CATHERINE ROLL, et al. v. LAURA HOWARD, et al.

IN THE SUPREME COURT OF THE STATE OF KANSAS

On appeal from Sedgwick District Court

Plaintiff's Attorney:

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Defendant's Attorney: Arthur S. Chalmers, assistant attorney genera

Description:

Topeka, Kansas – Disability lawyer represented Appellant with seeking to relocate to a community based treatment center.

A case is moot when it is clearly and convincingly shown the actual controversy

has ended, the only judgment that could be entered would be ineffectual for any purpose,

and it would not impact any of the parties' rights.

2.

In order to be entitled to an award of costs and fees under 42 U.S.C. § 1988(b)

(2018), a party must demonstrate they are the prevailing party.

3.

A "prevailing party" is the party that has been awarded some relief by the court on

the merits of at least some of the claims. Generally, when a case is dismissed as moot

without a judgment by the court on the merits of any of the claims or a court-ordered

consent decree, there is no prevailing party entitled to an award of attorney fees even

though a party may have achieved the desired result of the litigation.

2

Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 161, 480 P.3d 192 (2020).

Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed August 12, 2022.

Appeal dismissed.

David P. Calvert, of David P. Calvert, P.A., of Wichita, and Stephen M. Kerwick, of Wichita,

argued the cause and were on the briefs for appellant.

Arthur S. Chalmers, assistant attorney general, argued the cause, and Derek Schmidt, attorney

general, was with him on the briefs for appellee.

PER CURIAM: The defendants sought to relocate Catherine Roll, an individual

with significant mental and physical disabilities, from the Parsons State Hospital and

Training Center (Hospital), where she has been a long-term resident, to a communitybased treatment center. Roll, through her guardians, resisted such a transfer and

contended that the Americans with Disabilities Act (ADA) and the Social Security Act

(SSA) prohibited the defendants from changing her placement without her approval. The

district court held that she did not have a statutory right to remain at the Hospital. The

Court of Appeals affirmed that order, and we granted review.

We dismiss the appeal as moot. But in order to explain this determination, we find

it necessary to recount the long and convoluted course the litigation in this case has taken.

Catherine Roll was born in 1955. She has had developmental delays since infancy

and developed schizophrenia as a teenager. She was in mainstream public schooling into

second grade, when she was transferred to parochial schooling specializing in children

with intellectual and developmental disabilities. She was eventually placed in the Larned

State Hospital for a short time and then, in 1970, transferred to Parsons State Hospital.

She has been on a long-term regimen of psychotropic medication to treat her

schizophrenia.

3

Roll had a generally successful experience at the Hospital, recently achieving 96

percent of her treatment objectives. She also appeared to be happy and comfortable at the

Hospital. She would go out into the community with escorts approximately eight times a

month, including trips to Walmart, manicures, and baseball games. Roll had some work

duties at the Hospital, including tasks such as folding and shredding papers and

delivering things to staff members. She received physical therapy for an ankle injury and

other conditions.

Roll's parents died in the late 1990s. Teresa Kerwick and Mary Ann Burns are

Roll's sisters, and they became her co-guardians in 2002.

In the spring of 2016, Hospital staff contacted Teresa and told her the Hospital had

to cut approximately 1.3 million dollars from its operating budget, and Roll was a good

candidate for transfer from the facility. On June 8, 2016, Teresa received a letter

informing her that she needed to find a community care institution or Roll would be

discharged to the guardians' homes. Believing that community-based residential centers

would provide less desirable services for Roll and that she benefited from the long-term

relationship she had with the Hospital staff and her familiarity with the campus, the

guardians ultimately rejected voluntary transfer to another facility.

On August 19, 2016, Kerwick and Burns filed a petition seeking injunctive relief

and an application for a temporary restraining order seeking to prevent the defendants

from discharging Roll to community services or the petitioners' homes. The original

petition included only a claim that the defendants' conduct violated the ADA with an

accompanying claim of a civil rights violation under 42 U.S.C. § 1983 (2018). On the

same day, the district court granted an ex-parte order temporarily restraining the

defendants from discharging Roll from Parsons State Hospital and Training Center. The

record does not reflect that the temporary restraining order was ever converted to a

4

separate preliminary injunction, but the order remained in effect while the case was

pending in district court.

The court granted a motion by the defendants for the appointment of a guardian ad

litem to represent Roll's interests. The guardian examined a multitude of documents,

including social worker assessments, psychological evaluations, and case notes, and

submitted a letter to the district court. The letter noted Roll's numerous special needs, the

manner in which the Hospital was meeting those needs, and the difficulty in finding an

adequate substitute for the care she was receiving. It recommended retaining Roll at the

Hospital. At the defendants' request, the guardian ad litem then carried out in-person

interviews with Roll, the Hospital staff, and representatives of community treatment

facilities, and issued a follow-up letter modifying his recommendation to include the

possibility of relocation to a community-based center and noting advantages to both the

Hospital and the community facilities.

Roll filed a motion for summary judgment. Following multiple responses and

replies, the district court denied the motion, determining that genuine issues of material

fact precluded summary judgment, and the case went to a bench trial.

Many of the witnesses were current or former Hospital staff who generally

testified that Roll was in active treatment, was highly successful in responding to her

treatment, did not exhibit aggressive or psychotic behavior, and was pleasant and

compliant. The staff members also testified that, in their opinion, Roll would do well in a

community-based program. The guardians testified about their personal experiences with

Roll and explained why they did not consider any of the community-based centers

suitable for placement.

After the trial, the district court granted the guardians permission to add a claim

under the SSA that the proposed transfer from the Hospital violated Roll's right to choose

5

which facility would provide her treatment. The parties submitted proposed findings of

fact and conclusions of law, as well as trial briefs on the ADA and SSA claims.

On May 23, 2019, the district court entered judgment in favor of the defendants

with a 69-page journal entry including extensive findings of fact and conclusions of law.

Based on the evidence presented at trial, the district court found that treatment available

at a community-based program was appropriate to meet Roll's needs and that the Hospital

provided a level of care and restrictions beyond what was medically necessary for Roll.

In rejecting the ADA and SSA claims, the district court explained:

"There is no discrimination in the agency action initiated by Parsons State

Hospital. Ms. Roll's treatment team has assessed her needs and abilities. A determination

has been made that Ms. Roll is capable of living independently in a community based

environment with the assistance of community service providers. This does not constitute

an act of discrimination entitling Plaintiffs to injunctive relief.

. . . .

" . . . Ms. Roll's Social Work Assessment Annual Reviews, Psychological Annual

Reviews, and Individual Program Plans from 2010 through 2017 supports good cause for

her discharge. This documentation collectively speaks to the very issue of the adaptive

living skills Ms. Roll has developed over time which make her appropriate for placement

in a less restrictive living environment. This documentation, in conjunction with

testimony offered by staff of Parsons State Hospital, provides evidence to the Court of

her desire to partake in community based activities, her ability to work and earn wages,

her ability to take care of her own hygiene needs, her ability to dress herself, her ability to

exercise choices about daily living, her ability to perform various tasks to include setting

a table, maintaining her bedroom, assisting with sweeping and mopping, doing art

projects, working on puzzles, shopping, going out to eat, attending church, partaking in

religious studies, reading her bible, reading magazines or the newspaper and

communicating her wants, needs and desires."

Roll took a timely appeal to the Kansas Court of Appeals, and the district court

granted Roll a stay of the effect of the judgment pending appellate resolution, effectively

6

keeping the temporary restraining order in place. The Court of Appeals affirmed in Roll

v. Howard, 59 Kan. App. 2d 161, 480 P.3d 192 (2020). The intermediate appellate court

summarized its ruling in the opinion's introduction:

"Catherine Roll is a patient at Parsons State Hospital, where she has lived and

been treated for an intellectual disability and schizophrenia for several decades. In 2016,

the Department for Aging and Disability Services, in conjunction with Parsons, indicated

an intent to transfer Roll to a more integrated community-based treatment program

(though the specific program where she would be transferred was not yet determined).

Roll's guardians sought a permanent injunction to prevent the transfer, alleging the

Americans with Disabilities Act (ADA) and the Social Security Act (SSA) prevented the

Department from transferring her without her consent.

"After a trial, the district court found that the Department had shown that the

treatment available at a community-based program was appropriate to meet Roll's needs.

The court also found that, because Parsons provided a level of care and restriction beyond

what was medically necessary, neither the ADA nor the SSA prevented the State from

transferring her to a different program. After carefully reviewing the record and the

parties' arguments, we find the district court's crucial finding—that Roll does not need to

be treated in a facility as restrictive as Parsons—is supported by the record. And we agree

that there is no right under the ADA and SSA for patients to remain at a more restrictive

facility if the level of care provided is medically unnecessary. Thus, we affirm the district

court's denial of the permanent injunction." 59 Kan. App. 2d at 163-64.

On March 25, 2021, this court granted Roll's petition for review. She filed a

supplemental brief on April 28, 2021, and this court heard oral argument on September

15.

Then, about a week after oral argument, on September 24, the defendants filed a

Notice of Change of Circumstances and Motion for Dismissal in which they asserted that

Roll's physical and mental health had suffered a significant decline and the defendants no

longer considered community-based treatment an option. The notice stated, in part:

7

"8. However, Ms. Roll's medical and mental health conditions and her associated

treatment needs have changed. The PSH [Parsons State Hospital] professionals, familiar

with Ms. Roll's needs and capabilities, have now determined that community placement

is not appropriate. They believe that she should receive her care and treatment at PSH.

"9. In later January 2021, Ms. Roll was diagnosed with an intracranial

atherosclerosis, commonly referred to as hardening of the arteries in the brain. As late as

March 2021, PSH's professionals did not believe this condition required her continued

residence and treatment at PSH.

"10. Yet, the condition has worsened. Ms. Roll's behaviors, needs and abilities

are now such that Ms. Roll cannot be cared for and treated in community placement. She

needs the care and treatment provided by PSH.

"11. Ms. Roll's deteriorating condition is progressive and, at best, it will not

improve for community placement to ever be an appropriate option for her.

"12. Whether this Court were to reverse or affirm the decisions of the Court of

Appeals and trial court, the defendants will not transfer Ms. Roll to a community-based

treatment program or away from PSH."

In light of these alleged changed circumstances, the defendants moved to dismiss

the appeal as moot. They further asked the court to vacate both the district court and

Court of Appeals judgments.

On September 29, contending she had prevailed in the litigation, Roll filed a

motion for attorney fees totaling $143,290 and for costs totaling $8,345.80. The

defendants filed a response opposing the motion for monetary award, arguing that neither

party prevailed because the entire case had become moot. On October 20, Roll filed a

response to the motion to dismiss and a separate motion requesting an additional $17,640

in fees generated preparing the response. In the response, the guardians alleged that the

Hospital knew about Roll's deteriorating medical condition for many months. The

guardians asserted that on December 16, 2020, they received "the first of many emails"

8

from a social worker at the Hospital documenting the decline of Roll's condition. They

claimed the case was not moot and that exceptions to the mootness doctrine applied.

On December 3, this court ordered the parties to engage in mediation. The court

directed the parties to address issues including the extent and permanency of Roll's

changed circumstances, when the defendants knew or should have known about the

changes in her condition, and what effect those changes had on the parties' respective

positions in the appeal.

A mediation session took place on March 4, 2022 and lasted about 3 1/2 hours. On

April 4, the parties filed a joint statement informing the court they had reached no

settlement and were unable to agree on disputed facts.

Discussion

In September 2021, before this court reached a decision on the merits, the

defendants informed this court they no longer were seeking to transfer Roll and they

intended to maintain her residence at the Hospital. Based on substantial changes in Roll's

medical condition after the district court's factual findings and legal conclusions, the

defendants voluntarily provided the plaintiff with the relief she has been seeking through

litigation for the past six years. This court can offer the plaintiff no further relief than

what she has already received.

A case is moot when a court determines that "'it is clearly and convincingly shown

the actual controversy has ended, the only judgment that could be entered would be

ineffectual for any purpose, and it would not impact any of the parties' rights.'" State v.

Roat, 311 Kan. 581, 584, 466 P.3d 439 (2020) (quoting State v. Montgomery, 295 Kan.

837, 840-41, 286 P.3d 866 [2012]).

9

Here, due to Roll's declining condition, the defendants no longer oppose Roll's

request to remain at the Hospital. The parties are therefore in agreement, and this court

can enter no ruling that would affect the contested issue. "When, by reason of changed

circumstances between commencement of an action and judgment on that action, a

judgment would be unavailing as to the issue presented, the case is moot. [Citation

omitted.]" Roat, 311 Kan. at 596.

Courts have a duty to decide actual controversies by judgments that can be given

an effect and not to give opinions on abstract propositions. Mere "rightness" does not

suffice to justify the continued exercise of authority over an appeal. Roat, 311 Kan. at

599. Were this court to rule either in favor of the defendants or in favor of Roll, the

judgment would have no effect on her long-term placement. The defendants have

represented in a written notice filed with this court that Roll's deteriorating condition is

progressive and "it will not improve for community placement to ever be an appropriate

option for her." (Emphasis added.) She will continue to reside at the Hospital either way

that this court might rule, which is precisely what she sought in her petition.

The entire premise of the district court's ruling was its factual findings that

treatment available at a community-based program was appropriate to meet Roll's needs

and that the Hospital provided a level of care and restrictions beyond what was medically

necessary for Roll. The facts and evidence that supported these findings has now

completely changed—in fact, the opposite is true. Although a factual dispute may exist

between the parties as to when Roll's medical condition began to decline, there appears to

be no dispute that her condition substantially worsened after the district court made its

factual findings and denied the plaintiff's request for an injunction. The injunctive relief

being sought by the plaintiff is no longer necessary or required, and we decline to review

the case simply to determine whether the lower courts, at their discretion, could have

awarded attorney fees to the plaintiff based on her statutory claims.

10

Roll urges application of an exception to the mootness doctrine that allows a court

to decide cases "capable of repetition, yet evading review." See, e.g., Roat, 311 Kan. at

590. We are not persuaded that the circumstances of this case and the issues it presents

are of such a nature that they are likely to be repeated in future litigation. Furthermore,

although review was ultimately precluded under the peculiar facts of this case, we

consider it likely that similar issues, should they arise, will be susceptible to appellate

review. After all, this case was reviewed by the Court of Appeals, and it was only Roll's

changed circumstances that led us to dismiss the appeal after we granted review.

We therefore apply Supreme Court Rule 8.03(j)(6) (2022 Kan. S. Ct. R. at 54) and

dismiss the appeal as moot. In dismissing the appeal at this stage, we take no position on

the correctness of the opinions of the courts below and we caution against relying on the

decision of the Court of Appeals for precedential value. See Rule 8.03(h) and (k)(2).

Roll has requested a substantial award of costs and attorney fees from this court

based on her statutory claims. See 42 U.S.C. § 12205 (2018); 42 U.S.C. § 1988(b) (2018)

(both statutes provide that the court, in its discretion, may allow the "prevailing party"

reasonable attorney fees and costs). Is Roll the prevailing party in this case?

The United States Supreme Court set out the general standard governing the

prevailing-party determination in Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989):

"The touchstone of the prevailing party inquiry must be the material alteration of the

legal relationship of the parties in a manner which Congress sought to promote in the fee

statute." 489 U.S. at 792-93. The Court explained that a material alteration in the parties'

legal relationship occurs when "the plaintiff has succeeded on 'any significant issue in

litigation which achieve[d] some of the benefit the parties sought in bringing suit.'" 489

U.S. at 791-92. This standard requires that "'a plaintiff receive at least some relief on the

11

merits of his claim before he can be said to prevail.'" 489 U.S. at 792 (quoting Hewitt v.

Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 96 L. Ed. 2d 654 [1987]).

In Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human

Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), the petitioners operated

assisted living residences that were ordered closed after the state fire marshal found the

residents were incapable of "self-preservation." The petitioners sued for a declaratory

judgment that the "self-preservation" requirement violated provisions of the Fair Housing

Amendments Act (FHAA) and of the ADA. After the state legislature acted to eliminate

this requirement and the case was dismissed as moot, the petitioners moved to recover

attorney fees as the prevailing party under the "catalyst theory," which posits that a

plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought

about a voluntary change in the defendant's conduct. 532 U.S. at 601. The lower courts

ruled against the petitioners, and the United States Supreme Court affirmed. The opening

paragraph of the Court's opinion succinctly stated:

"Numerous federal statutes allow courts to award attorney's fees and costs to the

'prevailing party.' The question presented here is whether this term includes a party that

has failed to secure a judgment on the merits or a court-ordered consent decree, but has

nonetheless achieved the desired result because the lawsuit brought about a voluntary

change in the defendant's conduct. We hold that it does not." 532 U.S. at 600.

The United States Supreme Court rejected the "catalyst theory" that had been

recognized by some lower federal courts to determine the prevailing party and held the

fee provisions of the FHAA and of the ADA require a party to secure either a judgment

on the merits or a court-ordered consent decree to qualify as the prevailing party. 532

U.S. at 602-05. In so ruling, the Court reasoned that a "defendant's voluntary change in

conduct, although perhaps accomplishing what the plaintiff sought to achieve by the

lawsuit, lacks the necessary judicial imprimatur on the change." 532 U.S. at 605.

12

Federal courts do not follow the Supreme Court's holding in Buckhannon when it

is superseded by statute. See, e.g., Poulsen v. Department of Defense, 994 F.3d 1046 (9th

Cir. 2021) (finding that 2007 amendment defining "prevailing party" under Freedom of

Information Act abrogated the rule of Buckhannon in claims for attorney fees under

that Act). But otherwise, federal courts still follow the holding in Buckhannon in

rejecting claims for attorney fees in cases dismissed as moot. See, e.g., Suarez-Torres v.

Panaderia y Resposteria Espana, Inc., 988 F.3d 542 (1st Cir. 2021) (district court

properly denied plaintiffs attorney fees under ADA because defendant voluntarily agreed

to make substantial changes in response to plaintiffs' complaint, and plaintiffs failed to

demonstrate requisite judicial imprimatur on that outcome to make them prevailing

parties); Doe v. Dixon, 716 F.3d 1041 (8th Cir. 2013) (dismissal on mootness ground did

not result from plaintiffs prevailing on the merits of any of their claims, and plaintiffs

were not entitled to prevailing party status simply because a voluntary change in conduct

was recognized in the order of dismissal); Walker v. Calumet City, 565 F.3d 1031 (7th

Cir. 2009) (award of attorney fees to property owner under 42 U.S.C. § 1988[b] as

prevailing party in action against city was reversed because dismissal of case for

mootness did not impose judicial imprimatur that would permit awarding attorney fees

under Buckhannon). The statutes under which Roll seeks to recover attorney fees—42

U.S.C. § 12205 and 42 U.S.C. § 1988(b)—have not been amended to define "prevailing

party" since the Supreme Court decided Buckhannon.

A review of the procedural history of this case shows that Roll did not prevail at

any point in the litigation except for receiving an ex-parte temporary restraining order.

But she lost on the merits of her claims in the district court, and she lost in the Court of

Appeals. Although we cannot say she would have lost in our court, we also cannot say

she prevailed in our court. Her own changed circumstances, not a judicial determination,

resulted in her obtaining the relief she sought for six years. She did not obtain an

alteration of the legal relationship of the parties, and she did not succeed on any

significant issue in litigation which achieved some of the benefit she sought in bringing

13

the suit. She failed to secure a judgment on the merits or a court-ordered consent decree,

although she received the desired result of her litigation. Simply put, Roll was not

awarded any relief by any court on the factual and legal issues that were addressed by the

court. We therefore conclude Roll is not entitled to attorney fees in a case that we dismiss

as moot.

Appeal dismissed.

STANDRIDGE, J., not participating.

THOMAS E. MALONE, J., assigned.1

* * *

ROSEN, J., dissenting: I take issue with the majority opinion for what I consider

two fundamental errors of reasoning. I will explain first that the lower courts reached

incorrect decisions in denying Roll the relief she sought. I will next argue that, under the

curious circumstances of this case, the appeal is not moot and Roll was the prevailing

party.

The Lower Court Decisions Were Fundamentally Flawed

In my view, both the district court and the Court of Appeals got their decisions

wrong. If they had ruled correctly, Roll would have prevailed before this appeal reached

______________________________

1REPORTER'S NOTE: Judge Malone, of the Kansas Court of Appeals, was appointed

to hear case No. 121,447 vice Justice Standridge under the authority vested in the

Supreme Court by K.S.A. 2021 Supp. 20-3002(c).

14

us and we would not be concerned about whether mootness barred the request for

attorney fees. I contend the strong likelihood of success on their appeal should enter into

the calculus of whether Roll should be awarded fees and costs.

I initially note that I agree with the lower courts' analysis and conclusions

regarding the Americans with Disabilities Act. Roll argued that the Act protected her

from being forced to relocate to a community treatment setting, relying on statutory

language that, standing in isolation, supports her position: "Nothing in this chapter shall

be construed to require an individual with a disability to accept an accommodation, aid,

service, opportunity, or benefit which such individual chooses not to accept." 42 U.S.C.

§ 12201(d) (2018). The lower courts rejected her argument.

In a nutshell, nothing in that statute calls for placement in a more restrictive

environment simply because that is what the disabled person desires. A state may offer to

provide adequate services in a least-restrictive environment, and a disabled person may

reject those services. The state is then free of its responsibility to provide residential

services to that person. In other words, if a disabled person is living at home or in a

private care facility, a state may not require that person to relocate to either a state

hospital or a community-based residential program. But a state is not required to admit—

or continue to locate—the person at whichever particular program the person prefers. See

Chambers, Integration as Discrimination Against People with Disabilities? Olmstead's

Test Shouldn't Work Both Ways, 46 Cal. W. L. Rev. 177, 195-96 (2009); D.T. v.

Armstrong, No. 1:17-CV-00248-EJL, 2017 WL 2590137, at *8 (D. Idaho 2017)

(unpublished opinion); Sciarrillo ex rel. St. Amand v. Christie, CIV.A. No. 13-03478

SRC, 2013 WL 6586569 (D.N.J. 2013) (unpublished opinion); Richard S. v. Dept. of

Developmental Servs. of California, No. SA CV 97-219-GLT ANX, 2000 WL 35944246

(C.D. Cal. 2000) (unpublished opinion); Richard C. ex rel. Kathy B. v. Houstoun, 196

F.R.D. 288, 289 (W.D. Pa. 1999); Illinois League of Advocs. for Developmentally,

Disabled v. Quinn, No. 13 C 1300, 2013 WL 3168758, at *5 (N.D. Ill. 2013)

15

(unpublished opinion). In short, I do not think Roll would have or should have prevailed

on the ADA issue.

But I vigorously disagree with the courts below on two other critical points.

The first of these is the application of Medicaid statutes and regulations.

Medicaid is an optional, federal-state program through which the federal

government provides financial assistance to states for the medical care of individuals in

financial hardship. Wilder v. Va. Hosp. Association, 496 U.S. 498, 502, 110 S. Ct. 2510,

110 L. Ed. 2d 455 (1990). Once a state elects to participate in the program, it must

comply with all federal Medicaid laws and regulations. 496 U.S. at 502.

Under the Medicaid waiver program created by 42 U.S.C. § 1396n(c) (2000),

states may waive the requirement that persons with "mental retardation" or a related

disability live in an institution in order to receive certain Medicaid services. Doe v. Kidd,

501 F.3d 348, 351 (4th Cir. 2007). The program allows states to experiment with methods

of care, or to provide care on a targeted basis, without adhering to the strict mandates of

the Medicaid system. Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir. 2002).

The "free choice" provision under the Medicaid Act waiver program, located at 42

U.S.C. § 1396n(c)(2)(B) and (C) (2018), requires states to provide assurances that they

will offer to qualified individuals an evaluation for the need for inpatient hospital

services, nursing facility services, or services in an intermediate care facility for the

"mentally retarded." Furthermore, individuals who are "likely to require the level of care

provided in a hospital, nursing facility, or intermediate care facility" must be "informed

of the feasible alternatives, if available under the waiver, at the choice of such

individuals, to the provision of inpatient hospital services, nursing facility services, or

services in an intermediate care facility for the mentally retarded." (Emphasis added.)

16

Moreover, 42 U.S.C. § 1396a(a)(23) (2018) expressly states that any

individual eligible for assistance may obtain that assistance from "any institution"

qualified to perform the required services and the individual's choice of who

provides that assistance shall not be restricted. The Medicaid Act thus clearly

states a free-choice intention.

The implementing regulation for the free-choice provision provides:

"(d) Alternatives—Assurance that when a beneficiary is determined to be likely to

require the level of care provided in a hospital, NF, or ICF/IID [nursing facility, or

intermediate care facility/individuals with intellectual disabilities], the beneficiary or his

or her legal representative will be—

(1) Informed of any feasible alternatives available under the waiver; and

(2) Given the choice of either institutional or home and community-based

services." (Emphasis added.) 42 C.F.R. § 441.302(d) (2021).

In short, the free choice provision "gives recipients the right to choose among a

range of qualified providers, without government interference." O'Bannon v. Town Court

Nursing Ctr., 447 U.S. 773, 785, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980).

Roll argues that 42 C.F.R. § 441.302(d) gives her the right to choose where she

will reside, so long as her chosen facility provides the level of care that she is likely to

require. She contends that, because the Hospital has demonstrated the ability to provide

that level of care and because she has active treatment needs that the Hospital can satisfy,

the Medicaid provisions of the Social Security Act and the implementing regulation give

her the right to choose to remain at that facility. I agree. The record and the law, in my

view, unquestionably demonstrate she has that right.

17

Witnesses and the trial court devoted considerable time and attention to two

factors: (1) the reasons why the Hospital was seeking to move Roll into other care

facilities, and (2) the ability of those alternative facilities to provide Roll with the care she

requires. The general sense of that evidence and the related findings was that budgetary

constraints compelled the Hospital to reduce its patient load and export those patients

who are able to receive adequate care in other settings; the changing environment at the

Hospital increased safety concerns for all its patients; and there are many care facilities

around the state that, at least in theory, will provide Roll with good care.

To a large extent, this evidence and the trial court's related findings are a red

herring. The question under this issue is not whether the Hospital's proposed relocation of

Roll was reasonable, which it may have been. The question is whether Roll had a legally

protected right to remain in her current setting, where it is uncontroverted that she was

receiving excellent care and where she has felt comfortable and secure.

The Court of Appeals provided a perfunctory, two-paragraph analysis of the merits

of Roll's claim, in essence holding that, if it is decided that a disabled person is likely to

require only the level of care offered in a community-based service, then the statute does

not require a state to offer the choice between institutional or community-based services.

See Roll v. Howard, 59 Kan. App. 2d 161, 187, 480 P.3d 192 (2020). By this reasoning, a

state may elect to offer the lowest common denominator of adequate care. The Court of

Appeals cited to no authority for this limitation.

With this holding, the Court of Appeals implicitly added a proviso to the statutory

language: If an individual is determined to be likely to require the level of care provided

in an intermediate care facility (such as a community-based treatment center), then the

only feasible choice that a state must give is an intermediate care facility or opting out to

home care. The state is not required to offer the choice of a more intensive care facility.

18

But this is not what the statute or the regulation says. Repeating the statutory

language quoted above, a state must provide that "individuals who are determined to be

likely to require the level of care provided in a hospital, nursing facility, or intermediate

care facility for the mentally retarded are informed of the feasible alternatives, if

available under the waiver, at the choice of such individuals, to the provision of inpatient

hospital services, nursing facility services, or services in an intermediate care facility for

the mentally retarded[.]" (Emphasis added.) 42 U.S.C. § 1396n(2)(c).

The Court of Appeals interpretation would make more sense if the Medicaid Act

were an anti-discrimination statute, as the Americans with Disabilities Act is. Then it

would be reasonable to assume that the less discriminatory—or more integrated—option

would always be the statutorily preferred option. But the waiver is designed to give

disabled individuals the option of accepting some treatment program other than

institutionalization. See Doe, 501 F.3d at 359. It may be that most individuals would

choose in-home or community-based services when those are available, but the Medicaid

Act does not require that they choose those services.

The United States Supreme Court has explicitly held that the Medicaid Act

"gives recipients the right to choose among a range of qualified providers, without

government interference. By implication, it also confers an absolute right to be free from

government interference with the choice to remain in a home that continues to be

qualified. But it clearly does not confer a right on a recipient to enter an unqualified home

and demand a hearing to certify it, nor does it confer a right on a recipient to continue to

receive benefits for care in a home that has been decertified." (Emphasis added.)

O'Bannon, 447 U.S. at 785.

I cannot see how the courts in the present case can get around this unambiguous

language. The Hospital continues to be qualified. Roll has a right to choose among a

19

range of qualified providers without government interference. She enjoys an "absolute

right" to remain in a home that continues to be qualified. She had the right to remain at

the Hospital, even if she would not be admitted to the Hospital under today's admission

criteria.

The right under the freedom of choice provision "is not so vague and amorphous

that it cannot be judicially enforced; the statute and its corresponding regulations clearly

illustrate that the freedom of choice provision establishes a two-fold right to both

information about feasible alternatives and a choice of such alternatives, if available."

Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 1015 (D. Minn. 2016).

The statutory and regulatory language and the holdings of O'Bannon and lower

courts line up precisely with Roll's position. Plaintiffs have lost when they have sought to

force states to keep facilities open so that they may remain in those facilities or when they

have sought to force states to establish new facilities so that they may have a greater

range of choices. That is not the situation here. Roll wants to exercise her choice to stay

where she is, in a treatment facility that is open and that clearly suffices to meet her

needs.

Our Court of Appeals added a component to the Medicaid statute not contained in

the statutory language. The court held that the choice provision only arises "when a court

has determined someone is 'likely to require the level of care provided in' one of the

facilities listed in the statute." (Emphasis added.) Roll, 59 Kan. App. 2d at 187. The

statute makes no mention of courts stepping in to make the medical determination of

which level of care a patient requires. Taking the Court of Appeals language on its face,

every time a facility offers a patient a choice, it will have to obtain judicial approval of

the choices available.

20

But more to the point, the statute makes no mention of offering only the services

that meet a patient's minimum needs. Instead, the statute, as well as the Supreme Court in

O'Bannon, states that the choice in treatment level lies with the patient, so long as the

treatment option meets the patient's needs. The statute does not exclude options that

exceed the minimum care requirements. Otherwise, the freedom of choice provision

becomes basically meaningless: a patient will only have the "option" to "choose" the

kind of facility that provides the most basic services for the patient's needs.

So far, this analysis has not addressed a critical point that the defendants urged

was dispositive in their favor. They contended Roll was not entitled to apply the freedom

of choice provision to promote her cause because the statutory and regulatory language

applies the choice option only to individuals who are "likely to require the level of care

provided in a hospital, nursing facility, or intermediate care facility," and not to those

who will need less advanced care. 42 U.S.C. § 1396n(c)(2)(B) and (C). The Court of

Appeals apparently agreed, judicially adding a component not contained in the Medicaid

scheme.

The defendants' argument and the Court of Appeals conclusion stand in sharp

contrast to the Supreme Court's ruling in O'Bannon: "[The Medicaid statutory scheme]

confers an absolute right to be free from government interference with the choice to

remain in a home that continues to be qualified." (Emphasis added.) 447 U.S. at 785. If

an individual has active treatment needs, such as Roll had and continues to have, then the

individual enjoys the right to remain in a facility that is qualified to provide for those

needs. The Hospital is such a facility.

To be sure, the district court held as a matter of law that Roll has no active

treatment needs, meaning, at the very least, she would not qualify for Medicaid services.

This ruling will be discussed in detail below, but I suggest that an elderly patient who

requires medication to control schizophrenic psychosis, who has an IQ of 51, who needs

21

prompting before she uses the bathroom and requires assistance cleaning up afterwards,

who has spinal deformities, who is barely able to speak in complete sentences, who

requires assistance in making dietary choices, and who has been the subject of detailed

annual active treatment plans for decades has active treatment needs. This is sufficiently

the case such that the staff of one community facility that the guardians visited, who was

familiar with Roll from the Hospital, informed the guardians that she probably required

more treatment than the facility would be able to provide. Put another way, she obviously

had active treatment needs because, if she did not have such needs, then it wouldn't have

mattered whether she was in a dedicated care facility, and she might not even have

qualified under Medicaid regulations for placement in a community-based residential

center.

The Medicaid Act does not state, as the defendants claim, that individuals who are

determined to be likely to require the level of care provided only in a hospital must be

informed of feasible alternatives. Such a limitation is not in the statute; it has been added

by the defendants and the lower courts. That limitation eviscerates the free choice

language of the Medicaid Act and the regulations, which allow an individual to choose

among hospitals, intermediate care facilities, and home services, so long as any of those

options provide the individual with the care he or she needs. Assuming, based on the

uncontroverted evidence presented to the district court, that Roll had special needs, the

freedom-of-choice provision applied to her.

Neither the statute nor the regulation limits the choice provision to a situation in

which an individual requires the highest levels of care available. Instead, under the

Medicaid Act, its implementing regulations, and Supreme Court precedent, the treatment

facility, wherever the individual is choosing to remain, must be able to provide the level

of care that the beneficiary is likely to require. This assures that the beneficiary will

actually receive the needed care; it is not an escape valve for facilities to eject people

with disabilities.

22

The regulations speak of "any feasible alternatives," not just the alternatives that

are most convenient for hospitals seeking to download their less-intensive needs patients.

This would explain why qualifying beneficiaries must be "[g]iven the choice of either

institutional or home and community-based services." (Emphasis added.) 42 C.F.R.

§ 441.302(d)(2).

It should be remembered that the Hospital was not trying to relocate Roll because

it is an inappropriate setting for her in treatment terms; it was seeking to relocate her

because of budgetary and space concerns. If the court is to believe the defendants and

their witnesses, the Hospital has been very careful to comply with Medicaid

requirements, meaning that Roll has had active-treatment needs and the Hospital has been

meeting those needs for decades. But the defendants did a 180-degree turn when they

tried to compel her to leave the Hospital, maintaining that she was not likely to require

the kind of care the Hospital provided.

For all the apparent complexity this analysis entails, it boils down to a simple

conclusion: the Medicaid statute and regulations required that Roll have the choice to

remain at the Hospital, a legal reality that both the district court and the Court of Appeals

refused to acknowledge.

I now turn to the factual conclusions that the district court reached and that the

Court of Appeals affirmed. Rarely will this court dispute a district court's factual

findings, but, in this case, those findings were completely at odds with the uncontroverted

evidence before it.

The district court concluded Roll was not in "active treatment" at the Hospital. The

Court of Appeals determined that the district court conclusion was supported by

23

competent evidence and it would not reweigh the evidence on appeal. Roll, 59 Kan. App.

2d at 173-74.

The question of whether Roll was receiving active treatment has more profound

implications than either of the courts below gave it. If it is legally correct that Roll was

not in active treatment, then she had no protection under the Medicaid Act and she was

not entitled to exercise the choice provision discussed above. More importantly, however,

it is likely she was not entitled to placement in any Medicaid-supported care facility. If

she was not in active treatment, then the detailed treatment plans that were developed and

submitted for her over many years at the Hospital were basically nullities and nothing

more than a scheme to defraud the federal and state governments.

I take the position that both the trial court and the Court of Appeals erred in

determining that Roll was not in active treatment. The uncontroverted evidence before

the trial court was that she was in active treatment, both in a common-usage sense and in

a legal sense. "Active treatment" is a term of art under the Medicaid Act, and both courts

below failed to analyze the active treatment condition in the context of Medicaid

requirements.

Because the term "active treatment" is a legal term of art, whether the factual

findings support the legal conclusion that Roll required such treatment is a mixed

question of fact and law. This court generally reviews the factual findings under the

substantial competent evidence standard but exercises unlimited review of the

conclusions of law based on those facts. See Gannon v. State, 305 Kan. 850, 881, 390

P.3d 461 (2017).

Federal regulations require that recipients of Medicaid benefits, such as Roll,

participate in an "active treatment program," and the regulations define active treatment:

24

"(1) Each client must receive a continuous active treatment program, which

includes aggressive, consistent implementation of a program of specialized and generic

training, treatment, health services and related services described in this subpart, that is

directed toward—

(i) The acquisition of the behaviors necessary for the client to function

with as much self determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current

optimal functional status.

"(2) Active treatment does not include services to maintain generally independent

clients who are able to function with little supervision or in the absence of a continuous

active treatment program." 42 C.F.R. § 483.440(a) (2021).

Without mentioning that regulatory definition, the district court explicitly

found that Roll was not receiving active treatment, but the court's journal entry is

internally inconsistent. In one section, it states:

"31. [These] treatment professionals come from several disciplines, including

psychologists, social workers, medical doctors, nursing staff, direct support staff,

vocational client training supervisors and activity specialists. These treatment

professionals actively provided care and support to Ms. Roll throughout her stay at

Parsons State Hospital.

"32. The services offered by these professionals included psychological

services, medical services, teaching, facilitating and assisting in daily life skills, leisure

skills, vocational training skills and communication skills." (Emphases added.)

In another section, however—the section that is the subject of Roll's appeal—the

district court held:

25

"Ms. Roll does not display behavioral issues which would indicate she has active

treatment needs. Given that Ms. Roll has no active treatment needs, members of Ms.

Roll's treatment team at Parsons State Hospital have simply been providing supervision

to Ms. Roll, which can be accomplished in a community based setting.

"Examples of behaviors which would demonstrate active treatment needs

includes an inability to employ self-help skills, an inability to work, an inability to

communicate, an inability to control one's temper, an inability to respond to supervision,

problems with elopement and an inability to address safety, health or hygiene needs."

(Emphasis added.)

Then, later, the district court explained that certain community-based facilities will

be able "to meet her treatment needs." It is unclear why the district court thought that

Roll would be able to find placement that could comport with her treatment needs when it

also held that she had no treatment needs.

Administering medication, adjusting prescriptions, providing physical therapy,

teaching life skills, preventing or slowing regressive behavior and ideation—these are all

"treatments." For example, Eric Schoenecker, a psychologist and defense witness,

testified that psychotropic medication, such as the Loxitane that Roll was taking, can

have "a dramatic effect on the behavior aspects of an individual's daily living," and for

this reason it was important to monitor both medication and behavioral and nonmedicinal

therapies. He also testified that Roll has scoliosis and is developing cataracts. These are

examples of health and behavior issues requiring active treatment.

The online Merriam-Webster dictionary defines "treatment" as "the action or way

of treating a patient or a condition medically or surgically: management and care to

prevent, cure, ameliorate, or slow progression of a medical condition."

https://www.merriam-webster.com/dictionary/treatment?src=search-dict-box. The same

dictionary defines "active" as "characterized by action rather than by contemplation or

26

speculation . . . having practical operation or results." https://www.merriamwebster.com/dictionary/active?src=search-dict-box. By these definitions, Roll was

receiving active treatment and had active treatment needs.

But, more importantly, a parade of defense witnesses testified that Roll was

receiving active treatment; she had active treatment needs; and, in response to those

needs, they developed active treatment plans that they provide to staff, guardians and

family members, and the government agencies that administer Medicaid programs.

Furthermore, their testimony was uncontroverted; it was, after all, the defendants'

position that they were in compliance with statutory and regulatory requirements, and it

was Roll's position that she required active treatment. Either the district court simply

ignored the explicit, emphatic testimony of those witnesses, or it deemed the defendants'

witnesses to be completely untrustworthy. If the court considered the defendants'

witnesses to be unreliable, it gave no explanation for such a conclusion. It even adopted

their other testimony wholesale into its factual findings. It was not the plaintiff who was

second-guessing the healthcare professionals; it was the district court.

The following witnesses testified that Roll was in active treatment:

Dr. Jerry Rea, formerly the Hospital director, testified that Roll met the federal

requirements for implementing an active treatment program and that she was in "active

treatment." Eric Schoenecker, a staff psychologist, testified that Roll was currently

"under active treatment" and she "meets the standards for being at Parsons." Robyn

Thomas, a clinical psychologist on the Hospital staff, testified that she worked with Roll

on achieving "active treatment training objectives." Karen VanLeeuwen, the director of

Hospital social services, testified that Roll was in active treatment at the time of the

hearing and the active treatment was in most of the areas available for treatment and in

"all the self-care areas." These were all witnesses called by the defendants. The transcript

27

contains no testimony or other evidence that Roll did not have active treatment needs or

was not receiving active treatment.

Without explanation, the district court limited its understanding of "active

treatment needs" to "behavioral issues." There is no statutory or common-usage basis for

such a limitation. Furthermore, the uncontroverted evidence established that, in the

absence of psychotropic medication and behavioral treatment, Roll's schizophrenia led to

paranoid, delusional, and violent behavior. When she was temporarily taken off a

psychotropic medication, her behavior became much more aggressive, including putting

her fist through a window and aggression toward other residents, and she began to

hallucinate. The fact that active treatment had that condition under control does not mean

that she had no behavioral issues and no active treatment needs.

Defense witness VanLeeuwen testified that Roll's active-treatment needs included

determining and teaching needed adaptive behaviors, improving independent leisure

skills, improving independent functioning skills, and improving personal safety skills.

These are not "behavioral issues" in the sense that Roll was exhibiting violent or

uncooperative behavior, but they were issues in improving, maintaining, or slowing the

regression of Roll's quality of life and ability to function among other human beings.

Even if one pretends that such services are not "active treatment," it is close to impossible

to understand how monitoring, adjusting, and administering medicine for the control of

schizophrenic illness does not fall within the purview of "active treatment." The district

court even listed medication stabilization as an "active treatment need."

The district court relied on the testimony of defense witnesses to conclude that

Roll was highly successful in meeting her "treatment objectives." Based on this success,

the court seems to have inferred that she was not in active treatment. Apparently, a

patient who is responding well to active treatment is not in need of active treatment and is

not currently in active treatment.

28

The Court of Appeals deferred to the district court's evaluation of the evidence,

holding there was simply a difference of opinion between Roll's guardians and the

Hospital's medical professionals. That court concluded the district court's findings were

supported by substantial competent evidence in the record. Roll, 59 Kan. App. 2d at 173-

74.

There are at least two problems with this appellate analysis. Although both the

district court and the Court of Appeals treat this as a purely factual question, subject to a

court's common-sense understanding of what constitutes "active treatment," it is more in

the nature of a legal conclusion. As set out above, 42 C.F.R. § 483.440(a) defines "active

treatment" and makes it a requirement for receipt of general Medicaid assistance. The

regulation refers to "a program of specialized and generic training, treatment, health

services and related services." Neither the district court nor the Court of Appeals applied

the evidence before them to the regulatory definition.

The second problem with the Court of Appeals analysis is its determination that

the question was simply "a difference of opinion between what Roll's guardians believe

to be active treatment and the descriptions of the Parsons medical staff." 59 Kan. App. 2d

at 173-74. But the Parsons medical staff unanimously agreed with Roll's guardians that

Roll has active treatment needs and was receiving active treatment at the Hospital—there

was no difference of opinion about whether Roll is receiving active treatment. The

difference of opinion lay in whether Roll would continue to receive active treatment

meeting her particular requirements if she were transferred to a community-based

program.

Why does this matter? Finding otherwise could potentially put Hospital staff at

risk for charges of Medicaid fraud for submitting plans for treatment needs when no such

29

needs existed. And further, Roll might lose her eligibility for future Medicaid benefits,

possibly even having to repay past benefits.

The matter is relevant for deciding whether Roll had a right to make a free choice

of providers of active treatment services under the Medicaid Act, as discussed above. If

she was not in active treatment and did not have active treatment needs, then neither the

Hospital nor intermediate care facilities would be providing services that she needed

because she did not actually need active treatment services. This would undermine her

argument that Medicaid law entitled her to a choice of whether to stay in her current

placement or transfer to some other facility.

This may have been the point of the district court's finding: if Roll was not

receiving active treatment, then she did not have a legal right to remain at the Hospital,

and the courts should not be involved in evaluating whether this or that community-based

center was able to meet her needs. The shortcut for getting the courts out of that decisionmaking process was to hold she had no active treatment needs. The defendants

considered the shortcut to their advantage because it lightened the burden on them to

transition Roll into some other facility, which could be any other facility at all if she had

no active treatment needs.

But this shortcut is at odds with the uncontroverted evidence in the record and the

requirements of the Medicaid program. The evidence was clear and overwhelming that

Roll was in active treatment and had active treatment needs that were being met at the

Hospital. She was therefore entitled to exercise her statutory choice and continue to

reside at the Hospital.

In summary, both the district court and the Court of Appeals made clearly

reversible errors in both their legal and factual conclusions.

30

The Appeal Is Not Moot and Roll Is Entitled to Attorney Fees and Costs

If Roll had been doing nothing through her appeal but prolonging litigation to

needlessly eke out a few more years of residence at the Hospital, I would be inclined to

join the majority and dismiss the appeal as moot. But, as I have argued above, her case

has been meritorious from the time it was before the district court. It is the defendants

who unnecessarily consumed the time of the appellate courts by failing to notify these

courts that Roll's conditions were changing dramatically and her needs were increasing,

even further undermining the district court's factual findings and forcing the defendants

to change their position with respect to her residency at the Hospital.

Taking their pleadings on their face—and the defendants have not challenged the

amount claimed—Roll has incurred attorney fees amounting to over $160,000 in

prosecuting this litigation. If she had not prosecuted this litigation, the defendants would

have transferred her, in violation of her rights under the Medicaid Act, back in 2016. The

majority opinion gives similarly situated plaintiffs a harsh choice: fight for their rights,

but, if the defendants jump out of the litigation at the last possible minute, they are left

hammered with the costs of litigation; or surrender their rights because they cannot afford

to risk a last-minute acquiescence by the defendants. I am firmly convinced this is not the

choice that Congress intended plaintiffs in civil-rights based actions to face when it

enacted 42 U.S.C. § 1988(b).

Fee shifting plays a significant role in civil rights litigation. It is intended to

encourage compliance with civil rights statutes. See, e.g., Hylton, Fee Shifting and

Incentives to Comply with the Law, 46 Vand. L. Rev. 1069, 1070 (1993). The decision of

the majority today has the opposite consequence: it discourages parties from successfully

litigating to protect their rights by incurring the costs of the litigation when they obtain

the sought after relief.

31

I conclude the mootness doctrine does not deprive Roll of an award of fees to

which she is statutorily entitled.

First, she stated a demand for attorney fees as a separate count in her original

petition. That demand constitutes a distinct, justiciable interest. A case is moot when "'the

only judgment that could be entered would be ineffectual for any purpose, and it would

not impact any of the parties' rights.'" (Emphases added.) State v. Roat, 311 Kan. 581,

584, 466 P.3d 439 (2020). Here, the award of attorney fees is a substantial right, and it is

a right to which Roll is entitled as the party who, as a consequence of this litigation,

obtained the relief she sought.

If an event occurs while a case is pending on appeal that makes it impossible for

the court to grant any effectual relief whatsoever to the prevailing party, the appeal must

be dismissed. But the possibility of the award of costs means an appeal is not moot in its

entirety. See, e.g., Landrith v. Hazlett, 170 Fed. Appx. 29, 31 (10th Cir. 2006)

(unpublished opinion) (citing Church of Scientology v. United States, 506 U.S. 9, 12-

13, 113 S. Ct. 447, 121 L. Ed. 2d 313 [1992]).

Second, Roll sought injunctive relief in the district court. Injunctive relief means

not only that a defendant is barred from taking some action today; injunctive relief is also

prospective in effect. In general, "an injunction is not an appropriate action to obtain

relief for past or completed acts but operates only in futuro to prevent later acts." Andeel

v. Woods, 174 Kan. 556, 557, 258 P.2d 285 (1953). In addition to a temporary restraining

order, Roll sought a permanent injunction. I do not see how a permanent injunction can

become moot simply because a defendant backs away from an intended course of action.

If I follow the majority's reasoning, whenever a plaintiff seeks injunctive relief,

defendants can moot the action and avoid paying attorney fees by declaring that they

have changed their minds. But prospective relief in a situation such as this does not

32

become moot simply because a party avers it has changed its mind. In United States v.

Washington, 596 U.S. ___, 142 S. Ct. 1976, ___L. Ed. 2d ___ (2022), after the Supreme

Court granted certiorari, the defendant averred that a putatively discriminatory statute had

been amended to remove the offending terms and that the amendment would be effective

retroactively. The Supreme Court declined to dismiss the case as moot, holding that

promises of retroactive effectiveness would not undo the legal merits of challenges to the

statute before it was amended. 142 S. Ct. at 1983.

In the present case, we have no factual findings and no court determinations that

Roll's condition has declined so as to create different active treatment needs. We also

have no binding agreement that the defendants will not once again reverse their course of

action. Apparently, the court majority deems it sufficient for a defendant to simply

declare there won't be any future harm in order to avoid a court order and the consequent

payment of fees. And it is also sufficient for a defendant to declare that it has decided to

give the plaintiff the relief she has fought for in order to avoid the plaintiff becoming the

prevailing party.

No fact-finding has taken place and no judicial determination has been made

confirming the allegations by the defendants that they were motivated by recent changes

to Roll's condition and that they will never again seek her transfer. We also have the

guardians' allegations, supported by documented communications between them and the

Hospital staff, showing that Roll's condition had deteriorated far below the level of care

possible in less-intensive care facilities long before review was even sought in this court.

The majority simply accepts the defendants' bald allegations regarding the circumstances

and consequences of the change.

This court has acknowledged an attorney fee claim can serve as the basis for

appellate review in cases where a party has both requested attorney fees and prospective

relief in the form of declaratory judgment or injunction. See, e.g., Baker v. Hayden, 313

33

Kan. 667, 675-76, 490 P.3d 1164 (2021); Willis v. Kansas Highway Patrol, 273 Kan.

123, 41 P.3d 824 (2002). This court may still review the lower court rulings and award

Roll a permanent injunction. This is more than a minimal or trivial interest; it is relief that

she requested and that extends to govern future action, not to redress some past harm. See

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed.

2d 152 (1982) (well settled that a defendant's voluntary cessation of a challenged practice

does not deprive a federal court of its power to determine legality of the practice;

prospective nature of injunctive relief empowers courts to prevent future abuse).

I further contend that Roll prevailed in this litigation. To be sure, the defendants

jumped ship before this court issued an opinion, but that does not change the reality that

Roll remained in the Hospital because she litigated this action. Remaining in the Hospital

was the essence of her action, and she succeeded in obtaining and preserving a restraining

order up through the time that the defendants backed away from their decision.

A "prevailing party" is the party that "has been awarded some relief by the court."

Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Hum. Res., 532

U.S. 598, 603, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Obtaining preliminary relief

can suffice to award a party prevailing party status:

"A preliminary injunction is a form of court-ordered relief. Thus, '[a] preliminary

injunction issued by a judge carries all the "judicial imprimatur" necessary to satisfy

Buckhannon.' Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002); see

also People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 233 n. 5 (3d Cir.

2008) ('We need not determine in this case the outer limits of the requisite "judicial

imprimatur." Whatever those may be, preliminary injunctions are certainly within them.'

(citation omitted))." Kansas Jud. Watch v. Stout, 653 F.3d 1230, 1237 (10th Cir. 2011).

As the Tenth Circuit has held: "[I]f a preliminary injunction satisfies the relief-onthe-merits requirement, the plaintiff qualifies as a 'prevailing party' even if events outside

34

the control of the plaintiff moot the case." Kansas Jud. Watch, 653 F.3d at 1238. A

defendant's acquiescence in the relief sought by a plaintiff does not necessarily protect

the defendant from paying fees. "[A] party may be considered to have prevailed even

when the legal action stops short of final appellate, or even initial, judgment due to a

settlement or intervening mootness." Grano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir.

1986).

Roll preserved the status quo, which had the effect of staving off action by the

defendants until they decided they no longer deemed Roll's transfer medically or legally

defensible. This demonstrates there was a change in the legal relationship of the parties

that endured until the defendants requested dismissal.

The United States Supreme Court has recognized that "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. . . . The courts have rightly refused to grant

defendants such a powerful weapon against public law enforcement." United States v. W.

T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). In an earlier

decision, the Court stated: "Voluntary discontinuance of an alleged illegal activity does

not operate to remove a case from the ambit of judicial power." Walling v. Helmerich &

Payne, 323 U.S. 37, 43, 65 S. Ct. 11, 89 L. Ed. 29 (1944); see also United States v.

Trans-Missouri Freight Association, 166 U.S. 290, 309, 17 S. Ct. 540, 41 L. Ed. 1007

(1897) (dissolution of illegally constituted assembly after judgment is entered does not

deprive court of appellate jurisdiction).

Again, the court majority disagrees with our Supreme Court and holds today that

ongoing unlawful conduct may be condoned if the wrongdoer bails out of the litigation

right before final judgment is handed down. But this is a wrong way of looking at

prevailing-party status.

35

In ordinary litigation, we don't concern ourselves with who is technically the

"prevailing party." It's enough to observe that plaintiffs have achieved what they set out

to achieve, whether by court order or by agreement of the defendants. But this case

challenges us to determine who prevailed, and, in my view, Roll definitely prevailed.

When the defendants announced they were giving her the relief she sought after years of

litigation, she prevailed. Simply tossing in one's cards and walking away from the table

doesn't mean that no one won; the party that stayed the course and ultimately received

what it set out to get is the party that won.

The defendants and the court majority want this determination to focus on Roll's

changed condition. Her changed condition may be what prompted the defendants to

change their direction (albeit long after her condition changed), or the threat of paying

attorney fees may be what prompted their change of direction, but it really doesn't matter.

Roll won. She is getting what she fought for, and the defendants cannot avoid her

winning by announcing they're not playing the game anymore.

The majority correctly notes that the United States Supreme Court rejected

the so-called "catalyst theory" for determining whether a party has prevailed. See

Buckhannon, 532 U.S. at 610. The present case, however, does not present a

catalyst situation, and, given the procedural history of this case, the majority's

discussion is not relevant to the attorney fees analysis.

In order to constitute a "catalyst," a threat of suit or initiation of a legal

action is the motivating force that leads a defendant to voluntarily grant the relief

that a plaintiff seeks. The granted relief is a voluntary action by the defendant, not

the result of a changed legal relationship between the parties. See Buckhannon,

532 U.S. at 603-04.

36

In the present case, the defendants would have discharged Roll into some

form of local care in 2016 if the courts had not stayed the change of her treatment

facility. If we are to take the defendants' motion for dismissal at face value, as the

majority does, the defendants would have continued their fight to discharge her

until this court rendered a decision. While it is true that the restraining order and

subsequent stays merely preserved the status quo, the defendants elected to request

dismissal before this court had the opportunity to weigh in on the merits. The

defendants did not "voluntarily" abandon this case; they were no longer able to

carry out the discharge because it became impossible to place Roll somewhere

else. The plaintiff's lawsuit was not the catalyst for the defendants to abandon their

plan to transfer Roll. The restraining order and Roll's eventual decline prevented

the defendants from taking the action they sought to carry out for some six years.

See, e.g., Select Milk Producers, Inc. v. Veneman, 304 F. Supp. 2d 45, 52 (D.D.C.

2004) (plaintiffs were prevailing parties for two reasons despite only obtaining a

preliminary injunction before litigation became moot: first, injunction created

material alteration in parties' legal relationship; and second, change in relationship

resulting from injunction was the exact relief plaintiffs sought), aff'd in relevant

part sub nom. Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 942 (D.C.

Cir. 2005); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)

(preliminary injunction carried judicial imprimatur necessary to satisfy

Buckhannon where plaintiff obtained injunction preventing county from using

report at his termination hearing; when case subsequently became moot, attorney

fees were appropriate although claim for permanent injunctive relief was not

decided on the merits, it was important to decision that "preliminary injunction

was not dissolved for lack of entitlement" but rather "was rendered moot" after the

employment termination hearing was over, "after the preliminary injunction had

done its job"); Young v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000)

(upholding award of attorney fees to plaintiff who obtained preliminary injunction

against city's establishment of security perimeter excluding protesters from areas

37

around site of 1996 Democratic National Convention, but whose claims became

moot after convention ended and no final judgment on the merits was ever

entered).

Perhaps one might be more sympathetic to the defendants if they had filed their

notice of changed circumstances before the Court of Appeals entered its judgment. The

record shows the Hospital was aware of Roll's cognitive decline and significant

behavioral problems for several months before the Court of Appeals' ruling, and Roll's

CT scan and further indicators of behavioral and mental decline were well known to the

staff before this court granted Roll's petition for review. Even after her condition declined

dramatically, the defendants sought a district court order to terminate the stay and allow

them to place her in a community-based facility.

In other words, the "changed circumstances" changed well before Roll's guardians

incurred the expense and stress of arguing this case before this court. But instead of

conceding that Roll would receive her requested relief, the defendants put both Roll's

guardians and this court through a time-consuming and costly appellate review. If this

case were truly moot, as the defendants and the majority contend, then it was the

defendants who elected to beat a moot horse for at least another eight months.

I would hold that the case is not moot and would decide it on its merits. Even if

the defendants promise they will not seek future removal of Roll from the Hospital, I

would deem Roll the prevailing party for having protected and preserved her residency at

the Hospital during the entire time the defendants sought to remove her.

Conclusion

The district court ignored the uncontroverted evidence—which the defendants'

own witnesses provided—that she had active treatment needs and was receiving active

38

treatment for those needs at the Hospital. It relied on unsupported and counterfactual

conclusions that it drew from that evidence to reach an incorrect legal conclusion about

Roll's rights under the Medicaid Act. The Court of Appeals engaged in an erroneous

review of those factual determinations and the legal conclusion, inviting reversal by this

court.

Roll was able to obtain a judicial stay on her transfer, a stay that remained in effect

until the defendants proclaimed they no longer intended to transfer her. It was only

shortly after oral argument before this court that the defendants, perhaps feeling the heat

of a looming large attorney-fee award, announced they would no longer seek to remove

Roll from the Hospital. Through her persistent litigation, Roll finally prevailed in this

case, entitling her to attorney fees. This appeal was not moot, which this court

demonstrated by continuing to exercise jurisdiction until now.

I would retain jurisdiction and correct the wrong lower-court results which now

flap loosely in the caselaw breeze, and I would award fees and costs to Roll as the

prevailing party.

BILES, J., joins the foregoing dissenting opinion.

Outcome:

The district court ignored the uncontroverted evidence—which the defendants'

own witnesses provided—that she had active treatment needs and was receiving active

38

treatment for those needs at the Hospital. It relied on unsupported and counterfactual

conclusions that it drew from that evidence to reach an incorrect legal conclusion about

Roll's rights under the Medicaid Act. The Court of Appeals engaged in an erroneous

review of those factual determinations and the legal conclusion, inviting reversal by this

court.

Roll was able to obtain a judicial stay on her transfer, a stay that remained in effect

until the defendants proclaimed they no longer intended to transfer her. It was only

shortly after oral argument before this court that the defendants, perhaps feeling the heat

of a looming large attorney-fee award, announced they would no longer seek to remove

Roll from the Hospital. Through her persistent litigation, Roll finally prevailed in this

case, entitling her to attorney fees. This appeal was not moot, which this court

demonstrated by continuing to exercise jurisdiction until now.

Plaintiff's Experts:

Defendant's Experts:

Comments:

Kansas Attorneys

Adam Crane Overland Park, KS
Criminal Defense

Kevin Shepherd Topeka, KS
Criminal Defense

Edward Dosh Parsons, KS
Family Law, Criminal Defense, Personal Injury

Heather Schlozman Overland Park, KS
Employment Law, Civil Rights, Job Discrimination

Find More Kansas Attorneys

About This Case

What was the outcome of CATHERINE ROLL, et al. v. LAURA HOWARD, et al.?

The outcome was: The district court ignored the uncontroverted evidence—which the defendants' own witnesses provided—that she had active treatment needs and was receiving active 38 treatment for those needs at the Hospital. It relied on unsupported and counterfactual conclusions that it drew from that evidence to reach an incorrect legal conclusion about Roll's rights under the Medicaid Act. The Court of Appeals engaged in an erroneous review of those factual determinations and the legal conclusion, inviting reversal by this court. Roll was able to obtain a judicial stay on her transfer, a stay that remained in effect until the defendants proclaimed they no longer intended to transfer her. It was only shortly after oral argument before this court that the defendants, perhaps feeling the heat of a looming large attorney-fee award, announced they would no longer seek to remove Roll from the Hospital. Through her persistent litigation, Roll finally prevailed in this case, entitling her to attorney fees. This appeal was not moot, which this court demonstrated by continuing to exercise jurisdiction until now.

Which court heard CATHERINE ROLL, et al. v. LAURA HOWARD, et al.?

This case was heard in <center><h3><b> IN THE SUPREME COURT OF THE STATE OF KANSAS </b> <br> <br> <b><h3><i>On appeal from Sedgwick District Court </i</center> </h3> </b></i>, KS. The presiding judge was PER CURIAM.

Who were the attorneys in CATHERINE ROLL, et al. v. LAURA HOWARD, et al.?

Plaintiff's attorney: Topeka, Kansas- Best Disability Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: Arthur S. Chalmers, assistant attorney genera.

When was CATHERINE ROLL, et al. v. LAURA HOWARD, et al. decided?

This case was decided on September 9, 2022.