In re Care and Treatment of McGuire ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,652
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
CHRISTOPHER M. MCGUIRE.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed February 19,
2021. Affirmed.
Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.
Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and ATCHESON, JJ.
PER CURIAM: Christopher M. McGuire was adjudicated a sexually violent
predator in 2012 and then confined in a treatment program on the grounds of Larned
State Hospital. A person held for treatment under the Kansas Sexually Violent Predator
Act, K.S.A. 59-29a01 et seq., receives an annual review of his or her psychological status
and need for continuing confinement and care. K.S.A. 2020 Supp. 59-29a08(a). The
confined person may then request judicial review to determine whether placement in the
transitional release phase of the treatment program may be warranted. K.S.A. 2020 Supp.
59-29a08(b).
In conjunction with his 2018 annual review, McGuire filed a petition in the
Sedgwick County District Court challenging his adjudication and original confinement
order. The district court treated the petition as a request for transitional release because it
1
was not an appropriate substantive or procedural vehicle for relitigating the original
commitment. The district court appointed a lawyer to represent McGuire and held a
hearing.
The district court found McGuire's condition had not materially changed and he,
therefore, could not be considered a candidate for placement in transitional release.
McGuire has appealed that ruling.
For his sole issue on appeal, McGuire submits K.S.A. 59-29a08(c) violates the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
and cognate procedural protections in the Due Process Clause of that amendment. Under
K.S.A. 2020 Supp. 59-29a08(c), the district court may, in its discretion, appoint a
psychologist or psychiatrist to make an independent clinical evaluation of an indigent
person confined as a sexually violent predator to be considered along with the evaluation
from program staff contained in the annual report. A confined person who can afford to
hire a qualified mental health professional must be allowed to prepare and submit an
independent evaluation. For purposes of the appeal, we understand there is no dispute
that McGuire is indigent.
McGuire contends the disparate treatment of confined persons in K.S.A. 59-
29a08(c) based on their indigency violates his right to equal protection. There are two
basic obstacles to our consideration of the argument, either of which is sufficient to
preclude appellate review.
First, McGuire never asserted a constitutional claim in the district court. Appellate
courts typically will not consider arguments raised for the first time on appeal. State v.
Gentry, 310 Kan. 715, 734, 449 P.3d 429 (2019).
2
Second, and more significantly here, McGuire did not ask the district court to
appoint a mental health professional to make an independent evaluation of him. The
district court, then, did not refuse to do so and, indeed, might have honored the request
had it been made. Under the circumstances, McGuire cannot show a constitutional injury
or harm.
Absent an injury in fact, McGuire lacks jurisprudential standing to raise the equal
protection and due process violations he has outlined. See Gannon v. State, 298 Kan.
1107, 1122-23, 319 P.3d 1196 (2014). What McGuire has presented to us is effectively a
hypothetical question unconnected to the factual record or an actual deprivation the
district court caused him. We decline to consider the constitutional point framed in that
way, since it is not a concretely defined controversy redressing an actual legal injury or
harm. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896-97, 179 P.3d 366 (2008).
McGuire has failed to present a cognizable legal argument on appeal for reversing
the district court.
Affirmed.
3