Michael P. Whalen won in In re Ellison, No. 112,256 (Kan. December 9, 2016), affirming Judge Burgess' dismissal of involuntary commitment proceedings based on excessive pretrial delay resulting in a Due Process violation. The state was proceeding against Mr. Ellison pursuant to the Kansas Sexually Violent Predator Act (KSVPA). He had waited (in custody) for more than four years pending trial. After preforming a Barker v. Wingo analysis, Judge Burgess ordered that Mr. Ellison be released. The KSC agreed that using the Barker test was appropriate. Even though Barker involved a Sixth Amendment speedy trial claim, the KSC cited and followed cases that used it for a Due Process speedy trial claim as well. And the KSC held that the case-by-case approach in Barker was appropriate to evaluate delay in a KSVPA proceeding as well. The KSC went on to hold that the district court correctly applied Barker in this specific case:
As demonstrated by the Barker Court's strong sentiments about the prejudice arising from pretrial incarceration in criminal cases, pretrial incarceration in this civil commitment case weighs even more heavily in favor of our holding that the delay violated due process. For example, had Ellison been committed under the act immediately upon the State filing its petition, he would have received treatment and four annual examinations and four opportunities to petition for his release. These statutory opportunities were squandered while he sat in the Sedgwick County jail.
The KSC also noted that in a criminal case, a defendant is at least entitled to jail credit for pretrial incarceration. In a KSVPA proceeding, that time "is effectively lost" for any therapeutic purposes. Although the KSC observed that there was no evidence of improper motive on the part of the state, it had the obligation to bring Mr. Ellison's case to trial and if failed to do so.
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