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No. 112,256

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of

TODD ELLISON.

SYLLABUS BY THE COURT

1.

Both the adjudication and commitment of a person under the Sexually Violent 

Predator Act, K.S.A. 59-29a01 et seq., impair that person's substantive due process right 

to liberty and, in turn, require procedural due process protections.

2.

Constitutionally sufficient procedural due process requires that a person be 

afforded a right to be heard in a meaningful way before being deprived of life, liberty, or 

property. A hearing ceases to be constitutionally meaningful if it is materially delayed 

and, thus, untimely.

3.

The multifactor test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 

L. Ed. 2d 101 (1972), to assess constitutional speedy trial rights in criminal cases 

provides an appropriate model for measuring the procedural due process right to a timely 

adjudication of a civil commitment petition under the Sexually Violent Predator Act.

4.

The Barker decision identified four considerations in evaluating a possible 

constitutional violation based on the lapse of time in bringing a criminal defendant to 

trial: (1) the length of delay; (2) the reasons for the delay; (3) the defendant's assertion of
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the constitutional right; and (4) the prejudice to the defendant arising from the delay. 

Those factors are discussed in the context of a civil commitment proceeding under the 

Sexually Violent Predator Act.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed July 24, 

2015. Reversed and remanded with directions.

Natalie Chalmers, assistant solicitor general, for appellant. 

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.

Before MALONE, C.J., PIERRON and ATCHESON, JJ.

ATCHESON, J.: The State appeals an order of the Sedgwick County District Court 

dismissing its action to have Todd Ellison involuntarily committed as a sexually violent 

predator. The case had languished for more than 4 years as Ellison sat in the Sedgwick 

County jail awaiting a trial—a delay the district court held violated his constitutional 

rights. We agree that Ellison was constitutionally entitled to a timely adjudication of the 

State's petition. But the district court failed to correctly apply the legal standards for 

assessing Ellison's asserted constitutional deprivation. We, therefore, reverse and remand 

for further proceedings to allow the district court to do so.

In June 2009, the State filed a petition to commit Ellison under the Sexually 

Violent Predator Act, K.S.A. 59-29a01 et seq., and he still had not received a trial when 

the district court dismissed the case in March 2014. The issue before us rests solely upon 

the legal implications of that delay. Based on representations to us at oral argument, we 

understand Ellison was released from custody as a result of the district court's order of 

dismissal and remains free. 
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As provided in the Act, a person may be adjudged a sexually violent predator and 

indefinitely committed for treatment to a secured facility on the grounds of the Larned 

State Hospital or elsewhere. Based on an initial determination from a multidisciplinary 

team and a review committee that a convicted sex offender meets the definition of a 

sexually violent predator, the attorney general may file a petition to have the person 

committed. K.S.A. 59-29a03; K.S.A. 2014 Supp. 59-29a04. The person must then be 

detained for trial without bond or other means of conditional release. That's what 

happened to Ellison as he approached his discharge from prison for criminal convictions 

designated in the Act as predicate offenses. 

To prevail at trial on a commitment petition, the State must prove that the 

individual: (1) has been convicted of or charged with a crime designated as a sexually 

violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to 

commit an act of sexual violence because of that abnormality or disorder; and (4) 

displays serious difficulty controlling his or her dangerous behavior. In re Care & 

Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see K.S.A. 2014 

Supp. 59-29a02(a). The commitment proceeding is a civil action rather than a criminal 

prosecution, since the individual is being detained for treatment of a mental condition and 

not as punishment for past conduct. 

Both the adjudicatory process, including mandatory pretrial detention, and a 

commitment under the Act substantially impair a liberty interest protected in the Due 

Process Clause of the Fourteenth Amendment to the United States Constitution. Foucha 

v. Louisiana, 504 U.S. 71, 78-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (government 

effort to involuntarily commit individual because of mental illness implicates substantive 

liberty rights and triggers procedural due process protections); In re Care & Treatment of 

Foster, 280 Kan. 845, 854, 127 P.3d 277 (2006). In turn, the government's attempt to 

commit someone as a sexually violent predator must be accompanied by procedural due 

process protections aimed at preventing a wrongful deprivation of liberty. As outlined by 
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the United States Supreme Court, constitutionally sufficient procedural due process 

requires that a person be afforded a right to be heard in a meaningful way before being 

deprived of "life, liberty, or property." U.S. Const. amend. XIV, § 1; Mathews v. 

Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The fundamental 

requirement of due process is the opportunity to be heard 'at a meaningful time and in a 

meaningful manner.'"); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 

652, 94 L. Ed. 2d 865 (1950) (The Due Process Clause "at a minimum" requires that 

"deprivation of life, liberty, or property by adjudication be preceded by notice and 

opportunity for hearing appropriate to the nature of the case."). The Kansas Supreme 

Court similarly defines procedural due process rights. See State v. King, 288 Kan. 333, 

354, 204 P.3d 585 (2009). At some point, a hearing ceases to be constitutionally 

"meaningful" if it is materially delayed and, thus, untimely. See Cleveland Board of 

Education v. Loudermill, 470 U.S. 532, 547, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) 

(unreasonable delay of constitutionally required due process hearing itself becomes a 

constitutional violation).

Those constitutional principles apply to the State's efforts to commit Ellison and 

others as sexually violent predators. We perceive no particular disagreement between the 

parties on that much of the governing law. The issue at hand is how to measure a delay in 

the trial of a sexually violent predator case against those constitutional principles to 

determine if the rights of the respondent, here Ellison, have been violated. So framed, the 

matter presents a question of law wholly divorced from the evidence the State might use 

to prove its case. 

The United States Supreme Court has developed a multifactor test to assess 

constitutional speedy trial rights protected in the Sixth Amendment to the United States 

Constitution. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 

(1972). Although the Sixth Amendment right pertains to criminal cases and the 

commitment proceedings for sexually violent predators are civil, the due process 
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considerations here bear on the deprivation of liberty, lending more than a passing 

similarity. Courts have drawn on the Barker model to analyze due process issues arising 

from delayed hearings in civil proceedings. See United States v. Eight Thousand Eight 

Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564, 103 S. Ct. 

2005, 76 L. Ed. 2d 143 (1983); People v. Litmon, 162 Cal. App. 4th 383, 395-406, 76 

Cal. Rptr. 3d 122 (2008) (applying the Barker factors in a due process claim involving 

undue delay in commencing a civil commitment proceeding); Morel v. Wilkins, 84 So. 3d 

226, 246 (Fla. 2012) (assuming Barker test applied to a claim of delay in a civil 

commitment proceeding and deciding case on that basis); In re Lamb, 368 Mass. 491, 

500, 334 N.E.2d 28 (1975) (recognizing speedy trial cases, including Barker, as relevant 

to timeliness of commitment hearing under Massachusetts law for sexually dangerous 

person).

In Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 

the Court found the Barker model for measuring prompt adjudication to be wholly apt in 

a civil forfeiture action involving a government taking of property. The Court explained 

that "the Fifth Amendment claim here—which challenges only the length of time 

between the seizure and the initiation of the forfeiture trial—mirrors the concern of undue 

delay encompassed in the right to a speedy trial." 461 U.S. at 564. In turn, the Court 

found: "The Barker balancing inquiry provides an appropriate framework for 

determining whether the delay here violated the due process right to be heard at a 

meaningful time." 461 U.S. at 564. 

We, therefore, agree with the district court's decision to apply the Barker model to 

determine whether the delay in this case deprived Ellison of constitutional due process. 

But we part ways with the district court in how that assessment should be performed. The 

Barker Court identified four considerations in evaluating the lapse of time in bringing a 

criminal defendant to trial: (1) the length of delay; (2) the reasons for the delay; (3) the 

defendant's assertion of the constitutional right; and (4) the prejudice to the defendant 
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arising from the delay. 407 U.S. at 530; see State v. Weaver, 276 Kan. 504, 506, 78 P.3d 

397 (2003) (applying Barker to Sixth Amendment speedy trial challenge). The factors 

should not be applied in a way that isolates each from the others or that treats them as 

separate boxes on a scorecard to be tallied to reach a result. They ought to be considered 

holistically to gauge the impact of the relevant circumstances in a given case. Barker, 407 

U.S. at 530, 533; State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004); State v. 

Waldrup, 46 Kan. App. 2d 656, 679, 263 P.3d 867 (2011). Thus, "any inquiry into a 

speedy trial claim necessitates a functional analysis of the right in the particular context 

of the case." Barker, 407 U.S. at 522. The Barker Court acknowledged the list of factors 

to be nonexclusive. Barker, 407 U.S. at 530.

As discussed in Barker and since applied elsewhere, the length of delay operates, 

in part, as a gatekeeper to the remaining factors. That is, a party, in light of the 

circumstances of his or her case, must show that the delay may be considered likely or 

presumptively prejudicial. Barker, 407 U.S. at 530-31; Waldrup, 46 Kan. App. 2d at 679.

We suppose that gatekeeping principle to be applicable in a civil commitment 

proceeding. The requirement for something more than a minimal delay prevents what 

otherwise might be a wave of motions claiming constitutional error based on a matter of 

days or weeks. But a sufficient "triggering" delay abides no strict measurement in months 

or years imposed across a range of cases. See State v. Hayden, 281 Kan. 112, 128, 130 

P.3d 24 (2006); Weaver, 276 Kan. at 509-10; Waldrup, 46 Kan. App. 2d at 679. As the 

Barker Court pointed out, a delay that might be tolerable for a "serious, complex 

conspiracy charge" would be wholly unacceptable for "an ordinary street crime." Barker,

407 U.S. at 530-31. We see no bright-line measure for presumptive prejudice in a civil 

action for involuntary commitment. 

In the district court, the State conceded about 325 days of the delay of well over 4 

years could be attributed to its requests for continuances or other pretrial maneuverings. 

The district court roughly assessed just over 500 days to the State. Everybody concedes 
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the delay attributable to the State, even limited by its own admission, was presumptively 

prejudicial, allowing Ellison to pass through the gate for a full evaluation of the 

constitutional implications of his wait for a trial. We agree. 

The district court, however, seemed to treat that presumptive prejudice alone as a 

legally sufficient ground to grant Ellison relief. But it simply triggers a full judicial 

review of the circumstances to assess the claimed constitutional deprivation. 

The district court did not make findings addressing the Barker factors with any 

particularity and seemed to more or less rest its decision on the overall length of the delay 

without considering the reasons for the glacial pace of the litigation or the prejudice to 

Ellison. Absent findings on those factors, we cannot affirm the district court's decision 

that the State violated Ellison's due process rights. Nor can we say the district court erred 

in its ultimate conclusion. We, therefore, must remand for further proceedings entailing, 

at the very least, more specific findings tailored to the Barker considerations.

On remand, the district court should undertake a more particularized analysis of 

how much of the overall delay should be attributed to the State's conduct and how much 

to Ellison, acting through his lawyers. We recognize the task may be a challenging one 

given the length of the delay and what may be each party's arguments for deflecting 

responsibility to the other. By the same token, however, the district court need not arrive 

at a formal accounting ascribing each day of the 4-year delay to either the State or 

Ellison. What the law requires is a reasonable allocation based on the available evidence. 

We leave to the district court any decision about entertaining additional written or oral 

argument or reopening the evidentiary record.

As a general matter, the delay caused by a court-ordered continuance ought to be 

attributed to the party requesting the additional time. Weaver, 276 Kan. at 508 (time 

attributable to defense continuances given limited significance in constitutional speedy 
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trial determination); United States v. Erenas-Luna, 560 F.3d 772, 778 (8th Cir. 2009) 

(same). Continuances Ellison sought to prepare for trial or to accommodate his lawyer's 

schedule ought not be attributed to the State. Those delays would have been for his 

benefit. But that wouldn't invariably be true. If, for example, the State produced 

documents long after they should have been provided to Ellison, Ellison's request for 

some reasonable extension to review them might fairly be attributed in whole or in part to 

the State. Those considerations spill over into the second Barker factor—the reasons for 

the delay—and illustrate the seamlessness of the ultimate constitutional determination.

When the district court considered Ellison's motion for release, the trial in a 

sexually violent predator commitment was to be held no later than 60 days after a 

probable cause determination on the petition, absent continuances granted for good cause. 

K.S.A. 2014 Supp. 59-29a06(a). The 60-day limitation operated simply as a benchmark 

or goal. The failure to meet that schedule did not require dismissal of the action. K.S.A. 

2014 Supp. 59-29a06(f). During the 2015 session, the Kansas Legislature amended 

K.S.A. 59-20a06 to remove any timeframe for holding the trial. L. 2015, ch. 95, sec. 6. 

The change does not curtail Ellison's due process right to a timely adjudication of the 

commitment petition. But the amendment undercuts a notion that the 60-day period now 

reflects a legislative determination as to what might be considered presumptively 

reasonable to the extent that might bear on the constitutional issue. Cf. Keeton v. Hustler 

Magazine, Inc., 465 U.S. 770, 775, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (forum 

state's unusually long statute of limitations did not deprive nonresident magazine 

publisher of due process protections when publisher would otherwise be subject to 

personal jurisdiction in forum state for alleged libel of nonresident individual). 

As to reasons for the delay, the State may not get a pass by arguing its lawyers 

simply couldn't devote sufficient time to this case because of other specific cases or the 

overall press of the business on the attorney general's office. That is a matter of 

prioritizing and allocating personnel and resources. Here, Ellison had been detained 
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without bond to determine whether he posed a sufficient risk of engaging in sexually 

violent acts in the future that he should be involuntarily committed for treatment. The 

issue was not whether Ellison had committed a crime for which he should be punished 

but whether he suffered from a mental aberration that left him unable to control specific 

antisocial impulses to engage in specific kinds of especially harmful acts. The State 

cannot give that sort of proceeding a low priority while the subject sits in jail awaiting a 

final disposition.

The third Barker factor takes account of when the individual expressly asserts his 

or her constitutional right to a timely adjudication. The district court found Ellison did so 

in mid-2012. On June 21, 2012, Ellison filed a motion in this case for immediate release 

in part because he had been held for more than 3 years without a trial. On July 23, Ellison 

filed a petition for habeas corpus under K.S.A. 60-1501 as an original action in the 

Kansas Supreme Court. In that action filed against the State, he asserted, in part, he had 

been detained without a trial in a sexually violent predator commitment proceeding and 

sought release. The gist of Ellison's complaints lodged in the motion and the habeas 

corpus petition afforded the State fair notice that he wanted a prompt determination of the 

sexually violent predator case or its dismissal so he could be released from custody. The 

Kansas Supreme Court dismissed the habeas corpus petition by order in June 2013. 

After Ellison asserted his due process right to a timely adjudication, any delays 

attributable to the State should be weighed heavily against the State and in his favor 

unless he affirmatively agreed to a specific continuance or extension. The delays before 

Ellison asserted his right to a prompt disposition of the case have less significance in the 

constitutional analysis. They should not, however, be ignored. To do so would 

impermissibly attribute to Ellison a backhanded waiver of his due process right. See 

Barker, 407 U.S. at 525 (Court declines to presume waiver of Sixth Amendment speedy 

trial right from inaction); 407 U.S. at 528 (rejecting a "rule that a defendant who fails to 

demand a speedy trial forever waives his right"). But, as we have indicated, Ellison 
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cannot now complain about continuances the district court granted the State to which he 

agreed. Agreeing to a particular extension or delay is inconsistent with the assertion of a 

right to timely adjudication.

The fourth Barker factor looks at prejudice to the individual resulting from the 

delays attributable to the State. The Court identified several types of prejudice in a 

criminal prosecution: oppressive pretrial incarceration; a defendant's anxiety and concern

sparked by the ongoing proceedings; and possible impairment of the defense. Barker, 407 

U.S. at 532; State v. Rivera, 277 Kan. 109, 118, 83 P.3d 169 (2004). Those forms of 

prejudice are applicable in an action to involuntarily commit a person as a sexually 

violent predator. The emotional impact on Ellison is fact specific, so we don't elaborate 

on that consideration. Likewise, how the extended delay may have impaired Ellison's 

ability to marshal evidence or to otherwise oppose the petition is a fact-based 

determination for the district court's evaluation. 

The conditions of Ellison's pretrial detention present some considerations different 

from those in criminal cases. First, the conditions of confinement in a jail or prison are 

more restrictive than those imposed on someone committed for treatment as a sexually 

violent predator. So the length of pretrial detention in these cases should be minimized to 

the extent reasonably possible. In criminal cases, a convicted defendant typically will 

receive credit against a sentence of imprisonment for the time spent in jail awaiting trial. 

There is no comparable benefit to someone adjudicated a sexually violent predator. The 

individual is detained for treatment and, thus, will be held for an indeterminate period 

theoretically dependent on progress made in the therapeutic regimen. The individual's 

pretrial detention is effectively lost for that purpose. No treatment is provided in jail—

both because the facility isn't staffed to do so and because the individual hasn't been 

adjudicated a sexually violent predator. Those circumstances render pretrial confinement 

more oppressive in a civil commitment proceeding than in a criminal prosecution and 

weigh against extended delays in adjudicating a commitment petition.
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Apart from our discussion of the Barker factors, we reject the State's argument that 

because Ellison opposed its motion to the district court for additional findings of fact, we 

should, therefore, infer facts adverse to him. The State cites no authority for such a result, 

and we find the suggested remedy gratuitous. More naturally in that situation, we ought 

not invoke against the State the presumption that a district court has made all necessary 

findings supporting its conclusions in the absence of a party's objection, even if some 

findings have not been stated on the record. See O'Brien v. Leegin Creative Leather 

Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012). 

In conclusion, we hold the district court did not render adequate findings, taking 

account of the Barker factors, to support its determination that Ellison was deprived of a 

due process right to a timely adjudication of the State's petition to involuntarily commit 

him as a sexually violent predator. We, therefore, reverse the order dismissing the 

petition and remand for further proceedings consistent with this decision.