In re Care and Treatment of Quillen

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,184

In the Matter of the Care and Treatment
of RICHARD A. QUILLEN.

SYLLABUS BY THE COURT

1.
Substantive due process requires the State to present proof that a respondent has a
mental abnormality or personality disorder that causes serious difficulty in controlling
behavior in order to involuntarily civilly commit him or her under the Kansas Sexually
Violent Predator Act (KSVPA), K.S.A. 2019 Supp. 59-29a01 et seq.

2.
The State's continued involuntary commitment of a sexually violent predator under
the KSVPA does not violate substantive due process as long as the sexually violent
predator remains both mentally ill and dangerous.

3.
Once a respondent committed under the KSVPA has demonstrated probable cause
to believe that he or she is no longer mentally ill and/or dangerous, due process requires
the State prove the respondent continues to suffer a mental abnormality that makes it
difficult to control one's dangerous behavior, and that he or she remains dangerous.

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4.
At a transitional release hearing, substantive due process is satisfied when the jury
instructions, taken as a whole, require the jury to necessarily and implicitly find the
respondent continues to have serious difficulty in controlling behavior and remains
dangerous.

Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 407, 451 P.3d 478 (2019).
Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed March 5, 2021. Judgment
of the Court of Appeals vacating and remanding to the district court is affirmed in part and reversed in
part. Judgment of the district court is affirmed.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for
appellant.

Dwight R. Carswell, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: Richard A. Quillen was civilly committed as a sexually violent predator
under the Kansas Sexually Violent Predator Act (KSVPA) in 2006. Several years later,
he petitioned to be placed in transitional release over the objection of the Secretary for
the Kansas Department of Aging and Disability Services (KDADS). The district court
eventually held a jury trial to determine whether Quillen was safe to be placed on
transitional release, and the jury found Quillen's mental abnormality or personality
disorder remained such that he was not safe to be placed in transitional release, and if
transitionally released, he was likely to engage in repeat acts of sexual violence. See
K.S.A. 2019 Supp. 59-29a08. Quillen appealed, arguing the district court erred when it
denied his request to instruct the jury that it must find Quillen had serious difficulty
controlling his behavior and this instructional error violated his substantive due process

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rights. The Court of Appeals agreed with Quillen, vacating the verdict and remanding for
a new trial.

This appeal requires us to determine the due process standard to be applied at
transitional release hearings under the KSVPA and decide whether the district court's jury
instructions satisfied this standard. We hold that once a respondent committed under the
KSVPA has demonstrated probable cause to believe that he or she is no longer mentally
ill and/or dangerous, substantive due process requires the State to show the respondent
continues to meet the criteria justifying initial commitment, including proof that the
respondent has serious difficulty controlling his or her dangerous behavior, in order to
deny transitional release. We also hold that at a transitional release hearing, substantive
due process requirements are satisfied when the jury instructions, taken as a whole,
require the jury to necessarily and implicitly find the respondent continues to have
serious difficulty controlling his or her dangerous behavior. Finally, we conclude that the
jury instructions given at Quillen's transitional release hearing were constitutionally
adequate under this standard. Therefore, we affirm the Court of Appeals in part, reverse
in part, and affirm the judgment of the district court based on the jury verdict.

FACTS AND PROCEDURAL BACKGROUND

Quillen's Initial Commitment as a Sexually Violent Predator

In the 1990s, Quillen was convicted of multiple sex crimes involving children. He
was set to be released from prison in 2006 after completing the sentence for his most
recent conviction. Before his release, the State petitioned to have Quillen civilly
committed as a sexually violent predator under the KSVPA. Quillen eventually entered a
consent decree stipulating he was a sexually violent predator. The district court
acknowledged the consent decree and found Quillen to be a sexually violent predator.

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The court committed Quillen to the custody of the Secretary of Social and Rehabilitation
Services and sent him to the Larned State Security Hospital Sexual Predator Treatment
Program (the Program). The custody of all sexually violent predators was later
transferred to the Secretary of KDADS. L. 2014, ch. 115, §§ 214-16; see K.S.A. 2014
Supp. 59-29a02; K.S.A. 2014 Supp. 59-29a07; K.S.A. 2014 Supp. 59-29a11.

Like all respondents committed under the KSVPA, Quillen was entitled to an
annual review of his current mental condition. K.S.A. 2019 Supp. 59-29a08(a).
Ordinarily, if a respondent contests his or her annual report and petitions for transitional
release over the Secretary's objection, he or she is entitled to an annual review hearing at
which the respondent bears the burden to "show probable cause to believe the person's
mental abnormality or personality disorder has significantly changed so that the person is
safe to be placed in transitional release." K.S.A. 2019 Supp. 59-29a08(d). However, as
part of Quillen's consent decree, the State waived the requirement of a probable cause
hearing and agreed to hold a full hearing if Quillen ever petitioned for transitional
release. At a hearing for transitional release, the State bears the burden to "prove beyond
a reasonable doubt that the person's mental abnormality or personality disorder remains
such that the person is not safe to be placed in transitional release and if transitionally
released is likely to engage in repeat acts of sexual violence." K.S.A. 2019 Supp. 59-
29a08(g).

Quillen's 2013 Annual Review and Subsequent Proceedings

In 2013, Quillen contested his annual report and requested a hearing to determine
if he should be placed in transitional release over the Secretary's objection. The district
court denied his request without setting a hearing, and Quillen appealed. In re Care and
Treatment of Quillen, No. 114,708, 2016 WL 7324416, at *1 (Kan. App. 2016)
(unpublished opinion). After Quillen moved for summary disposition of his appeal, the

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State suggested the Court of Appeals should construe his motion as a motion for remand.
The State also suggested that "'on remand, [Quillen] be given a hearing pursuant to
K.S.A. 59-29a08, with all attendant rights, including the right to request a jury, the right
to counsel, and the right to an independent examination.'" 2016 WL 7324416, at *1. The
Court of Appeals agreed and summarily reversed and remanded to the district court for a
hearing.

On remand, the district court appointed counsel for Quillen and authorized Quillen
to obtain an independent evaluation from Dr. Robert Barnett. Before the trial for Quillen's
2013 annual review could take place, Quillen petitioned for an annual review hearing on
his 2014 annual report. The court consolidated the hearings on the 2013 and 2014 annual
reports and set the matter for jury trial in July 2015.

Several weeks before Quillen's jury trial, Senate Bill 12 went into effect, resulting
in significant changes to the KSVPA. Specifically, Senate Bill 12 amended K.S.A. 59-
29a08, to eliminate a respondent's right to trial by jury. 2016 WL 7324416, at *1-2; see
L. 2015, ch. 95, § 8. At a pretrial conference, the State argued Quillen did not have a right
to a jury trial on his petition for transitional release under the amended version of K.S.A.
2015 Supp. 59-29a08. The district court agreed. After a bench trial, the court held
Quillen's "'mental abnormality and/or personality disorder remains such that he is not safe
to be placed in transitional release, and that if [he] was placed in transitional release, he
would be likely to engage in acts of sexual violence.'" 2016 WL 7324416, at *2.
Accordingly, the court ordered Quillen to remain in the custody of the Secretary of
KDADS.

Quillen again appealed. Among other claims of error, he argued the district court
erred by applying Senate Bill 12 retroactively to deny his right to trial by jury. The Court

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of Appeals agreed and remanded Quillen's case to the district court for a jury trial. 2016
WL 7324416, at *1, 6.

Before the second trial could take place, Quillen suffered a stroke. As a result, he
had difficulty speaking and was partially paralyzed on his right side, impairing his ability
to walk and write. In late 2017, Quillen moved for discharge from the Program under
K.S.A. 2017 Supp. 59-29a25 because of the physiological changes caused by his stroke.
After a hearing, the district court denied the motion, finding Quillen had failed to carry
his burden to prove he had a permanent physiological change that rendered him unable to
commit a sexually violent offense.

Quillen's Transitional Release Hearing

In April 2018, Quillen's case proceeded to trial. The State presented testimony
from several witnesses who had either worked with or evaluated Quillen. Brad Base,
owner and president of Sunflower Psychological Services, had conducted Quillen's
annual reviews in 2016 and 2017. He diagnosed Quillen as suffering from "pedophilic
disorder, attracted to females, nonexclusive type," and "other specified personality
disorder with borderline and antisocial features."

Base conducted two assessments to determine Quillen's risk of reoffending. One
assessment, known as the Static-99R, considered static factors, such as the sex of an
offender's victims, that influence the likelihood that a sex offender will reoffend. The
other assessment, known as the Sex Offender Treatment Intervention and Progress Scale
(SOTIPS), considered both static and dynamic factors to determine the likelihood that
a sex offender will reoffend. Base testified Quillen had an above average risk of
reoffending according to the Static-99R and a moderate risk of reoffending according
to the SOTIPS.

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 Base explained that around 2016, the Program switched to a three-tier system. In
Tier 1, offenders focus on acquiring skills to cope with the thoughts, emotions, and
behaviors that led to their offense, and they develop a relapse prevention program. After
completing Tier 1, offenders advance to Tier 2, in which they participate in highly
structured, supervised outings. Once offenders have demonstrated adherence to their
relapse prevention program while on these outings, they advance to Tier 3. In Tier 3,
offenders move into a reintegration facility and spend more time in the community at
large while still being closely monitored by staff. Offenders generally spend a year or two
in the reintegration facility before they are ready for transitional release.

Base testified that Quillen remained in Tier 1. While Quillen had completed a
relapse prevention program and generally complied with basic program requirements,
such as attending classes, completing paperwork, and maintaining his hygiene, Base said
Quillen also exhibited poor impulse control at times. And because Quillen had not
advanced to Tier 2, Base had not observed whether Quillen could adhere to his relapse
prevention program while in the community. For these reasons, Base concluded Quillen
was not safe to be placed in transitional release.

Dr. Kristopher Adams, Quillen's primary therapist, began working with Quillen in
September 2017. He agreed with Quillen's pedophilia and personality disorder diagnoses.
He added that Quillen had poor impulse control, difficulty controlling his anger, and
needed to work on his frustration tolerance. Dr. Adams had observed Quillen get angry
during interactions with others and yell or walk away. He said Quillen was also reluctant
to participate in group therapy, even after staff accommodated Quillen's speech
impairment after his stroke.

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 Dr. Mike Dixon, director of the Program, opined that Quillen should remain in
secure confinement. He agreed with Quillen's pedophilia and personality disorder
diagnoses and believed Quillen's physiological changes would not affect his ability to
reoffend. He also opined Quillen needed better control over his anger before he could
leave secure confinement.

Dr. Tomas Garza, who supervised Quillen's medical care, testified Quillen was
still able to commit sexually violent offenses because strokes rarely affect sexual
function. He also said Quillen had displayed anger management problems before his
stroke. He believed Quillen's angry and aggressive behavior had temporarily improved
after the stroke, but his negative behavior was beginning to reemerge.

Dr. Marc Quillen conducted an evaluation of Quillen to determine the effects of
the stroke. He testified none of the effects of Quillen's stroke would change his
diagnoses, and the stroke may have exacerbated behaviors contributing to Quillen's
personality disorder diagnosis. Dr. Quillen testified that the stroke may also negatively
affect Quillen's impulse control due to the affected area in Quillen's brain. He opined that
Quillen was at an increased risk for reoffending and was not safe to be placed on
transitional release.

Quillen's independent evaluator, Dr. Barnett, testified that Quillen was not
currently a pedophile nor did he have a personality disorder of any type. He criticized the
assessments used to determine Quillen's risk of reoffending as unreliable. He opined that
Quillen's risk of reoffending was "no greater than the base rate in the public," which was
about 3% to 6%. Dr. Barnett added that the stroke's effects would also make it more
difficult for Quillen to reoffend because his physical impairments and difficulty
communicating would impede his ability to groom potential victims. Dr. Barnett also

8
testified that Quillen had a history of controlling his behavior while in the Program, and
he believed Quillen would behave "fairly well" if placed in transitional release.

Quillen also testified, though he was mostly limited to answering yes or no
questions because of his difficulty speaking. Quillen said he had completed all the
curriculum requirements of the Program, had not had any fights or disagreements with
treatment providers, and had not acted out sexually while in the Program. He also felt he
was ready to move to transitional release.

After the close of evidence, the district court held a jury instruction conference.
Among the proposed instructions were jury instruction Nos. 2 and 3:

"JURY INSTRUCTION NO. 2

"In this trial, the State has the burden to prove beyond a reasonable doubt that
[Quillen's] mental abnormality or personality disorder remains such that he is not safe to
be placed in transitional released [sic] and if transitionally released is likely to engage in
repeat acts of sexual violence.

"[Quillen] is not required to disprove the State's claim. The test you must use is
this: If you have a reasonable doubt about the truth of any of the required elements that
the State must prove, you must find that [Quillen] is safe to be placed in transitional
release. If you have no reasonable doubt about the truth of any of the required elements
that the State must prove, you should find that [Quillen] is not safe to be placed in
transitional release, and should remain in secure commitment."

"JURY INSTRUCTION NO. 3

"[Quillen] is civilly committed to Larned State Security Hospital with the
diagnoses of mental abnormalities and personality disorders including Pedophilic

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 Disorder, Attracted to Females, Nonexclusive Type; Other Specified Personality Disorder
with Borderline and Antisocial Features.

"The State alleges [Quillen] is not safe to be placed in transitional release.
[Quillen] believes he is eligible for transitional release.

"To deny his transitional release, the State must prove the following:

"1. [Quillen's] mental abnormality or personality disorder remains such that he is
not safe to be placed in transitional release.

"2. If transitionally released, he is likely to engage in acts of sexual violence."

Quillen objected to these instructions and requested additional language requiring
the jury to find his "mental abnormality or personality disorder makes it seriously
difficult for him to control his dangerous behavior." He argued the additional language
was necessary to comport with due process and to comply with the United States
Supreme Court's decision in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed.
2d 856 (2002). The State argued the instructions should be given as proposed, relying on
In re Care and Treatment of Burch, No. 116,600, 2017 WL 3947430 (Kan. App. 2017)
(unpublished opinion). The court rejected Quillen's request and gave jury instruction Nos.
2 and 3 as proposed.

The jury found Quillen was not safe to be placed in transitional release and should
remain in secure confinement. Based on the jury's verdict, the district court ordered
Quillen to remain committed. Quillen moved for a new trial. Among other claims, he
reiterated his objections to the jury instructions. The court denied the motion. Quillen
appealed.

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The Court of Appeals Decision

The Court of Appeals agreed with Quillen's objection to the instructions. In re
Care & Treatment of Quillen, 57 Kan. App. 2d 407, 451 P.3d 478 (2019). Relying on
Crane and Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501
(1997), the panel concluded "due process requires the fact-finder—at both the initial
commitment proceeding and the annual review proceedings—to conclude beyond a
reasonable doubt that the respondent has serious difficulty controlling his or her
behavior." Quillen, 57 Kan. App. 2d at 417. The panel also found the district court's
failure to instruct the jury to make a separate finding on this issue was not harmless.
Accordingly, the panel vacated the verdict and remanded for a new trial. 57 Kan. App. 2d
at 418-20. We granted the State's petition for review.

ANALYSIS

Legal Framework and Standard of Review

This court follows a three-step process when analyzing jury instruction issues:

"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

When reviewing jury instruction challenges, we consider "'"jury instructions as a whole,
without focusing on any single instruction, in order to determine whether they properly
and fairly state the applicable law or whether it is reasonable to conclude that they could
have misled the jury."'" State v. Butler, 307 Kan. 831, 843, 416 P.3d 116 (2018).

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 Quillen has properly preserved his jury instruction challenge because he objected
at the instruction conference and reiterated this objection in his motion for new trial. The
primary point of contention between the parties is whether the instructions were legally
appropriate—more specifically, whether substantive due process required the district
court to give Quillen's requested instruction. We use unlimited review to determine
whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931, 376
P.3d 70 (2016). Whether Quillen's due process rights were violated is also a question of
law subject to unlimited review. In re Care & Treatment of Ellison, 305 Kan. 519, 533,
385 P.3d 15 (2016).

Quillen argues that substantive due process, as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution, required the district court to
give his requested instruction. The Fourteenth Amendment provides that no State shall
"deprive any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1. The United States Supreme Court has "long recognized that the
Amendment's Due Process Clause, like its Fifth Amendment counterpart, 'guarantees
more than fair process.'" Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.
2d 49 (2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 719, 117 S. Ct. 2258,
138 L. Ed. 2d 772 [1997]). "The Clause also includes a substantive component that
'provides heightened protection against government interference with certain fundamental
rights and liberty interests.'" Troxel, 530 U.S. at 65 (quoting Glucksberg, 521 U.S. at
720).

"Freedom from bodily restraint has always been at the core of the liberty protected
by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana,
504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). "[C]ivil commitment for any
purpose constitutes a significant deprivation of liberty that requires due process

12
protection." Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323
(1979). Therefore, involuntary civil commitment proceedings must balance this liberty
interest with the State's legitimate interests in protecting the public from dangerous
individuals and providing care for citizens who cannot care for themselves. See 441 U.S.
at 425-26.

Substantive Due Process Requires the State to Show at a Transitional Release Hearing
That Respondent Continues to Suffer a Mental Abnormality Making it Difficult to Control
Behavior and That Respondent Remains Dangerous

To strike the proper balance between Quillen's liberty interest and the State's
legitimate interest in protecting the public, and ultimately to determine the validity of the
jury instructions here, we must first examine the statutory requirements for initial
commitment and transitional release under the KSVPA. Then, we must determine the
appropriate standard to be applied at transitional release hearings, consistent with the
protections afforded under the Fifth and Fourteenth Amendments. Finally, we must test
the jury instructions under this standard to determine their legal propriety.

KSVPA's Requirements for Initial Commitment and Transitional Release

Before 2018, the KSVPA defined "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." K.S.A. 2017 Supp. 59-29a02(a). Therefore, to initially
commit a respondent as a sexually violent predator, the KSVPA's language expressly
required the State to prove three elements beyond a reasonable doubt: (1) the respondent
had been convicted of or charged with a sexually violent offense, (2) the respondent
suffered from a mental abnormality or personality disorder, and (3) the mental

13
abnormality or personality disorder made the respondent likely to engage in repeat acts
of sexual violence. K.S.A. 2017 Supp. 59-29a02(a); K.S.A. 2017 Supp. 59-29a07(a).

In 2002, the United States Supreme Court held that substantive due process
required the State also prove that respondents have serious difficulty controlling their
dangerous behavior before civilly committing them. Crane, 534 U.S. at 413. Our court
later incorporated this holding into the initial commitment standard for respondents under
the KSVPA. In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327
(2011). In 2018, the Kansas Legislature amended the definition of sexually violent
predator to expressly include Crane's holding. L. 2018, ch. 94, § 1; see K.S.A. 2018
Supp. 59-29a02(a).

Once the State has proven beyond a reasonable doubt that the respondent is a
sexually violent predator under the KSVPA at an initial commitment hearing, the
respondent is committed to the custody of the Secretary of KDADS "until such time as
the person's mental abnormality or personality disorder has so changed that the person is
safe to be at large." K.S.A. 2019 Supp. 59-29a07(a). The KSVPA provides for annual
reviews of a respondent's current mental condition, and those reviews are forwarded to
the district court that originally committed the respondent. The Secretary must also
provide the respondent with annual written notice of the respondent's right to petition for
release over the Secretary's objection. K.S.A. 2019 Supp. 59-29a08(a). A respondent in
secure confinement may only petition for transitional release, not conditional release or
final discharge. K.S.A. 2019 Supp. 59-29a08(b).

If a respondent in secure confinement contests his or her annual review, the district
court holds a hearing to determine whether the respondent has shown probable cause to
believe his or her mental abnormality or personality disorder has significantly changed so
that the respondent is safe to be placed in transitional release. K.S.A. 2019 Supp. 59-

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29a08(d). If the court finds the respondent has met this burden, it then sets a hearing for
transitional release. At this transitional release hearing, the State has the burden to show
beyond reasonable doubt that the respondent's mental abnormality or personality disorder
remains such that he or she is not safe to be placed in transitional release and if
transitionally released is likely to engage in repeat acts of sexual violence. K.S.A. 2019
Supp. 59-29a08(g).

Due Process Requirements at the Transitional Release Hearing

The KSVPA does not expressly require the State to prove at a transitional release
hearing that respondent continues to suffer a mental abnormality making it difficult to
control behavior, as was required at the initial commitment. Rather, the KSVPA requires
the State to prove that the respondent's mental abnormality or personality disorder
remains such that he or she is not safe to be placed in transitional release and if
transitionally released is likely to engage in repeat acts of sexual violence. Despite this
language, Quillen argues that principles of substantive due process require the State to
show at a transitional release hearing that the respondent has serious difficulty controlling
his or her behavior.

In support of this contention, Quillen relies on Hendricks and Crane. In
Hendricks, the United States Supreme Court held that the KSVPA's definition of "mental
abnormality" satisfied substantive due process requirements for the involuntary civil
commitment of persons charged with or convicted of sexually violent offenses.
Hendricks, 521 U.S. at 358. The Court explained that to comport with substantive due
process, civil commitment statutes like the KSVPA must limit involuntary commitment
to "those who suffer from a volitional impairment rendering them dangerous beyond their
control." 521 U.S. at 358. The Court held the KSVPA satisfies this requirement because
it couples a finding of future dangerousness with a finding of "a 'mental abnormality' or

15
'personality disorder' that makes it difficult, if not impossible, for the person to control his
dangerous behavior. Kan. Stat. Ann. § 59-29a02(b) (1994)." 521 U.S. at 358. The Court
found that the KSVPA's "precommitment standard of a 'mental abnormality' or
'personality disorder'" sufficiently "narrow[ed] the class of persons eligible for
confinement to those who are unable to control their dangerousness." 521 U.S. at 358.

Several years later, the Court revisited Hendricks and the criteria for involuntary
civil commitment in Crane. There, the Court held that substantive due process requires
the State to show at an initial commitment hearing that an individual has serious
difficulty controlling his or her behavior. Crane, 534 U.S. at 411-14. According to the
Court, "Hendricks underscored the constitutional importance of distinguishing a
dangerous sexual offender subject to civil commitment 'from other dangerous persons
who are perhaps more properly dealt with exclusively through criminal proceedings.'"
534 U.S. at 412. While Hendricks did not require the State "always to prove that a
dangerous individual is completely unable to control his behavior" as a condition
precedent to involuntary commitment, neither could the State dispense with the
requirement to demonstrate lack of control altogether. 534 U.S. at 411-12. Crane
declined to precisely define "lack of control" in the context of involuntary civil
commitment. Instead, it held that substantive due process protections are satisfied where
the State provides proof of the respondent's serious difficulty controlling his or her
behavior and such evidence, when coupled with the nature of the psychiatric diagnosis
and severity of the mental abnormality, distinguishes the dangerous sexual offender from
a dangerous but typical recidivist:

"[In Hendricks,] we did not give to the phrase 'lack of control' a particularly
narrow or technical meaning. And we recognize that in cases where lack of control is at
issue, 'inability to control behavior' will not be demonstrable with mathematical
precision. It is enough to say that there must be proof of serious difficulty in controlling
behavior. And this, when viewed in light of such features of the case as the nature of the

16
 psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient
to distinguish the dangerous sexual offender whose serious mental illness, abnormality,
or disorder subjects him to civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case." Crane, 534 U.S. at 413.

The Court of Appeals embraced Quillen's position that Hendricks and Crane,
along with this court's decision In re Care & Treatment of Williams, require the State to
show a respondent continues to have serious difficulty controlling behavior in order to
preclude transitional release. In reaching this conclusion, the panel relied on two passages
from Hendricks where the United States Supreme Court suggested the KSVPA's
procedures preclude continued confinement if the State can no longer satisfy its burden
under the initial confinement standard.

Indeed, in describing the operation of the KSVPA's review procedures, Hendricks
stated that the KSVPA requires the State to satisfy the same burden at a review hearing as
at an initial commitment hearing:

"'Once an individual was confined, the [KSVPA] required that "[t]he involuntary
detention or commitment . . . shall conform to constitutional requirements for care and
treatment." [K.S.A.] 59-29a09. Confined persons were afforded three different avenues of
review: First, the committing court was obligated to conduct an annual review to
determine whether continued detention was warranted. [K.S.A.] 59-29a08. Second, the
Secretary was permitted, at any time, to decide that the confined individual's condition
had so changed that release was appropriate, and could then authorize the person to
petition for release. [K.S.A.] 59-29a10. Finally, even without the Secretary's permission,
the confined person could at any time file a release petition. [K.S.A.] 59-29a11. If the
court found that the State could no longer satisfy its burden under the initial commitment
standard, the individual would be freed from confinement.'" Quillen, 57 Kan. App. 2d at
416 (quoting Hendricks, 521 U.S. at 353).

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And, in analyzing whether the KSVPA violated double jeopardy and the constitutional
prohibition against ex post facto laws, the Hendricks Court provided a similar
characterization of the KSVPA:

"'Furthermore, commitment under the [KSVPA] is only potentially indefinite.
The maximum amount of time an individual can be incapacitated pursuant to a single
judicial proceeding is one year. [K.S.A.] 59-29a08. If Kansas seeks to continue the
detention beyond that year, a court must once again determine beyond a reasonable
doubt that the detainee satisfies the same standards as required for the initial
confinement. This requirement again demonstrates that Kansas does not intend an
individual committed pursuant to the [KSVPA] to remain confined any longer than he
suffers from a mental abnormality rendering him unable to control his dangerousness.'"
Quillen, 57 Kan. App. 2d at 416-17 (quoting Hendricks, 521 U.S. at 364).

Based on these two passages, the Court of Appeals concluded that "[i]n finding
[the KSVPA] constitutional, the Hendricks Court interpreted the [KSVPA] to require
courts to utilize the same standard of proof for annual KSVPA review proceedings that it
utilizes in original commitment proceedings." Quillen, 57 Kan. App. 2d at 418. The panel
went on to explain that Crane and In re Care & Treatment of Williams established the
standard of proof required at an initial commitment proceeding—a standard that requires
the State demonstrate the individual has difficulty controlling behavior. Reading
Hendricks together with Crane and In re Care & Treatment of Williams, the panel held
"the State was constitutionally required to prove beyond a reasonable doubt that Quillen
would have serious difficulty controlling his behavior if transitionally released." 57 Kan.
App. 2d at 418.

In contrast, the State argues that the quoted passages from Hendricks do not
compel the panel's conclusion. It asserts the Hendricks Court was simply observing "what
the [KSVPA] require[s], not . . . holding that the Constitution mandates identical criteria
for initial commitment and a later denial of transitional release." Instead, the State

18
contends that Hendricks found that the KSVPA's standard for transitional release
comports with due process. Further, the State observes that the statutory standard for
transitional release at the time of Hendricks was similar to the current statutory standard,
which does not expressly require proof of the respondent's inability to control his or her
behavior. Compare K.S.A. 59-29a08 (Furse 1994) ("The burden of proof at the hearing
shall be upon the state to prove beyond a reasonable doubt that the committed person's
mental abnormality or personality disorder remains such that the person is not safe to be
at large and if released is likely to engage in acts of sexual violence."), with K.S.A. 2019
Supp. 59-29a08(g) ("The burden of proof at the hearing for transitional release shall be
upon the state to prove beyond a reasonable doubt that the person's mental abnormality or
personality disorder remains such that the person is not safe to be placed in transitional
release and if transitionally released is likely to engage in repeat acts of sexual
violence."). Therefore, the State concludes that Hendricks confirms that substantive due
process principles do not compel a "lack of control" showing in order to deny transitional
release.

While the Hendricks Court does describe the KSVPA as imposing the same
standard at a transitional release hearing as at an initial commitment hearing, both the
Court of Appeals and the State place too much weight on these passages. Hendricks did
not examine the constitutionality of the standard of proof required at annual review
hearings or transitional release hearings under the KSVPA. In the first Hendricks passage
quoted by the panel, the Supreme Court was simply describing the KSVPA before
addressing any challenges to its constitutionality. In the second passage, the Court was
explaining why the potential for indefinite commitment under the KSVPA is not evidence
of punitive intent in determining whether proceedings under the KSVPA are civil or
criminal. At best, the quoted provisions merely suggest due process might be satisfied by
using the same standard at both the initial and review hearings, but they do not tell us
whether due process requires the standard to be the same.

19
 While the Court of Appeals and both parties rely almost exclusively on Hendricks
and Crane to support their respective positions, neither decision addresses the issue
before us: the applicable legal standard for continued commitment of a sexually violent
predator under the Fifth and Fourteenth Amendments. Fortunately, other United States
Supreme Court jurisprudence addressing involuntary commitment clarifies this standard.

In O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975),
Donaldson was committed to confinement as a mental patient beginning in 1957. Fifteen
years later, Donaldson sued his custodians, alleging his continued confinement violated
his substantive due process rights. At trial, the jury awarded damages to Donaldson after
finding that his custodians had intentionally and maliciously deprived him of his
constitutional right to liberty by continuing his initial commitment for years on end, even
though he posed no danger to himself or others. On review, the Supreme Court found that
Donaldson's mental impairment "does not itself establish a constitutionally adequate
purpose for the confinement." 422 U.S. at 574. The Court explained that continued
confinement based on a mental health diagnosis, without an associated risk of harm to
self or others, cannot survive constitutional scrutiny:

"A finding of 'mental illness' alone cannot justify a State's locking a person up
against his will and keeping him indefinitely in simple custodial confinement. Assuming
that that term can be given a reasonably precise content and that the 'mentally ill' can be
identified with reasonable accuracy, there is still no constitutional basis for confining
such persons involuntarily if they are dangerous to no one and can live safely in
freedom." 422 U.S. at 575.

Importantly, O'Connor further observed that continued commitment cannot be justified
based on a constitutionally valid basis for Donaldson's initial commitment because even
if initially permissible, such commitment "could not constitutionally continue after that

20
basis no longer existed." 422 U.S. at 574-75. In other words, the constitutionally adequate
basis that justified initial commitment must still be present in order to justify ongoing or
continued commitment under the Due Process Clause.

Likewise, in Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d
694 (1983), the Court examined whether due process compelled the District of Columbia
to release petitioner from his commitment to a mental hospital because his hospitalization
exceeded the term of incarceration he might have served in prison but for his acquittal by
reason of insanity. Jones acknowledged that due process "'requires that the nature and
duration of commitment bear some reasonable relation to the purpose for which the
individual is committed.'" 463 U.S. at 368 (quoting Jackson v. Indiana, 406 U.S. 715,
738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 [1972]). Since the purpose of civil commitment is
to treat an individual's mental impairment and protect him and society from his potential
dangerousness, the Court found the constitutional validity of continued confinement to be
unrelated to the term of imprisonment an individual would have received but for acquittal
due to insanity. Jones, 463 U.S. at 368-69. Instead, Jones echoed the principle espoused
in O'Connor that continued confinement satisfies due process so long as the
constitutionally permissible grounds for initial commitment continue to exist. In other
words, commitment may continue "until such time as [the person committed] has
regained his sanity or is no longer a danger to himself or society." 463 U.S. at 370. More
recently, in Foucha, the Supreme Court reiterated the holding in Jones by confirming that
involuntary civil commitment may continue "as long as [the committed persons are] both
mentally ill and dangerous, but no longer." 504 U.S. at 77.

These cases stand for the proposition that the State's continued involuntary
commitment of a sexually violent predator under the KSVPA does not violate substantive
due process as long as the sexually violent predator remains both mentally ill and
dangerous. Neither Hendricks nor Crane alter this due process standard. Instead, these

21
decisions merely articulate the showing necessary to establish that a person has a mental
illness under the first prong of this due process test. More specifically, "Crane and
Hendricks rephrased the general constitutional standard for civil commitment of insanity
acquittees and other candidates for civil commitment to clarify that proof of mental
illness embraces proof of a mental condition that makes it difficult to control one's
dangerous behavior." Richard S. v. Carpinello, 589 F.3d 75, 83 (2d Cir. 2009).

Accordingly, at a transitional release hearing, due process principles require the
State prove that respondent continues to meet the criteria justifying the initial
commitment—specifically, that (1) respondent has a mental abnormality that causes
serious difficulty in controlling behavior; and (2) that respondent remains dangerous as a
result of such abnormality, i.e., is likely to commit repeat acts of sexual violence in
transitional release. This standard is particularly fitting for a transitional release hearing
under the KSVPA because to reach this stage of the proceedings, the respondent must
have already shown probable cause to believe he or she is safe to be placed in transitional
release. K.S.A. 2019 Supp. 59-29a08(d); K.S.A. 2019 Supp. 59-29a10(a)(1). We note
that Quillen himself did not show probable cause, but the State waived this initial
probable cause determination or stipulated to such a determination as part of Quillen's
consent decree. Thus, in Quillen's transitional release hearing, the State carried the
burden to show he continued to meet the criteria for initial commitment.

We note that the State relies on Burch, 2017 WL 3947430, at *5, for the
proposition that no lack-of-control showing is required at the transitional release hearing.
But as the panel in Quillen acknowledged, Burch did not examine the due process
requirements governing the transitional release hearing. Quillen, 57 Kan. App. 2d at 418.
Instead, Burch examined only the statutory language governing transitional release
hearings to determine whether the State had provided sufficient evidence that the

22
respondent was not safe to be placed on transitional release. Burch, 2017 WL 3947430, at
*4-6. As such, Burch is inapposite.

Ultimately, we agree with the Court of Appeal's conclusion that the State was
constitutionally required to prove that Quillen would have serious difficulty controlling
his behavior if transitionally released, though we reach this conclusion for different
reasons than those relied on by the panel. We conclude that the State's continued
involuntary commitment of a sexually violent predator under the KSVPA does not violate
substantive due process as long as the individual remains both mentally ill and dangerous.
When a respondent shows probable cause that either (or both) of these criteria are no
longer present, the State must again prove the respondent is still both mentally ill and
dangerous under the standard established in Hendricks and Crane. Failure to make such a
showing at the transitional release hearing confirms the respondent no longer possesses
the characteristics distinguishing a dangerous sexual offender from the dangerous but
typical recidivist convicted in an ordinary criminal case, and denying transitional release
under such circumstances runs afoul of well-established, fundamental liberty interests
protected by the Constitution.

The Jury Instructions Were Legally Proper

Our holding regarding the appropriate standard for transitional release hearings
does not resolve this appeal, however. After finding that substantive due process required
the State to prove Quillen continued to have serious difficulty controlling his behavior,
the Court of Appeals held that the district court's failure to give his requested instruction
was reversible error. The State contests the panel's subsequent holding. The State
contends that even if it had to prove Quillen would have serious difficulty controlling his
behavior if transitionally released, substantive due process does not require district courts
to give an instruction explicitly telling the jury to make this finding. Instead, the State

23
asserts that the jury would have had to necessarily and implicitly find that Quillen
continued to have serious difficulty controlling his behavior when it concluded it was not
safe to place him on transitional release. Thus, according to the State, the given
instructions were constitutionally adequate and, therefore, legally proper.

Substantive Due Process is Satisfied When the Jury Instructions Necessarily Imply
a Lack-of-Control Finding

Several other jurisdictions have addressed whether Crane mandates a jury
instruction on the lack-of-control finding. The majority of states have held that Crane
does not compel a separate instruction and/or a separate finding that the respondent has
serious difficulty in controlling behavior. Richard S., 589 F.3d at 83. Instead, these courts
have held that the language of their state civil commitment statutes for sexually violent
predators necessarily implies a finding that the respondent has serious difficulty in
controlling behavior, and this implied finding satisfies Crane. See, e.g., State v. White,
891 So. 2d 502, 509-10 (Fla. 2004) (holding terms in Florida statute, when taken
together, comply with Crane and jury instructions need only reflect language of statute);
In re Dutil, 437 Mass. 9, 15, 18, 768 N.E.2d 1055 (2002) (finding that Crane requirement
is met by Massachusetts statute that requires a finding that behavior indicating "'general
lack of power to control . . . sexual impulses'" results in likelihood of harm to victim
because of "'uncontrolled or uncontrollable desires'"); In re Treatment and Care of
Luckabaugh, 351 S.C. 122, 144, 568 S.E.2d 338 (2002) ("Inherent within the mental
abnormality prong of the Act is a lack of control determination . . . . The Act's
requirements are the functional equivalent of the requirement in Crane."); In re Detention
of Thorell, 149 Wash. 2d 724, 766, 72 P.3d 708 (2003) ("Crane does not require a
separate jury finding that the [respondent] lacks control over behavior. Instead, the jury's
finding of mental illness, coupled with a history of sexual violence, should be supported
by sufficient evidence of serious difficulty controlling behavior."); In re Commitment of
Laxton, 254 Wis. 2d 185, 208, 647 N.W.2d 784 (2002) (concluding separate instruction

24
on lack-of-control finding unnecessary because "requisite proof of lack of control is
established by proving the nexus between the person's mental disorder and
dangerousness").

Federal courts addressing the question have also concluded that Crane does not
mandate a jury instruction specifically instructing the jury that it must find the respondent
has serious difficulty controlling his or her behavior. See Richard S., 589 F.3d at 84
(holding Crane does not mandate a specific instruction on lack of control); Varner v.
Monohan, 460 F.3d 861, 864 (7th Cir. 2006) (holding that a finding that respondent has
serious difficulty controlling behavior is implicit in jury's finding that it was
"'substantially probable'" that respondent would engage in future sexually violent acts);
Brock v. Seling, 390 F.3d 1088, 1090 (9th Cir. 2004) (holding that Crane is satisfied by
jury's finding that respondent suffers from "'some combination of mental abnormality and
personality disorder which in conjunction make him likely to engage in predatory acts of
sexual violence'").

We agree with the rationale adopted by the majority of state courts and the federal
courts that have addressed this issue. Although Crane requires the State to present proof
that a respondent has serious difficulty controlling his or her behavior, the Due Process
Clause does not compel a separate jury instruction on this finding. Hendricks made clear
that due process requires the State to distinguish the dangerous sexual offender subject to
civil commitment from other criminals, and Crane clarified that this must be done by
providing proof that the sexual offender suffers from a mental illness that causes him or
her to have serious difficulty in controlling behavior. But both Hendricks and Crane
declined to provide a precise standard for this lack-of-control determination, noting that
the proof needed to show serious difficulty in controlling behavior would vary depending
on the circumstances of each case. Crane, 534 U.S. at 413. Crane further acknowledged
that "the States retain considerable leeway in defining the mental abnormalities and

25
personality disorders that make an individual eligible for commitment." Crane, 534 U.S.
at 413. Thus, when the statutory language of a state civil commitment statute necessarily
implies that the respondent has serious difficulty in controlling behavior and requires the
State to provide proof of such, the jury instructions need only reflect this statutory
language to satisfy due process.

The Jury Instructions, Taken as a Whole, Necessarily and Implicitly Required the
Jury to Find Quillen Had Serious Difficulty Controlling His Behavior

We further conclude that the instructions given by the district court here, when
taken as a whole, necessarily and implicitly required the jury to find that Quillen had
serious difficulty controlling his behavior. Jury instruction Nos. 2 and 3 required the State
to prove beyond a reasonable doubt that Quillen's "mental abnormality or personality
disorder remains such that he is not safe to be placed in transitional release." This
language, taken directly from K.S.A. 2019 Supp. 59-29a08(g), links the existence and
current severity of Quillen's mental abnormality or personality disorder to safety, thus
creating a nexus between his mental illness and his dangerousness. This nexus
distinguishes him from the typical dangerous recidivist, as required by Hendricks and
Crane. And to prove such a nexus exists, the State must necessarily provide evidence that
Quillen's mental illness causes him to have serious difficulty controlling his behavior.
See, e.g., Laxton, 254 Wis. 2d at 203 (holding "nexus between the [person's] mental
disorder and the substantial probability that the person will engage in acts of sexual
violence, necessarily and implicitly requires proof that the person's mental disorder
involves serious difficulty for such person in controlling his or her behavior"). Indeed, the
record is replete with such evidence here, and Quillen does not challenge its sufficiency
on appeal.

Jury instruction No. 4 also defined "[m]ental abnormality" as "a congenital or
acquired condition affecting the emotional or volitional capacity which predisposes the

26
person to commit sexually violent offenses in a degree constituting such person a menace
to the health and safety of others." This definition, which tracks the definition of mental
abnormality set forth in K.S.A. 2019 Supp. 59-29a02(b), also creates a nexus between
mental illness and dangerousness because it defines mental abnormality to include a
predisposition to commit sexually violent acts and requires that this predisposition must
be so prevalent that the respondent is dangerous to others. Including such a predisposition
within the meaning of "mental abnormality" necessarily implies that the respondent's
mental condition causes serious difficulty in controlling his behavior. See People v.
Williams, 31 Cal. 4th 757, 774-77, 74 P.3d 779, 3 Cal. Rptr. 3d 684 (2003) (holding that
California statute defining mental abnormality in terms almost identical to KSVPA
implies serious difficulty in controlling behavior and adequately conveys Crane's
requirements to the jury).

Finally, jury instruction Nos. 2 and 3 required the State to prove that, "if
transitionally released, [Quillen] is likely to engage in acts of sexual violence." See
K.S.A. 2019 Supp. 59-29a08(g). Jury instruction No. 4 defined "[l]ikely to engage in
repeat acts of sexual violence" as "the respondent'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." See
K.S.A. 2019 Supp. 59-29a02(c) (defining "'[l]ikely to engage in repeat acts of sexual
violence'"). Such a high propensity for committing sexually violent acts is again
indicative of respondent's serious difficulty in controlling behavior.

Based on these instructions, the jury would have necessarily and implicitly found
Quillen's mental abnormality continued to cause serious difficulty in controlling his
behavior when it reached its verdict that Quillen's mental abnormality or personality
disorder remained such that he was not safe to be placed in transitional release, and if
transitionally released, he was likely to engage in repeat acts of sexual violence. The
standard for transitional release as set forth in K.S.A. 2019 Supp. 59-29a08, and included

27
in jury instruction Nos. 2 and 3, created a nexus between mental illness and
dangerousness that necessarily implied that Quillen had serious difficulty controlling his
behavior. This nexus was solidified by the definition of mental abnormality as set forth in
K.S.A. 2019 Supp. 59-29a02(b) and the definition of "'[l]ikely to engage in repeat acts of
sexual violence,'" as set forth in K.S.A. 2019 Supp. 59-29a02(c), both of which were
incorporated into jury instruction No. 4. Taken as a whole, these instructions necessarily
required the State to prove and the jury to find that Quillen had serious difficulty
controlling his behavior. As such, the instructions survive constitutional scrutiny under
the Due Process Clause and the standards espoused in Hendricks and Crane.
Accordingly, we find the jury instructions were legally appropriate and conclude that the
district court did not err in rejecting Quillen's additional or alternate instructions.

CONCLUSION

In summary, we affirm the Court of Appeals holding that due process
considerations required the State to demonstrate at the transitional release hearing that
Quillen continued to suffer a mental abnormality that created serious difficulty
controlling his behavior. However, we find the district court's instructions were legally
proper because they necessarily required the State to prove and the jury to find that this
standard had been met. Therefore, we reverse the Court of Appeals holding that the
district court's instructions failed to comport with due process and constituted reversible
error, and we affirm the judgment of the district court based on the jury verdict.

Judgment of the Court of Appeals vacating and remanding to the district court is
affirmed in part and reversed in part, and the judgment of the district court is affirmed.

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 LORI A. BOLTON FLEMING, District Judge, assigned.1

1
REPORTER'S NOTE: District Judge Fleming was appointed to hear case No. 120,184
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Carol A. Beier.

29