Right to counsel

Kan. Stat. Ann. § 59-29a06(b) states that in all stages of the proceedings to civilly commit a person as a sexually violent predator, all such persons “shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person.”

However, the high court, in finding a constitutional right to counsel in such cases, has stated that the conclusion that this provision creates a statutory right to counsel

is diminished by K.S.A. 59–29a06(e), which follows up the recitation of that requirement by stating “[t]he provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding against a person otherwise subject to the [Kansas Sexually Violent Predators Act (KSVPA)].” (Emphasis added.) Arguably, this language could be read to mean that the failure to comply with the statute regarding assistance of counsel is not a barrier to proceeding against a person under the KSVPA. If so, the provision for counsel in subsection (b) is made less certain by the subsequent subsection (e) in the same statute.

In re Ontiberos, 287 P.3d 855, 863 (Kan. 2012) (reaching question of constitutional right to counsel owing to issue of strength of statutory right); Johnson v. Bruffett, 2017 Kan. App. Unpub. LEXIS 362 (Kan. Ct. App. May 10, 2017) (clarifying that confined person does not have statutory right to counsel for claims that hospital staff improperly seized property of confined person since such claims are “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.”).

As of June 2017, the KSVPA was amended, bringing three changes to the right to counsel. See 2017 Kan. Sess. Laws ch. 83.  First, while a committed person has always had “a right to have an attorney represent the person” at the annual review hearing to show probable cause for entitlement to transitional release, Kan. Stat. Ann. § 59-29a08(e) (emphasis added), this simply appears to mean that an individual’s private (i.e., non-appointed) attorney cannot be prevented from representing the individual at the hearing.  Following the amendment, however, a new subsection of the transitional release statute now provides that “[f]or the purposes of this section, if the person is indigent and without counsel, the court shall appoint counsel to assist such person,” § 59-29a08(l) (emphasis added), suggesting that a person without existing counsel is entitled to have counsel appointed for the annual review hearing. See In re Zishka, 343 P.3d 558 (Kan. App. 2015) (reversing sexually violent person commitment review hearing decision where person was not appointed counsel). But cf. Johnson v. Bruffett, 394 P.3d 154 (Kan. Ct. App. 2017) (per curiam) (unpublished) (stating that committed individual did not have statutory right to counsel under KSVPA for claim that hospital staff improperly seized individual’s property because such claim “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 [the individual] is a sexually violent predator or on his continuing mental condition under the annual review process.”).

Second, whereas the statute previously stated that, upon showing probable cause, a person was “entitled to the benefit of all constitutional protections” at the transitional release hearing “that were afforded . . . pursuant to” § 59-29a06, this has now been clarified to state that a person is “entitled to the assistance of counsel.” § 59-29a08(g).  

Third, during transitional release, a committed person has the right to appointed counsel to show probable cause for entitlement to conditional release, see § 59-29a18(j), and a right to counsel at the conditional release hearing. § 59-29a18(g).