In the Matter of the Care and Treatment of Cecil W. Emerson.
BY THE COURT
district court does not have jurisdiction over a
litigant's motion to file a direct appeal out of time if
a previous direct appeal by the same litigant had been
dismissed by an appellate court. Jurisdiction over the appeal
remains in the appellate court that dismissed the first
appeal; the appeal can proceed only if the appellate court
withdraws its mandate and allows the appeal to proceed.
of the judgment of the Court of Appeals in 52 Kan.App.2d 421,
369 P.3d 327 (2016). Appeal from Sedgwick District Court;
Gregory L. Waller and Paul Clark, judges. Opinion filed April
7, 2017. Appeal dismissed.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause and was on the brief for appellant.
R. Carswell, assistant solicitor general, argued the cause,
and Natalie Chalmers, assistant solicitor general, and Derek
Schmidt, attorney general, were on the brief for appellee.
appeal raises the question of whether a district court has
jurisdiction to authorize the filing of an out-of-time direct
appeal after a prior direct appeal by the same litigant had
been dismissed by the Court of Appeals. We hold the district
court lost jurisdiction when the initial appeal was docketed
in the Court of Appeals, and, therefore, the district court
could not effectively set aside an order of the Court of
Appeals and reinstate an appeal. Because the district court
did not have jurisdiction, neither this court nor the Court
of Appeals obtains jurisdiction to review the district
court's rulings. Accordingly, we dismiss this appeal.
and Procedural Background
August 1999 the State filed a petition against Cecil Emerson
pursuant to the Sexually Violent Predators Act (SVPA). A jury
found Emerson was a sexually violent predator, and the
district court accordingly ordered Emerson to be
"committed to the custody of the Secretary of Social and
Rehabilitation Services for control, care and treatment until
such time as respondent's mental abnormality or
personality disorder has so changed that respondent is safe
to be at large."
moved for judgment as a matter of law or in the alternative
for a new trial, and the district court denied the motion on
January 5, 2001. In February 2001, Emerson filed a notice of
appeal; he subsequently docketed the case in the appellate
courts by filing several documents with the clerk of the
appellate courts, including a docketing statement and a
certified copy of his notice of appeal. The Court of Appeals
ultimately dismissed Emerson's appeal in 2002 after his
counsel failed to file a brief despite four extensions of
time and a final warning.
that time, as required by K.S.A. 59-29a08, the Secretary of
the Kansas Department of Social and Rehabilitation Services
or its successor, the Secretary of the Kansas Department for
Aging and Disability Services, has conducted a yearly review
and reported to the district court regarding Emerson's
progress, the current state of his mental condition or
personality disorder, and his treatment staff's
recommendation as to whether he should be authorized to
petition the district court for release with the
Secretary's approval. Each year, the Secretary notified
Emerson that his mental condition or personality disorder had
not changed sufficiently so that it would be safe for him to
be at large. Emerson also received annual notice that he had
the right to petition for release over the Secretary's
objection. In some years, he did not waive his right to
further proceedings-although he never actually petitioned the
district court for release-and in other years he formally
waived further proceedings. And each year, the district court
found Emerson should remain in the custody of the Secretary
for further care and treatment.
in July 2014, Emerson, represented by new and present
counsel, moved the district court to permit an out-of-time
appeal of the underlying ruling that he was a sexually
violent predator. Counsel argued Emerson's case fell
under the third exception permitting an out-of-time appeal
set out in State v. Ortiz, 230 Kan. 733, 736, 640
P.2d 1255 (1982) (allowing out-of-time appeal "only in
those [criminal] cases where a defendant either  was not
informed of his or her rights to appeal or  was not
furnished an attorney to exercise those rights or  was
furnished an attorney for that purpose who failed to perfect
and complete an appeal").
State responded that the district court lacked authority to
permit an out-of-time appeal since it could not amend a
notice of appeal filed as long ago as February 2001 or order
an appellate court to reinstate the appeal. It also argued
the timeliness of a notice of appeal was jurisdictional and
Emerson's proposed second notice of appeal would not cure
the Court of Appeals' 2002 dismissal of his case. The
State also noted that Emerson had been committed since
December 13, 2000, and had repeatedly waived further court
proceedings and agreed to stay in treatment.
hearing on Emerson's motion, the district court stated
that although Emerson's case was "a civil action, it
is a quasi-criminal affair. The appellate courts have
recently mentioned in particular that many of the things that
occur within a sexual predator case should be treated as [if]
they were criminal." The State reminded the district
court that in Emerson's case a notice of appeal had been
filed and the Court of Appeals had actually dismissed the
case-his case thus did not involve circumstances where a
notice of appeal had not been filed in the first instance.
The district court ruled that "this case is one that is
presently in a status where the Court has jurisdiction"
and proceeded to hear testimony from Emerson. After hearing
the evidence and counsel's arguments, the district court
ruled that it would give Emerson "the right to appeal
based upon the fact that his previous counsel did nothing