text:
    STATE of Kansas, Appellee, v. Mark T. SALARY, Appellant.
    No. 116,406
    Supreme Court of Kansas.
    Opinion filed March 29, 2019.
    Mark T. Salary, appellant, was on the brief pro se.
    Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Nuss, C.J.:

We previously upheld Mark T. Salary's convictions but remanded for resentencing of his hard 50 life sentence in State v. Salary , 301 Kan. 586, 343 P.3d 1165 (2015). Following his resentencing, Salary again directly appeals and:

1. challenges the district court's denial of his motion to dismiss;
2. alleges ineffective assistance of trial and appellate counsel;
3. challenges the denial of his motion for exculpatory evidence; and
4. alleges he was denied allocution at resentencing.

We hold the district court did not err and affirm Salary's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Salary was convicted by a jury of one count of first-degree premeditated murder and one count of arson for shooting and killing his uncle, Joe Estell, and setting fire to Estell's home. Salary was sentenced to life imprisonment without the possibility of parole for 50 years (hard 50) for the murder conviction. On appeal, however, we vacated the hard 50 and remanded for resentencing per Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and this court's later decision in State v. Soto , 299 Kan. 102, 322 P.3d 334 (2014). Salary , 301 Kan. at 608-09, 343 P.3d 1165.

Following our decision, the State chose not to seek the hard 50 for the murder conviction, which would require impaneling a jury and presenting facts to support the requested sentence. Instead, the State chose to seek the hard 25, which the judge could constitutionally impose without a jury. Prior to the resentencing hearing, Salary filed several pro se motions and letters to the court. The court denied all of Salary's motions at the resentencing hearing and sentenced him to the hard 25.

We have jurisdiction over this direct appeal under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (life imprisonment, off-grid crime).

Additional facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: The district court did not err in denying Salary's motion to dismiss.

In between our decision in Salary's first appeal and the resentencing hearing, he filed a motion to dismiss. He described the motion as a "direct appeal from his conviction" and asserted three errors by the district court:

1. in finding that the alleged murder was particularly heinous, atrocious, or cruel;
2. in failing to instruct the jury on self-defense and the lesser included offense of voluntary manslaughter based on the theory of imperfect self-defense; and 3. in allowing Salary's statement to the police into evidence when Salary had specifically requested that he be able to speak to an attorney.

In addition, Salary alleged prosecutorial misconduct based on the prosecutor's knowledge of the State's key witness' deliberate omission of material facts.

In denying the motion at the resentencing hearing, the court concluded that Salary was arguing issues he either raised or should have raised in his direct appeal. The court declined to return to those issues. It informed Salary that if he wanted to seek post-conviction relief, he would have to wait until after sentencing.

Salary now argues his motion was properly before the district court and, if not, he is entitled to a second direct appeal. Among other things, the State contends Salary's brief fails to comply with Kansas Supreme Court Rules because he fails to cite to the record or identify any caselaw that supports his positions.

Standard of review

The district court's denial rationale embraced, without naming, the doctrine of res judicata. The doctrine's applicability is a question of law subject to our unlimited review. State v. Parry , 305 Kan. 1189, 1193, 390 P.3d 879 (2017) ; State v. Kingsley , 299 Kan. 896, 899, 326 P.3d 1083 (2014).

Discussion

Under Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35), "[e]ach issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on." Salary's brief fails to pinpoint cite the record-and the State correctly observes he does not cite any authority in support of his positions. Issues not adequately briefed are deemed waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018). And failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Pewenofkit , 307 Kan. 730, 731, 415 P.3d 398 (2018).

Even if we were to address Salary's arguments in his motion to dismiss, however, the district court noted they were either raised or should have been raised in his first appeal. There, we rejected Salary's arguments that the district court committed reversible error in denying his request for a jury instruction on self-defense or in denying his request for a voluntary manslaughter instruction. Salary , 301 Kan. at 598, 602, 343 P.3d 1165. We additionally rejected his argument that the court committed reversible error in admitting his recorded confession when he invoked his right to counsel during the custodial interrogation. 301 Kan. at 603-07, 343 P.3d 1165. In short, Salary is barred from raising these arguments again. Kingsley , 299 Kan. at 901, 326 P.3d 1083 (Where an appeal is taken from a conviction or sentence imposed, the judgment of the appellate court is res judicata as to all issues actually raised.).

This leaves Salary's claims of prosecutorial misconduct (more properly labeled prosecutorial error)-and court error in finding the murder was particularly heinous, atrocious, or cruel (a basis for imposing the hard 50 under K.S.A. 21-4636 [f] ). Although not raised in his first appeal, they could have been raised. They too are barred by res judicata. Kingsley , 299 Kan. at 901, 326 P.3d 1083 (barring claims that were "or could have been raised"). Finally, we have already vacated Salary's hard 50 sentence. As a result, his argument that the district court erred in finding that the murder was particularly heinous, atrocious, or cruel is moot.

Thus, we conclude the court did not err in denying Salary's motion to dismiss at the resentencing hearing.

Issue 2: Salary is barred from raising ineffective assistance of trial and appellate counsel for the first time on appeal.

Salary alleges that he received ineffective assistance of trial and appellate counsel regarding (1) the admission of certain photographs of the deceased at trial, and (2) for failing to argue his right to counsel was violated when he requested a lawyer during the first hour of the police interrogation.

The State responds Salary is improperly raising these arguments for the first time on appeal. It further argues that Salary's contentions are conclusory, not supported by any citation to the record, and that the record rebuts his allegations. According to the State, at the hearing to determine the admissibility of his statement under Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Salary never testified that he had invoked his right to counsel during the first unrecorded hour of the interrogation. Rather, trial was the first time he ever said he had wanted a lawyer during that part of the interrogation.

Standard of review

To prevail on a claim of ineffective assistance of trial counsel, a criminal defendant must establish (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. Sola-Morales v. State , 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 [1984] ).

To establish ineffective assistance of appellate counsel, defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. Miller v. State , 298 Kan. 921, 929-31, 934, 318 P.3d 155 (2014).

As a general rule, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. State v. Dull , 298 Kan. 832, 839, 317 P.3d 104 (2014). "[G]enerally the factual aspects of a claim of ineffective assistance of counsel require that the matter be resolved through a K.S.A. 60-1507 motion or through a request to remand the issue to the district court for an evidentiary hearing under State v. Van Cleave , 239 Kan. 117, 119-21, 716 P.2d 580 (1986). [Citation omitted.]" State v. Galaviz , 296 Kan. 168, 192, 291 P.3d 62 (2012). Although an appellate court may consider a claim of ineffective assistance of counsel for the first time on appeal, it may do so only when there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record. Wimbley v. State , 292 Kan. 796, 807, 275 P.3d 35 (2011).

Discussion

For Salary's first contention of ineffectiveness, we observe that in his most recent district court proceeding he failed to raise this argument about trial counsel's deficient performance with the photographs. See Galaviz , 296 Kan. at 192, 291 P.3d 62. And because Salary fails to identify the specific problems, we have insufficient information to analyze this issue for the first time on appeal. Wimbley , 292 Kan. at 807, 275 P.3d 35. Salary does not ask us to remand for a Van Cleave hearing.

As for Salary's second contention, we observe he also failed to raise in the district court the argument about appellate counsel's ineffectiveness regarding his invocation of his right to counsel. More specifically, in his brief Salary argues for the first time that appellate counsel was ineffective for focusing on the second half of the interrogation when he invoked his right to counsel-and not the first half when Salary testified that he also invoked his right.

In addition to the problem of Salary's not raising this issue until appeal, we observe the interrogating officer testified that during the initial, unrecorded part of the interrogation, Salary did not invoke his right to counsel. Without citing the record or any other authority or explaining how or why-Salary now generally alleges that the officer is not credible because of "spoliation" and "perjury." Under these circumstances, we reject his arguments. Wimbley , 292 Kan. at 807, 275 P.3d 35 (appellate court may consider ineffective assistance of counsel claim for first time on appeal, but only when no factual issues exist and test can be applied as a matter of law based upon appellate record).

Issue 3: The district court did not err in denying Salary's request for exculpatory evidence.

Salary does not make his argument on this issue clear. He states in his brief that the autopsy report contains exculpatory evidence and that he first requested it before trial. He acknowledges that his trial counsel received the report; but he did not personally receive a copy until 2012. Since then, he has submitted several letters to the court accusing the State of a violation under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But neither his letters nor his brief specify the nature of the violation or request a new trial. Rather, Salary generally cites the Fifth Amendment Due Process Clause of the United States Constitution as authority for his request. He also cites a number of cases from the United States Supreme Court and federal circuits. Yet he does not attempt to explain how those cases are relevant or support his specific argument.

The State responds that Salary has not established that the autopsy report was withheld from his counsel or even that it is exculpatory. It asks us to reject the argument as meritless.

Standard of review

Salary does not cite a standard of review. The State cites the standard of review for a Brady violation because Salary appears to have framed this issue as one. This review is de novo with deference to any factual findings. State v. Warrior , 294 Kan. 484, 509, 277 P.3d 1111 (2012). A Brady violation claim has three components or essential elements: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice. 294 Kan. at 506, 277 P.3d 1111.

Discussion

On September 17, 2015, which was after the resentencing hearing, Salary filed a "motion for exculpatory matter." In it he moved the "court for entry of an order requiring the state prosecutor to disclose to the defendant, in advance of trial, the matters, or classes of matter, and all information or documents pertaining thereto, as are hereinafter set forth and described." Salary then included 33 pages of excerpts-from what appears to be an unidentified criminal procedure treatise-regarding various criminal legal issues. He provided no argument or factual contentions.

The State filed a response on November 18, 2015. It argued the motion should be summarily denied because the case had already been disposed of by jury trial. It also contended all discovery Salary was entitled to under K.S.A. 2015 Supp. 22-3212, including exculpatory evidence, had already been provided.

By order dated March 29, 2016, the district court summarily denied the motion. It held that Salary's underlying criminal case had been adjudicated by way of jury trial, his direct appeal ruled upon and judgment rendered by the Supreme Court, and his resentencing concluded. The court concluded that the discovery Salary requested was provided and completed pursuant to statute. And there was no longer any pending case before the court.

In his brief, Salary states he requested "specific exhibits" and "specific medical documents" in letters to the court on June 12, July 8, August 10, and August 18, 2015. Admittedly, letters to the court exist for some of those dates. But none request specific exhibits.

On June 12, 2015, Salary filed a letter in the court with a request for supporting counsel. There are no filings in July, however. One of the two August 10 filings is the motion to dismiss discussed above in Issue 2. And the other is a "motion to discover," in which Salary asked the court to reexamine State's Exhibit 30 and 31 showing the location of the gunshots on the victim. In that same motion, Salary also referred to photos (Exhibits 35, 36, and 37) and asked the court to allow him to consult with forensic experts. Finally, nothing was filed on August 18-although a week later Salary filed this motion for exculpatory matter.

Even giving Salary all benefit of the doubt, however, he is unclear on what exculpatory evidence he seeks that he does not already have. He also fails to provide any record citations or supporting authority in his brief. See Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) ("Each issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court."). So, and because his brief fails to comply with this court's rules, we must deem this issue waived or abandoned.

State v. Arnett , 307 Kan. at 650, 413 P.3d 787 (issues not adequately briefed are deemed waived or abandoned).

Issue 4: The district court did not engage in judicial misconduct in denying Salary's right to allocution.

Salary argues the judge was biased against him and violated judicial canons 1 and 2 by not allowing him to present evidence of his innocence at the resentencing hearing in violation of his right to allocution under K.S.A. 2018 Supp. 22-3424(e)(4).

The State responds that the resentencing judge properly controlled the courtroom proceedings and did not deny Salary his right to allocution. According to the State, the record clearly shows that the judge asked Salary if he had anything to say in mitigation of his sentence. And the judge only cut Salary's response short when it became apparent Salary wanted to reargue the entire case. The State also argues that because the judge afforded Salary his right to speak in mitigation, Salary's contentions are meritless. But if error occurred, it is harmless.

Standard of review

Salary argues that denial of allocution is discriminatory and violates his constitutional rights. But allocution under K.S.A. 2018 Supp. 22-3424(e) is a statutory right. And if any error exists, it can be harmless. See State v. Haney , 299 Kan. 256, 261-62, 323 P.3d 164 (2014) (applying harmless error analysis for violation of statutory rights for failure to comply with K.S.A. 2013 Supp. 22-3424 [e][4] ). Under the harmlessness test where an error implicates a statutory right, the party benefiting from the error must persuade the court there is no reasonable probability the error affected the outcome in light of the entire record. State v. McCullough , 293 Kan. 970, 983, 270 P.3d 1142 (2012).

Discussion

K.S.A. 2018 Supp. 22-3424(e)(4) requires that before imposing sentence, the court shall: "address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment."

Here, the court did provide Salary the opportunity to make any statements he might have about his punishment, stating: "This is the mitigation part if you have anything you want to tell me about the sentence I'm about to impose upon you." When Salary started to argue that the jury had been lied to, however, the court stopped him. It informed Salary that this part of the proceeding was not about the trial but about the sentence soon to be imposed.

Salary asked if this was the allocution process where he gets to present evidence, and if so, he was attempting to present evidence. The court stopped him again, stating: "You've been convicted of the crime and I'm not going over the evidence in this case. Now, if you want to say that they had weak evidence and you deserve a less of a sentence, then I'll listen to that. But that's what I'm here about right now."

Salary returned to his assertion that the jury was lied to. The court sought clarification, asking if that was his argument that would prevent sentencing. Salary replied, no, the court had not heard his argument "because you will not allow me to present my argument because when I'm trying to show you proof that the jury were lied to, you are denying me that."

The court told Salary that he was making a post-conviction type of argument. Salary responded that it was about the sentence and if this was not the allocution process and not his time to present evidence, then he had nothing to say. The court replied, "Well, this is not the time to present evidence."

The State interjected its understanding that the Supreme Court had only remanded for resentencing on the murder conviction. It explained that because it had opted not to seek the hard 50, the mandatory sentence in the case was life imprisonment without the possibility of parole for 25 years (hard 25) and the rest of the sentence should remain intact. The court agreed and proceeded to impose the mandatory hard 25 life sentence.

Even if the sentencing court erred in generally stating that the hearing was not the time to present evidence, Salary does not explain what statement he would have made, what evidence he would have presented, or what harm he suffered. Instead, he argues in his brief that denial of allocution is akin to an illegal sentence. We have previously rejected that argument. See State v. Mebane , 278 Kan. 131, 91 P.3d 1175 (2004). On remand, once the State decided not to seek the hard 50, the hard 25 was the only available sentence. So if there was any allocution error, we hold it was harmless. McCullough , 293 Kan. at 983, 270 P.3d 1142 (no reasonable probability error affected outcome in light of entire record).

The judgment of the district court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Michael E. PHILLIPS, Appellant.
    No. 115,431
    Supreme Court of Kansas.
    Opinion filed March 29, 2019.
    Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, was on the brief for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Nuss, C.J.:

Michael E. Phillips challenges the district court's denial of his motion for a new trial as untimely. The issue presented asks: for purposes of the timeliness of a K.S.A. 22-3501 motion for new trial based on newly discovered evidence, when is a judgment final?

We conclude the district court correctly held the two-year period in which the motion must be filed began from the date the Supreme Court mandate was issued, i.e., when the judgment became final. Because Phillips' motion was not filed during this time, we affirm the district court.

FACTS AND PROCEDURAL HISTORY

A jury convicted Phillips of first-degree felony murder, two counts of attempted aggravated robbery, and criminal possession of a firearm. He was sentenced to life in prison, with a mandatory minimum of 20 years and lifetime postrelease supervision for felony murder; a consecutive 47 months for one attempted aggravated robbery conviction; a consecutive 34 months on the other attempted aggravated robbery conviction; and a concurrent 9 months for criminal possession of a firearm. Phillips appealed his conviction, resulting in our upholding all four counts and the term of imprisonment. State v. Phillips , 295 Kan. 929, 287 P.3d 245 (2012).

But we did make one change to Phillips' sentence. Phillips , 295 Kan. at 950, 287 P.3d 245. The district court had ordered postrelease supervision for life. We vacated that part of his sentence, holding a "sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence."

Phillips , 295 Kan. at 950, 287 P.3d 245. We did not include an order of remand in our opinion. The Clerk of the Supreme Court issued a mandate on February 11, 2013, notifying the district court that the Supreme Court had affirmed its judgment, except for vacating the postrelease supervision.

Phillips later filed a K.S.A. 60-1507 motion to vacate, amend, or set aside the judgment. The motion was summarily denied at the district court level.

Although the February 11, 2013 mandate contained no order of remand, the last paragraph read, "You are therefore commanded, [t]hat without delay you cause execution to be had of the judgment of the Supreme Court, according to law." Apparently acting on this language, the district court held a hearing on August 15, 2014, to discuss the mandate, stating it "appears that the Court has remanded this case back to this [c]ourt ... appears to me I obviously need to set aside the [c]ourt's order for post-release supervision."

The hearing transcript shows confusion about the purpose and process of the hearing. Phillips thought the hearing might address his already-denied 60-1507 motion. The district court was unclear on who would act as defense counsel for Phillips and what the Supreme Court's instructions were. The court also did not proceed on statutory or Supreme Court Rule authority for holding the hearing. It only stated

"the Supreme Court likes to have those when they remand something and the mandate is sent down, they direct the Court to move forward and this mandate is already fairly old.... It is my understanding from the Supreme Court what I'm supposed to do is exactly what they tell me to do which is-and just so I'm as clear as I can be on this that the Court is going to set aside its previous order...."

Phillips then filed a motion for new trial on March 6, 2015, arguing newly discovered evidence justifies a new trial. The district court denied the motion: "Per K.S.A. 22-3501(1) this motion is out-of-time. Mandate issued 2/15/13 [sic ]. This motion filed 3/6/15-more than 2 years."

Phillips appeals. Our jurisdiction is proper under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (off-grid crime; life sentence).

ANALYSIS

Issue: Is Phillips' motion for new trial time-barred?

Standard of review

"The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice." K.S.A. 2016 Supp. 22-3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Warren , 302 Kan. 601, 614, 356 P.3d 396 (2015).

The question of whether a motion is timely under K.S.A. 22-3501(1) involves statutory interpretation which is a question of law over which this court has unlimited review. State v. Jolly , 291 Kan. 842, 845-46, 249 P.3d 421 (2011).

Discussion

To be timely, a K.S.A. 22-3501 motion for new trial based on the ground of newly discovered evidence must be filed within two years after the final judgment. K.S.A. 22-3501(1). Phillips argues the final judgment was on August 15, 2014, when the district court conducted a "remand hearing." For reasons Phillips does not explain, he believes the two-year period would have commenced 14 days later, on August 29, 2014. This calculus would put the filing deadline at August 29, 2016. If so, Phillips' motion filed on March 6, 2015, would be well within that time frame.

The State responds Phillips' March 6, 2015 motion was not within the two-year limit because the judgment was final on February 11, 2013-when this court's mandate was issued. To support this position, the State argues that the August 15, 2014 "remand hearing" was a nullity because the court lacked jurisdiction to modify Phillips' sentence once this court had vacated the post-release supervision. Neither this court's opinion nor the mandate gave a remand instruction to the district court. Phillips , 295 Kan. 929, 287 P.3d 245. The State argues no further action on the part of the district court "was mandated, ordered, necessary, or even allowed."

The State's position accords with a plain reading of K.S.A. 60-2106(c), which states:

"The supreme court may by rule provide for post decision motions for rehearing or other relief. When under such rule a decision of an appellate court becomes final, such court shall promptly cause to be transmitted to the clerk of the district court its mandate containing such directions as are appropriate under the decision. A copy of the opinion of the court shall accompany and be a part of the mandate. The clerk of the district court shall make a notation thereof on the appearance docket. Such mandate and opinion, without further order of the judge , shall thereupon be a part of the judgment of the court if it is determinative of the action , or shall be controlling in the conduct of any further proceedings necessary in the district court." (Emphasis added.)

The facts here exemplify what is contemplated by the statutory phrase "if it is determinative of the action." We affirmed the district court's sentencing on all four counts of conviction and no further proceedings were necessary on that issue. We also vacated postrelease supervision, and no further proceedings were necessary because a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence. State v. Tafoya , 304 Kan. 663, 666-67, 372 P.3d 1247 (2016) (no further proceedings necessary). A district court's judgment becomes final the date this court issues its mandate, except in cases where remand instructions are given and further proceedings are necessary.

In conclusion, our February 11, 2013 mandate was fully determinative of the issues and therefore rendered the judgment final. As a result, the district court was correct to deny as untimely Phillips' March 6, 2015 motion for new trial based on newly discovered evidence.

Judgment affirmed.


author: Per Curiam: Johnson, J., concurring in part and dissenting in part: Stegall, J., dissenting:

text:
    In the MATTER OF the Care and Treatment of Thomas EASTERBERG.
    No. 117,933
    Supreme Court of Kansas.
    Opinion filed March 29, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.
    Dwight R. Carswell, assistant solicitor general, argued the cause, and Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   Per Curiam:

This is an original proceeding in habeas corpus. Thomas Easterberg argues he must be released from confinement because the State has no statutory basis to civilly commit him under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 2017 Supp. 59-29a01 et seq.

On present showing, we hold that there is a fact question for Riley County District Court to resolve in order to determine whether Easterberg's writ should be granted; therefore, we remand this action to the district court with directions.

FACTUAL AND PROCEDURAL OVERVIEW

In 2007, the State charged Easterberg with multiple crimes that included the sexually violent offenses of rape and aggravated criminal sodomy. As part of a plea agreement, the State dismissed these charges in exchange for Easterberg's plea to kidnapping and aggravated battery. Easterberg was sentenced to 114 months' imprisonment for his convictions. On the Sentencing Guidelines Journal Entry of Judgment for these convictions, the district court checked the boxes indicating Easterberg's crimes were not sexually motivated for purposes of the Kansas Offender Registration Act (KORA), K.S.A. 22-4902(c)(14).

Prior to Easterberg's scheduled release from prison, the Kansas Department of Corrections provided notice to the Kansas Attorney General that Easterberg may meet the criteria of a sexually violent predator under the KSVPA. Subsequently, the Attorney General's Office filed a petition seeking to involuntarily commit Easterberg as a sexually violent predator.

Easterberg moved to dismiss the action, arguing that the State had no statutory basis to file the petition for his commitment. He contends that the State may only initiate proceedings under the KSVPA when a person has been: (1) convicted of a sexually violent crime; (2) found incompetent to stand trial; (3) found "not guilty" by reason of insanity; or (4) found "not guilty" by reason of a mental disease or defect. Because none of the statutory means of initiating the commitment process applied to him, Easterberg asserts that his case must be dismissed. Further, Easterberg claims that the fact that the sentencing court in the criminal case specifically found the crimes of conviction were not sexually motivated precludes a contrary finding by the district court in this case.

The district court denied Easterberg's motion to dismiss and found probable cause existed to believe Easterberg was a sexually violent predator. Following that probable cause determination, Easterberg filed this original action. After considering the State's response to the writ of habeas corpus and Easterberg's reply, this court ordered briefing and oral arguments.

ORIGINAL JURISDICTION

The State argues that this court lacks jurisdiction to consider Easterberg's habeas corpus petition. Alternatively, the State asserts that, even if this court has jurisdiction, it should decline to exercise it. Given that our acceptance of either argument would end this matter, we consider them first.

We start with the State's contention that this court does not have jurisdiction to entertain Easterberg's petition for writ of habeas corpus. Recently, in State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016), we sought to rectify the sometimes careless use of jurisdictional arguments. We clarified that subject matter jurisdiction means " 'the power of the court to hear and decide a particular type of action,' " and we declared that "the Kansas Constitution dictates the existence of subject matter jurisdiction." 304 Kan. at 784, 813, 375 P.3d 332. In this instance, our constitution is quite explicit in dictating the existence of our jurisdiction in habeas corpus actions, to-wit: "The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law." Kan. Const. art. 3, § 3.

The State acknowledges that constitutional mandate but nevertheless argues that, when our Kansas Constitution was adopted in 1859, Easterberg's petition "would not have been considered a proceeding in habeas corpus." Specifically, the State suggests that, in 1859, "habeas corpus was generally not available to challenge a person's detention pursuant to legal process by a court of competent jurisdiction; instead, the writ was primarily limited to illegal executive detention and detention by courts that lacked jurisdiction." (Emphasis added.) Of course, such equivocal notions as "generally" and "primarily" are inconsistent with the foundational concepts of subject matter jurisdiction, e.g., jurisdiction cannot be waived or stipulated to and a judgment without subject matter jurisdiction is void. See Dunn , 304 Kan. at 784, 375 P.3d 332 ("The existence of subject matter jurisdiction cannot be waived .... A conviction obtained in a court without subject matter jurisdiction is void."). If a court can consider a person's challenge to being unlawfully detained-for instance because of exceptional circumstances or for secondary reasons-that court does not lack subject matter jurisdiction over the cause of action. The State relies heavily on federal precedent to support its historical argument that this court's original jurisdiction in habeas corpus proceedings is limited to the primary purpose for which that proceeding was used in 1859. For instance, it cites to the dissent in Boumediene v. Bush , 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), a case dealing with the Suspension Clause in the United States Constitution. That minority opinion argued that "[t]he nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding [of the United States]." 553 U.S. at 844, 128 S.Ct. 2229 (Scalia, J., dissenting). Pointedly, however, the State does not mention Boumediene 's majority opinion which noted the inherent shortcomings in the historical record of 18th century habeas proceedings and which, in discussing adequate substitutes for habeas corpus, posited that "common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances." 553 U.S. at 779, 128 S.Ct. 2229 ; see also Jones v. Cunningham , 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ("[Habeas corpus] is not now and never has been a static, narrow, formalistic remedy."). Nevertheless, we are presented with a question of Kansas constitutional law, which is uniquely ours to decide. Even if one adopts an originalist viewpoint, the touchstone would be what was in the minds of the drafters of our constitution, rather than the intent of our nation's founders nearly a century earlier. Granted, federal decisions may inform this court's interpretation of Kansas law. For instance, in Lonchar v. Thomas , 517 U.S. 314, 322, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), cited by the State, the Supreme Court stated that the "most basic purpose" of the writ of habeas corpus is "avoiding serious abuses of power by a government." And contrary to the State's contention, In re Chapman, Petitioner , 156 U.S. 211, 215, 15 S.Ct. 331, 39 L.Ed. 401 (1895), declared that, although generally a writ of habeas corpus "will not lie where there is a remedy by writ of error or appeal," there are exceptional cases in which the habeas corpus may be used despite the existence of such a remedy.

With respect to this state's caselaw, the parties do not direct our attention to any precedent explicitly discussing article 3, section 3 of the Kansas Constitution in the context of determining the scope of our original jurisdiction to consider an action in habeas corpus. The State points to State v. Shores , 187 Kan. 492, 493, 357 P.2d 798 (1960), which declared that the notion "[t]hat habeas corpus is not a substitute for an appeal is elementary," and to James v. Amrine , 157 Kan. 397, 399, 140 P.2d 362 (1943), which recognized the general rule that a habeas corpus proceeding is not a substitute for direct appeal and "cannot be used to review nonjurisdictional errors and irregularities leading up to judgment." Both cases are factually distinguishable and neither mentions our constitutional grant of jurisdiction.

The State also relies on a decision from our State's first iteration of a Court of Appeals, In re Chapman, Petitioner , 4 Kan. App. 49, 46 P. 1014 (1896). But Chapman , like other cases of that era, was based on statutory law. It specifically cites to section "660 of the code," which at that time provided: "Every person restrained of his liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal." G.S. 1899, ch. 80, art. 30, sec.

660; see also G.S. 1899, ch. 80, art. 1, sec. 1, annot. ("This is chapter 80, G.S. 1868, except as noted at the end of any section."). The court in Ex parte Phillips , 7 Kan. 48, 49-50, 1871 WL 692 (1871), explained that, although this court has original jurisdiction in habeas corpus proceedings, its power is fixed by statute in Section 671 of the Civil Code, which "forbids an inquiry (at this time) into the alleged errors in the proceedings of the district court." That section provided, in relevant part, as follows:

"No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: ... second , upon any process issued on any final judgment of a court of competent jurisdiction; or, third , for any contempt of any court, officer or body having authority to commit; ... fourth , upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information." G.S. 1899, ch. 80, art. 30, sec. 671.

Even in the face of statutory constraints, however, this court has granted habeas corpus relief when necessary to provide timely relief from an illegal imprisonment. For instance, in In re McMicken, Petitioner , 39 Kan. 406, 408, 18 P. 473 (1888), the court opined that there was "no question that the petitioner was entitled to his discharge" for a speedy trial violation and "[t]he only serious question in the case [was] whether habeas corpus is the proper remedy." A majority of the McMicken court held habeas corpus relief was proper because "that proceeding is the only one which affords him a speedy remedy." 39 Kan. at 409, 18 P. 473. The majority reasoned that

"it would be a palpable violation of the bill of rights, and also of the statute, to require an accused who is entitled to his discharge, so far as relates to the offense for which he was committed, to be restrained of his liberty indefinitely at the instance of the state, or upon the order of the court, to await a final trial, or determination of the case against him." 39 Kan. at 409, 18 P. 473.

Relatively recent cases have also invoked our original jurisdiction to hear habeas corpus proceedings, notwithstanding lower court proceedings that could have been appealed. In re Habeas Corpus Petition of Mason , 245 Kan. 111, 113, 775 P.2d 179 (1989), held habeas corpus was an appropriate remedy for challenging a trial court's pretrial denial of a claim of double jeopardy, reasoning that "[t]he defendant would otherwise have no appellate forum in this state in which to assert a valid double jeopardy claim before being subjected to such jeopardy." In In re Weimer , No. 106862, 2012 WL 6061619 (Kan. App. 2012) (unpublished opinion), the Court of Appeals initially denied Weimer's petition for habeas corpus on the grounds that it was interlocutory in nature. Upon petition for review to this court, Weimer argued that he was being wrongfully detained on a charge in violation of the compulsory joinder statute, which codified double jeopardy protections. This court remanded to the Court of Appeals for consideration of the merits of Weimer's writ. See also In re Berkowitz , 3 Kan. App. 2d 726, 730-31, 602 P.2d 99 (1979) (holding habeas corpus is an appropriate vehicle to challenge a trial court's pretrial denial of a double jeopardy claim).

In short, the State has not convinced us to look behind the plain language of our constitution: "The supreme court shall have original jurisdiction in proceedings in ... habeas corpus." Kan. Const., art. 3, § 3. In other words, this court has the power to hear and decide an action in habeas corpus. Granted, this court has the authority-and responsibility-to make certain that a habeas corpus proceeding is the appropriate vehicle for the relief being sought. Indeed, we have provided a rule to that effect. Supreme Court Rule 9.01(b) (2018 Kan. S. Ct. R. 58-59) provides that in an original action, "[a]n appellate court ordinarily will not exercise original jurisdiction if adequate relief appears to be available in a district court. If relief is available in the district court, a petition must state ... the reason why the action is brought in the appellate court instead of in the district court." Accordingly, we turn to the State's argument that we should decline to exercise our original jurisdiction in this instance.

Here, the district court denied Easterberg's motion to dismiss and found probable cause existed to believe Easterberg was a sexually violent predator. Easterberg argues that the State was without authority to commence the KSVPA action because he did not meet the initial conditions precedent. He essentially contends that he was ineligible to be brought before the district court for a probable cause hearing, which rendered the proceedings illegal and the accompanying incarceration without possibility of bond unlawful.

If Easterberg is correct, it is no remedy to say that he can appeal the outcome of the illegal proceeding. Like the double jeopardy circumstance, a person claiming to be an ineligible patient under the KSVPA should be able to make that challenge before being subjected to KSVPA proceedings, during which the proposed patient has been deprived of his or her liberty interest, as explained below. Consequently, we proceed to consider Easterberg's petition.

ELIGIBILITY FOR SEXUALLY VIOLENT PREDATOR COMMITMENT

Easterberg contends that he did not meet the basic statutory eligibility requirements to be subject to the KSVPA, rendering these proceedings unlawful and the ensuing court-ordered incarceration illegal. Principally, he contends that his convictions for kidnapping and aggravated battery were not sexually violent crimes and, therefore, could not trigger the KSVPA proceedings against him.

The question presented turns on our interpretation of various statutory provisions. Accordingly, we begin by looking at the statutory scheme of the KSVPA, K.S.A. 2017 Supp. 59-29a01 et seq., which "is an act for the restraint of sexually violent predators aimed at identifying and involuntarily civilly committing such predators to 'potentially long term control, care and treatment' 'in an environment separate from persons involuntarily committed' for other reasons." In re Care & Treatment of Williams , 292 Kan. 96, 104, 253 P.3d 327 (2011) (quoting K.S.A. 59-29a01 ). K.S.A. 2017 Supp. 59-29a02(a) defines a "sexually violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence." In turn, a "sexually violent offense" is defined as any of the sex-related offenses listed in K.S.A. 2017 Supp. 59-29a02(e), which include, inter alia , rape, aggravated criminal sodomy, and "any act which either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this act, has been determined beyond a reasonable doubt to have been sexually motivated." K.S.A. 2017 Supp. 59-29a02(e)(1), (5), (13). " 'Sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification." K.S.A. 2017 Supp. 59-29a02(d). The phrase "[l]ikely to engage in repeat acts of sexual violence" means a person's "propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others." K.S.A. 2017 Supp. 59-29a02(c).

K.S.A. 2017 Supp. 59-29a03(a) establishes the practical means for commencing an action to commit a sexually violent predator by providing the procedure for initially notifying the attorney general that certain persons may be eligible for involuntary commitment, to-wit:

"(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02, and amendments thereto, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection (f), 90 days prior to:
(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than 90 days as a result of revocation of postrelease supervision, written notice shall be given as soon as practicable following the person's readmission to prison;
(2) release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to K.S.A. 22-3305, and amendments thereto;
(3) release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to K.S.A. 22-3428, and amendments thereto; or
(4) release of a person who has been found not guilty of a sexually violent offense pursuant to K.S.A. 22-3428, and amendments thereto, and the jury who returned the verdict of not guilty answers in the affirmative to the special question asked pursuant to K.S.A. 22-3221, and amendments thereto."

K.S.A. 2017 Supp. 59-29a03(h) also provides that "[t]he provisions of this section are not jurisdictional and failure to comply with such provisions not affecting constitutional rights in no way prevents the attorney general from proceeding against a person otherwise subject to the provisions of the Kansas sexually violent predator act."

K.S.A. 2017 Supp. 59-29a04(a) provides when and where the attorney general may file a petition alleging a person is a sexually violent predator:

"When the prosecutor's review committee, appointed as provided in K.S.A. 59-29a03(g), and amendments thereto, has determined that the person meets the definition of a sexually violent predator, the attorney general, within 75 days of the date the attorney general received the written notice as provided in K.S.A. 59-29a03(a), and amendments thereto, may file a petition in the county where the person was convicted of or charged with a sexually violent offense alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation."

Then, when the attorney general files a petition, the district court "shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator." K.S.A. 2017 Supp. 59-29a05(a). If such determination is made, "the court shall set the matter for a pretrial conference to establish a mutually agreeable date for trial to determine whether the person is a sexually violent predator." K.S.A. 2017 Supp. 59-29a06(a). In the meantime, the person is taken into custody and detained in the county jail. K.S.A. 2017 Supp. 59-29a05(a)(1). There is no provision for posting bail. See K.S.A. 59-29a20 ("Any person for whom a petition pursuant to this act has been filed and is in the secure confinement of the state shall not be eligible for bail, bond, house arrest or any other measures releasing the person from the physical protective custody of the state.").

At trial, the State has the burden to prove beyond a reasonable doubt that:

"(1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior." Williams , 292 Kan. at 106, 253 P.3d 327 (citing K.S.A. 2010 Supp. 59-29a02 [a]; Kansas v. Crane , 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 [2002] ; PIK Civ. 4th 130.20).

Easterberg argues that it was legally impossible for the State to prove the first element, because the crimes for which he was convicted are not defined as sexually violent crimes. The State's first tack-the allegation contained in its petition for commitment-is to assert that the plain language of K.S.A. 2017 Supp. 59-29a02(a) defines "any person who has been ... charged with a sexually violent offense" as a "sexually violent predator." Consequently, because the State initially charged Easterberg with rape and aggravated criminal sodomy, which are statutorily defined as sexually violent offenses, the State asserts that Easterberg is amenable to being involuntarily committed under the KSVPA, notwithstanding the fact that the State subsequently dismissed those charges.

Although in a different factual context, we previously addressed-and rejected-the notion that "simply being charged with a sexually violent offense subjects the person to involuntary commitment under the KSVPA." State v. Schaefer , 305 Kan. 581, 592, 385 P.3d 918 (2016). Schaefer held: "Viewing the KSVPA as a whole, rather than isolating the words, 'or charged,' in K.S.A. 59-29a02(a), gives one a clear indication that the KSVPA contemplates that the State must prove that a person actually committed the acts constituting a sexually violent offense before that person is subject to involuntary commitment as a sexually violent predator." 305 Kan. at 592-93, 385 P.3d 918. For instance, we pointed out that another part of K.S.A. 59-29a02(a)'s definition of sexually violent predator requires that the person is "likely to engage in repeat acts of sexual violence," necessarily implying that there was, in fact, an initial act of sexual violence that could be repeated. Moreover, K.S.A. 2017 Supp. 59-29a03 speaks to the "agency with jurisdiction" giving notification to the attorney general and the multidisciplinary team that a person may meet the criteria of a sexually violent predator; a person whose sexually violent crime charge has been dismissed or who has been acquitted of the charged crime would not be under the jurisdiction of any agency.

Schaefer also noted by way of comparison that, "if a person charged with a sexually violent offense has been found incompetent to stand trial, he or she can still be subjected to KSVPA proceedings, but only after 'the court shall first hear evidence and determine whether the person did commit the act or acts charged. ' (Emphasis added.) K.S.A. 59-29a07(g)." 305 Kan. at 593, 385 P.3d 918. The rules of evidence applicable to a criminal trial apply; the incompetent person is entitled to all the constitutional rights of a criminal defendant (except competency to stand trial); and the standard of proof is beyond a reasonable doubt. K.S.A. 2017 Supp. 59-29a07(g). It would be nonsensical to interpret the statutory scheme to provide the disparate treatment the State suggests, i.e., persons competent to stand trial need only be charged with a sexually violent crime, while persons not competent to stand trial must be proved-beyond a reasonable doubt-to have committed an act of sexual violence. See Fisher v. DeCarvalho, 298 Kan. 482, 495, 314 P.3d 214 (2013) (courts construe statutes to avoid unreasonable or absurd results). Consequently, the State's initial argument fails.

In the alternative, the State contends that it should be permitted to prove during the course of the KSVPA proceeding that the crime of conviction-kidnapping-was sexually motivated, thereby transforming that charge into a sexually violent crime under K.S.A. 2017 Supp. 59-29a02(e)(13). That catch-all provision includes within the definition of a sexually violent crime "any act which either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this act, has been determined beyond a reasonable doubt to have been sexually motivated."

Easterberg presents several arguments as to why the State cannot wait until the KSVPA proceeding to prove sexual motivation for the kidnapping. First, he points out that the sole provision upon which the State relies- K.S.A. 2017 Supp. 59-29a02(e)(13) -is contained in the definitions section of the Act. There is no procedural provision describing how that determination is to be effected in the KSVPA proceeding. In contrast, the Legislature explicitly set forth the procedure for persons found incompetent to stand trial in K.S.A. 2017 Supp. 59-29a07(g).

The district court pointed out the possible shortcoming of such a concurrent proceeding when it opined that "[i]t almost sounds like the case will be ... almost like retrying the criminal case." Easterberg contends that reprosecuting him to determine his motive for committing the kidnapping is unconstitutional and violative of the principles set forth by the United States Supreme Court in Kansas v. Hendricks , 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), when it upheld the constitutionality of the KSVPA. Pointing to the fact that he has been incarcerated since July 22, 2016, Easterberg also argues that investing the State with the unfettered discretion to incarcerate a person in county jail for years without first establishing the existence of a sexually violent crime is generically unconstitutional.

Easterberg's best argument in response to the State's alternative theory-i.e., that the State can later prove Easterberg was sexually motivated to commit the kidnapping-is that the sentencing court in this criminal case made a specific finding to the contrary. The Sentencing Guidelines Journal Entry of Judgment in the criminal case provided a space for the sentencing court to indicate whether it found the crimes of conviction to be sexually motivated. That determination was relevant, inter alia , for purposes of KORA, K.S.A. 22-4901 et seq. Under KORA, "sexually motivated" is defined exactly the same as it is in the KSVPA. See K.S.A. 59-29a02(d) (KSVPA) ; K.S.A. 22-4902(c)(14) (now K.S.A. 2018 Supp. 22-4902 [c][18] ) (KORA). The sentencing judge checked the box for both of Easterberg's criminal convictions indicating that the crimes were not sexually motivated. The judge, prosecutor, and defense attorney all signed the journal entry before it was filed of record.

The State does not dispute the existence or content of the journal entry; it concedes that "the judge in Easterberg's criminal case checked a box on a form indicating that Easterberg's crime was not sexually motivated." Instead, it argues the criminal case journal entry is not a bar to finding sexual motivation in the KSVPA proceeding for more than one reason. Statutorily, the State apparently reads the "either/or" language of K.S.A. 59-29a02(e)(13) as allowing it to prove the kidnapping was sexually motivated in the KSVPA proceeding, notwithstanding a contrary finding in the criminal case. We do not adopt that interpretation.

The State also asserts that the doctrine of collateral estoppel, or issue preclusion, cannot operate here for a couple of reasons.

"Collateral estoppel applies where (1) a prior judgment has been rendered on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties are the same or in privity, and (3) the issue litigated has been determined and is necessary to support the judgment." In re Tax Appeal of City of Wichita, 277 Kan. 487, Syl. ¶ 3, 86 P.3d 513 (2004).

See also In re Tax Appeal of Fleet , 293 Kan. 768, 778, 272 P.3d 583 (2012) ("Issue preclusion prevents a second litigation of the same issue between the same parties, even when raised in a different claim or cause of action.").

The State points out that collateral estoppel does not apply when the two proceedings being considered are not of a like quality and extensiveness. The State asserts that a criminal proceeding and an involuntary commitment are not proceedings of like quality or extensiveness. That assertion, however, is belied by the statute upon which it is relying. K.S.A. 2017 Supp. 59-29a02(e)(13) specifically says that the sexual motivation of the act can be determined either at the criminal sentencing or during the civil commitment proceedings. In other words, if one adopts the State's interpretation of K.S.A. 2017 Supp. 59-29a02(e)(13), then one must accept that the Legislature has established the equality of the two proceedings with respect to the determination of sexual motivation.

The State's better argument is that Easterberg has failed to demonstrate that the issue of sexual motivation was actually litigated by the parties in the criminal case, which would be required to apply collateral estoppel. The State suggests that, because the kidnapping and aggravated battery convictions were the product of a plea agreement, the prosecutor may not have had any incentive to attempt to demonstrate that the kidnapping was sexually motivated at the sentencing hearing. But that supposition is neither confirmed nor refuted by the record.

Accordingly, it is necessary to remand this KSVPA case to Riley County District Court for a determination of whether the issue of sexual motivation was litigated in Easterberg's criminal case. If so, the State is estopped from relitigating that point in the KSVPA proceeding and Easterberg would not be eligible for involuntary commitment. If not, the KSVPA proceeding can continue.

Nuss, C.J., not participating.

Michael J. Malone, Senior Judge, assigned.

Johnson, J., concurring in part and dissenting in part:

I agree with the majority's determination that this court can exercise original jurisdiction over Easterberg's petition for writ of habeas corpus, and I agree that a determination by the district court in the criminal proceeding that the acts constituting his kidnapping and aggravated battery convictions were not sexually motivated precludes a contrary determination in a subsequent KSVPA proceeding based upon those convictions. Where I part company with the majority is when it remands the case for a determination of whether the parties litigated the question of sexual motivation, i.e., whether the district court really meant to say what it said in its order.

To begin, it is helpful to pause and consider just what happened here. Easterberg was charged with rape and aggravated criminal sodomy, both of which are statutorily defined as a sexually violent offense. K.S.A. 59-29a02(e)(1) and (5). Consequently, if the State had proceeded with that prosecution and obtained a conviction on either statutorily defined sexually violent charge, Easterberg's motivation in committing the crime would not have been germane; the conviction alone would have been conclusive proof that Easterberg committed a sexually violent crime. But the State voluntarily agreed to dismiss the sexually violent charges and accept a plea to crimes that are not per se sexually violent. "It is not uncommon for a prosecutor to entice a plea agreement from a defendant charged with a registration-qualifying sex offense by offering to amend the charge to a crime that will not require the defendant to register [under KORA]." State v. Petersen-Beard , 304 Kan. 192, 222, 377 P.3d 1127 (2016) (Johnson, J., dissenting). If that were the scenario here-which I submit is more likely than the State's suggestion that the prosecutor was simply asleep at the wheel-the court's finding that the crimes of conviction were not sexually motivated would have been integral to the parties' plea agreement, rather than being an inadvertent box-checking. There would have been agreement on the court's finding and no need for adverse litigation.

Nevertheless, we need not engage in dueling speculation. We have an appellate record that contains a journal entry-an order of the court-that quite explicitly says what happened; the district court found that the crimes of conviction were not sexually motivated. Generally, when a court enters a judgment "this court presumes that the trial court found all facts necessary to support its judgment."

McIntyre v. State , 305 Kan. 616, 617-18, 385 P.3d 930 (2016) (citing O'Brien v. Leegin Creative Leather Products, Inc. , 294 Kan. 318, 361, 277 P.3d 1062 [2012] ; State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 [2015] ; Supreme Court Rule 165 [b] [2015 Kan. Ct. R. Annot. 257] ).

Further, a finding on sexual motivation was required in this case for purposes of determining whether Easterberg was subject to KORA registration. Accordingly, contrary to the State's suggestion, the prosecutor did have a dog in the fight over the sexual motivation finding, i.e., the judge's ruling on that question made a difference in the ongoing relationship between Easterberg and the State. Consequently, when both the prosecuting attorney and the defense counsel approved the court's order by affixing their signatures to the journal entry, we should simply accept that the parties (and the court) meant what they said in writing. If the majority needs more than the prosecutor's signature, it can look to the fact that the State did not file a motion to alter or amend the journal entry; the State did not request the court to make additional findings of fact or conclusions of law; and the State did not appeal the district court's determination that Easterberg's convictions were not sexually motivated. I see no basis upon which the State is entitled to another bite of the apple.

Perhaps more importantly, the KSVPA contains a provision that explicitly addresses the procedure the State "shall" follow when sufficient evidence of sexual motivation exists for a crime that is not statutorily defined as a per se sexually violent crime. K.S.A. 2017 Supp. 59-29a14 provides (with emphasis added here):

"(a) The county or district attorney shall file a special allegation of sexual motivation within 14 days after arraignment in every criminal case other than sex offenses as defined in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto, when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.
"(b) In a criminal case wherein there has been a special allegation, the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury trial is had, the jury, if it finds the defendant guilty, also shall find a special verdict as to whether or not the defendant committed the crime with a sexual motivation. This finding shall not be applied to sex offenses as defined in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto.
"(c) The county or district attorney shall not withdraw the special allegation of sexual motivation without approval of the court through an order of dismissal of the special allegation. The court shall not dismiss this special allegation unless it finds that such an order is necessary to correct an error in the initial charging decision or unless there are evidentiary problems which make proving the special allegation doubtful."

Curiously, no one involved in this case cites to K.S.A. 2017 Supp. 59-29a14. I would think that one should ruminate on the legislative intent conveyed by its use of such explicit instructions-in ordinarily mandatory language-for determining sexual motivation in the criminal case, while saying not a whit about the procedure to make the determination in the KSVPA proceeding, except for persons found incompetent to stand trial. If nothing else, K.S.A. 2017 Supp. 59-29a14 belies the State's contention that K.S.A. 2017 Supp. 59-29a02(e)(13) is plain and unambiguous. See State v. Coman , 294 Kan. 84, 93, 273 P.3d 701 (2012) (even crystal clear statutory language can be ambiguous if various statutes conflict). But given that the district court did make the requisite finding in the district court and the attorneys for both parties approved the finding, we need not further consider the impact of K.S.A. 2017 Supp. 59-29a14.

In short, I would hold that the district court in the underlying criminal case made a finding that Easterberg's kidnapping and aggravated battery convictions were not sexually motivated, making him ineligible for involuntary commitment under the KSVPA. I would remand for the sole purpose of ordering the district court to dismiss the case and discharge Easterberg from custody.

Luckert, J., and Michael J. Malone, Senior Judge, join in the foregoing concurring and dissenting opinion.

Stegall, J., dissenting:

"That habeas corpus is not a substitute for an appeal is elementary." State v. Shores , 187 Kan. 492, 493, 357 P.2d 798 (1960) ; see Germany v. Hudspeth , 174 Kan. 1, 2, 252 P.2d 858 (1953) ("this court is committed to the rule that a habeas corpus proceeding is not a substitute for appellate review"); see also Medina v. Choate , 875 F.3d 1025, 1029 (10th Cir. 2017), cert. denied --- U.S. ----, 138 S.Ct. 1573, 200 L.Ed.2d 762 (2018) (citing extensive caselaw to conclude that "the prisoner is limited to proceeding by motion to the trial court, followed by a possible appeal after judgment, before resorting to habeas relief"). As the United States Supreme Court declared, "The writ of habeas corpus is not intended to serve the office of a writ of error even after verdict; and, for still stronger reasons, it is not available to a defendant before trial, except in rare and exceptional cases," and this rule has been "so definitely established ... as to leave no room for further discussion." Johnson v. Hoy , 227 U.S. 245, 247, 33 S.Ct. 240, 241, 57 L.Ed. 497 (1913).

Thus, we have long held that a habeas proceeding "cannot be used to review nonjurisdictional errors and irregularities leading up to judgment." James v. Amrine , 157 Kan. 397, 399, 140 P.2d 362 (1943). This basic rule has never been questioned in Kansas, and today's majority does not explain why it should not preclude the relief Easterberg seeks.

The remedy the majority has crafted-a remand for fact-finding on a question of estoppel-makes it clear that Easterberg has appellate remedies. Procedural arguments like this (res judicata or claim preclusion) are bread-and-butter appellate claims. I would simply apply our long-standing rule that habeas corpus cannot serve as a substitute for ordinary, prejudgment complaints about the State's case. That is what an appeal is for.

Because I would dismiss Easterberg's petition on these grounds-refusal to exercise jurisdiction when the petitioner has adequate alternative remedies-it is unnecessary for me to reach the complicated question of whether this writ falls outside our original jurisdiction under the Kansas Constitution. Given that a majority of the court has decided to exercise jurisdiction, however, I agree that a remand is necessary under these facts.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 117,933 vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.


text:
    Douglas R. PETERS, Appellant, v. DESERET CATTLE FEEDERS, LLC, Appellee.
    No. 113,563
    Supreme Court of Kansas.
    Opinion filed March 29, 2019.
    John M. Lindner, of Lindner, Marquez & Koksal, of Garden City, argued the cause and was on the briefs for appellant.
    Alan L. Rupe, of Lewis Brisbois Bisgaard & Smith LLP, of Wichita, argued the cause, and Jeremy K. Schrag, of the same firm, was with him on the briefs for appellee.
   The opinion of the court was delivered by Nuss, C.J.:

This is an employment case arising out of the sale of a cattle feedlot. The district court held that Douglas R. Peters, who moved his employment from the old owner to the new-Deseret Cattle Feeders, LLC (Deseret)-was Deseret's employee at will. In short, Deseret could terminate Peters' employment at any time without cause. So the court granted summary judgment to Deseret on Peters' claims of breach of implied-in-fact employment contract and promissory estoppel.

The Court of Appeals panel reversed, holding that whether Peters' employment was at will-or protected by an implied-in-fact contract-was a disputed question of fact precluding summary judgment.

Where, as here, no definite term of employment is expressed, the duration of employment depends on the intention of the parties as determined by the circumstances of each particular case. Johnson v. National Beef Packing Co. , 220 Kan. 52, 54-55, 551 P.2d 779 (1976). Under the circumstances of this particular case, we agree with the panel. As required by caselaw, Peters' implied-in-fact employment contract claim is supported by more than his own subjective understanding or expectation. And whether a meeting of the minds existed between Peters and Deseret on such a contract presents a genuine issue of material fact preventing summary judgment.

As a result, we affirm the panel's decision reversing summary judgment on this claim and the one for promissory estoppel. We remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Hitch Enterprises, Incorporated (Hitch) owned and operated a Haskell County feedlot licensed to feed more than 47,000 head of cattle. As Hitch's shop manager, Peters was responsible for supervising two to three individuals in the shop and for keeping all of the equipment running. When Peters began working for Hitch in 2006, he signed a statement acknowledging he was an employee at will.

In 2010, Hitch sold the enterprise to Deseret. While Hitch custom fed cattle for a variety of different owners, Deseret exclusively feeds cattle coming from the 10 ranches operated by its parent company AgReserves, Inc.

In May or early June 2010, Hitch called a company meeting and told its employees it was selling its feedlot to Deseret. No Deseret representatives attended the meeting. There, Hitch representatives told their employees they were welcome to look into transferring to other Hitch locations-two feedlots near Guymon, Oklahoma-if they were unable to work for Deseret.

According to the later deposition testimony of Hitch employee Lew Branscum, Hitch also told its employees the sales agreement provided there would be no layoffs and if the former Hitch employees did their jobs after Deseret took over, Deseret would keep them. Any reduction in workforce would be through attrition from retirements and voluntary resignations.

Two Hitch managers, Ronnie Pruitt and Dale Nicodemus, were not retained. During their depositions, they testified that Deseret warned them against enticing any current Hitch employees to go with them. In sum, Deseret needed the employees to keep operating the feedlot.

In June 2010, Deseret representatives held meetings to introduce themselves to the Hitch employees. David Secrist, Vice President of Cattle for AgReserves, Inc., and Michael Archibald, General Manager for Deseret (who eventually replaced Pruitt), met with groups of Hitch employees from each of the departments, i.e., shop and yard, feed and mill, and animal health. At the time of these meetings, Deseret was unfamiliar with Hitch's individual employees and their experience levels, work history, disciplinary history, attendance, or productivity levels. Secrist and Archibald gave each of the departmental groups a brief background of their experience and explained Deseret's philosophy, organization, and history.

According to Hitch manager Pruitt's deposition testimony, at these departmental meetings, Deseret representatives-presumably Secrist-specifically, said, "[W]e hope the employees stay. You know, we value your tenure with the company. We want you to stay with us." Pruitt further testified that a Deseret representative said,

"They weren't going to get rid of anybody. ... By any means of releasing them, firing them. If they left on their own they would not hire people back. As far as their employee numbers would be smaller than what Hitch had, so they did not need a manager. They didn't-well, they did bring their own in. They did not need an assistant manager. As people left, they were going to get their employees down through attrition as they left, rather than to let them go ." (Emphasis added.)

Similarly, in the deposition of Hitch manager Nicodemus, he testified "it was indicated" that Deseret was "not planning to lay off anybody" and was "going to continue to operate at full strength." Peters essentially testified to the same effect. According to Peters, Deseret representatives told Hitch employees that-there would be no layoffs, employment would be secure, current employees would continue to be employed as long as they did their jobs, and any reduction in workforce would be limited to attrition from retirements or voluntary resignations.

In July 2010, Deseret's Archibald and Secrist met with the Hitch employees individually, including Peters. Archibald took notes of the interview on Peters' mechanical experience and experience with fleet management software.

After the individual meetings, Deseret held a large group meeting with the Hitch employees at the Clarion Hotel in Garden City. There, Deseret explained its insurance and profit sharing plan and discussed its vacation and pay practices.

With the exception of Hitch's management team of Pruitt and Nicodemus, Deseret hired every Hitch employee who wanted a job. The employees were hired at the same or similar pay and experience level as they had held with Hitch. Peters began his Deseret employment on November 1, 2010, in the same position and title as at Hitch: shop manager.

The sale closed the next day. Later that month, Hitch hosted a final cookout for its former employees. There, Chris and Jason Hitch thanked their employees for their many years of service. Deseret representatives, including Archibald and Secrist, did not make any announcements there. Of the 40 to 50 total Hitch employees, 13 left at the time Deseret took over the enterprise. Another eight employees would eventually quit after initially deciding to continue with Deseret.

Upon starting his Deseret employment, Peters carried over his unused vacation time from Hitch. He also signed several personnel-related acknowledgments for Deseret. One was a "Consent to Test for Alcohol or Drugs" acknowledgement that stated "refusal by me to sign this consent will be cause for termination or ineligibility for employment." A second document Peters signed related to alcohol and drug screening and provided he would be required to meet all established standards of conduct and job performance. His failure to meet any of the requirements would result in immediate termination. The form further provided: "Nothing contained herein shall be construed as a waiver of [AgReserve's] right to take normal employment disciplinary actions against me under existing policies and procedures for unsatisfactory work performance or misconduct." A third document, signed later, was a Wrangler Jeans Purchase Agreement. It stated if Peters' employment ended with Deseret "for any reason," his unpaid Wrangler purchase would be deducted from his last check. But in contrast to the start of Peters' employment with Hitch four years earlier, he did not sign an acknowledgment of at-will employment with Deseret.

In the spring of 2011, Deseret made operational changes to its use and repair of feedlot machinery and equipment. Instead of relying on full-time employees, Deseret started using contract labor for specialized work such as assisting with rebuilding pens and repairing heavy equipment. And Deseret started replacing Hitch's aging equipment and machinery with newer equipment operated under factory warranty programs, which included factory scheduled maintenance. Deseret also reduced the equipment necessary for its operation. While Hitch had used seven feed trucks, Deseret only uses four. And although Hitch had 20 pickups, Deseret only has about 11.

In June 2011, because of the operational changes, and despite being satisfied with Peters' job performance, Deseret terminated his employment. Deseret offered Peters a severance package as part of his termination. Peters refused without explanation.

Approximately two years later, Peters filed suit against Deseret alleging breach of an employment contract, or in the alternative detrimental reliance and estoppel. For damages, he claimed $49,440 in lost severance pay he did not receive from Hitch when he decided instead to accept employment with Deseret. He also claimed $21,963.11 in lost wages for 10 months following his termination and lost benefits of $3,323 for health insurance and a vehicle and cell phone that he had received through his employment.

Deseret ultimately moved for summary judgment. It argued the undisputed facts showed that Peters was an at-will employee who could be terminated at any time without cause.

In response, Peters identified four controverted facts he alleged were material and precluded summary judgment: (1) in Deseret's offer of employment, it assured Peters that if he chose to work for Deseret, his employment would be secure, there would be no layoffs, he would continue to be employed for as long as he continued to perform his job, and any reduction in workforce would be limited to reduction by attrition resulting from retirements and voluntary resignations; (2) Hitch made a severance offer applicable to employees who did not want to work for Deseret and the terms of that offer; (3) Deseret knew of any severance offers made by Hitch; and (4) Peters reasonably relied on the Deseret offer to his detriment.

In support, Peters cited declarations from four Hitch employees-Pruitt, Nicodemus, Branscum, and Lawrence Guerrero. They each signed identical declarations in June or July 2013-though each later retracted the declarations to varying extents during their depositions. All of the declarations contained only the same three paragraphs:

"1. On or about November 2, 2010 when Deseret Cattle Feeders, LLC took over Hitch Feeders, I was an employee of Hitch Feeders.
"2. The employees were given the option of going to work for the new company, Deseret Cattle Feeders, LLC or, if the employees did not want to work for the new company, Hitch Feeders was offering 1 year salary.
"3. At this meeting, Deseret Cattle Feeders, LLC representatives promised that if we went to work for the new company, Deseret, that our employment would be secure. They promised that there would be no layoffs, present employees would continue to be employed as long as they did their jobs, and that any reduction in workforce would be limited to reduction by attrition from retirements or voluntary resignations."

The declarations were signed, "I declare, verify and certify under penalty of perjury that the foregoing is true and correct."

Per Guerrero's later deposition, he may not have read the declaration before signing it. He went on to testify, however, that Deseret held a meeting after it had taken over the business and "fired five guys in one day .... [T]here was a meeting that same evening that they fired them, and they said everybody present at this meeting does not have to worry about their job. [T]heir jobs was secure, that there wouldn't be no more layoffs."

Deseret replied by arguing Peters' claim was only supported by self-serving statements. It contended Peters presented no corroborating evidence to show an implied-in-fact contract or the elements of promissory estoppel.

The district court granted summary judgment to Deseret. It ruled that none of the material facts were controverted and that Peters' employment with Deseret was at will, i.e., there was no evidence for finding an implied-in-fact contract. The court further held that on Peters' claim of promissory estoppel, Deseret had not induced him to detrimentally move laterally from one at-will position at Hitch to another one at Deseret.

The Court of Appeals panel reversed on both Peters' claims. Viewing the evidence in the light most favorable to Peters as the opponent of the summary judgment motion, the panel held-among other things-that his expectations about the purported employment contract were not unilateral. So whether he was an employee-at-will could not be determined by the court as a matter of law, but only by the jury as a matter of fact. Peters v. Deseret Cattle Feeders, LLC , No. 113563, 2016 WL 4499965 (Kan. App. 2016) (unpublished opinion).

This court granted Deseret's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).

ANALYSIS

The parties continue to argue about whether genuine issues of material fact exist on Peters' claims that (1) he had an implied-in-fact employment contract; and (2) Deseret had induced him to detrimentally rely on its statements about continuing employment without the possibility of layoffs.

Standard of review

Because this case was decided under K.S.A. 60-256, summary judgment standards are applied on appellate review. An appellate court reviews summary judgment de novo. South Central Kansas Health Ins. Group v. Harden & Co. Ins. Services, Inc ., 278 Kan. 347, 350, 97 P.3d 1031 (2004) (citing Associated Wholesale Grocers, Inc. v. Americold Corp. , 261 Kan. 806, 820, 934 P.2d 65 [1997] ).

Our summary judgment standard is well-known:

" 'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied . [Citations omitted].
Shamberg, Johnson & Bergman, Chtd. v. Oliver , 289 Kan. 891, 900, 220 P.3d 333 (2009).' " (Emphasis added.) Fawcett v. Oil Producers, Inc. of Kansas , 302 Kan. 350, 358-59, 352 P.3d 1032 (2015).

As summarized by the United States Supreme Court in Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), in this case we must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."

Issue 1: Summary judgment should not have been granted for Deseret on Peters' implied-in-fact employment contract claim.

The law in Kansas generally favors at-will employment. The employment-at-will doctrine holds that employees and employers may terminate an employment relationship at any time for any reason, unless there is an express or implied contract governing the terms of employment.

Lumry v. State , 305 Kan. 545, 562, 385 P.3d 479 (2016) ; see Johnson , 220 Kan. 52, Syl. ¶ 1, 551 P.2d 779 ("In the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.").

We have recognized implied-in-fact employment contracts in certain circumstances. For under Kansas law, parties may become contractually obligated by their conduct as well as by their use of oral or written words. Hall v. Kansas Farm Bureau , 274 Kan. 263, 273, 50 P.3d 495 (2002) (citing Atchison County Farmers Union Co-op Ass'n v. Turnbull , 241 Kan. 357, 363-64, 736 P.2d 917 [1987] ).

"A contract implied in fact arises from facts and circumstances showing mutual intent to contract." Mai v. Youtsey , 231 Kan. 419, 422, 646 P.2d 475 (1982). Because the intent must be mutual, an implied contract cannot be established solely by the employee's subjective understanding or expectation of his or her employment. Hall , 274 Kan. at 273, 50 P.3d 495 (citing Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 133, 815 P.2d 72 [1991] ); see also Allsup v. Mount Carmel Med. Center , 22 Kan.App.2d 613, 617-18, 922 P.2d 1097, rev. denied 260 Kan. 991 (1996) (discussing the implied contract theory exception).

This court has held that the "intent of the contracting parties is normally a question of fact for the jury and ... the determination of whether there is an implied contract in employment requires a factual inquiry." Morriss v. Coleman Co ., 241 Kan. 501, 512, 738 P.2d 841 (1987). In making that particular determination, the understanding and intent of the parties should be ascertained from consideration of several factors: (1) written or oral negotiations, (2) the parties' conduct from the beginning of the employment relationship, (3) the usages of the business, (4) the situation and objective of the parties giving rise to the relationship, (5) the nature of the employment, and (6) any other circumstances surrounding the employment relationship that tend to explain or clarify the parties' intentions at the time employment began. Hall , 274 Kan. at 273, 50 P.3d 495 (quoting Allegri v. Providence-St. Margaret Health Center , 9 Kan.App.2d 659, 684 P.2d 1031 [1984] ). Intent is obviously a state of mind, and "[a] court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties." Henrickson v. Drotts , 219 Kan. 435, 438, 548 P.2d 465 (1976).

The panel correctly observed in reviewing a summary judgment it was required to view the evidence in the light most favorable to Peters. See Osterhaus v. Toth , 291 Kan. 759, 768, 249 P.3d 888 (2011) (courts required to resolve all facts and inferences which may reasonably be drawn from evidence in favor of party against whom ruling is sought). After doing so, it found several Hall factors supported his claim that his employment was more than at will and that Deseret could have intended an implied-in-fact contract of employment.

Specifically, Deseret wanted to retain Hitch employees, who would be crucial for continued operation of the 47,000 head feedlot during the transition and beyond. Deseret warned departing managers Pruitt and Nicodemus against poaching Hitch employees. Additionally, Hitch managers were under the impression that as part of the sales contract, there would be no layoffs of Hitch employees. They relayed this view to the Hitch employees. While Hitch's comments to employees are not binding on Deseret, these representations provide at least some support for Peters' understanding of the nature of the new employment relationship.

More important, Pruitt, Branscum, Nicodemus, Guerrero, and Peters all confirmed that Deseret representatives told employees there would be no layoffs and any reductions in staffing would be through attrition rather than firing. Additionally, Peters testified that Deseret assured the Hitch employees continued employment as long as they did their jobs. This is all consistent with Deseret's need to obtain and retain experienced employees to run the feedlot. And further supports Peters' understanding of Deseret's intentions toward his employment status.

At oral arguments before this court, counsel for Deseret acknowledged that its representatives probably made statements that Deseret would not lay off employees once it took over the feedlot. But counsel dismissed the statements as mere "fluff." He argued such "fluff" was not enough to form an implied-in-fact employment contract. According to counsel, under the employment-at-will doctrine, Deseret can make general statements of intent about long-term employment for its new employees without apparent consequence.

We disagree with Deseret and agree with the Court of Appeals panel. The enticing oral statements from the new employer cannot be dismissed as fluff because they help in determining whether a meeting of the minds existed between Deseret and Peters to form an implied-in-fact contract. In fact, they tend to support Peters' assertion that one existed. More specifically, they help demonstrate the parties' intent from the beginning of the employment relationship as well as the situation and objective of the parties giving rise to that relationship. Hall , 274 Kan. at 273, 50 P.3d 495 ; see Henrickson , 219 Kan. at 438, 548 P.2d 465 (court should be cautious in granting motion for summary judgment when resolution of dispositive issue requires determination of state of mind of one or both parties).

We also observe other facts regarding the parties' state of mind, i.e., intent, that caution against granting summary judgment. First, documents Peters was required to sign as he began Deseret's employment, e.g., relating to testing for drugs and alcohol, could be reasonably interpreted to suggest he would be disciplined only for violations of company policy-and not for "no cause." Discipline would include "immediate termination" for failing "to meet all established standards of conduct and job performance."

Second, a document Peters was not required to sign as he began Deseret employment-i.e., an acknowledgment that he was an employee at will-coupled with Peters' knowledge that he was required to sign such an acknowledgment for Hitch when he began work there, could suggest to him that he was not such an employee for Deseret. This combination of Deseret (1) requiring Peters to sign documents identifying discipline for unsatisfactory work performance or misconduct and (2) not requiring him to sign any documents establishing his employment was at will-could lead Peters to reasonably infer from Deseret that he had an implied-in-fact contract terminable only for cause.

As we said in Morriss , 241 Kan. at 514, 738 P.2d 841 :

"There has been no trial in this case, and we only hold that the evidence presented in the record at the time summary judgment was granted was insufficient to require summary judgment in favor of defendants as a matter of law. The ultimate decision of whether there was an implied contract not to terminate the plaintiffs without just cause must be determined from all the evidence presented by the parties on that issue. We thus hold that the trial court erred in sustaining the defendants' motion for summary judgment as to that implied contract claim."

Considering the Hall factors, we conclude that the particular circumstances of this case present a genuine issue of material fact as to the intent of the parties entering this employment relationship, i.e., was there a meeting of the minds in order to create an implied-in-fact contract? In short, the evidence is not so one-sided that Deseret must prevail as a matter of law. See Anderson , 477 U.S. at 251-52, 106 S.Ct. 2505. So we affirm the decision of the panel reversing summary judgment and remand for further proceedings.

Issue 2: Summary judgment should not have been granted for Deseret on Peters' promissory estoppel claim .

Deseret argues the panel erred in holding Deseret was not entitled to summary judgment on Peters' promissory estoppel claim. It contends that because Peters failed to come forward with any evidence that Deseret had knowledge of Hitch offering severance packages, he cannot show Deseret reasonably foresaw that its offer of at-will employment would result in Peters declining a severance offer from Hitch. Osterhaus , 291 Kan. 759, Syl. ¶ 2, 249 P.3d 888 (defendant entitled to summary judgment if can establish absence of evidence necessary to support essential element of plaintiff's case). And showing Deseret's reasonable expectation of Peters' acting in reliance on its promise is required for promissory estoppel. Mohr v. State Bank of Stanley , 244 Kan. 555, 574, 770 P.2d 466 (1989).

Peters responds that the district court did not reach this issue; its ruling entirely focused on the at-will employment contract issue. Because the district court did not go on to consider whether a severance package was available to Peters from Hitch, Peters argues this court should affirm the panel's decision reversing summary judgment and remanding this issue to the district court for consideration as well.

Before beginning our analysis, we note that promissory estoppel is "an equitable doctrine designed to promote some measure of basic fairness when one party makes a representation or promise in a manner reasonably inducing another party to undertake some obligation or to incur some detriment as a result." Bouton v. Byers , 50 Kan.App.2d 34, 41, 321 P.3d 780 (2014), rev. denied 301 Kan. 1045 (2015).

In granting Deseret summary judgment on this issue, the district court held that Peters was an at-will employee and cited Chrisman v. Philips Industries, Inc ., 242 Kan. 772, 780-81, 751 P.2d 140 (1988). There, we held no detrimental reliance existed to support promissory estoppel when the plaintiff simply moved from one at-will employment position to another. We reasoned such a move did not harm the employee. So for Peters, the district court concluded he could not rely on any inducement by Deseret for a lateral change in position from Hitch's at-will shop manager to Deseret's at-will shop manager.

The district court did not analyze the remaining elements of promissory estoppel, holding that regardless of whether a severance package existed, Peters did not rely on Deseret's inducement for a lateral change in position. See Osterhaus , 291 Kan. 759, Syl. ¶ 2, 249 P.3d 888.

The panel distinguished Chrisman , holding that whether Peters merely traded one at-will position for another is disputed. As we concluded above, while Peters signed a written acknowledgment in 2006 that he was an employee at will for Hitch, he signed no such acknowledgment for Deseret. And genuine issues of material fact remain on the question of his employment status with Deseret. Like the panel, we hold that because the question remains about whether Peters' employment with Deseret was at will or through an implied-in-fact contract, Chrisman is not controlling.

We affirm the judgment of the Court of Appeals, reverse the district court's order granting summary judgment, and remand for further proceedings in accordance with our decision.