White v. Shipman ( 2017 )

No. 116,232
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ALAN WHITE,
Appellant,
v.
BILL SHIPMAN, Deputy Warden, et al.,
Appellees.
SYLLABUS BY THE COURT
1.
A K.S.A. 60-1501 proceeding is summary in nature and is not subject to the
ordinary rules of civil procedure.
2.
The statutes authorizing a K.S.A. 60-1501 proceeding and prescribing the
procedure for its disposition do not specifically provide for a manner of discovery.
3.
In a K.S.A. 60-1501 proceeding, discovery is almost never appropriate and is
subject to the broad discretion of the district court.
4.
To state a claim for relief under K.S.A. 60-1501, a petition must allege shocking
and intolerable conduct or continuing mistreatment of a constitutional stature.
5.
If on the face of a K.S.A. 60-1501 petition, it can be established that the petitioner
is not entitled to relief, or if, from undisputed facts, or from incontrovertible facts, such as
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those recited in a court record, it appears, as a matter of law, that no cause for granting a
writ exists, then summary dismissal is proper.
Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed April 28,
2017. Affirmed.
Alan White, appellant pro se.
Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellees.
Before PIERRON, P.J., HILL, J., and WALKER, S.J.
PIERRON, J.: On August 17, 2015, Alan White, an inmate at Lansing Correctional
Facility (Lansing), received a notice that the Kansas Department of Corrections (KDOC)
had rejected his August 22, 2015, issue of World magazine because the contents posed a
threat to the safety and security of correctional facilities in violation of K.A.R. 44-12-
601. The notice specified the objectionable material was on pages 7 and 24, but it did not
provide any explanation for why the material was a violation. On August 20, 2015, White
received a notice that KDOC had rejected his September 2015 issue of NASCAR
Illustrated because the magazine posed a threat to the safety and security of correctional
facilities in violation of K.A.R. 44-12-601. The notice specified the objectionable
material included maps. On September 16, 2015, White received a notice that KDOC had
rejected the book Makeup to Breakup by Peter Criss because parts of the book met the
criteria for sexually explicit material pursuant to K.A.R. 44-12-313.
White appealed the censorship of all three publications. KDOC upheld each
censorship. White filed a petition pursuant to K.S.A. 60-1501. He argued that KDOC
violated his rights under the First Amendment to the United States Constitution because
the censored material did not meet the criteria for censorship under the K.A.R. 44-12-313
or K.A.R. 44-12-601. He also argued the censorship regulations were vague and
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overbroad and allowed for subjective enforcement in violation of his due process rights
under the Fourteenth Amendment to the United States Constitution. The district court
issued the writ and scheduled an evidentiary hearing for February 11, 2016.
Before the evidentiary hearing, KDOC filed a motion to dismiss, arguing White
had failed to state a valid claim. The motion stated KDOC had overturned the censorship
of the August 22, 2015, issue of World magazine in another appeal, therefore, that issue
was moot. KDOC explained it rejected the September 2015 issue of NASCAR Illustrated
because it contained maps of the Chicago area, and maps could aid an inmate in escaping
and avoiding capture. It argued that in McCormick v. Werholtz, No. 07-2605-EFM, 2009
WL 5210845 (D. Kan. 2009) (unpublished opinion), the United States District Court for
the District of Kansas had upheld the censorship of a book with similar content. KDOC
argued the reasons justifying the censorship in McCormick applied in the present case.
Finally, KDOC stated it censored Makeup to Breakup because the book contained
"explicit descriptions of sexual acts including those with a minor." It argued the Kansas
Court of Appeals upheld the censorship of sexually explicit materials in Washington v.
Werholtz, 40 Kan. App. 2d 860, 197 P.3d 843 (2008), rev. denied 289 Kan. 1286 (2009),
and the censorship of White's book was appropriate for the same reasons.
Several weeks after its motion to dismiss, KDOC filed a motion to stay discovery.
KDOC stated White had served it with interrogatories and a request for production of
documents and things. KDOC requested the district court stay discovery until it ruled on
its motion to dismiss.
At the hearing on February 11, 2016, the district court heard arguments from both
parties regarding KDOC's motion to dismiss. The court denied the motion and asked if
White would like to testify regarding the matter. White asked for a continuance to
complete discovery in the case. The court believed that the full extent of discovery was
not available in habeas proceedings but asked for KDOC's opinion on the issue. KDOC
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argued that there was no information relevant to the issues in this case which it could
provide to White. KDOC stated it could provide the censored materials to the court to
review, but it would not give those materials to White. Additionally, it argued White's
requested information raised security concerns. The court ruled discovery was not
appropriate in the present case but continued the evidentiary hearing to give White time
to prepare.
On February 29, 2016, White filed a motion to alter or amendment judgment. He
argued the rules of discovery as provided for in the Kansas Code of Civil Procedure
applied to K.S.A. 60-1501 petitions. He requested the district court reverse its prior ruling
and enter an order compelling KDOC to comply with his prior discovery requests. White
also filed the discovery requests he served on KDOC.
On March 3, 2016, the district court issued an order in response to White's motion
to alter or amend judgment. The court stated it believed it denied White's request for
discovery at the February 11 hearing, but the docket notes did not reflect the ruling. It
also stated, "The court will take up the motion on March 17, 2016. If granted, the
evidentiary hearing will be rescheduled. If denied, the court will proceed with the
evidentiary hearing as scheduled."
On March 17, 2016, the district court held an evidentiary hearing. The court
informed White that the purpose of the hearing was to hear any evidence he had to
support his argument regarding KDOC's censorship and asked if White had any witnesses
to call. White requested that the court first address his motion to alter or amend its
previous ruling denying discovery.
After hearing arguments from both parties, the court agreed with KDOC that the
rules of discovery did not apply to K.S.A. 60-1501 proceedings. The following colloquy
then took place:
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"[THE COURT:] So at this time, I think I want to move forward with the case, . .
. deny the request for interrogatories and request for production of documents and
proceed with the evidentiary hearing.
"Now if you think that you need more time to prepare your evidentiary hearing,
then we can reschedule and come back. Or if you're ready to go forward with the
evidentiary hearing, then—without discovery, then let's go ahead.
"What do you say?
"[WHITE]: Judge, I don't think we can even—even go forward without the
discovery. You know, [KDOC] stated that the discovery requests were wide ranging and
that they covered other publications and they don't, Judge. The discovery request is
narrowly tailored to the three publications that were censored. And without allowing
discovery, this case really can't go forward without the—to prove the facts of the case."
The district court proceeded to question White as to why he needed the specific
information he was requesting to prove his case. White argued the information might be
necessary in order to demonstrate that KDOC was applying the rules arbitrarily. After
hearing White's further arguments in support of his discovery requests, the court asked if
KDOC had any evidence to present. KDOC provided portions of each of the censored
materials. After taking KDOC's exhibits into evidence, the court informed White it would
take his discovery requests under further advisement.
On March 30, 2016, KDOC filed a response to White's request for discovery.
KDOC objected to White's requests "on the grounds that the discovery procedures set out
in Chapter 60 do not apply to petitions filed pursuant to K.S.A. 60-1501." KDOC argued
that K.S.A. 60-1501 petitions are not subject to the ordinary rules of civil procedure, and
the purpose of discovery is inapplicable in such proceedings. It also argued White's
requested information was irrelevant to the issue at hand. White filed a reply, arguing that
KDOC's response was untimely and that he was entitled to the discovery process.
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On June 16, 2016, the district court issued a decision denying White's K.S.A. 60-
1501 petition. The court found that the censored materials met the criteria laid out in
KDOC's regulations, and those regulations were not vague or overbroad. The court
further held that the rules of discovery were not applicable to habeas proceedings
pursuant to K.S.A. 60-1501, and White's discovery requests did not seem relevant to the
issue. White appeals.
Did the District Court Err in Denying White an Opportunity for Discovery Related to His
Claim?
White first argues the district court erred in denying his discovery requests. He
asserts the Kansas Legislature clearly intended for the rules of discovery to apply to
K.S.A. 60-1501 petitions. He also contends that K.S.A. 60-1501 proceedings are related
to K.S.A. 60-1507 proceedings, and the rules of civil procedure apply in K.S.A. 60-1507
proceedings. Finally, he argues his discovery requests were both relevant and reasonable.
KDOC argues the district court did not err, because the rules of discovery do not
apply to K.S.A. 60-1501 petitions. It contends K.S.A. 60-1501 proceedings are summary
in nature and are not subject to the ordinary rules of civil procedure. It points out that the
rules of discovery are not applicable to K.S.A. 60-1507 motions and should similarly not
be applicable to K.S.A. 60-1501 petitions. It also asserts White's discovery requests were
not relevant to the issues before the district court.
Standard of Review
Generally, this court reviews a district court's decision on a K.S.A. 60-1501
petition to determine whether substantial competent evidence supports the district court's
factual findings and whether those factual findings are sufficient to support the court's
conclusions of law. This court reviews the district court's conclusions of law de novo.
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Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004); Hooks v. State, 51 Kan. App. 2d
527, 530, 349 P.3d 476 (2015). White's particular argument, however, requires
interpretation of the Kansas Code of Civil Procedure. Interpretation of a statute is a
question of law over which appellate courts have unlimited review. State v. Collins, 303
Kan. 472, 473-74, 362 P.3d 1098 (2015).
Are Discovery Rules Applicable to K.S.A. 60-1501 Proceedings?
A K.S.A. 60-1501 habeas proceeding is civil in nature, but Kansas courts have
held it is not subject to the ordinary rules of civil procedure. Bankes v. Simmons, 265
Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998); Swisher v. Hamilton, 12
Kan. App. 2d 183, 184, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). The statutes
authorizing K.S.A. 60-1501 proceedings and prescribing the procedure for their
disposition establish that such proceedings are summary in nature and "[t]he judge shall
proceed in a summary way to hear and determine the cause." K.S.A. 2016 Supp. 60-
1505(a). These statutes do not specifically provide for a manner of discovery. See K.S.A.
60-1501 et seq. No case has addressed whether the rules of discovery contained in the
Kansas Code of Civil Procedure apply to K.S.A. 60-1501 proceedings.
While this court has not addressed the application of the rules of discovery to
K.S.A. 60-1501 proceedings, it has addressed the application of such rules to a K.S.A.
60-1507 motion. In LaPointe v. State, 42 Kan. App. 2d 522, 551, 214 P.3d 684 (2009),
rev. denied 290 Kan. 1094 (2010), the Kansas Court of Appeals held that Kansas civil
discovery statutes do not apply to K.S.A. 60-1507 proceedings. In reaching its
conclusion, the court reasoned that "the purpose of discovery in an ordinary civil case is
different from the purpose of a K.S.A. 60-1507 proceeding." 42 Kan. App. 2d at 550. The
discovery provisions of Chapter 60 are designed to define the factual and legal arguments
in a civil proceeding initiated by notice pleading. Specifically, the purpose of those
discovery rules is to "'educate the parties in advance of trial of the real value of the claims
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and defenses; to expedite litigation; to safeguard against surprise; to prevent delay; to
simplify and narrow the issues; and to expedite and facilitate both preparation and trial.'
[Citations omitted.]" 42 Kan. App. 2d at 550-51. In contrast, a K.S.A. 60-1507 movant
must already have this information in the motion to survive summary dismissal. 42 Kan.
App. 2d at 551. The court pointed out that K.S.A. 60-1507 motions have a heightened
pleading standard because the underlying criminal case already developed the record. 42
Kan. App. 2d at 551.
The reason for denying the application of the rules of discovery in K.S.A. 60-1507
motions apply to K.S.A. 60-1501 petitions as well. The purposes of civil discovery are
not readily applicable to K.S.A. 60-1501 petitions. To state a claim for relief under
K.S.A. 60-1501, a petition must allege "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d
575 (2009). "[I]f, on the face of the petition, it can be established that petitioner is not
entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as
those recited in a court record, it appears, as a matter of law, no cause for granting a writ
exists," then summary dismissal is proper. Johnson, 289 Kan. at 648-49; see K.S.A. 2016
Supp. 60-1503(a) ("If it plainly appears from the face of the petition and any exhibits
attached thereto that the plaintiff is not entitled to relief in the district court, the petition
shall be dissolved at the cost of the plaintiff."). Because the petition itself must establish
the grounds for relief in order to survive summary dismissal, discovery is not necessary
to identify or narrow legal and factual arguments.
Moreover, the legislature intended for habeas proceedings to be summary in nature
and dealt with in an expedited fashion. Under K.S.A. 2016 Supp. 60-1503(a), the district
court must promptly examine K.S.A. 60-1501 petitions. If the court issues a writ, then it
must "proceed in a summary way to hear and determine the cause and may do so
regardless of whether the person restrained is present." K.S.A. 2016 Supp. 60-1505(a).
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Extensive discovery would arguably run counter to the summary nature of habeas
proceedings.
The LaPointe court also noted that the sanctions system for discovery abuse does
not readily transfer to K.S.A. 60-1507 proceedings. As the court explained, "[t]he liberal
discovery procedures in the Code of Civil Procedure are set up for discovery in an
ordinary civil case where a party can be sanctioned for abusing the discovery process." 42
Kan. App. 2d at 550. These sanctions would not serve as an adequate check on discovery
abuses in K.S.A. 60-1507 proceedings, though, because "monetary sanctions can often
not be collected from an imprisoned movant." 42 Kan. App. 2d at 550. This would also
be true of K.S.A. 60-1501 petitioners.
In one respect, though, K.S.A. 60-1507 proceedings and K.S.A. 60-1501
proceedings are notably different. In a K.S.A. 60-1507 proceeding, an inmate is
challenging the criminal proceedings which resulted in his or her confinement. Thus, the
underlying criminal case developed the record necessary to establish the relevant facts. In
the case of a K.S.A. 60-1501 petition, however, an inmate is challenging the conditions
of his or her current confinement. Thus, there is no previously developed record on which
an inmate may rely in establishing his or her claims. See Merryfield v. State, 44 Kan.
App. 2d 817, 828-29, 241 P.3d 573 (2010) (noting this difference between K.S.A. 60-
1507 and K.S.A. 60-1501 proceedings, but declining to address whether discovery rules
are applicable to K.S.A. 60-1501 proceedings).
Thus, there may be K.S.A. 60-1501 proceedings where the record is not sufficient
to resolve the issues raised in the petition, but the petitioner is not entitled to discovery as
a matter of course. The federal system resolved this issue by allowing limited discovery
in habeas proceedings:
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"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of ordinary course. Thus, in Harris v. Nelson, 394 U.S. 286, 295,
89 S. Ct. 1082, 1088-1089, 22 L. Ed. 2d 281 (1969), we concluded that the 'broad
discovery provisions' of the Federal Rules of Civil Procedure did not apply in habeas
proceedings. We held, however, that the All Writs Act, 28 U.S.C. § 1651, gave federal
courts the power to 'fashion appropriate modes of procedure,' 394 U.S., at 299, including
discovery, to dispose of habeas petitions 'as law and justice require,' id., at 300." Bracy v.
Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997).
Congress eventually passed legislation allowing discovery under the Federal Rules of
Civil Procedure in habeas cases based on a showing of good cause. Bracy, 520 U.S. at
904. Kansas has no such legislation specifically addressing this issue. Under K.S.A. 2016
Supp. 60-265 and K.S.A. 2016 Supp. 60-267, however, district courts arguably have the
power to allow limited discovery in cases as justice requires. See K.S.A. 2016 Supp. 60-
265(c) ("When no provision in this article refers specifically to a matter over which the
court has jurisdiction, the court must proceed in a just and equitable manner that protects
the rights and interests of all affected parties."); K.S.A. 2016 Supp. 60-267(b) ("In all
cases not provided for by this article, the district courts may regulate practice in any
manner consistent with this article and rules prescribed by the supreme court."). Thus,
even if K.S.A. 60-1501 petitioners generally may not rely on discovery as established in
the Kansas Code of Civil Procedure, they may arguably do so in special cases.
White argues that the plain language of Chapter 60 demonstrates the rules of
discovery apply to K.S.A. 60-1501 proceedings. Specifically, he points to K.S.A. 2016
Supp. 60-201(b) which states, "This article governs the procedure in all civil actions and
proceedings in the district courts of Kansas, other than actions commenced pursuant to
the code of civil procedure for limited actions." K.S.A. 60-201(b) clearly indicates that
K.S.A. 60-1501 petitions are subject to the rules of civil procedure, and Kansas courts
have held as much. Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 (2000).
Nonetheless, a holding that the rules of discovery do not apply to K.S.A. 60-1501
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petitions does not run counter to this statute. Nothing in the statute indicates that all the
rules of civil procedure must apply to all civil actions. Kansas courts have repeatedly
held this to be the case in habeas proceedings. See Bankes, 265 Kan. at 349
("Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are
not subject to ordinary rules of civil procedure."); Swisher, 12 Kan. App. 2d at 184
(same).
White actually acknowledges that K.S.A. 60-1501 proceedings are not subject to
the ordinary rules of civil procedure but notes that "this principle is generally only
associated with the summary dismissal of a habeas petition." These cases seem to be
holding, however, that a K.S.A. 60-1501 petition may be summarily dismissed because it
is not subject to the ordinary rules of civil procedure. See, e.g., Montoy v. State, 275 Kan.
145, 149, 62 P.3d 228 (2003) ("Ordinarily, a summary disposition of a pending case
before the district court should not be granted until discovery is complete.").
Furthermore, in at least one unpublished opinion, this court found that rules regarding
default judgment did not apply to a K.S.A. 60-1501 petition. Mitchell v. McKune, No.
109,285, 2014 WL 349584, at *3 (Kan. App. 2014) (unpublished opinion).
White also argues that habeas proceedings filed pursuant to K.S.A. 60-1501 are
related to habeas proceedings filed pursuant to K.S.A. 60-1507. Supreme Court Rule
183(a)(2) (2017 Kan. S. Ct. R. 222) provides that the rules of civil procedure apply to
K.S.A. 60-1507 motions to the extent applicable. White reasons that the rules of civil
procedure should also apply to K.S.A. 60-1501 petitions to the extent applicable. This
argument does not help White's cause. This court has already held that the rules of
discovery do not apply to K.S.A. 60-1507 motions. See LaPointe, 42 Kan. App. 2d at
551.
White briefly mentions that he also sought injunctive and declaratory relief in his
petition. White does not explain, however, why this is relevant to the present issue.
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Because this issue is not adequately briefed, the court should deem it abandoned.
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (An
issue not briefed by the appellant is deemed waived or abandoned.).
The language of K.S.A. 60-1501 et seq. demonstrates the legislature's intent for
district courts to resolve habeas proceedings in a summary manner. Additionally, the
procedure established for the resolution of K.S.A. 60-1501 petitions does not specifically
authorize extensive discovery. Based on the language of these statutes, the legislature
likely did not intend the rules of discovery to apply to K.S.A. 60-1501 petitions.
Furthermore, the purposes of civil discovery are not applicable to K.S.A. 60-1501
proceedings. Thus, K.S.A. 60-1501 petitioners are not entitled to discovery as a matter of
course.
Did the District Court Err in Denying White's Discovery Requests Due to the Court's
Broad Discretion?
Even if the rules of discovery did apply, the district court did not err in denying
White's requests. District courts have broad discretion in supervising the course and
scope of discovery. Miller v. Johnson, 295 Kan. 636, 688, 289 P.3d 1098 (2012). A
district court abuses its discretion when no reasonable person would take the view of the
court. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071
(2015).
In his interrogatories, White requested the following information: the name of the
mailroom clerk who initially flagged the publications for censorship; the name of the
supervisory official who approved the censorship; whether the publisher had been
notified; a description of the objectionable content; information regarding the appeal that
overturned censorship of World magazine; how many times in the past each publication
had been censored; how many prisoners subscribe to or have received each publication;
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and information regarding the use of certain forms in notifying inmates of censorship. In
his request for production of documents, White requested: all communications between
staff members regarding the censorship in this case; any published guidelines used in
implementing K.A.R. 44-12-313 and K.A.R. 44-12-601; and information regarding all
censored materials from January 1, 2015, to February 29, 2016.
A primary limitation on a party's right to discovery is that the information sought
must be relevant to the issues of the lawsuit. K.S.A. 2016 Supp. 60-226(b). The test of
relevancy in the context of discovery is whether the information "appears reasonably
calculated to lead to the discovery of admissible evidence." K.S.A. 2016 Supp. 60-
226(b)(1). None of White's requested discovery was clearly relevant to the resolution of
his K.S.A. 60-1501 petition.
White presented two issues in his K.S.A. 60-1501 petition. The first issue was
whether the censored materials fell within the criteria set out in K.A.R. 44-12-601and
K.A.R. 44-12-313. The only evidence relevant to this issue was the censored materials
themselves. KDOC provided this material to the court, and White did not request its
production.
Despite his use of the term "overbroad," White's second issue is best construed as
a void-for-vagueness argument. White argued that "there are no clear guidelines to the
determination of the grounds for censorship, leaving the decision to purely subjective
decision making and application of regulations." Courts use a two-prong inquiry to
determine if a statute is unconstitutionally vague. City of Lincoln Center v. Farmway Co-
Op, Inc., 298 Kan. 540, 545, 316 P.3d 707 (2013). First, courts determine whether the
statute conveys a sufficiently definite warning and fair notice of the prohibited conduct in
light of common understanding and practice. 298 Kan. at 545. Second, courts determine
whether the statute's terms are precise enough to guard against arbitrary and
discriminatory enforcement. 298 Kan. at 545. Courts can resolve void-for-vagueness
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arguments based on the language of the statute alone. See, e.g., City of Lincoln Center,
298 Kan. at 544 (analyzing facial and as-applied vagueness challenges to city noise and
nuisance ordinance based only on language of ordinances); State v. Teter, 47 Kan. App.
2d 608, 612-15, 278 P.3d 968 (2012) (finding statute regulating the purchase of
pseudoephedrine and ephedrine was not unconstitutionally vague based solely on the
language of the statute).
Much of White's requested information was irrelevant to either of his claims. For
example, how many prisoners subscribe to a certain publication or which forms KDOC
uses to notify inmates of censorship has no bearing on whether the censored materials in
this case fit the enumerated criteria or whether the challenged regulations are too vague.
Some of his requests raised obvious security concerns, such as turning over staff
communications to an inmate. Others appeared overly burdensome, such as information
regarding every censored item over the course of an entire year. See K.S.A. 2016 Supp.
60-226(b)(2)(iii) (stating court may limit extent of discovery if it finds "the burden or
expense of the proposed discovery outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties' resources, the importance of the issues at
stake in the action and the importance of the proposed discovery in resolving the issues").
Given that White's requested information was not relevant to the resolution of his claims,
the district court did not abuse its discretion in denying his discovery requests.
Did the District Court Err in Summarily Denying the Petition Without an Evidentiary
Hearing?
White also argues the district court abused its discretion when it denied his
petition without holding an evidentiary hearing. He claims the court's decision to deny his
motion was based on a mistake of fact. In its order, the court stated "the parties appeared
on March 17, 2016, and argued the motion and presented evidence." White claims he
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never presented the merits of his case to the court, so the court's decision was based on a
mistake of fact.
As a preliminary matter, White did not raise this issue before the district court and
thus raises it for the first time on appeal. Generally, issues not raised before the district
court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403,
266 P.3d 516 (2011). There are, of course, exceptions to this rule, and consideration of
White's argument is arguably necessary to serve the ends of justice or to prevent denial of
fundamental rights. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008).
He does not argue why we should hear this argument for the first time on appeal,
however. Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34) requires an appellant
to explain why an issue that was not raised below should be considered for the first time
on appeal. Failure to comply with this rule may result in this court deeming the issue
waived and abandoned. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068
(2015); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014).
Moreover, the district court arguably did hold an evidentiary hearing. The court
held two hearings in this case. The first hearing was originally scheduled as an
evidentiary hearing. At the hearing, the court denied KDOC's motion to dismiss and then
asked White if he wished to testify. White requested a continuance in order to complete
discovery. The court held that it was denying discovery in this case but granted a
continuance to allow White to prepare to argue the merits of the case.
The district court then scheduled a second evidentiary hearing. The court again
gave White the opportunity to present evidence in support of his argument. White,
however, chose not to present evidence and instead argued that the court erred in
previously denying discovery. The court again held it would deny White's discovery
requests. It then offered White the opportunity to either continue the hearing or go ahead
and present evidence. White, however, continued to argue that discovery was necessary
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and told the court "I don't think we can . . . even go forward without the discovery . . .
without allowing discovery, this case really can't go forward . . . to prove the facts of the
case." The court agreed to take the matter of discovery under advisement and then
allowed KDOC to present its evidence.
In this case, the district court held two separate hearings. At both hearings, it gave
White the opportunity to present evidence. White chose instead to argue in support of his
discovery requests. The court also granted White a continuance at the first hearing and
offered him a second continuance at the second hearing. KDOC also offered evidence at
the second hearing. Based on this record, the district court did not err in noting it had held
an evidentiary hearing, and it did not base its ruling on a mistake of fact.
Affirmed.
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