Johnson v. Bruffett

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NOT DESIGNATED FOR PUBLICATION

No. 115,868

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDWARD C. JOHNSON,
Appellant,

v.

KARI BRUFFETT, Secretary of the
Kansas Department for Aging and Disability Services,
Appellee.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed May 12, 2017.
Reversed and remanded with directions.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jessica F. Conrow, litigation counsel, Kansas Department for Aging and Disability Services, for
appellee.

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Edward C. Johnson appeals from the dismissal of his K.S.A. 2016
Supp. 60-1501 habeas corpus petition for lack of jurisdiction based on the district court's
finding that Johnson's petition was not timely filed. Johnson's sole argument on appeal is
that the district court erred in failing to appoint counsel to represent him at a telephone
hearing scheduled by the court to consider the motion to dismiss filed by the Kansas
Department for Aging and Disability Services (KDADS). Because we agree that counsel
should have been appointed to represent Johnson at the hearing, we reverse the district
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court's judgment, direct that counsel be appointed to represent Johnson, and remand the
case for further proceedings.

FACTS

Johnson is confined for treatment at the Larned State Hospital under the custody
of KDADS, pursuant to the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et
seq. (KSVPA). Although the merits of his claim are not at issue on appeal, the underlying
K.S.A. 2016 Supp. 60-1501 petition alleged that staff members of the Sexual Predator
Treatment Program (SPTP) unlawfully seized Johnson's personal property, failed to
inventory certain seized property, and failed to return some seized property, which
Johnson asserts violated his statutory and constitutional rights. As it relates to Johnson's
claim that the district court erred in failing to appoint him counsel at the hearing on
KDADS's motion to dismiss his property deprivation claims, we find it helpful to
summarize the procedural history in chronological order:

March 5, 2013: Johnson alleged SPTP staff members unlawfully seized personal
property from his room. Johnson further alleged he received 10 SPTP Shakedown and
Search Reports dated March 5, 2013, later that day.

March 14, 2013: Johnson alleged he received four SPTP Shakedown and Search Reports
dated March 8, 2013, one SPTP Shakedown and Search Report dated March 11, 2013,
five SPTP Shakedown and Search Reports dated March 12, 2013, and two SPTP
Shakedown and Search Reports dated March 13, 2013.

March 27, 2013: Johnson filed an internal grievance with the SPTP treatment team,
alleging that team personnel seized items of his property, failed to list some of the items
seized on the shakedown reports as required by policy, and failed to return all of the
items seized from him.
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April 8, 2013: Johnson received a response to his grievance from the treatment team,
which stated: "According to Property Officers your lists are complete."

April 11, 2013: Johnson internally appealed the matter to the SPTP grievance officer.

April 15, 2013: Petitioner alleged he was moved to Isaac Ray North 3 (a more restrictive
SPTP Unit) and additional personal property was seized.

April 19, 2013: Johnson received the grievance officer's response, which stated:
"Treatment team is supported in list received are completed by property officers. If you
have missing or broken items you must use property claim form and have receipt for
item."

April 22, 2013: Johnson appealed the grievance officer's response to the SPTP
administrative program director.

May 20, 2013: Johnson alleged that although this was the deadline for the administrative
program director to have responded to his appeal of his grievance, he never received a
response from the administrative program director.

June 19, 2013: Johnson mailed his petition for writ of habeas corpus, motion to proceed
in forma pauperis, and motion for appointment of counsel to the court for filing. The
pleadings were file stamped by the court on June 26, 2013.

July 14, 2013: Johnson mailed to the clerk of the court documentation supporting
exhaustion of his administrative remedies, including copies of the grievances and a letter
expressing that he was unable to provide a copy of the grievance appeal to the
administrative program director of the SPTP because the grievance appeal was never
returned to him. These documents were filed stamped by the court on July 19, 2013.
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July 24, 2013: The court issued a form order verifying that the habeas corpus petition
had been filed, that the court would conduct a review pursuant to K.S.A. 60-1503, and
that Johnson had exhausted all administrative remedies.

June 5, 2014: The court issued an order stating that in order to survive summary
dismissal, Johnson must ask the SPTP administrative program director about the receipt
and status of his grievance appeal and then submit an affidavit detailing efforts to exhaust
administrative remedies and his efforts to pursue a property claim.

July 9, 2014: The court issued an order identical to the order it issued on June 5, 2014.

August 6, 2014: Johnson mailed to the clerk of the court the requested affidavit which
outlined the history of his unanswered grievance procedure and reiterated that he had
submitted a written appeal of his grievance to the Administrative Program Director of
SPTP on April 22, 2013, but never received a response. The affidavit was file stamped by
the court on August 13, 2014.

August 14, 2014: The court issued an order authorizing Johnson to proceed in forma
pauperis, indicated it was taking Johnson's motion for appointment of counsel under
advisement, and noted that a Writ would be issued by separate order. The writ was
issued, and the court ordered KDADS to respond.

September 29, 2014: In lieu of an answer, KDADS filed a motion to dismiss the action,
arguing in part that the court lacked subject matter jurisdiction because Johnson failed to
file his petition within 30 days after the SPTP action was final, as required by K.S.A.
2016 Supp. 60-1501. In support of the motion, KDADS submitted to the court a letter
dated April 30, 2013, from the then-administrative program director, Clifford Voelker.
Apparently in response to Johnson's April 22, 2013, internal appeal submitted to him as
acting administrative program director, Voelker wrote in the letter that Johnson failed to
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attach a copy of the first page of the grievance form that showed responses by the
treatment team and the grievance officer; Voelker said he "would need the complete
grievance to give an adequate answer" to Johnson's grievance. In its motion to dismiss,
KDADS argued that the April 30, 2013, letter signaled the end of the grievance process,
which triggered the 30-day deadline before which Johnson had to file his petition under
K.S.A. 2016 Supp. 60-1501. Because Johnson's petition was not file-stamped until June
26, 2013, KDADS argued it was 27 days out of time.

December 3, 2014: The court scheduled a telephone hearing on KDADS's motion to
dismiss the petition. The court did not appoint counsel to represent Johnson at this
hearing.

January 8, 2015: The court held a telephone hearing on KDADS's motion to dismiss.
Johnson appeared in person. KDADS appeared through counsel. An employee of Larned
State Hospital, Casey Hoffman, testified as a witness. Upon review of the evidence and
the testimony of witnesses, the court granted KDADS's motion to dismiss for lack of
subject matter jurisdiction because Johnson failed to file his petition within 30 days of the
agency's final determination.

ANALYSIS

As his only issue on appeal, Johnson argues the district court unlawfully deprived
him of his right to be represented by counsel at the January 8, 2015, telephone hearing on
KDADS's motion to dismiss his habeas petition.

Statutory right to counsel

Johnson first argues that he had a statutory right to counsel under the KSVPA. The
KSVPA governs an involuntary civil commitment process for the "potentially long-term
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control, care and treatment of sexually violent predators" in a separate environment for
the protection of the public. K.S.A. 2016 Supp. 59-29a01(a). If a person is determined to
be a sexually violent predator under the act, he or she is committed "until such time as the
person's mental abnormality or personality disorder has so changed that the person is safe
to be at large." K.S.A. 2016 Supp. 59-29a07(a). The KSVPA provides for annual reviews
to reexamine the mental condition of the confined person, which process may also be
used to seek transitional release from the program. K.S.A. 2016 Supp. 59-29a08. A
confined person is entitled to the assistance of counsel at all proceedings conducted under
the KSVPA. K.S.A. 2016 Supp. 59-29a06(b).

Johnson contends that the right to counsel at all KSVPA proceedings should apply
to the hearing on KDADS's motion to dismiss his K.S.A. 2016 Supp. 60-1501 action. But
the KSVPA does not provide a right to counsel to Johnson in this context. By its terms,
that act only mandates the right to counsel "[a]t all stages of the proceedings under
K.S.A. 59-29a01 et seq." K.S.A. 2013 Supp. 59-29a06(b). Johnson's claim that his
property was not returned to him after a shakedown is not the kind of proceeding that
would be resolved under the provisions of the KSVPA, as it does not have bearing on the
determination that Johnson is a sexually violent predator or on his continuing mental
condition under the annual review process.

Johnson cites two cases to support his position that he should have been provided
counsel under the KSVPA: In re Care & Treatment of Burch, 296 Kan. 215, 291 P.3d 78
(2012), and In re Care & Treatment of Zishka, 51 Kan. App. 2d 242, 343 P.3d 558
(2015). In both of those cases, however, the petitioner sought counsel with regard to an
annual review proceeding under the KSVPA, which is unquestionably a proceeding
governed by that act. See K.S.A. 2016 Supp. 59-29a08. Moreover, K.S.A. 2016 Supp. 59-
29a08(a) explicitly provides the right to representation of counsel at annual review
hearings. In re Care & Treatment of Burch and In re Care & Treatment of Zishka do not
support Johnson's position that he is entitled to counsel to represent him in this habeas
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corpus petition filed pursuant to K.S.A. 2016 Supp. 60-1501 because it is not a
proceeding that falls under the terms of the KSVPA. The provisions of the KSVPA did
not require the district court to provide Johnson counsel at the hearing on KDADS's
motion to dismiss his K.S.A. 2016 Supp. 60-1501 action.

Constitutional right to counsel

But Johnson also argues that the district court was required to appoint counsel to
represent him at the hearing on KDADS's motion to dismiss as a matter of constitutional
due process. In Merryfield v. State, 44 Kan. App. 2d 817, 826, 241 P.3d 573 (2010), our
court held constitutional principles of due process require the court to appoint counsel for
a civilly committed sexual predator filing a K.S.A. 2016 Supp. 60-1501 petition if the
claims asserted in the petition are not subject to summary dismissal. Although a motion
to dismiss for lack of subject matter jurisdiction is often, by its very nature, a summary
disposition based only on application of the law to the facts set forth in the pleading, we
must review the record to decide whether the court summarily dismissed Johnson's
petition in this case.

On July 14, 2013, a little over 2 weeks after his habeas petition was filed, Johnson
mailed a letter to the court asserting that he was unable to provide a copy of the grievance
appeal to the administrative program director of the Sexual Predator Treatment Program
because the grievance appeal was never returned to him. During the 18-month period
during which his petition was pending before the district court, Johnson consistently
repeated this assertion. In its motion to dismiss, however, KDADS argued that Johnson's
administrative remedies were exhausted on April 30, 2013, which was the date of the
letter written by the SPTP acting administrative program director advising Johnson that
he was not entitled to any relief related to his grievance.

At the hearing, the court inquired into this factual dispute.
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"[THE COURT:] [W]hen I looked at this attachment as to the grievance to the treatment
team and to the grievance officer, it reflects that the response of the treatment team and
grievance officer was returned, and I don't find anything to match that with respect to Mr.
Voelker's letter of April 30th, 2013. I know, Mr. Napolitano [counsel for KDADS], the
SPTP requires the grievance panel to record or retain copies of grievances, do you
believe there is anything within the records of SPTP, if you know, that would reflect that
Mr. Voelker's letter was—proof that it was served on Mr. Johnson?
"MR. NAPOLITANO: Your Honor, I am not sure as to any written
documentation. . . .
"It is my recollection, and I think if I were in the office my notes would reflect,
that I had a conversation with Casey Hoffman and asked her if it was served personally
on Mr. Johnson. And it is my recollection that Casey Hoffman said that she served it on
or about that April 30th date."

At this point in the hearing, Hoffman—who was in the same room as Johnson
during the telephone hearing—was permitted to testify. Due to a glitch in the
speakerphone function on the telephone being used at the Larned facility, Johnson was
able to hear the answers provided by Hoffman but was not able to hear any of the
questions asked. On the other hand, Napolitano, counsel for KDADS, was able to hear all
questions asked and all answers provided.

"THE COURT: . . . Ms. Hoffman, I understand you may not have these records
before you.
"MS. HOFFMAN: True.
"THE COURT: But an issue in this case, and particularly as to the motion to
dismiss, is whether or not you have any knowledge as to whether Mr. Johnson received
correspondence from Mr. Voelker the then acting administrator under date of April 30th,
2013, with respect to a grievance that Mr. Johnson had filed?
"MS. HOFFMAN: Yes, sir. The information was shown to me even today by
Mr. Johnson. He questioned me about Mr. Voelker's signature. It is Mr. Voelker's
signature. So, I would say, yes, it was served.
"THE COURT: Okay, Do you have any knowledge who may have served that or
any recollection?
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"MS. HOFFMAN: Yes
"THE COURT: What is that?
"MS. HOFFMAN: Myself.
"THE COURT: Okay. Okay. Now, Mr. Johnson, could hear your response just
now, but he probably was unable to hear my questions, correct?
"MS. HOFFMAN: Right, because we don't have a speaker phone that works in
this room.
"THE COURT: Okay. I'm going to—Miss Hoffman, if you'd put Mr. Johnson
back on the phone, I'm going to tell him what—he heard your response, but I'm going to
tell him what my questions were."

Although the district court indicated it did not need any additional testimony from
Hoffman, the court ultimately granted Napolitano's request at this point to ask his own
series of questions, which based on our review of the transcript were noticeably leading.

"MR. NAPOLITANO: . . . Your Honor, it might be helpful to clarify for
purposes of the record on appeal. As to—Ms. Hoffman, you served that letter on or about
the date of that letter, which was April 30th, 2013?
"MS. HOFFMAN: It would have been around that point in time—and at that
point in time Mr. Voelker was also turning stuff over to his administrative assistant,
James, and stuff was brought over to Issac [sic] Ray through the facility mail. And Mr.
Voelker and James are no longer working here.
"MR. NAPOLITANO: Is it fair to say that the letter would have been served
within three days of that date?
"MS. HOFFMAN: Yes sir.
"MR. NAPOLITANO: And Ms. Hoffman, was the procedure you just described
the normal procedure at that point in time for delivery to the Respondent?
"MS. HOFFMAN: Yes, sir.
"MR. NAPOLITANO: Okay. It is in your policy 7.1 and you say at least at that
time you were the individual responsible to deliver the grievance response from the
APD—the Acting Program Director to the patient?
"MS. HOFFMAN: Yes, myself and Mr. Limon, but it would have been mostly
me, as Mr. Limon was ill.
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"THE COURT: Okay. Any other questions for Ms. Hoffman, Mr. Napolitano?
"MR. NAPOLITANO: No, Your Honor.
"THE COURT: Okay. Ms. Hoffman, would you please put Mr. Johnson back on
the phone and I'll tell him—one thing I'm going to ask is if he wants to ask any additional
questions for the record, and so that's probably going to involve some handing the phone
back and forth.
"MS. HOFFMAN: Oh, okay. That's fine.
"THE COURT: Okay.
"MS. HOFFMAN: Thank you. Hold on just a moment.
"THE COURT: Yes. Mr. Johnson, I know you were not able to hear the
questions I asked and Mr. Napolitano asked a couple of questions, but were you able to
hear the responses that Ms. Hoffman was giving to those questions?
"MR. JOHNSON: Yes, I'm not sure how they related to the questions.
"THE COURT: Okay. I'm going to tell you now what the questions were.
"MR. JOHNSON: Okay.
"THE COURT: The specific question was whether Ms. Hoffman had any
recollection about delivering this correspondence of April 30th, 2013, from Mr. Voelker
to you. And her response was that it was in the course of her employment at the time as
the grievance officer that you—that she would—or as hearing officer, that she would
make delivery of grievance responses from the administrator to the respective patients
involved. She also indicated that she did deliver that response on this occasion and that
that delivery would have been undertaken within three business days of April 30th, 2013,
the date of the letter. Hello?
"MR. JOHNSON: Yes. I'm trying to think if there was any other—
"THE COURT: I'm trying to summarize her testimony. If there was anything
else that Ms. Hoffman actually related to the Court. Mr. Napolitano, do you think that is a
correct summary of what she stated?
"MR. NAPOLITANO: I do. I would just for purposes of transparency say that
she did indicate that her along with James Limon would have also at times delivered
those, but because he was ill for most of that time, that the responsibility fell almost
entirely on her.
"THE COURT: Okay. Thank you, that's correct. Now, Mr. Johnson, what I told
Ms. Hoffman was that you might have questions for her about this delivery. And that you
would be permitted to ask those questions. And because there is no speaker phone, it
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would probably involve the two you handing the phone back and forth for you to ask the
question and her to then respond.
"MR. JOHNSON: Considering that she was the one that served it directly to me,
if it had been served at all, it was obviously sent through the mail. I don't have any
questions of her other than the ones I've already asked her. I asked her to check the
records and I asked her what her findings were when I asked her to check the records and
find out if this had actually—had actually gone through the process.
"THE COURT: Okay. And she did indicate that, Mr. Johnson, and I think you
would have heard that part of her response?
"MR. JOHNSON: I did. Sometimes these were mailed and they came to the unit
and she—it was in her job to retrieve them and serve them. That would be correct. And
had the record—if I were to be able to get a copy of them—I can't get a copy. I asked
them for a copy—they wouldn't give me the mail log that logs all the mail that's received.
And the mail logs will show that I've never received this letter. Never received it, never
signed for it.
. . . .
"THE COURT: . . . [W]hat I have before me is evidence from the officer at
SPTP that it is a part of her employment, she is required to deliver information to
residents.
"The evidence available to the Court on the record this morning is that she did so
within three business days of the date of Mr. Voelker's letter on April 30th, 2013.
. . . .
"Unfortunately, it is clear from the provision of K.S.A. 60-1501(c) that the filing
within 30 days of the time that an action become final is jurisdictional. . . .
"On that basis the Court would find that it is appropriate for this action to be
dismissed for lack of jurisdiction."

The transcript from the telephone hearing reflects that the court was presented
with a dispute in material fact between the parties that had to be resolved in order to rule
on the pending motion to dismiss. For his part, Johnson testified that (1) he appealed the
grievance officer's response to the SPTP administrative program director on April 22,
2013; (2) he calendared the program director's deadline to respond to his appeal as
May 20, 2013; (3) he never received a response from the program director; (4) he mailed
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his petition for relief on June 19, 2013, which necessarily was timely under K.S.A. 2016
Supp. 60-1501(c) given the process for exhaustion of his administrative remedies did not
finalize until May 20, 2013; and (5) the court had subject matter jurisdiction to proceed to
the merits of his claim for relief.

Through counsel, KDADS agreed that Johnson appealed the grievance officer's
response to the SPTP administrative program director on April 22, 2013, and did not
appear to dispute that the program director's deadline to respond to his appeal as May 20,
2013. KDADS argued, however, that the court did not have subject matter jurisdiction to
proceed to the merits of Johnson's claim for relief based on the following testimony
counsel elicited from Hoffman at the hearing: (1) She was the individual primarily
responsible for delivering grievance responses from the program director to the patients
who filed the grievance, and (2) she served the program director's response letter to
Johnson within 3 days of April 30, 2013, which was the date that appeared on the face of
the letter.

The district court held it did not have subject matter jurisdiction to proceed to the
merits of Johnsons' petition based on the following findings: Hoffman gave the program
director's response letter to Johnson on or around April 30, 2013, Johnson had 30 days
from that date to file a timely petition under the provisions of K.S.A. 2016 Supp. 60-
1501(c), and Johnson filed his petition on June 26, 2013, which was 27 days beyond the
May 30, 2013, deadline. As expressly stated in the journal entry and the transcript of
proceedings, the court based its ruling not just on the pleadings filed, but on the evidence
and testimony presented at the telephone hearing. In doing so, the court made credibility
findings. For all of these reasons, we necessarily conclude that the court's ruling was not
a summary dismissal. As such, Johnson was legally entitled to have counsel represent
him at the January 8, 2015, hearing. See Merryfield, 44 Kan. App. 2d at 826
(constitutional principles of due process require the court to appoint counsel for a civilly
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committed sexual predator filing a K.S.A. 60-1501 petition if the claims asserted in the
petition are not subject to summary dismissal).

Because Johnson was entitled to counsel at the hearing on KDADS's motion to
dismiss, we reverse the district court's judgment, direct that counsel be appointed to
represent Johnson, and remand the case for further proceedings.

Reversed and remanded with directions.