Merryfield v. State

1

CORRECTED OPINION

NOT DESIGNATED FOR PUBLICATION

No. 115,680

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUSTIN J. MERRYFIELD,
Appellant,

and

RICHARD A. QUILLEN,
Plaintiff,

v.

STATE OF KANSAS;
SAM BROWNBACK, GOVERNOR FOR KANSAS;
DEREK SCHMIDT, ATTORNEY GENERAL FOR KANSAS;
KARI BRUFFETT, SECRETARY FOR KDADS;
MCPHERSON COUNTY COURT, COMMITTING COURT;
and JOHNSON COUNTY COURT, COMMITTING COURT,
Appellees.


MEMORANDUM OPINION

Appeal from McPherson District Court; JOHN E. SANDERS, judge. Opinion filed March 10, 2017.
Affirmed.

Dustin J. Merryfield, appellant pro se.

Kevin J. Grauberger and David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka,
for appellees.

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

2

Per Curiam: Dustin J. Merryfield, while committed to the sexual predator
treatment program, filed a 34-count complaint which named multiple defendants and
alleged, among other claims, that various sections of the Kansas Sexually Violent
Predator Act (KSVPA) were unconstitutional. Merryfield appeals from the district court's
grant of defendants' motions to dismiss. Finding no reversible error, we affirm.

Factual and procedural background

Dustin J. Merryfield was committed to the sexual predator treatment program in
December 2000. He filed a complaint containing 34 counts, most of which challenged
sections of the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 2015 Supp. 59-
29a01 et seq., as unconstitutional. Plaintiff's fifteenth cause of action, which alleged due
process violations, was brought only against defendants Derek Schmidt and the Johnson
County District Court. His sixteenth cause of action, which was specific to plaintiff
Richard Quillen, who did not appeal, was brought only against defendants Schmidt and
the McPherson County District Court. All other causes of action were brought against all
defendants in their official, personal, and individual capacity.

This appeal comes from the district court's granting of two motions to dismiss, one
brought by the McPherson County District Court and the Johnson County District Court
(the court defendants), and a second brought by the remaining defendants: the State of
Kansas; Sam Brownback, Governor of Kansas; Derek Schmidt, Attorney General of
Kansas; and Kari Bruffett, Secretary of Kansas Department for Aging and Disability
Services (the State defendants).

Merryfield's pro se complaint was stated to be a "Civil Rights Action Pursuant to
K.S.A. Chapter 60." The district court liberally construed the complaint as a 42 U.S.C.
§ 1983 petition. Merryfield's brief on appeal relies on § 1983 cases and alleges
constitutional deprivations. Accordingly, we analyze the petition in that posture. Our
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ultimate conclusion would not be any different, however, had we analyzed the petition
purely under state law.

The district court's order failed to list its conclusions of law as to each count of the
complaint. The district court dismissed 14 of Merryfield's claims on the basis of standing,
with little discussion, and dismissed the remaining 20 counts in two paragraphs, ending
with: "Once again, these issues are either moot, plaintiffs lack standing and/or the
provisions are constitutional." This lack of detail burdens the appellate court.

We will not, however, remand for further detail. Because our standard of review is
de novo, we would not defer to the district court's conclusions if they had been expressed;
thus, we need not actually know what those conclusions were. Our review, like the
district court's review at this stage, is based on the written motion and the case file, which
we are equally able to review. See Gant v. State, No. 112,434, 2015 WL 5312016 (Kan.
App. 2015) (unpublished opinion), rev. denied 304 Kan. 1017 (2016). Remand would
obviously prolong this case, so we decline that option in the interest of judicial economy.
See Harris v. State, 31 Kan. App. 2d 237, 239-40, 62 P.3d 672 (2003) ("[R]emand is an
inefficient remedy for this recurring problem."). Instead, we have reviewed the motion
and case file ourselves. Some counts are within the scope of another appeal recently
decided. Merryfield v. Bruffett, No. 115,488, 2017 WL 543573 (Kan. App. 2017)
(unpublished opinion). As to the others, we conclude that Merryfield has not presented
any viable claims for relief.

Merryfield raises four issues in this appeal: (1) the responsibility of each party,
(2) the determination of a legal issue on a motion to dismiss, (3) the dismissal of the
facial challenges, and (4) the dismissal of counts for failure to state a claim upon which
relief can be granted.


4

I. The district court did not err in dismissing Merryfield's claim against the district
courts, the damages claim against the State, and the claims against the state officials on
immunity grounds.

Standard of Review

We review de novo whether a government official is protected by absolute
immunity from a § 1983 action. Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1165, 57
P.3d 819 (2002) (citing Scott v. Hern, 216 F.3d 897, 908 [10th Cir. 2000]).

Discussion

A. Claims against the court defendants

The court defendants moved to dismiss the action against them pursuant to K.S.A.
2015 Supp. 60-212(b) for lack of subject matter jurisdiction, lack of personal jurisdiction,
improper venue, and failure to state a claim. The district court granted the court
defendants' motion to dismiss because (1) state district courts are subdivisions of the
State and have no capacity to sue or be sued, citing Hopkins v. State, 237 Kan. 601, 606,
702 P.2d 311 (1985); (2) the court defendants are immune from suit because of
common—law judicial immunity, citing Jarvis v. Drake, 250 Kan. 645, 648, 830 P.2d 23
(1992); and (3) the court defendants are exempt from damages claims under the Kansas
Tort Claims Act. The district court dismissed the claims for injunctive relief on the
additional ground that no district court can issue an order against a coequal district court,
citing Smith v. State, 264 Kan. 348, 354, 955 P.2d 1293 (1998).

The district court was correct in applying the controlling caselaw as to each of
these grounds. Nonetheless, we briefly address Merryfield's arguments.

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Merryfield acknowledges that the State and subordinate governmental entities
cannot be sued absent specific statutory provisions, but he argues that the State has
consented to suit "under the creation of the Kansas Constitution Bill of Rights § 18." He
argues Section 18 guarantees every person a remedy by due course of law for injury done
to one's person, reputation, or property; because the McPherson County District Court is
the entity that injured him, it has the capacity to be sued.

Merryfield is mistaken in his understanding of Section 18. Section 18 does not
create any new rights but merely recognizes long-established systems of laws existing
prior to the adoption of the constitution. Brown v. Wichita State University, 219 Kan. 2,
10, 547 P.2d 1015 (1976). Judicial immunity is long-established law in Kansas. Holland
v. Lutz, 194 Kan. 712, 715, 401 P.2d 1015 (1965). Since the right to sue the State for torts
was denied at common law, that right is not preserved or protected by Section 18. Brown,
219 Kan. at 10. Furthermore, judicial immunity is codified in the Kansas Tort Claims Act
at K.S.A. 2015 Supp. 75-6104(b). The district court properly concluded that the court
defendants were immune from suit; thus, dismissal of Merryfield's claims for injunctive
relief against them was proper.

B. Claims against the State of Kansas

The district court ruled that the State is immune from suit under the Eleventh
Amendment to the United States Constitution. The Kansas Supreme Court has held that
"[t]he State of Kansas has not waived its sovereign immunity from suits seeking
monetary damages under 42 U.S.C. § 1983." Beck v. Kansas Adult Authority, 241 Kan.
13, 21, 735 P.2d 222 (1987). Accordingly, the district court's dismissal of Merryfield's
claims against the State for damages was proper. Dismissal of the claims seeking
declaratory relief was proper as well, for reasons discussed in Sections III and IV, below.


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C. Claims against the individually named defendants

The district court dismissed all claims against the individually named defendants
in their personal and individual capacities, finding that Merryfield failed to allege actions
by the defendants that would show their "personal involvement or participation in the
incident." Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). Thus, the district court
stated, the "lawsuit must stand or fall entirely on the activities of these defendants acting
in their respective official capacities" and ruled that the defendants were entitled to
immunity for their acts in their official roles.

As to Governor Brownback, the district court dismissed all claims against him
because of absolute legislative immunity, citing Torres Rivera v. Calderon Serra, 412
F.3d 205, 213 (1st Cir. 2005). Merryfield does not challenge this on appeal.

As to Secretary Bruffett, Merryfield alleged that because she is the custodian of
the sexually violent predators (SVPs) committed under the KSVPA, she had "direct
involvement in applying the KSVPA in an unconstitutional manner on Plaintiff." In
support, he cites an unpublished opinion, which has no precedential value under Supreme
Court Rule 7.04(g) (2017 Kan. S. Ct. R. 45): Brull v. Jordan, No. 101,755, 2011 WL
420700 (Kan. App. 2011) (unpublished opinion). In Brull, a panel of this court stated:
"The Secretary has a direct and statutory duty to those who have been placed in his
custody, and the plaintiffs' cause of action arises out of the Secretary's claimed failure to
fulfill his own statutory duties to these patients." 2011 WL 420700, at *4. The claimed
failure by the Secretary in Brull was allowing the treatment program's staff to adopt and
implement policies that were contrary to the patients' constitutional and statutory rights.
Brull is not persuasive here because Merryfield's claims seek to impose personal liability,
whereas Brull involved a suit against the Secretary in his official capacity. To impose
personal liability under § 1983, "a plaintiff must show personal involvement or
participation in the incident. Supervisor status alone is insufficient to support liability.
7

[Citations omitted.]" Grimsley, 93 F.3d at 679. Merryfield does not state any facts in his
petition that could establish that Bruffett acted in an individual capacity. Accordingly, the
district court's dismissal of the claims against Bruffett was proper.

As to Attorney General Schmidt, Merryfield states that he named him as a
defendant because he "took some of the actions that make the KSVPA unconstitutional"
in his role in initiating commitment proceedings and annual reviews. But Merryfield's
allegations relate only to Schmidt's role as attorney general and fail to allege personal
conduct by Schmidt that could result in personal liability. Therefore, dismissal of the
claims against him was warranted.

II. Did the district court err in making determinations of legal issues at the motion-
to-dismiss stage?

Merryfield next argues that the district court improperly determined legal issues in
dismissing his complaint prior to discovery. However, that is the purpose of a motion to
dismiss—to test the legal sufficiency of the claims before the parties invest time and
money engaging in discovery of facts and other pretrial proceedings. See 61A Am. Jur.
2d Pleading § 481.

Merryfield argues that he was entitled to further proceedings to develop the facts
of Schmidt's involvement. But under the relevant statute, K.S.A. 2015 Supp. 60-
212(b)(6), the legal sufficiency of a claim is determined based on the well-pleaded facts
stated in the plaintiff's complaint. Hemphill v. Shore, 295 Kan. 1110, 1117, 289 P.3d
1173 (2012). Where, as here, the plaintiff's complaint fails to allege facts that, if true,
would impose liability on the named defendant, dismissal of the complaint prior to
discovery is proper. See Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).
Therefore, the district court did not err in resolving legal issues before permitting the
parties to conduct discovery.
8

III. Did the district court err in ruling that the KSVPA provides jurisdiction for the
courts to apply its provisions?

In Count 1, Merryfield argues that "the KVSPA created no jurisdiction to confine
him," citing K.S.A. 2015 Supp. 59-29a01, 29a03(f), 29a04(b), and 29a06(f). The district
court stated that this assertion is "grounded in a primary misunderstanding of the law and
misinterpretation of the statute."

We agree. The statute conferred sufficient jurisdiction upon the courts to apply its
provisions. See, e.g., K.S.A. 2015 Supp. 59-29a04(b) ("the attorney general may file the
petition in the county where the person now resides, was charged or convicted of any
offense, or was released"); K.S.A. 2015 Supp. 59-29a05 ("the judge shall determine
whether probable cause exists"). The district court properly dismissed Count 1 for failure
to state a claim.

IV. The district court did not err in dismissing Merryfield's constitutional claims
based on lack of standing, mootness, and failure to state a claim.

A. The district court properly dismissed several claims for lack of standing

Standard of Review

Standing to bring an action is a component of subject-matter jurisdiction. The
question of standing is one of law over which this court's scope of review is unlimited.
Gannon v. State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014).




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Discussion

We start our analysis with the claims dismissed for lack of standing because under
the doctrine of constitutional avoidance, we need not reach constitutional challenges
when a valid alternative ground for decision exists. Wilson v. Sebelius, 276 Kan. 87, 91,
72 P.3d 553 (2003). "[A]ppellate courts generally avoid making unnecessary
constitutional decisions." 276 Kan. at 91. Kansas courts do not issue advisory opinions.
See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). By
first deciding the issue of standing, we avoid producing a mere advisory opinion on
constitutionality.

Generally, to have standing—the right to make a legal claim or seek enforcement
of a duty or right—a litigant must have a sufficient stake in the outcome of an otherwise
justiciable controversy to obtain judicial resolution of that controversy. Gannon, 298
Kan. at 1122-23. "To establish a cognizable injury, a party must establish a personal
interest in a court's decision and that he or she personally suffers some actual or
threatened injury as a result of the challenged conduct." Sierra Club v. Moser, 298 Kan.
22, 33, 310 P.3d 360 (2013). The plaintiff has the burden to establish standing. Gannon,
298 Kan. at 1123.

The district court treated 14 of Merryfield's counts as facial challenges and
dismissed them for lack of standing because "[t]here is no imminent threat of these
statutes being applied to plaintiffs' present status or looming over them in the near
future."

Merryfield argues that he has standing to bring these challenges because "a facial
challenge can be brought by any person who will be subjected to said law even if it has
yet to be applied to them," citing Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221,
1228 (10th Cir. 2005).
10

That is not, however, the entire holding of Pacific Frontier. If the statute has not
yet been applied to him, a plaintiff must establish that he has suffered an "injury in fact."
414 F.3d at 1228. "Injury in fact" is defined as "an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or
"hypothetical."' [Citations omitted.]" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). To be "imminent," the alleged injury must be
"certainly impending." See 504 U.S. 564 n.2.

Merryfield does not argue that he has suffered an injury in fact or that the
application of the challenged statutes to him is imminent. Instead, he merely argues that
he has standing "[b]ased on the fact that he is committed and is therefore subject to every
provision of the KSVPA." That assertion fails to meet the standards set out in Lujan; it is
neither concrete nor particularized and is instead conjectural and hypothetical. Merryfield
has failed to meet his burden to demonstrate that he has standing to bring facial
challenges. Thus, the district court's dismissal of counts 3-8, 10-12, 14, 19, 25, 30, and 31
was proper.

We briefly address below each count for which Merryfield lacks standing. In
addition to the counts dismissed by the district court for lack of standing, we find counts
2 and 22 can also be dismissed on that basis.

Counts 2 and 4: Merryfield argues that K.S.A. 2015 Supp. 59-29a05(d), 29a07(d),
and 29a07(f) are unconstitutional because they provide for SVPs to be briefly housed in a
county jail where no treatment is available for mental conditions.

Subsection 29a05(d) concerns holding an SVP in jail during his or her initial
commitment hearing. Merryfield lacks standing to make this claim as he has already had
his initial commitment hearing and is not likely to have another; thus, there is no
imminent threat of the statute's application to him. Merryfield cannot succeed on an as-
11

applied challenge either, because his claim is time-barred; his initial commitment hearing
was in 2000 and a 2-year statute of limitations applies to § 1983 claims. See Levy v.
Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164, 1167 (10th Cir.
2015).

Subsection 29a07(d) concerns holding an SVP in a county jail following arrest or
conviction of a criminal offense or after parole revocation. Subsection 29a07(f) concerns
housing SVPs in county jails following a mistrial. Merryfield lacks standing to bring a
facial challenge to these subsections because he is not in jail currently, has already had
his trial, and is not under arrest or on parole. Merryfield has not shown an imminent
threat that these provisions will be applied to him. Accordingly, the district court
correctly dismissed Count 4 for lack of standing, and Merryfield lacks standing as to
Count 2 as well.

Count 3: Merryfield challenges four unrelated subsections of the KSVPA: K.S.A.
2015 Supp. 59-29a06(b), 29a08(a), 29a18(a), and 29a19(b), alleging that because they do
not allow SVPs to have counsel or an independent examiner, SVPs have fewer rights than
their criminal counterparts. But an SVP's right to counsel is guaranteed in other
subsections, namely K.S.A. 2015 Supp. 59-29a08(a) and (c). Subsection 29a06(b)
concerns the initial commitment proceedings, and subsection 29a19(b) concerns final
discharge. Merryfield is past the initial commitment stage and has not yet reached final
discharge, so he lacks standing to challenge these two subsections. His claim regarding
subsection 29a18(a) fails because Merryfield is not in transitional release and that statute
applies only "[d]uring any period the person is in transitional release."

Merryfield's challenges to subsection 29a08(a) are discussed at length in section B
below, which addresses claims dismissed for failure to state a claim. Ultimately, Count 3
was properly dismissed.

12

Counts 5-8, 11, 30, and 31: Merryfield argues that K.S.A. 2015 Supp. 59-
29a08(f), 29a10(c), 29a11(b), 29a11(c), 29a11(d), and 29a19(d) are unconstitutional
because they prevent outright release. Subsections 29a08(f) and 29a19(d) govern a
person's return to a secure commitment facility after violating a condition of the
transitional or conditional release program. Subsection 29a10(c) relates to petitions for
transitional release. Subsections 29a11(b) and (c) limit where transitional or conditional
release facilities can be located, and subsection 29a11(d) limits how many persons on
transitional or conditional release can be placed in one county. Merryfield lacks standing
to challenge these provisions because he is not on transitional or conditional release and
does not allege facts showing that he qualifies to petition for transitional release under
subsection 29a10(c).

Count 10: Merryfield argues that 2015 Supp. K.S.A. 59-29a12(c), which requires
the committed person to pay for costs associated with transport to self-initiated court
proceedings, is an unconstitutional "outright ban" on access to the court. Merryfield has
filed more than 30 complaints or petitions since being committed, so he is not without
access to the court. Many court proceedings, such as this one, occur without requiring the
presence of any party. Although Merryfield alleges that he "looked into" the costs of
transport and determined that they would be $1,000 or more, he does not allege that the
statute has ever been applied to him or that its application is imminent. Therefore,
Merryfield lacks standing to bring this count.

Count 12: K.S.A. 2015 Supp. 59-29a19(f) provides that persons who have
received final discharge remain subject to prosecution for crimes or civil commitment in
the future. Merryfield lacks standing because he has not been finally discharged.

Count 14: Merryfield's challenge to K.S.A. 59-29a18 in Count 14 fails because it
relates solely to persons in transitional release.
13

Count 19: Merryfield argues that K.S.A. 2015 Supp. 21-5911, which classifies
escape from an SVP program as aggravated escape, is unconstitutional because it treats
SVPs differently from other escapees. We need not reach this equal protection argument
because Merryfield has not escaped or alleged that the application of this statute to him is
otherwise imminent. He therefore lacks standing to bring this count.

Count 22: Merryfield argues that the retroactive application of the 2015
amendments to the KSVPA made by Senate Bill 12 is unconstitutional. In support of this
claim, he alleges in his complaint that staff at Larned State Hospital told him there are
"quite a few new rules and policies that are ready to be enacted if Senate Bill 12 passes
and they will be applied retroactively." This allegation is not sufficient to establish the
"injury in fact" required for standing.

B. The district court properly dismissed counts pursuant to K.S.A. 2015 Supp. 60-
212(b)(6)

We next examine Merryfield's remaining counts to determine whether the district
court erred in finding that none of them stated a claim upon which relief can be granted.

Standard of Review

Whether a district court erred by granting a motion to dismiss under K.S.A. 2015
Supp. 60-212(b)(6) for failure to state a claim is a question of law subject to unlimited
review. We view the well-pleaded facts in a light most favorable to the plaintiff and
assume as true those facts and any inferences reasonably drawn from them. If those facts
and inferences state any claim upon which relief can be granted, then dismissal is
improper. Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).


14

Discussion

The district court dismissed Merryfield's remaining challenges to the
constitutionality of statutes for failure to state a claim upon which relief could be granted.
The appellate courts presume statutes are constitutional and must resolve all doubts in
favor of a statute's validity. We must interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the legislature's
apparent intent. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016). The
burden to establish that statutory changes are unconstitutional is on the party challenging
the statute. See In re Tax Appeal of Wisgerber, 285 Kan. 98, 102, 169 P.3d 321 (2007).

C. The KSVPA does not violate equal protection

Counts 8, 32, and 33: Merryfield alleges that K.S.A. 2015 Supp. 59-29a22
unconstitutionally treats SVPs differently from other civilly committed persons. The
Kansas Supreme Court has repeatedly rejected this kind of equal protection claim,
holding that the class of persons committed under the KSVPA is not similarly situated to
those committed under other civil statutes. Thus, different treatment does not offend
substantive due process or equal protection. In re Care & Treatment of Hay, 263 Kan.
822, 833, 953 P.2d 666 (1998) (citing Kansas v. Hendricks, 521 U.S. 346, 357, 117 S. Ct.
2072, 138 L. Ed. 2d 501 [1997]); Merryfield v. State, 44 Kan. App. 2d 817, 823-24, 241
P.3d 573 (2010) ("[T]he department can subject those found to be sexually violent
predators to treatment and confinement conditions different from those of other civilly
committed persons without violating the Equal Protection Clause."). See also Merryfield
v. State, No. 103,611, 2010 WL 5490743, at *1 (Kan. App. 2010) (unpublished opinion).
Therefore, the district court properly dismissed Counts 8, 32, and 33 for failure to state a
claim for relief.

15

Merryfield also argues on appeal that the KSVPA unconstitutionally creates a
separate class of persons and subjects them to "cruel and unusual treatment, invidious
discrimination and status equal to that of a slave in the early years of the United States."
This issue was not presented to the district court. Accordingly, to the extent Merryfield
raises this and other issues on appeal that were not presented to the district court, we do
not address them. We follow the general rule that issues not raised before the district
court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014). While some exceptions to this rule exist, State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014), an appellant who wishes to raise an issue for the first time on appeal
must proactively invoke an exception and explain why the issue is properly before us.
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); Kansas Supreme Court
Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34). Merryfield has not explained why the issues in
his appellate brief not raised in the district court should be heard now.

Counts 9 and 18: Merryfield challenges K.S.A. 2015 Supp. 59-29a12(a), which
provides that "[p]ayment for the maintenance, care and treatment of any such committed
person shall be paid by the person . . ." on the grounds that it creates "dual taxation" and
on equal protection grounds. The "dual taxation" argument is without merit because the
costs imposed by subsection 12(a) are not taxes.

His equal protection argument in Count 9 is that incarcerated persons are not
required to pay for the costs of their maintenance, care, and treatment, but SVPs are
required to pay for these services. The State responds that the county may seek
reimbursement of medical expenses from a prisoner. K.S.A. 2015 Supp. 19-1910(b)(2).
Further, the county may require an inmate to pay a fee for maintenance in an amount up
to the county's daily cost of housing the inmate, including days prior to conviction.
K.S.A. 2015 Supp. 19-1930. Thus, Merryfield's premise of unequal treatment is based on
a mistake of fact.

16

Merryfield's argument is also based on an incorrect legal premise. He quotes
Chubb v. Sullivan, 50 Kan. App. 2d 419, 425, 330 P.3d 423 (2014), for the proposition
that the "rights afforded prisoners set a floor for the rights that must be afforded sexually
violent predators." The holding, however, is not as broad as Merryfield asserts. Chubb
concerned the conditions of confinement, specifically, whether the SVP had a liberty
interest in visits from a sibling or others, and does not control here. For the above
reasons, Merryfield failed to state a claim upon which relief can be granted in Count 9.

Count 13: Merryfield challenges K.S.A. 59-29a20, which provides that a person
for whom a petition has been filed shall not be released from the physical custody of the
State by bail, bond, house arrest, or any other measures. He did not present argument
regarding this count in response to the State defendants' motion to dismiss, other than to
refer to his pleadings and other filings. Nor has Merryfield cited any authority on appeal
to support his contention that this subsection violates equal protection. An argument that
is not supported with pertinent authority is deemed waived and abandoned. State v.
Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010); see Supreme Court Rule
6.02(a)(5).

Counts 15, 16, 28: Merryfield challenges the entire KSVPA as unconstitutional on
its face for eviscerating and removing "any part, form, or manner of Due Process
protection during any proceeding." Merryfield alleges that the McPherson County
District Court denied him due process by failing to hold timely annual reviews. The
allegations in Counts 15 and 28 have been addressed in Merryfield's recent appeal,
Merryfield v. Bruffett, No. 115,488, 2017 WL 543573 (Kan. App. 2017) (unpublished
opinion), and we adopt that reasoning here. See also Griffin v. Bruffett, No. 115,487,
2017 WL 542184 (Kan. App. 2017) (regarding the same issue). Count 16 is specific to
plaintiff Richard A. Quillen, who is not a party to this appeal.

17

Count 17: Merryfield again asserts that the KSVPA denies the right to counsel, to
independent examination, and to speedy review and enforceable time limits. The first two
allegations were addressed in Count 3, above. As to speedy review, Merryfield cites to
paragraphs 106 and 107 of his complaint concerning delays he has experienced in the
administrative relief system within Larned State Hospital. Because Merryfield fails to tie
the complained-of actions to any policy, he fails to state a constitutional claim. See
Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) (finding even if a state
actor violated another's constitutional rights, the Board can be held liable under § 1983
only if the actions can be characterized as representing an official policy or custom of the
Board).

Count 18: Merryfield argues that K.S.A. 2015 Supp. 59-29a22, concerning the
rights granted to SVPs, unconstitutionally places them in "conditions of confinement
identical to their criminal counterparts," citing Chubb. This argument fails for the same
reasons set forth in our discussion of Chubb in Count 9, above.

Count 20: Merryfield does not explicitly challenge a statute in this count. He
alleges that at an annual review, the State's expert stated that "no evaluation was done or
would be done until he did what the facility wanted in terms of completion of the
treatment program." Merryfield has already taken direct appeals regarding the conduct
and outcomes of his prior hearings. See In re Care & Treatment of Merryfield, No.
112,972, 2015 WL 4716349 (Kan. App.) (unpublished opinion), rev. denied 303 Kan.
1078 (2015). Merryfield cannot relitigate those same claims because of the principle of
res judicata, which generally prevents a person from raising a particular claim after the
court has already ruled on it. See State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361
(2013).

If Merryfield is challenging the constitutionality of a statute, presumably it is
K.S.A. 2015 Supp. 59-29a08(a), which provides that each person committed under the
18

KSVPA "shall have a current examination of the person's mental condition made once
every year." Merryfield argues that at the annual review, the State merely submits a
yearly report reflecting "where the person is at in treatment and whether or not they have
jumped through the hoops and completed the treatment program." He argues that it
amounts to continuing a person's commitment based on performance in a program instead
of being based on an evaluation of the degree of their mental abnormality or personality
disorder and likelihood of committing additional sex crimes if released.

The State argues that we should refuse to consider this issue on appeal because it
does not relate to the claims Merryfield made at the district court. However, he did plead
this issue in his complaint and addressed it in his response to the State defendant's motion
to dismiss. Regardless, dismissal of Count 20 was proper due to failure to state a claim
because Merryfield did not plead facts in his complaint to show that the outcome would
have been any different had his metric of "change in degree of mental abnormality" been
used. Merryfield did not allege any facts showing that the treatment program was not
designed to evaluate change in his mental abnormality or personality disorder or the
likelihood that he would commit additional sex crimes if released.

Count 21: Merryfield alleges that "[t]he presentation of Senate Bill 149 and
Senate Bill 12 illustrates a clearly punitive intent on the part of all Defendants." But none
of the defendants is a legislator; thus, they did not present the bills. Moreover, the United
States Supreme Court has extended absolute legislative immunity from suit under § 1983
to local legislators for their legislative activities, regardless of their motives. Torres
Rivera v. Calderon Serra, 412 F.3d 205, 213 (1st Cir. 2005) (citing Bogan v. Scott-
Harris, 523 U.S. 44, 53-54, 118 S. Ct. 966, 972, 140 L. Ed. 2d 79 [1998]). Accordingly,
Count 21 was properly dismissed for failure to state a claim.

Counts 23 and 24: Merryfield alleges that the 2015 amendment to section 22 of
the KSVPA, which provided that proceedings challenging an action by the Kansas
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Department of Aging and Disability Services (KDADS) must be taken pursuant to the
Kansas Judicial Review Act, took away his right to pursue a writ of habeas corpus and
thus is unconstitutional. Actually, K.S.A. 2015 Supp. 59-29a22(f)(1) concerns exhaustion
of remedies in the setting of administrative hearings. The ability of an SVP to file a
habeas corpus petition has not been abrogated. See K.S.A. 2015 Supp. 59-29a23(a).
Thus, Count 23 does not state a claim upon which relief can be granted.

Counts 25-27, 29, 32: Merryfield does not identify these counts in any of his
arguments and our careful review of the brief did not disclose any discussion of them. An
issue not briefed by the appellant is deemed waived or abandoned. State v. Williams, 303
Kan. 750, 758, 368 P.3d 1065 (2016).

Count 34: Merryfield challenges K.S.A. 2015 Supp. 59-29a08, alleging that it
impermissibly places the burden on the SVP at all times when he or she wants to be
reviewed by the court for release and unconstitutionally denies the appointment of an
independent examiner at the annual review hearing. We will examine these two claims
individually.

First, Merryfield argues that "[t]he first stage of the annual review or other release
proceeding requires the committed person to show the mental abnormality or personality
disorder has so changed that the person is safe for release." He cites a Minnesota case
which examined a Minnesota statute that required the committed person to prove by clear
and convincing evidence that release to a less restrictive environment was appropriate
and available. Karsjens v. Jesson, 109 F. Supp. 3d 1139, 1169-70 (D. Minn. 2015), rev'd
Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). The federal district court found that
provision unconstitutional.

The KSVPA, however, does not impose the higher burden of clear and convincing
evidence. In fact, it does not require the committed person to prove a change but only to
20

show "probable cause exists to believe that the person's mental abnormality or personality
disorder has so changed that the person is safe to be placed in transitional release."
K.S.A. 2015 Supp. 59-29a08(c).

Our Supreme Court has acknowledged this burden, albeit without mentioning
constitutional issues, in In re Care & Treatment of Burch, 296 Kan. 215, 225, 291 P.3d
78 (2012):

"[W]e agree with the Sipe panel which reasoned that 'because a sexually violent predator
bears the burden to establish probable cause at an annual review hearing, the district court
must consider the evidence in the light most favorable to the committed person and
resolve all conflicting evidence in that person's favor.' In re Sipe, 44 Kan. App. 2d 584,
592, 239 P.3d 871. See also Berg, 270 Kan. at 238; Bell, 268 Kan. at 764-65."

Once that minimal burden is met, the KSVPA requires the State to show beyond a
reasonable doubt that the committed person should remain committed. K.S.A. 2015 Supp.
59-29a08(c). See In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 589-90, 239 P.3d
871 (2010). Our statutory provisions are thus distinguishable from those found
unconstitutional in Karsjens.

Given the Supreme Court's endorsement of this burden of proof, and the absence
of indication that the Kansas Supreme Court is departing from its previous position, we
are duty bound to follow its precedent. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360
P.3d 467 (2015).

Merryfield's second challenge to this subsection is that it does not require the
appointment of an independent examiner in the initial phase of an annual review hearing;
instead, the statute vests discretion in the trial court. This is a correct reading of the
statute. However, the trial court's discretion is not unfettered. The district court cannot
21

reject, but must actually consider, a request for an examiner. See In re Care & Treatment
of Zishka, 51 Kan. App. 2d 242, 244, 343 P.3d 558 (2015).

We previously addressed this claim in one of Merryfield's earlier appeals.
Merryfield, 2015 WL 4716349. There, the panel found that Merryfield had abandoned his
claim because he made only a blanket statement that the United States Constitution
guaranteed him the right to an independent examiner but did not provide any analysis of
the case he cited, Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).
2015 WL 4716349, at *4.

Apparently in response to that ruling, Merryfield here expands his challenge,
citing cases in addition to Ake and providing some legal argument to support his claim.
The cases he relies on, however, are criminal cases relating to duties during trial. The
panel in the prior case reached the merits despite finding that he had abandoned the claim
and rejected Merryfield's claims based on Ake and similar cases. See Merryfield, 2015
WL 4716349, at *5. We adopt that discussion and do not repeat it here. For the reasons
stated in that case and above, we conclude that Count 34 was properly dismissed.

In sum, we find no error in the district court's grant of the motions to dismiss. The
district court properly granted the court defendants' and State defendants' motions to
dismiss on grounds of immunity and failure to state a claim. The district court properly
dismissed Merryfield's constitutional claims based on lack of standing, res judicata,
mootness, abandonment of the claim on appeal, and failure to state a claim.

Affirmed.