10-22-2010 Kansas:Merryfield v State
For more than a decade, Dustin Merryfield has been confined at the Larned State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. He has filed a habeas-corpus petition under K.S.A. 60-1501 raising claims that go to the core of the Kansas treatment program for sexual predators: Merryfield claims that the program is run so poorly that it doesn't offer a realistic opportunity to cure or improve the mental abnormality for which he has been involuntarily confined. We must reverse the district court summary dismissal of Merryfield's petition because it raises constitutional claims of potential merit.
We also reverse the district court's decision refusing to appoint counsel to represent Merryfield in this habeas action. While there is no general right to counsel in civil habeas cases, the constitutionality of the Kansas Sexually Violent Predator Act depends upon the procedural rights given to those who are involuntarily committed under its provisions.
The Kansas Legislature has explicitly provided a right to counsel to such persons during annual review hearings and has explicitly provided a right to counsel in K.S.A. 60-1501 proceedings to those involuntarily committed under other similar statutes.
We therefore conclude that in the case of habeas actions brought by persons confined pursuant to the Kansas Sexually Violent Predator Act, those persons have a constitutional right to counsel if the district court determines that their petitions cannot be summarily dismissed.
