Opinion
No. 111204.
01-16-2015
Dustin J. MERRYFIELD, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, et al., Appellees.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Ryan W. Thornton, Litigation Counsel, of Kansas Department for Aging and Disability Services, for appellees.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Ryan W. Thornton, Litigation Counsel, of Kansas Department for Aging and Disability Services, for appellees.
Before MALONE, P.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
Dustin Merry field challenges policies of the Kansas Sexual Predator Treatment Program that limit the ability of its resident patients to seek pen pals and exchange letters with certain groups of people, including prison inmates. Merry field claims that adopting these policies without giving him prior notice violated his procedural-due-process rights and that the restrictions on his rights to free speech and association violate his substantive-due-process rights under the First Amendment.
But the district court provided Merryfield an evidentiary hearing and an attorney to represent him, so any violation of Merryfield's procedural-due-process rights was cured. And the clinical director of the Sexual Predator Treatment Program testified that Merryfield still could seek pen pals or contact with otherwise-prohibited individuals through his therapist. We therefore find that his fundamental rights have not been violated.
Factual and Procedural Background
Since December 2000, Merryfield has been involuntarily confined by court order at the Larned State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59–29a01 et seq. See Merryfield v. State, 44 Kan.App.2d 817, 818, 241 P.3d 573 (2010). He is there as a patient in the hospital's Sexual Predator Treatment Program, which provides treatment to rehabilitate violent sex offenders and protects the public by confining those individuals pending their rehabilitation. See K.S.A. 59–29a01 ; Johnson v. State, 289 Kan. 642, 650–51, 215 P.3d 575 (2009). The Sexual Predator Treatment Program is operated under the authority of the Kansas Department for Aging and Disability Services.
Merryfield's present lawsuit challenges the hospital's policy limiting patients' ability to solicit potential pen pals and to correspond with certain types of people. Merryfield contends that these restrictions interfere with his First Amendment rights to free speech and association and that the manner in which the policies were adopted violated his right to due process.
That policy, called “RIGHT–103” by the hospital, contains two provisions that Merryfield has challenged. The first, paragraph 7, generally prohibits patients from corresponding by mail with inmates in correctional facilities, former inmates sent to a Kansas prison, and residents at Larned State Hospital who are not in the Sexual Predator Treatment Program, though there are exceptions:
“In the best interest of public safety and for security purposes of the program, [the Sexual Predator Treatment Program] prohibits any resident from corresponding by mail with any other [Larned State Hospital] patient/resident, or any person in the custody of or under the supervision of any state, federal, county, community corrections, or municipal law enforcement agency or with any former Department of Corrections inmate regardless of current custodial status, unless one of the following conditions is met:
a) The proposed correspondents are members of the same immediate family or are parties in the same legal action, or one of the persons is a party and the other person is a witness in the same legal action;
b) Permission for the correspondence is granted due to exceptional circumstances. Verification and approval of correspondence shall be at Treatment Team discretion and documentation shall be entered in the medical record as to the exceptional circumstance and why approval is granted; or
c) The resident/patient is a resident/patient within the [Sexual Predator Treatment Program] and/or [Transitional House Services, part of the transition phase from the Sexual Predator Treatment Program to conditional release].
“Unless covered by one of the above listed exceptions in # 7, mail will be returned to the sender, unopened. Residents will be informed the mail was returned via receipt of a [Sexual Predator Treatment Program] Shakedown and Search Report (SPMR–21).”
Paragraph 7 explicitly provides that exceptions to the prohibitions on contact may be granted by the treatment providers for “exceptional circumstances.”
The second paragraph Merryfield challenges, paragraph 9, prevents patients from soliciting pen pals through media available to the general public, including children:
“[Sexual Predator Treatment Program] residents are not allowed to post ads or messages for the purpose of soliciting pen pals, correspondence, or relationships in any media available to the general public and minor children. Residents cannot request or purchase pen pal lists from any organization and/or advertisement. This includes newspapers, flyers, newsletters, magazines, or the internet. Additionally, a pen pal will require prior approval by the primary facilitator/therapist. Lastly, residents will not cause any third party or outside person or process to act on their behalf to solicit correspondence or relationships via the media.”
Merryfield learned of the policy when it was posted in the hospital. He filed a formal complaint about it, arguing that it impermissibly interfered with his right to communicate with people of his choosing and that its implementation without a hearing had denied him due process. The Sexual Predator Treatment Program has a multi-step grievance process, and Merryfield pursued the complaint through that route. All five individuals who reviewed his complaint denied him relief, but none of the responses explained why the restrictions had been imposed.
Merryfield then brought this habeas corpus action under K.S.A. 60–1501. The district court appointed an attorney to represent Merryfield and held an evidentiary hearing on the allegations.
Cory Turner, the director for psychological services, testified that the restrictions had been enacted to protect both the public and the therapeutic environment of the hospital. He said that the pen-pal regulation prevented patients from assuming false identities and from victimizing or manipulating their correspondents, who might be children. He said that an alternative proposed by Merryfield-periodic polygraph tests of residents about their contacts with outsiders-would not prevent these problems; rather, it would at best only discover them after the problems had materialized.
Dr. Austin DesLauriers, the clinical program director, said that the policy had been enacted because some patients had been communicating with the public in dangerous and misleading ways. He also said that the restrictions on communications with other patients or inmates had arisen because of patients who had exchanged inappropriate sexual fantasies, had detailed sexual conversations, or had other inappropriate content in their communications, all of which disrupted the hospital's therapeutic environment.
DesLauriers said that the restrictions were not absolute ones-a patient could get permission to speak with a prohibited individual or could even solicit a pen pal through his therapist.
Merryfield testified about his objections to the policy. He agreed, however, that he had not asked permission from a therapist to correspond with a pen pal or anyone else with whom contact was prohibited under the policy. He also agreed that he had been allowed to correspond with his brother, who was incarcerated, under the family-member exception in the policy.
The district court concluded that Merryfield's rights had not been violated and dismissed the claim. The court said that the policy was “rationally related to the treatment and public safely interest to be protected,” and it noted that the policy itself allows for “an exception to the pen pal prohibition on a case-by-case treatment decision if approved by the primary facilitator/therapist” of the patient. Accordingly, the court found no violation of the patient's First Amendment rights.
Merryfield has appealed to this court.
Analysis
Merryfield alleges that the policy violates his due-process rights in two ways. First, he claims it violates his right to procedural due process because the restrictions on his ability to communicate with others were adopted without advance notice and an opportunity for him to voice his opinion. Second, he claims the policy violates his substantive-due-process rights by unreasonably restricting his First Amendment rights to free speech and association. These claims are properly before us: A person committed to the Sexual Predator Treatment Program who claims a violation of his due-process rights may bring a habeas corpus action under K.S.A. 60–1501. Johnson, 289 Kan. 642, Syl. ¶ 1. The person may be entitled to relief if he shows continuing treatment that denies a constitutional right. 289 Kan. 642, Syl. ¶ 2.
I. Because Merryfield Received an Evidentiary Hearing in the District Court, He Has Not Shown a Procedural–Due–Process Violation.
Merryfield first claims violation of his right to procedural due process. To show a violation, a person must have a fundamental life, liberty, or property interest at stake, and that right must entitle the person to some procedure—usually notice and the opportunity to be heard—that the person wasn't given. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) ; Murphy v. Nelson, 260 Kan. 589, 597–98, 921 P.2d 1225 (1996).
Merryfield has fundamental liberty interests at stake. Patients in the Sexual Predator Treatment Program are civilly committed, not criminally sentenced, and even “[t]he interest of prisoners and their correspondents in uncensored communication by letter ... is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment.” Procunier v. Martinez, 416 U.S. 396, 418, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413–14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). See 3 Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.4(a) (5th ed.2012) (noting that where the government denies “a person the ability to exercise a right with special constitutional protection (such as the right to free speech or the right to privacy), this restraint would constitute a clear deprivation of liberty”).
For prison inmates, determining whether a fundamental liberty interest is at stake has a second step—the court also must determine whether the burden imposed on the inmate's right is an atypical and significant hardship that is greater than the mere fact of incarceration. Schuyler v. Roberts, 285 Kan. 677, 682, 175 P .3d 259 (2008) ; Stansbury v. Hannigan, 265 Kan. 404, 421, 960 P.2d 227 (1998). Here, of course, those who are civilly committed are entitled to treatment that is generally more considerate than that given to prison inmates. Youngsberg v. Romeo, 457 U.S. 307, 321–22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). We need not decide whether this second step must be applied to the claims of civilly committed persons because even if we apply it, Merryfield's claim qualifies for further consideration.
Substantially limiting the ability of a civilly confined person to meet new people or communicate with people of his choice is a significant and atypical hardship. Merryfield's situation demonstrates the importance of such a limitation. Merryfield has been in the Sexual Predator Treatment Program since December 2000, a period now more than 14 years. Whether he will ever leave the program is uncertain.
Most Americans do not give much thought to having a pen pal. For a civilly committed patient, however, a pen pal represents the ability to meet new people and potentially form new friendships; losing this ability is a significant and atypical hardship. See Martyr v. Bachik, 755 F.Supp. 325, 328 (D.Ore.1991). Merryfield has a fundamental liberty interest at stake here.
We next must decide what process was due under the circumstances. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, Syl. ¶ 7, 291 P.3d 1056 (2013) ; Murphy, 260 Kan. 589, Syl. ¶ 5. Due process is a flexible concept depending upon the circumstances and requires only the procedural protections demanded by the particular situation. In re Care & Treatment of Ontiberos, 295 Kan. 10, 22, 287 P.3d 855 (2012). Even so, the basic elements of due process are notice and an opportunity to be heard. State v. Robinson, 281 Kan. 538, 547–48, 132 P.3d 934 (2006).
Merryfield argues that he was entitled to the hearing called for under K.S.A.2013 Supp. 59–29a22(c). K.S.A.2013 Supp. 59–29a22(b)(15) generally provides patients in the Sexual Predator Treatment Program with “a right to send sealed mail and receive sealed mail to or from other persons,” subject to limitations for reasons like security or protection of the therapeutic-treatment process. K.S.A.2013 Supp. 59–29a22(c) then provides that the patient's rights, including that of sending and receiving mail, “may be denied for cause after review”; the patient must be “informed in writing of the grounds for withdrawal of the right” and has the right to an informal hearing and further review under formal grievance proceedings. In several other cases involving the restriction of rights provided under K.S.A.2013 Supp. 59–29a22(b), our court has found that the hearing procedure under K.S.A.2013 Supp. 59–29a22(c) is the appropriate method for meeting due-process requirements. E.g., Pew v. Sullivan, 50 Kan.App.2d 106, 112, 329 P.3d 496, rev. denied ––– Kan. –––– (June 20, 2014); Quillen v. Sullivan, No. 109,790, 2014 WL 802421, at *4 (Kan.App .2014) (unpublished opinion); Merryfield v. SRS, No. 102, 384, 2009 WL 5206252, at *2–3 (Kan.App.2009) (unpublished opinion).
The Kansas Department for Aging and Disability Services argues the hospital's five-step grievance process satisfied any hearing required to meet constitutional due-process standards. In the alternative, the Department argues that the district court's evidentiary hearing cured any procedural irregularities.
To decide this case, we need not determine whether the hearing provided for under K.S.A.2013 Supp. 59–29a22(c) was constitutionally required to provide due process to Merryfield. That's because even if individualized hearings of that nature are required before mail is restricted, the Department is correct that Merryfield's evidentiary hearing in the district court—along with the district court's independent judgment about whether the restrictions had been justified—provided due process to Merryfield. See Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 799, 133 P.3d 104 (2006) (noting that an evidentiary hearing before the district court could cure a lack of procedural due process in an administrative setting); but see Manzano v. Kansas Dept. of Revenue, 50 Kan.App.2d 263, 271–72, 324 P.3d 321 (2014) (holding that evidentiary hearing before district court did not cure problem of sham administrative hearing where person had lost the opportunity to explore and identify issues for later consideration).
Here, the district court heard evidence in an evidentiary hearing, and Merryfield had an attorney to represent him at that hearing. We find no violation of his procedural-due-process rights.
II. Because Merryfield Still Has Unexplored Options Available to Him to Seek a Pen Pal, He Has Not Shown a Substantive–Due–Process Violation.
While procedural due process protects the steps that the government must follow when it deprives a person of life, liberty, or property, substantive-due-process rights protect the underlying freedoms themselves. Substantive due process protects fundamental rights and interests of the individual against arbitrary government interference. Washington v. Glucksberg, 521 U.S. 702, 719–20, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Not every deprivation of liberty or property is subject to a substantive-due-process challenge; the right must be fundamental. 521 U.S. at 720–21 ; see Lawrence v. Texas, 539 U.S. 558, 588, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (Scalia, J., dissenting).
The United States Supreme Court has determined that the indefinite, involuntary commitment of sexually violent offenders in Kansas is not itself a violation of substantive due process. Kansas v. Hendricks, 521 U.S. 346, 356–60, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Although freedom from bodily restraint is unquestionably a fundamental liberty interest, the civil detention of these individuals is not unconstitutional so long as it is for mental-health treatment, whenever possible, and does not serve a punitive function. 521 U.S. at 365–69 ; see Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) ; Johnson, 289 Kan. at 653–56 ; Merryfield, 44 Kan.App.2d at 820–21 ; In re Care & Treatment of Miles, 42 Kan.App.2d 471, 476, 213 P.3d 1077 (2009).
Nevertheless, even prison inmates do not lose all of their constitutional rights upon incarceration. In the prison context, in Turner v. Safley, 482 U.S. 78, 89–91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the United States Supreme Court provided four factors a court should consider in deciding whether a prisoner's First Amendment rights had been unduly restricted: (1) whether the restriction is rationally related to a legitimate government interest; (2) if so, whether the government has left alternate ways for the individual to exercise the restricted right; (3) what effect an accommodation of the right would have on guards, other inmates, and facility resources; and (4) whether alternative restrictions are available that would serve the government's interests without restricting the individual's right. See Rice v. State, 278 Kan. 309, 321–36, 95 P.3d 994 (2004) (applying Turner). While the Turner test came out of a case involving convicted inmates, the Supreme Court has said that the need to balance the interests of a penal institution and the rights of the incarcerated also applies to pretrial detainees, who have not been convicted. Bell v. Wolfish, 441 U.S. 520, 545–46, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). And the Court has noted that pretrial detainees and civilly committed individuals have a similar status under the law. Youngberg, 457 U.S. at 320–21.
Our court has applied the Turner factors when considering substantive-due-process claims of patients in the Sexual Predator Treatment Program. See Chubb v. Sullivan, 50 Kan.App.2d 419, 440–45, 330 P.3d 423, rev. denied 300 Kan. –––– (October 31, 2014). In doing so, we have noted that a fifth factor applies in this context: since the person is civilly committed, not incarcerated after a criminal conviction and sentencing, the government interest at issue cannot be punitive. 50 Kan.App.2d at 440, 444.
When we apply the modified Turner factors here, we find no substantive-due-process violation:
• The restriction is rationally related to an important governmental interest—protecting the public. Before the restrictions were put in place, some patients had allegedly committed new federal crimes while in the Sexual Predator Treatment Program. See United States v. Brull, 2013 WL 1092885, at *1 (D.Kan.2013) (unpublished opinion) (noting federal criminal charges against person who, while in program, allegedly solicited a minor to engage in sexually explicit conduct). Similarly, Turner and DesLauriers testified that uncontrolled contact between patients and others, especially inmates, had led to nontherapeutic contacts and communications. Thus, the two main purposes of the Sexual Predator Treatment Program—treatment of these offenders and protection of the public until they have been rehabilitated—are directly related to the restrictions.
• According to DesLauriers' testimony, the government has left alternate ways for Merryfield to solicit pen pals or seek permission to speak with an otherwise-prohibited individual: by making that request through a therapist. Merryfield has neither attempted this alternative nor argued that it lacks viability.
• The third factor—the effect of accommodating the requested rights on others—does not seem to be a major consideration here. But the work of the facility's therapeutic staff would be more difficult if patients make improper contacts, and at least some patients were making improper contacts before the policy was instituted.
• Merryfleld's proposed alternative to restricting the privileges was to give polygraph tests to patients to be sure that they were not abusing the privileges. Merryfield has not shown that this would be a viable policy, and the Department properly notes that it would not stop problems from occurring. At best, it would disclose improper conduct after it had taken place.
• There is no indication in our record that this policy was enacted for punitive reasons.
In sum, although Merryfield demonstrated that a fundamental right was at issue here, he has not demonstrated that his substantive-due-process rights have been violated where the Department has left open alternative ways for him to obtain pen pals and have contact with individuals outside the Sexual Predator Treatment Program.
The district court's judgment is affirmed.