No. 114,426

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      VACCARO STANO,
                                         Appellant,

                                              v.

                                         REX PRYOR,
                                          Appellee.


                               SYLLABUS BY THE COURT


1.
       To state a claim for relief under K.S.A. 2015 Supp. 60-1501, a petition must allege
shocking and intolerable conduct or continuing mistreatment of a constitutional stature.


2.
       Summary dismissal is appropriate if, on the face of the petition, it can be
established that the petitioner is not entitled to relief or if, from undisputed facts or from
uncontrovertible facts such as those recited in a court record, it appears, as a matter of
law, no cause for granting a writ exists.


3.
       In order to establish a claim for a violation of due process in a proceeding pursuant
to K.S.A. 2015 Supp. 60-1501, an inmate must establish a deprivation of a recognized
liberty or property interest. A small monetary fine constitutes a property interest
sufficient to implicate procedural due process. A procedural due process violation is
complete at the moment an individual is deprived of a liberty or property interest without
being afforded the requisite process.



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4.
       It is a well-established judicial rule that courts do not decide moot questions or
render advisory opinions. The mootness doctrine is a court policy which recognizes that
the role of a court is to determine real controversies relative to the legal rights of persons
and properties which are actually involved in the particular case properly brought before
it and to adjudicate those rights in such manner that the determination will be operative,
final, and conclusive.


5.
       As a general rule, voluntary cessation of allegedly illegal conduct does not deprive
the tribunal of power to hear and determine the case, i.e., does not make the case moot.
This exception to mootness exists to counteract the possibility of a defendant ceasing
illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.


6.
       Voluntary actions may, nevertheless, moot litigation if two conditions are
satisfied: (1) It can be said with assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation. Voluntary cessation of
offensive conduct will only moot litigation if it is clear that the defendant has not
changed course simply to deprive the court of jurisdiction. The party asserting mootness
bears the heavy burden of persuasion.


7.
       In this prison disciplinary case, where the warden rescinded the monetary fine that
had been imposed on an inmate based on a disciplinary conviction after the inmate filed a
habeas corpus petition in district court challenging the disciplinary conviction, the district
court erred in granting the warden's motion to dismiss on the grounds that the inmate's
petition was moot.

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       Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed April 22,
2016. Reversed and remanded with directions.


       Vaccaro Stano, appellant pro se.


       Sherri Price, special assistant attorney general, for appellee.


Before MALONE, C.J., MCANANY and POWELL, JJ.


       POWELL, J.: Vaccaro Stano, an inmate in the Lansing Correctional Facility (LCF),
was fined and disciplined for being intoxicated in the shower. After he unsuccessfully
challenged his discipline through internal appeals, he filed a habeas corpus petition in the
Leavenworth County District Court, claiming violation of his due process rights. The
district court ordered an evidentiary hearing on the matter and ordered that Stano be
present. Possibly in an effort to avoid the time and cost of litigation, LCF rescinded the
fine and then moved to dismiss the case on the grounds that since a property interest was
no longer at stake, the case was moot. The district court agreed and summarily dismissed
the case for failure to state a claim upon which relief could be granted. Stano now
appeals, arguing that LCF cannot moot the case after the fact and deny him his day in
court. We agree and, therefore, reverse and remand.


                           FACTUAL AND PROCEDURAL BACKGROUND


       On December 4, 2014, Officer R. Maddox issued Stano a prison disciplinary
report, alleging Stano was in a condition of drunkenness, intoxication, or state of altered
consciousness, a violation of K.A.R. 44-12-311. On January 7, 2015, following a
disciplinary hearing in which Stano cross-examined Maddox, the hearing officer found
Stano guilty of the violation and imposed a $10 fine and a 60-day restriction of
privileges. Imposition of the 60-day restriction of privileges was suspended. Warden Rex


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Pryor, and subsequently the secretary of corrections, affirmed the decision and upheld the
punishment.


       On April 9, 2015, Stano filed a habeas corpus petition pursuant to K.S.A. 2015
Supp. 60-1501, alleging the disciplinary hearing was not timely held, evidence and
witnesses were withheld, and there was insufficient evidence to support his conviction.
Twelve days later, the district court issued an order directing LCF to produce Stano for an
evidentiary hearing on his petition. LCF subsequently filed a motion to dismiss, asserting
that Stano had no property or liberty interest at stake because the $10 fine had been
rescinded. There is nothing in the record to show that Stano's disciplinary conviction had
been vacated or expunged. Stano's response to the motion essentially accused LCF of
seeking to deprive him of justice by purposefully mooting the case.


       On August 13, 2015, the district court held a hearing and granted LCF's motion to
dismiss because Stano's petition failed to state a claim for which relief could be granted.
The court did so under the rationale that Stano no longer had a recognized liberty or
property interest at stake once LCF rescinded the fine.


       Stano timely appeals.


            DID THE DISTRICT COURT ERR IN DISMISSING STANO'S PETITION?


       Stano argues that his claims were improperly dismissed because the fine originally
imposed was a sufficient property interest to support his due process claims regardless of
whether the fine was reversed and refunded to him.


       To state a claim for relief under K.S.A. 2015 Supp. 60-1501, a petition must allege




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       "shocking and intolerable conduct or continuing mistreatment of a constitutional stature.
       [Citation omitted.] Summary dismissal is appropriate if, on the face of the petition, it can
       be established that petitioner is not entitled to relief, or if, from undisputed facts, or from
       uncontrovertible facts, such as those recited in a court record, it appears, as a matter of
       law, no cause for granting a writ exists. [Citations omitted.] An appellate court reviews a
       summary dismissal de novo." Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575
       (2009).


       In order to establish a claim for a violation of due process in a proceeding pursuant
to K.S.A. 2015 Supp. 60-1501, an inmate must establish a deprivation of a recognized
liberty or property interest. See Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234
(2005). A small monetary fine constitutes a property interest sufficient to implicate
procedural due process. See Anderson v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d
16, cert. denied 522 U.S. 958 (1997); see also Smith v. McKune, 31 Kan. App. 2d 984,
993, 76 P.3d 1060 ("Due process applies to the deprivation of property and inmates have
a protected interest in their money. [Citation omitted.]"), rev. denied 277 Kan. 925
(2003). Thus, the $10 fine, prior to its rescission, was sufficient to establish a claim for a
violation of Stano's rights. However, LCF asserts that once the fine was reversed and
refunded, the case was moot as Stano no longer had a recognizable property interest and
his petition was properly dismissed. We disagree.


       "[A] procedural due process violation is complete at the moment an individual is
deprived of a liberty or property interest without being afforded the requisite process."
Burns v. PA Dept. of Correction, 544 F.3d 279, 284 (3d Cir. 2008). Because the district
court granted LCF's motion to dismiss for failure to state a claim, we must view as true
Stano's well-pleaded facts and any inferences reasonably drawn from them. See Cohen v.
Battaglia, 296 Kan. 542, 546, 293 P.3d 752 (2013). Therefore, at this stage of the
proceedings, we must conclude that Stano's property interest was improperly taken from
him without due process. Accordingly, Stano's property interest was infringed the
moment LCF imposed the fine. Given that a property interest became implicated at the

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time the fine was imposed, we must determine whether LCF can moot the case by
rescinding the fine.


       It is a well-established judicial rule that


       "Kansas appellate courts do not decide moot questions or render advisory opinions.
       [Citation omitted.] . . . [Our Supreme Court] has previously described the mootness
       doctrine as a court policy, which recognizes that the role of a court is to '"determine real
       controversies relative to the legal rights of persons and properties which are actually
       involved in the particular case properly brought before it and to adjudicate those rights in
       such manner that the determination will be operative, final, and conclusive."' [Citations
       omitted.]" State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).


       This notwithstanding, "'as a general rule, . . . "voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e.,
does not make the case moot."' [Citation omitted.]" Burns, 544 F.3d at 283 (quoting
County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642
[1979]). "This exception to mootness 'exists to counteract the possibility of a defendant
ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal
conduct.'" Ind v. Colorado Dept. of Corrections, 801 F.3d 1209, 1214 (10th Cir. 2015)
(quoting Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 [10th Cir.
2008]). "Voluntary actions may, nevertheless, moot litigation if two conditions are
satisfied: '(1) it can be said with assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.'" Rio Grande Silvery Minnow
v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010) (quoting Davis, 440 U.S.
at 631); see Burns, 544 F.3d at 283; Robinson v. Cain, 822 So. 2d 100, 102 (La. App.
2002). "'[V]oluntary cessation of offensive conduct will only moot litigation if it is clear
that the defendant has not changed course simply to deprive the court of jurisdiction.'"
Ind, 801 F.3d at 1214 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1115). The party

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asserting mootness, in this case LCF, bears the heavy burden of persuasion. See 801 F.3d
at 1214.


       In Burns, the corrections department encumbered the inmate's funds, allegedly
without due process. The Third Circuit Court of Appeals held that given that the violation
occurred at the moment the funds were improperly encumbered, the corrections
department's later promise—3 years after the fact while the case was on appeal—to
refrain from seizing the prisoner's funds did not moot the case. 544 F.3d at 284. The
Third Circuit explained that the timing and content of the department's promise gave it
"pause in considering whether '"there is no reasonable expectation . . ." that the alleged
violation will recur.'" 544 F.3d at 284 (quoting Davis, 440 U.S. at 631). The Third Circuit
stated that while it did not believe the department would resume collection efforts, the
fact that the department's assurance was provided "exceedingly late in the game" made it
"more skeptical of voluntary changes that have been made long after litigation has
commenced." 544 F.3d at 284; see also Whitmore v. Hill, 456 Fed. Appx. 726, 729 (10th
Cir. 2012) (relying on Burns, held property interest implicated despite fact none of the
fines imposed had been actually deducted because no indication funds would not have
been deducted had they not been rescinded during judicial review process).


       In light of this authority, when examining the record in this case it is apparent to
us that LCF rescinded the fine precisely to moot the case. Moreover, when applying the
two elements required to moot a case, we agree with Stano that LCF's act of rescinding
the fine after a judicial review action had been commenced in the district court was
insufficient. Even if we assume that rescinding the fine meets the second element of
eliminating the effects of the alleged violation (we note that LCF did not expunge Stano's
disciplinary conviction), LCF's act of rescinding the fine only after litigation was
commenced and only after the district court had ordered Stano's presence in court fails to
satisfy the first element—that is, it fails to give us a reasonable expectation that such an
occurrence would not recur. In fact, if we were to allow the rescission of a fine in such

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situations to moot a case after it has been filed, it would seem to have the opposite effect
and give every correctional facility in the state an incentive to impose a fine in a
disciplinary case, safe in the knowledge that any court action brought by an inmate to
challenge such fine could be mooted. This strikes us as intolerable. In our view, every
correctional facility must be convinced of the appropriateness of imposing a fine on an
inmate before doing so, and such facility should not be allowed to retreat simply because
the inmate files a lawsuit.


       Accordingly, we reverse the district court's dismissal and remand the matter for a
determination of whether Stano's due process rights were violated.


       Reversed and remanded.




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