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June 30, 2017 Digests

Posted By Administration, Wednesday, July 5, 2017

Kansas Supreme Court

 

Criminal

 

appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. nece
Saline district court—affirmed; court of appeals—reversed
affirmed on rehearing
no. 11,140—june 30, 2017

FACTS: Nece filed motion to suppress breath blood-alcohol test results, arguing the officer coerced Nece’s consent to the testing by advising him, pursuant to K.S.A. 2016 Supp. 8-1025, he could be charged with a crime for refusing testing. District court agreed and suppressed the evidence as resulting from an involuntary consent. Court of Appeals reversed in unpublished opinion. Kansas Supreme Court affirmed the district court’s decision, applying holding in State v. Ryce, 303 Kan. 899 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was unconstitutional. State v. Nece, 303 Kan. 888 (2016) (Nece I). Mandates in Ryce I and Nece I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Nece appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Nece I

HELD ON REHEARING: Nothing in Birchfield or Ryce II requires modification of Nece I. Under totality of circumstances in this case, Nece’s consent was involuntary because it was obtained by means of an inaccurate and coercive advisement.

DISSENT (Stegall, J.): Dissents for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(k), -1025

 

appeals—constitutional law—criminal procedure—search and seizure - statutes
state v. ryce
sedgwick district court—affirmed—affirmed on rehearing
no. 111,698—June 30, 2017

FACTS: Ryce was charged with violating K.S.A. 2016 Supp. 8-1025(a) for refusing to submit to testing for blood alcohol content. On appeal, he challenged the constitutionality of 8-1025. State v. Ryce, 303 Kan. 899 (2016) (Ryce I), held the statute was facially unconstitutional because it punished an individual’s withdrawal of consent to search. Mandate was stayed on State’s motion, pending United State’s Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Motions for rehearing granted, and parties allowed to submit additional briefs and oral arguments.

ISSUE: Effect of Birchfield on Ryce I

HELD: Ryce I is modified, pursuant to Birchfield, to reflect the validity of conducting a breath test in a DUI case where the arrest is made under the warrant exception of a search incident to a lawful arrest. But the holding in Ryce I is reaffirmed. K.S.A. 2016 Supp. 8-1025, which is premised on the consent exception alone, is facially unconstitutional.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(a), -1001(b), -1001(b)(1)(B), -1001(b)(2), -1001(c), -1001(d), -1001(k), -1013, -1013(b)(1), -1013(i), -1001(j), -1025, -1025(a)

appeals—constitutional law—criminal procedure—search and seizure—statutes
State v. wilson
Shawnee district court—affirmed
affirmed on rehearing
No. 112,009—june 30, 2016

FACTS: Wilson was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wilson’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wilson, 306 Kan. __ (2016)(Wilson I). Mandates in Ryce I and Wilson I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wilson appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wilson I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wilson was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTE: K.S.A. 2016 Supp. 8-1001, -1025

appeals—constitutional law—criminal procedure—search and seizure— statutes
state v. wycoff
saline district court—affirmed
affirmed on rehearing
no. 110,393—june 30, 2017

FACTS: Wycoff was charged with violating K.S.A. 2016 Supp. 8-1025. District court considered Wycoff’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wycoff, 303 Kan. 885 (2016)(Wycoff I). Mandates in Ryce I and Wycoff I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wycoff appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wycoff I

HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wycoff was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025

 

 

Kansas Court of Appeals

 

Civil

 

ADMINISTRATIVE LAW—TAX APPEALS
IN RE TAX APPEAL OF BARKER
BOARD OF TAX APPEALS—AFFIRMED
NO. 116,034—JUNE 30, 2017

FACTS: The Barkers leased an oil and gas interest on land that he eventually obtained ownership of by a transfer on death deed. The Barkers received a tax exemption for low-production leases. But the county assessed a tax on the equipment that the Barkers used to produce oil from those exempted wells. The Barkers appealed that tax to BOTA, which held that equipment is not included in the term "oil lease" as that term is used in the exemption for low-production leases. The Barkers appealed.

ISSUES: (1) Consultation of an oil and gas appraisal guide; (2) improper advocacy; (3) exemption of oil lease equipment; (4) attorney fees

HELD: The Division of Property Valuation is allowed to adopt rules and regulations or appraiser directives, and there is a statutory mandate requiring county appraisers to follow the policies, procedures, and guidelines of DPV. In addition, the court may take judicial notice of any official state document prepared by a state official. The facts in this case were undisputed but there was a dispute over a question of law – whether the Barkers' equipment was exempt. Because of that dispute, summary judgment was inappropriate regardless of whether BOTA responded to the Barkers' motion. On this issue of first impression, the court looks to the tax code for answers. When reading applicable statutes together, they suggest that equipment is not part of an oil lease for purposes of the tax exemption at issue here. The Barkers are not entitled to attorney fees because the tax assessed on the Barkers' equipment was allowed under the law.

STATUTES: K.S.A. 2016 Supp. 60-256(e)(2), 79-201t, -201t(a), -331(b), -332a(a), -505(a), -1439(b)(2)(B), -1439(b)(2)(E), -1456(a); K.S.A. 79-301, -329, -3268(f)

 

GARNISHMENT
LEAF FUNDING V. SIMMONS MEDICAL CLINIC
CRAWFORD DISTRICT COURT—AFFIRMED
NO. 116,666—JUNE 30, 2017

FACTS: Leaf obtained a default judgment against Simmons in federal court in Delaware. After obtaining that judgment, Leaf filed a notice of the foreign judgment in Crawford County District Court. Some years later, Leaf filed a motion to revive that judgment, which was granted by the district court. After the revival, Leaf filed requests for garnishment on two banks, and the district court issued orders of garnishment. Simmons objected, claiming that he had no notice of the Delaware lawsuit and that the funds being garnished were exempt Social Security disability benefits. Simmons later clarified that the disability benefits were from private disability insurance and not Social Security benefits. The parties agreed on some issues, but a question remained about whether funds attributable to a disability insurance police were exempt from garnishment. The district court ultimately ruled that private disability insurance benefits were subject to garnishment, and Simmons appealed.

ISSUE: Ability to garnish funds from a private disability insurance policy

HELD: K.S.A. 60-2313(a)(1) exempts from garnishment only the funds specifically enumerated in the statutes. Since Simmons' funds – derived from private disability insurance – were not mentioned, they are subject to garnishment.

STATUTES: K.S.A. 2016 Supp. 60-735(c), 60-2308, 74-4927, -4960; K.S.A. 20-2609, 60-724(3), -2308, -2308(b), -2313, -2313(a)(1)

 

Criminal:

 

constitutional law—criminal—fourth amendment
state v. glover
douglas district court—reversed and remanded
no. 116,466—june 30, 2016

FACTS: Law enforcement officer ran the plate on a car which he then stopped to investigate because the driver’s license of the registered owner (Glover) had been revoked.  Glover was charged with driving without a license as a habitual violator. He filed motion to suppress, arguing there was no reasonable suspicion of criminal activity to justify the stop. District court agreed and found the initial stop was unlawful. State filed interlocutory appeal.

ISSUE: Reasonable suspicion for traffic stop

HELD: Kansas courts have not previously confronted the narrow issue of whether an officer’s knowledge that vehicle owner’s license is revoked, by itself, provides reasonable suspicion to initiate a stop. Decisions in other states were reviewed, finding agreement with the consensus of their state supreme courts. A law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver’s license if, when viewed in conjunction with all other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle. In this case it was reasonable for the officer to infer the driver was the owner of the vehicle, thus the officer properly initiated a traffic stop to investigate whether Glover was illegally driving his vehicle. District court’s decision to grant Glover’s motion to suppress is reversed, and matter is remanded.

STATUTES: K.S.A. 2016 Supp. 8-287; K.S.A. 22-2402(1), -3216(2)

 

crimes and punishment—criminal procedure—sentencing—statutes
state v. horselooking
jackson district court—vacated and remanded
no. 115,656—june 30, 2017

FACTS: Horselooking was convicted of aggravated battery and DUI. Sentencing court scored Horselooking’s prior Kickapoo Nation tribal conviction of residential burglary as a person felony for criminal history purposes. Horselooking appealed, claiming his tribal conviction should be scored as a misdemeanor because the Kickapoo Nation Tribal Code does not designate crimes as felonies or misdemeanors.

ISSUE: Criminal history scoring of out-of-state convictions

HELD: Horselooking’s Kickapoo conviction for residential burglary would be classified as a felony under State v. Hernandez, 24 Kan.App.2d 285, rev. denied 263 Kan. 888 (1997), and State v. Lackey, 45 Kan.App.2d 257, rev. denied 292 Kan. 968 (2011), but panel discussed why the Kansas Supreme Court would not embrace Hernandez and Lackey in this case. Where the convicting jurisdiction does not designate a prior conviction as a felony or misdemeanor, the rule of lenity should apply, thus Horselooking’s tribal conviction of residential burglary should have been classified as a misdemeanor for criminal history purposes. Horselooking’s sentence was vacated and remanded to district court for resentencing using the correct criminal history score.

DISSENT (Atcheson, P.J.): Agreed that Hernandez, and the reiteration of its holding in Lackey,     impose a default rule that cannot be reconciled with K.S.A. 2-15 Supp. 21-6811. Disagreed with majority’s focus on Kickapoo Nation’s criminal code as not explicitly labeling crimes as “felonies” or “misdemeanors.” Instead, legislature intended for what another jurisdiction treats as a serious crime be scored as a felony for criminal history purposes, while a minor crime from that jurisdiction should be scored as a misdemeanor. Examining the types of punishment for various wrongs under the Kickapoo Nation’s tribal criminal code, residential burglary is a serious crime. Horselooking’s conviction should have been treated as a felony in determining his criminal history.

STATUTE: K.S.A. 2015 Supp. 21-5102, -5102(a), -5102(d), -5807(a)(1), -5807(c)(1)(A), -6803(c), -6810(c), -6811, -6811(e), -6811(e)(1), -6811(e)(2), -6811(e)(2)(A), -6811(e)(2)(B), -6811(e)(4)

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