motion was filed, Goracke waived his right to jury trial and was found to be a sexually violent predator.
The Court of Appeals panel noted that the 60-day time limit was mandatory and that only a "specific motion for continuance" would toll it. 27 Kan. App. 2d at 839. Because a timely continuance was ordered and the subsequent delays were caused primarily by the changes in Goracke's counsel and the request for an independent medical evaluation, the panel upheld the ultimate commitment decision. 27 Kan. App. 2d at 840.
The third case before the Court of Appeals was In re Care & Treatment of Blackmore, 30 Kan. App. 2d 90. In Blackmore, trial was scheduled for August 2000, approximately 4 months after the probable cause hearing. Before expiration of the 60-day statutory period, no recorded motions for continuance were filed. Shortly before trial was set to begin, Blackmore filed a motion for continuance because witnesses were not available. The motion was granted, and the case rescheduled for trial in October 2000. After Blackmore was found to be a sexually violent predator, he appealed, challenging the delay in his trial.
The Blackmore panel discussed both Brown and Goracke. Noting that Brown had held that the 60-day time limit was "mandatory and jurisdictional" and that subject matter jurisdiction issues could be raised at any time, the panel excused Blackmore's failure to object to the timing of his trial before the district court. 30 Kan. App. 2d at 93-94. The Blackmore panel specifically rejected the State's argument that the 60-day period should be treated like a speedy trial claim in a criminal case and thus be considered waived if not raised in a timely fashion. 30 Kan. App. 2d at 94. The panel also observed that 59-29a06 contained a timing provision virtually identical to that under examination in Ingram and, "absent language to the contrary, the statute is jurisdictional." 30 Kan. App. 2d at 95. Because no motion for extension was made or granted before the expiration of the 60-day time limit, the panel agreed with Blackmore that the district court lost jurisdiction of the matter and reversed his SVPA commitment. 30 Kan. App. 2d at 95-96.
Most recently, the Supreme Court weighed in on this issue in Searcy, 274 Kan. 130. In Searcy, the respondent was tried and found to be a sexually violent predator; the trial occurred approximately 9 months after his probable cause hearing was waived. For the first time on appeal, Searcy raised the 60-day limit in K.S.A. 2002 Supp. 59-29a06.
Before the waiver, Searcy had attempted to remove the case to federal court and had filed a motion to change venue. The case was originally set for trial more than 60 days after the probable cause determination. Between the probable cause determination and the trial date, there were a number of motions in the state and federal courts and Searcy's attorney conducted discovery. After the 60 days had run, but before the trial date, the State filed two motions for continuance; each was granted.
Our Supreme Court reversed Searcy's commitment. 274 Kan. at 144. The Supreme Court first discussed the 75-day time limit in K.S.A. 2002 Supp. 59-29a04, which had been designated "jurisdictional" in Ingram, noting it was the sole authority for commencing an action. The court also noted that the legislature had amended 59-29a04 less than a year after Ingram was decided and that the statute now stated explicitly that its time limit was not jurisdictional. 274 Kan. at 137. After reviewing Brown and Blackmore, the court stated 59-29a06 was "analogous to the statutory right to speedy trial in criminal cases." 274 Kan. at 142. The court nevertheless held that the 60-day period was "jurisdictional, mandatory, and a statutory right granted to respondents." Because of the absence of a motion for continuance within the 60 days, the court reversed. 274 Kan. at 144.
One might justly criticize Searcy and at least the Brown and Blackmore decisions from panels of our court for being too quick to equate the terms "mandatory" and "jurisdictional" with regard to 59-29a06. This provision is, in fact, analogous to our statutes of limitations or speedy trial statute, which are mandatory but subject to waiver. Furthermore, by the time Brown, Blackmore, and Searcy were decided, the legislature had stated unambiguously through its 1999 amendment to 59-29a04 that the 75-day time limit on which Ingram rested was not intended to be jurisdictional. And that time limit was a far more likely candidate for the "jurisdictional" label than the 60-day time limit in K.S.A. 2002 Supp. 59-29a06, because 59-29a04 set forth the requirements for proper commencement of an SVPA action rather than merely the procedure employed once an action was under way.
At this stage, however, we are duty bound to follow our Supreme Court's precedent. See Mueller v. State, 28 Kan. App. 2d 760, 763, 24 P.3d 149, rev. denied 271 Kan. 1037 (2001), cert. denied 535 U.S. 997 (2002). Searcy must carry the day unless subsequent developments in the legislature or in Supreme Court cases have altered or limited its holding or called it into question. Absent such developments, Searcy requires us to reverse each of the cases before us in which no formal motion for continuance was granted within the 60-day time limit. It does not matter that the "jurisdictional" issue has been raised for the first time on appeal or later; a defect in subject matter jurisdiction may be raised at any time.
There have been legislative developments we must address. As discussed above, the 1999 statutory amendments addressed only the 75-day time limit in 59-29a04. See L. 1999, ch. 140, sec. 4; K.S.A. 2002 Supp. 59-29a04(b). At that point, there had been no cases in which the 60-day