Kansas Court Extends Right to Counsel to Habeas Petition

The Kansas Court of Appeals (the state's intermediate appellate court) ruled last week in Merryfield v. Kansas that a person involuntarily confined in the Kansas Sexual Predator Treatment Program has a right to counsel under due process and equal protection in a habeas petition that is not subject to summary dismissal under state law.

Dustin Merryfield filed his habeas petition alleging that conditions of confinement were unconstitutional.  He also requested court-appointed counsel for his petition.  Under Kansas law, his petition was not subject to summary dismissal.  The Court of Appeals therefore remanded the case for a hearing and granted his request for counsel.

The court ruled that both due process and equal protection support a right to counsel.  The court wrote that while Merryfield's habeas petition did not involve an initial deprivation of liberty (which triggers a constitutional right to counsel, as in In re Gault), it also did not involve a collateral attack on a criminal conviction (which does not trigger a constitutional right to counsel, as in Pennsylvania v. Finley).  Merryfield's liberty interest was different, but sufficient:

His liberty interest is manifest, and he contends--with sufficient basis to warrant an evidentiary hearing--that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom.  A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period--more than a decade so far for Merryfield--must be entitled to the assistance of counsel in the resolution of such substantial claims. . . .

Merryfield's claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.

Op. at 12.

The court wrote that equal protection also compels appointment of counsel.  The court wrote that Kansas law provides court-appointed counsel for inmates who have been imprisoned after felony convictions when their habeas petitions cannot be summarily dismissed.  If Kansas law provides counsel for this class, under equal protection it must also provide counsel for the similarly situated class that includes Merryfield. 

For more on right to counsel in civil proceedings, check out the National Coalition for a Civil Right to Counsel.

SDS