Quillen v. Denning

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NOT DESIGNATED FOR PUBLICATION

No. 114,783

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICHARD A. QUILLEN,
Appellant,

v.

FRANK DENNING, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed July 22, 2016.
Affirmed.

Richard A. Quillen, appellant pro se.

Kirk T. Ridgway, of Rerree, Bunn, Rundberg, Random & Ridgway, Chtd., of Overland Park, for
appellee Frank Denning.

Stephen Phillips, assistant attorney general, for appellee Kevin P. Moriarty.

Before LEBEN, P.J., STANDRIDGE and ARNOLD-BURGER, JJ.

Per Curiam: When a district court judge ordered that sexually violent predator
(SVP) Richard A. Quillen be transported to court for a hearing, Quillen attempted to
enjoin that judge and the county sheriff from housing him in the county jail. The district
court dismissed his petition for want of a ripe controversy, and Quillen appeals. Because
Quillen's claim is contingent on future events that may not occur as anticipated, or indeed
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may not occur at all, we agree with the district court that his claim is not ripe.
Accordingly, we affirm the district court's dismissal of his petition.

FACTUAL AND PROCEDURAL HISTORY

In December 2006, Quillen stipulated that he was an SVP. Consequently, he was
committed to treatment under the Kansas Sexually Violent Predator Act, K.S.A.
59-29a01 et seq. In 2014, Quillen petitioned for transitional release pursuant to K.S.A.
59-29a08. See also K.S.A. 2015 Supp. 59-29a11 (allowing person to file for transitional
release absent approval of the Secretary of the Kansas Department for Aging and
Disability Services). Judge Kevin P. Moriarty ordered Quillen be transported to court for
a review hearing. But Quillen objected, contending that the standard procedure of
housing him in the county jail during such hearings violated his constitutional rights.
Judge Moriarty rejected this argument and ordered that Quillen be housed at the jail or, in
the alternative, waive his appearance.

In response, Quillen petitioned for both a temporary restraining order and a
permanent injunction preventing Judge Moriarty and Johnson County Sheriff Frank
Denning (collectively defendants) from housing him in the county jail during the hearing
or from issuing a similar ultimatum each year during his annual review. Specifically he
requested:

"[T]his Court find that placement in the County Jail for even one day violates his
Constitutional and statutory rights and enjoin the Defendants from:
Housing or placing Plaintiff in the Johnson County Jail or any jail during an
annual review or in the alternative to ensure that if confined in a jail all of his rights will
be provided at all times."

The case was assigned to Judge Paul C. Gurney.

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However, before the district court decided the issue, Quillen appeared in Johnson
County District Court for his hearing. At the hearing, Judge Moriarty not only denied the
petition for transitional release, but he determined that, under the current statutory
procedure for annual review hearings, Quillen would not have qualified for a hearing at
which he had a right to appear personally.

Shortly after this ruling, Judge Gurney dismissed Quillen's petition for a temporary
restraining order and a permanent injunction. After reviewing the statutory procedure, the
district court determined that Quillen's injury—that is, being held in the county jail—was
not ripe for review as he did not presently qualify for an in-person hearing. The district
court found that the question of whether Quillen would someday qualify for a hearing
that he was entitled to attend was too speculative to grant any relief.

Quillen timely appealed.

ANALYSIS

In his sole issue on appeal, Quillen insists that the district court improperly
dismissed his petition.

The defendants presented the same arguments before Judge Gurney that they
present on appeal. First, they argued that an action under K.S.A. 60-1501 would have
been the appropriate means to seek relief since it allows a prisoner to challenge the mode
or conditions of his or her confinement. See Safarik v. Bruce, 20 Kan. App. 2d 61,
Syl. ¶ 5, 883 P.2d 1211 (1994). Second, they argued that under the rule of comity a
district judge has no authority to enjoin the actions of another district judge. See Schaefer
v. Milner, 156 Kan. 768, Syl. ¶ 1, 137 P.2d 156 (1943) ("The general rule is that when a
court of competent jurisdiction acquires jurisdiction of the subject matter and of the
parties, its jurisdiction continues as to all matters therein involved until the issues are
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finally disposed of, no court of coordinate jurisdiction should interfere with its action.").
In other words, appealing to a higher court for relief is the only way to challenge the
legality of decisions made by a judge in a particular case.

But Judge Gurney found yet another reason to dismiss Quillen's action, one not
argued by the parties in front of him, the ripeness doctrine. The question of whether a
claim is ripe for review bears on a court's subject matter jurisdiction. Subject matter
jurisdiction can be raised at any time, even on the court's own motion. Shipe v. Public
Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009). Whether
jurisdiction exists is a question of law over which this court's scope of review is
unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743-44, 295 P.3d 542 (2013).

Kansas courts are constitutionally without authority to render advisory opinions,
and a court's jurisdiction to issue an injunction is dependent upon the existence of an
actual case or controversy. As part of the Kansas case-or-controversy requirement in an
injunction action, courts require the issues to be ripe. Shipe, 289 Kan. at 165-66. An issue
is ripe when it has taken "fixed and final shape" and is no longer "nebulous and
contingent." State ex rel. Morrison v. Sebelius, 285 Kan. 875, Syl. ¶ 15, 179 P.3d 366
(2008). A claim is not ripe for adjudication if it rests upon "'"contingent future events that
may not occur as anticipated, or indeed may not occur at all."' [Citations omitted.]" Texas
v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998). When a
court issues an opinion on a case that is not yet ripe, it exceeds its constitutional authority
and violates the separation of powers doctrine. See Sebelius, 285 Kan. 875, Syl. ¶¶ 14-16.

Quillen argues that, contrary to Judge Gurney's decision, his risk of being housed
in the county jail is ripe for relief. However, he cites almost no authority to support this
position. He merely states "even if it was a hypothetical situation it was proper for the
granting of relief." Failure to support a point with pertinent authority or show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
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failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An
issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler
Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

Regardless of Quillen's failure to adequately brief this issue, we are persuaded to
agree with Judge Gurney. As Judge Gurney observed, under K.S.A. 2015 Supp.
59-29a08(a), each SVP is entitled to an initial review hearing each year, but he or she "is
not entitled to be present at the hearing." If the district court finds probable cause to
believe the SVP's mental status has changed sufficiently to place him or her in
transitional release, the SVP is entitled to a second hearing at which the State must prove
that he or she is not actually safe to be placed in transitional release. K.S.A. 2015 Supp.
59-29a08(c). The SVP is entitled to be present at this second hearing. K.S.A. 2015 Supp.
59-29a08(c).

In other words, the only review hearing guaranteed to Quillen is one he is not
entitled to attend. Quillen's risk of being housed in the county jail is contingent on a
district court finding probable cause that his mental health status qualifies him for
transitional release. See K.S.A. 2015 Supp. 59-29a08(a). Until that time, Quillen is not
entitled to appear before the court, stripping the defendants of any reason to place him in
the jail. Because the chances of Quillen again being called to appear before the district
court is nebulous at best, any decision on this matter would constitute an advisory
opinion. Likewise, Judge Gurney indicated that "[d]efendants respond that there is
currently no other secure location to house [SVPs] during their appearances in Johnson
County, as Osawatomie State Hospital is closed for new admissions." The fact that this
situation will remain the same in the future is also purely speculative.

Moreover, Moriarty's decision at Quillen's review hearing highlights the tenuous
nature of this claim. According to the facts presented at that hearing, Quillen failed to
fully engage in therapy, resisted promotion to the next phase of treatment, and made only
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"'minimal progress in the treatment program.'" And after reviewing the record, Moriarty
determined "beyond any doubt that [Quillen] is not prepared to move to the Transition
Phase of treatment." With so much uncertainty surrounding Quillen's future hearings, it
cannot be said that there is a fixed and final shape to this claim.

All told, Quillen's appeal asks this court to reinstate a petition that attempts enjoin
a past event and possibly prevent a speculative future event from occurring. But any
claim regarding the past event is moot, and any claim as to any future hearings is not
currently ripe because Quillen will only be entitled to appear before the district court if
that court finds probable cause to believe his mental status has changed. Because of all
this, Quillen's requested relief essentially asks this court to exceed its authority and issue
an advisory opinion. See Sebelius, 285 Kan. 875, Syl. ¶¶ 14-16. Instead, we affirm the
district court's decision that it lacked subject matter jurisdiction to consider Quillen's
claim because it is not ripe.

Affirmed.