In the Matter of the Care and Treatment of Thomas Easterberg.
BY THE COURT
Under article 3, section 3 of the Kansas Constitution, the
Kansas Supreme Court has the power to hear and decide an
original action in habeas corpus.
Kansas Supreme Court Rule 9.01(b) (2018 Kan. S.Ct. R. 58)
provides that in an original action, an appellate court
ordinarily will not exercise original jurisdiction if
adequate relief appears to be available in the district
court. If relief is available in the district court, a
petition must state the reason why the action is brought in
the appellate court instead of in the district court.
3. In a
proceeding to commit a person under the Kansas Sexually
Violent Predator Act (KSVPA), K.S.A. 2017 Supp. 59-29a01 et
seq., the State has the burden to prove beyond a reasonable
doubt that: (1) the individual has been convicted of or
charged with a sexually violent offense, (2) the individual
suffers from a mental abnormality or personality disorder,
(3) the individual is likely to commit repeat acts of sexual
violence because of a mental abnormality or personality
disorder, and (4) the individual has serious difficulty
controlling his or her dangerous behavior.
KSVPA requires the State to prove that a person actually
committed the acts constituting a sexually violent offense
before that person is subject to involuntary commitment under
"sexually violent offense" is defined in the KSVPA
as any of the sex related offenses listed in K.S.A. 2017
Supp. 59-29a02(e) and "any act which either at the time
of sentencing for the offense or subsequently during civil
commitment proceedings pursuant to this act, has been
determined beyond a reasonable doubt to have been sexually
motivated." K.S.A. 2017 Supp. 59-29a02(e)(13).
the issue of a crime's sexual motivation is litigated in
a person's criminal case, the State is estopped from
relitigating that point in a KSVPA proceeding to prove that a
crime is a sexually violent offense for purposes of the
Original proceeding in habeas corpus.
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 Bryan C. Clark, assistant solicitor general, and Derek
Schmidt, attorney general, were with him on the brief for
an original proceeding in habeas corpus. Thomas Easterberg
argues he must be released from confinement because the State
has no statutory basis to civilly commit him under the Kansas
Sexually Violent Predator Act (KSVPA), K.S.A. 2017 Supp.
59-29a01 et seq.
present showing, we hold that there is a fact question for
the district court to resolve in order to determine whether
Easterberg's writ should be granted; therefore, we remand
this action to the district court with directions.
and Procedural Overview
2007, the State charged Easterberg with multiple crimes that
included the sexually violent offenses of rape and aggravated
criminal sodomy. As part of a plea agreement, the State
dismissed these charges in exchange for Easterberg's plea
to kidnapping and aggravated battery. Easterberg was
sentenced to 114 months' imprisonment for his
convictions. On the Sentencing Guidelines Journal Entry of
Judgment for these convictions, the district court checked
the boxes indicating Easterberg's crimes were not
sexually motivated for purposes of the Kansas Offender
Registration Act (KORA), K.S.A. 22-4902(c)(14).
to Easterberg's scheduled release from prison, the Kansas
Department of Corrections provided notice to the Kansas
Attorney General that Easterberg may meet the criteria of a
sexually violent predator under the KSVPA. Subsequently, the
Attorney General's Office filed a petition seeking to
involuntarily commit Easterberg as a sexually violent
moved to dismiss the action, arguing that the State had no
statutory basis to file the petition for his commitment. He
contends that the State may only initiate proceedings under
the KSVPA when a person has been: (1) convicted of a sexually
violent crime; (2) found incompetent to stand trial; (3)
found "not guilty" by reason of insanity; or (4)
found "not guilty" by reason of a mental disease or
defect. Because none of the statutory means of initiating the
commitment process applied to him, Easterberg asserts that
his case must be dismissed. Further, Easterberg claims that
the fact that the sentencing court in the criminal case
specifically found the crimes of conviction were not sexually
motivated precludes a contrary finding by the district court
in this case.
district court denied Easterberg's motion to dismiss and
found probable cause existed to believe Easterberg was a
sexually violent predator. Following that probable cause
determination, Easterberg filed this original action. After
considering the State's response to the writ of habeas
corpus and Easterberg's reply, this court ordered
briefing and oral arguments.
State argues that this court lacks jurisdiction to consider
Easterberg's habeas corpus petition. Alternatively, the
State asserts that, even if this court has jurisdiction, it
should decline to exercise it. Given that our acceptance of
either argument would end this matter, we consider them
start with the State's contention that this court does
not have jurisdiction to entertain Easterberg's petition
for writ of habeas corpus. Recently, in State v.
Dunn, 304 Kan. 773, 375 P.3d 332 (2016), we sought to
rectify the sometimes careless use of jurisdictional
arguments. We clarified that subject matter jurisdiction
means "'the power of the court to hear and decide a
particular type of action, '" and we declared that
"the Kansas Constitution dictates the existence of
subject matter jurisdiction." 304 Kan. at 784, 813. In
this instance, our constitution is quite explicit in
dictating the existence of our jurisdiction in habeas corpus
actions, to-wit: "The supreme court shall have original
jurisdiction in proceedings in quo warranto, mandamus, and
habeas corpus; and such appellate jurisdiction as may be
provided by law." Kan. Const. art. 3, § 3.
State acknowledges that constitutional mandate but
nevertheless argues that, when our Kansas Constitution was
adopted in 1859, Easterberg's petition "would not
have been considered a proceeding in habeas corpus."
Specifically, the State suggests that, in 1859, "habeas
corpus was generally not available to challenge a
person's detention pursuant to legal process by a court
of competent jurisdiction; instead, the writ was
primarily limited to illegal executive detention and
detention by courts that lacked jurisdiction." (Emphasis
added.) Of course, such equivocal notions as
"generally" and "primarily" are
inconsistent with the foundational concepts of subject matter
jurisdiction, e.g., jurisdiction cannot be waived or
stipulated to and a judgment without subject matter
jurisdiction is void. See Dunn, 304 Kan. at 784
("The existence of subject matter jurisdiction cannot be
waived . . . . A conviction obtained in a court without
subject matter jurisdiction is void."). If a court
can consider a person's challenge to being
unlawfully detained-for instance because of exceptional
circumstances or for secondary reasons-that court does not
lack subject matter jurisdiction over the cause of action.
State relies heavily on federal precedent to support its
historical argument that this court's original
jurisdiction in habeas corpus proceedings is limited to the
primary purpose for which that proceeding was used in 1859.
For instance, it cites to the dissent in Boumediene v.
Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41
(2008), a case dealing with the Suspension Clause in the
United States Constitution. That minority opinion argued that
"[t]he nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ that was
available at the time of the founding [of the United
States]." 553 U.S. at 844 (Scalia, J., dissenting).
Pointedly, however, the State does not mention
Boumediene's majority opinion which noted the
inherent shortcomings in the historical record of 18th
century habeas proceedings and which, in discussing adequate
substitutes for habeas corpus, posited that "common-law
habeas corpus was, above all, an adaptable remedy. Its
precise application and scope changed depending upon the
circumstances." 553 U.S. at 779; see also Jones v.
Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d
285 (1963) ("[Habeas corpus] is not now and never has
been a static, narrow, formalistic remedy.").
we are presented with a question of Kansas constitutional
law, which is uniquely ours to decide. Even if one adopts an
originalist viewpoint, the touchstone would be what was in
the minds of the drafters of our constitution, rather than
the intent of our nation's founders nearly a century
earlier. Granted, federal decisions may inform this
court's interpretation of Kansas law. For instance, in
Lonchar v. Thomas, 517 U.S. 314, 322, 116 S.Ct.
1293, 134 L.Ed.2d 440 (1996), cited by the State, the Supreme
Court stated that the "most basic purpose" of the
writ of habeas corpus is "avoiding serious abuses of
power by a government." And contrary to the State's
contention, In re Chapman, Petitioner, 156 U.S. 211,
215, 15 S.Ct. 331, 39 L.Ed. 401 (1895), declared that,
although generally a writ of habeas corpus "will not lie
where there is a remedy by writ of error or appeal,"
there are exceptional cases in which the habeas corpus may be
used despite the existence of such a remedy.
respect to this state's caselaw, the parties do not
direct our attention to any precedent explicitly discussing
article 3, section 3 of the Kansas Constitution in the
context of determining the scope of our original jurisdiction
to consider an action in habeas corpus. The State points to
State v. Shores, 187 Kan. 492, 493, 357 P.2d 798
(1960), which declared that the notion "[t]hat habeas
corpus is not a substitute for an appeal is elementary,"
and to James v. Amrine, 157 Kan. 397, 399, 140 P.2d
362 (1943), which recognized the general rule that a habeas
corpus proceeding is not a substitute for direct appeal and
"cannot be used to review ...