In re Care & Treatment of Kukovich

1

NOT DESIGNATED FOR PUBLICATION

No. 114,209

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
TIM KUKOVICH.


MEMORANDUM OPINION

Appeal from Pawnee District Court; JULIE COWELL, magistrate judge. Opinion filed December 2,
2016. Appeal dismissed.

Mary Curtis and Catherine Johnson, of Disability Rights Center of Kansas, of Topeka, for
appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee/intervenor.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: After the Crawford County District Court found Tim Kukovich
incompetent to be tried on a serious felony, the Pawnee County District Court
involuntarily committed him for inpatient mental health treatment at Osawatomie State
Hospital. Kukovich appealed the commitment order. About 3 months after the order was
entered, the Miami County District Court reviewed Kukovich's hospitalization as
required by K.S.A. 59-2969, determined he no longer met the requirements for
involuntary commitment, and directed that he be released. Under the circumstances, we
hold Kukovich's appeal to be moot and, therefore, dismiss it.

2

Given our disposition of the appeal, we dispense with a detailed recounting of the
factual and procedural history. The parties know that information well. And, as we
discuss, the record on appeal is unusually terse.

Kukovich was charged in Crawford County with rape based on an accusation of a
teenaged girl who said he had sexually assaulted her years earlier. As we understand
matters, law enforcement officers were unable to find any directly inculpatory or
exculpatory evidence given the lapse of time between the alleged incident and the report.
Kukovich has been diagnosed with "autism spectrum disorder," a chronic mental
condition, and has an IQ in the 50s. He is by all accounts profoundly impaired
intellectually. As we indicated, the Crawford County District Court found Kukovich to be
incompetent to be tried in conformity with the standards in K.S.A. 22-3301(1). The
expert who evaluated Kukovich was of the view that he would not likely become
competent in the foreseeable future. The Crawford County Attorney has since dismissed
the criminal charge against Kukovich without prejudice.

In the meantime, the State initiated an involuntary commitment proceeding against
Kukovich in the Pawnee County District Court. After a hearing in June 2015, the Pawnee
County District Court issued a commitment order under K.S.A. 2015 Supp. 22-3303 and
the Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq. The order
required Kukovich's commitment be judicially reevaluated at 3-month intervals.
Kukovich was hospitalized at the state facility in Osawatomie, so it fell to the Miami
County District Court to handle the periodic evaluations. On the first review in
September 2015, the Miami County District Court ordered Kukovich be released because
he "is not likely to be a harm to himself or others at this time."

We have before us Kukovich's challenge to the original commitment order from
the Pawnee County District Court. He contends that the court erroneously committed him
for treatment and asks that the order be reversed. But events have outstripped the appeal,
3

since Kukovich is no longer involuntarily committed under the Care and Treatment Act.
Even if we were disposed to find for Kukovich, any ruling we issued would not affect the
present legal rights of the parties. That is the hallmark of a moot case. A dispute becomes
moot when "the actual controversy has ended" and a judgment "would not impact any of
the parties' rights." McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184
(2009). Courts refrain from deciding moot issues because any ruling effectively amounts
to an impermissible advisory opinion. See State ex rel. Morrison v. Sebelius, 285 Kan.
875, Syl. ¶ 15, 179 P.3d 366 (2008) (A court will not consider issues that have become
moot.); 285 Kan. 875, Syl. ¶¶ 10-11 (A court exercises its authority "only when [a]
question is presented in an actual case or controversy between the parties"; "[c]ourts do
not have the power to issue advisory opinions.").

Mootness, however, does not impose a jurisdictional bar. It is, rather, a permissive
rule of justiciability. See State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev.
denied 284 Kan. 948 (2007). In his appellate brief, Kukovich argues he has raised issues
that are both of public importance and capable of repetition, thereby bringing his case
within a limited exception to the mootness doctrine. 37 Kan. App. 2d at 605. Kukovich
contends that his impairments are cognitive disabilities rather than a form of mental
illness amenable to therapeutic care or treatment. So, he says, he does not meet the
definition of a mentally ill person subject to involuntary commitment. And, he says, he or
similarly situated individuals may be impermissibly committed in the future unless we
decide the issues he has raised.

Even if we were disposed to disregard the obvious mootness of this case (and we
aren't), the exceptionally limited record does not favor a judicial effort to address the
substantive points Kukovich outlines. The parties did not request a record of the
commitment hearing in Pawnee County District Court, so we have no transcript. The
parties, instead, have prepared an 8-paragraph summary of the proceeding. We have no
transcript from the hearing in the Miami County District Court resulting in Kukovich's
4

discharge from Osawatomie State Hospital. The record, therefore, does not present a
complete picture of Kukovich's mental capacity and mental health. The information about
the nature of Kukovich's impairments seems, at best, fragmentary. We are disinclined to
take up otherwise moot issues that purport to be of precedential importance to future
cases when the available record fails to adequately develop what we see as the necessary
factual predicates from which to fashion a sound ruling.

Kukovich also suggests we ought to consider his appeal because he has been
socially stigmatized by the criminal charges and his involuntary commitment under the
Care and Treatment Act. Neither suggestion persuades us that we should take up the
merits of Kukovich's appeal. A ruling in his favor wouldn't provide much more of a
restorative than he has already received. The Miami County District Court ruling
certainly indicates Kukovich is not dangerous. He otherwise would not have been
released. Even a ruling we might make reversing the original commitment order would
simply underscore that assessment.

This appeal provides no platform for addressing the merits of the criminal charge.
But Kukovich finds himself in the same posture as anyone else who has been charged
with a serious criminal offense only to have the prosecutor dismiss the charge. The
dismissal denies the person charged a day in court to secure a not guilty finding from
either a judge or jury. As a result, clouds of suspicion may linger. The judicial process
offers no mechanism to dispel those clouds. In reality, though, even a not guilty verdict
stops well short of actual vindication; it simply signals that the judge or jury was not
convinced beyond a reasonable doubt of the defendant's guilt.

In short, we find Kukovich's appeal to be moot. This case does not otherwise offer
a good vehicle for taking up the issues Kukovich presses upon us.

Appeal dismissed.