Right to counsel – challenging quality of sex offense treatment or search and seizure

In Merryfield v. State, an appellate court held that the failure to provide appointed counsel for persons challenging the quality of their treatment under the Kansas Sexual Predator Treatment Program was a violation of both due process and equal protection, where such challenges are “not subject to summary dismissal.” 241 P.3d 573 (Kan. App. 2010).  The petitioner had brought a habeas corpus petition alleging that the facility in which he had been confined for over a decade did not provide constitutionally adequate care, and challenged the training of the staff and some of their methods. Id. at 575-76.

The court relied on the strength of Merryfield’s liberty interest as well as cases from other state and federal courts in order to find a due process right to counsel in such proceedings.  It stated that Merryfield “contends—with sufficient basis to warrant an evidentiary hearing—that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom” and that such a person “must be entitled to the assistance of counsel in the resolution of such substantial claims.”

The Merryfield court also held that even under a rational basis analysis, the statutory scheme flunked equal protection, given that Kansas provided counsel to other civilly committed individuals.  The court explained that while the state had sufficient reasons for treating sexually violent people differently from other civil committees in terms of treatment approach, it did not have a sufficient reason for treating them differently in terms of provision of counsel. It concluded that “[t]here is no rational basis for making it fundamentally more difficult for those committed to the sexual predator treatment program to seek court redress for unconstitutional conduct-including conduct that suggests the constitutionality of the entire program may be questioned-than other civilly committed individuals or inmates”. Id. at 580.

Applying Merryfield, the Court of Appeals in Johnson v. Bruffett, held that a confined person has a constitutional right to counsel in a challenge to search and seizure of the confined person’s property where such claims survive summary dismissal. No. 115,868, 2017 WL 2001623 (Kan. Ct. App. May 12, 2017) (unpublished).  The court examined whether summary dismissal had occurred in the instant case and explained that “[T]he 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.”  The court then reversed and remanded for further proceedings.

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Note:  Pursuant to Kansas Supreme Court Rule 7.04(g), unpublished opinions are not binding and are “not favored for citation and may be cited only if the opinion: (i) has persuasive value with respect to a material issue not addressed in a published opinion of a Kansas appellate court; and (ii) would assist the court in disposition of the issue”.  Any unpublished opinions are included here for illustrative purposes only.