noting previous holdings that the word “may” in K.S.A. 2007 Supp. 59-29a08[a] dictates that the district court has discretion over the appointment of an independent medical examiner
How later courts described this case
- noting previous holdings that the word “may” in K.S.A. 2007 Supp. 59-29a08[a] dictates that the district court has discretion over the appointment of an independent medical examiner
- discussing the program phases
Written by the judges who cited it.
The opinion
Greene, C.J.,
concurring: I write separately only to express concern regarding the majority’s suggestion that in evaluating the decision of the staff to demote Twilleger from phase 6 to phase 3 of the program, we “should defer to the judgment of the mental health professionals on the treatment staff of the SPTP regarding treatment methods that are appropriate for a particular person.” I recognize that this principle is correctly cited to Merryfield v. State, 44 Kan. App. 2d 817, 821 , 241 P.3d 573 (2010), but I respectfully suggest that the Merryfield panel was overbroad in lifting this principle from Youngberg v. Romeo, 457 U.S. 307, 322-23 , 102 S. Ct. 2452 , 73 L. Ed. 2d 28 (1982).
The United States Supreme Court in Youngberg addressed the due process rights of an involuntarily committed mentally retarded person, who claimed that his “training” had been inadequate. The Court merely suggested that, “[i]n determining what is ‘reasonable’ — in this and in any case presenting a claim for training by a State — we emphasize that courts must show deference to the judgment exercised by a qualified professional.” (Emphasis added). 457 U.S. at 322-23 . I respectfully suggest that although we may defer to such professionals on the reasonableness of minimally adequate training for such persons, it is quite a different matter to “defer” to such professionals on the more important questions of individual progress of the person toward goals and advancement through “phases,” and ultimately on the question whether the person’s abnormality or disorder has so changed that the person is safe to be at large.
Moreover, I respectfully suggest that tire Supreme Court’s use of the term “defer” was taken out of context by the Merryfield *315 panel. I do not believe the Supreme Court has mandated that courts step aside completely in such matters. In fact, the Court suggested that a question of training adequacy, if made by a professional, may not lead to liability for the professional unless “the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” (Emphasis added.) 457 U.S. at 323 .
The constitutionality of our Sexually Violent Predator Act is dependent on statutory and constitutional due process considerations. See Kansas v. Hendricks, 521 U.S. 346 , 117 S. Ct. 2072 , 138 L. Ed 2d 501 (1997). It is necessary to balance on a case-by-case basis the liberty of the individual and the demands of an organized society. Poe v. Ullman, 367 U.S. 497, 542 , 81 S. Ct. 1752 , 6 L. Ed. 2d 989 (1961) (Harlan, J. dissenting) (quoted in Youngberg, 457 U.S. at 320 ). Outright “deferral” to institution professionals on matters of individual progress toward stated goals is not in keeping with this court’s responsibility to balance fundamental rights against institutional demands.
I concur in the judgment here because I agree with the ultimate conclusion that overwhelming evidence supported a reasonable belief that Twilleger’s abnormality or disorder had not so changed that he was safe to be placed in transitional release.