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November 9, 2017 Digests

Posted By Administration, Monday, November 13, 2017
Updated: Monday, November 13, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN THE MATTER OF LAWRENCE E. SCHNEIDER
NO. 117,361 – NOVEMBER 9, 2017

FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.

HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.

HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed. 

Civil

STATUTORY CONSTRUCTION
HAYES V. STATE
SEDGWICK DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 108,233 – NOVEMBER 9, 2017

FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.

ISSUE: (1) Constitutionality of subjecting Hayes to the 1-year statute of limitations

HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.

STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A. 1997 Supp. 22-4902(d)(5), -4906(a); K.S.A. 60-1507

 

criminal

attorneys and clients – constitutional law – criminal procedure – sentencing
state v. richardson
sedgwick district court – affirmed 
court of appeals – affirmed
no. 107,786 – november 9, 2017

FACTS: Richardson convicted in 2003 of sale of cocaine.  After he was sentenced, the Kansas Offender Registration Act (KORA) was amended to require registration by those convicted of that drug offense.   Richardson thereafter pled guilty to offender registration violations.  Prior to sentencing he filed pro se motions to withdraw his plea and for appointment of new counsel, pursuing an ex post facto challenge to the retroactive application of the amended KORA.  District court denied both motions.  Richardson appealed claiming he should have been allowed to withdraw his plea, and claiming his attorney failed to advise him of the ex post facto issue.  In unpublished opinion, Court of Appeals affirmed. Richardson’s petition for review granted.  

ISSUES: (1) Ex Post Facto Challenge to KORA; (2) Conflict of Interest - Attorney and Client

HELD: Lifetime sex offender registration under KORA does not constitute “punishment” for application of the Eighth Amendment or the Ex Post Facto Clause.  Non-sex offenders seeking to avoid retroactive application of KORA provisions must satisfy the “effect” prong of test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), by producing a record that distinguishes — by the “clearest proof” — KORA’s effect on those classes of offenders from KORA’s effects on sex offenders as a class. Richardson failed to do so on the the record in this case.

Richardson cannot show his attorney provided incorrect legal advice.  District courts are reminded that if they become aware of a potential conflict between a defendant and his or her attorney, they abuse their discretion if they fail to conduct an inquiry.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.):  Dissent is consistent with her votes in State v. Petersen-Beard, 304 Kan. 192 (2016); State v. Reed, 306 Kan. 899 (2017); and State v. Meredith,306 Kn. 906 (2017).  Richardson met any burden of proof he bore at this point, and should be permitted to withdraw his plea for good cause shown.    

STATUTES: K.S.A. 2010 Supp. 22-4904(c); K.S.A. 2007 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq.

 

Kansas Court of Appeals

Civil

FORUM SELECTION – JURISDICTION – VENUE
AKESOGENX COR V. ZAVALA
JOHNSON DISTRICT COURT – AFFIRMED
NO. 116,896 – NOVEMBER 9, 2017

FACTS: AkesoGenX Corporation (AKG) is a Delaware corporation with its principal place of business in Kansas. Zavala was AKG's CEO. He was terminated after money was found to be missing from the company's accounts. AKG sued both Zavala and Kunkle, the company's Secretary/Treasurer, for breach of fiduciary duty and conversion. After Zavala failed to appear at a scheduling conference, the district court granted default judgment to AKG. Zavala then moved to set aside the default, claiming that he was never served with the petition. That motion was denied. Zavala responded by filing a motion to reconsider. In that motion, Zavala claimed, for the first time, that the judgment was void because AKG's articles of incorporation included a forum selection clause that required all proceedings to be in Delaware. That motion was denied and Zavala appealed.

ISSUES: (1) Denial of the motion to reconsider; (2) Whether the forum selection clause was mandatory or permissive; (3) Denial of motion to set aside default judgment

HELD: Forum selection clauses are valid in Kansas as long as certain criteria are met. But the existence of a forum selection clause does not divest a court of subject matter jurisdiction. In this case, Zavala's complaint was really about venue. And complaints about venue can be waived. In order to preserve the complaint an objection to venue must be timely raised in a responsive pleading. While Zavala did raise the issue in a pleading it was not timely. Because AKG could consent to venue outside of Delaware, the forum selection clause in its articles of incorporation was permissive rather than mandatory. And the evidence shows that AKG waived venue in Delaware when it initiated this legal action in Kansas. Zavala failed to include the transcript from the hearing on the motion to set aside default judgment. In the absence of that transcript, the district court's decision cannot be evaluated. Since Zavala had the burden to designate the appellate record his argument fails. Because service was properly obtained on Zavala in California, it does not matter if service was not perfected in Texas.

STATUTES: K.S.A. 2016 Supp. 60-205, -205(b)(2)(B)(ii), -205(e), -212(b)(3), -255(b), -258, -259(f), -260(b)(1), -308(a); K.S.A. 60-260(b)(6)

 

Civil

IMMUNITY – REASONABLE SUSPICION – TORT CLAIMS
SCHREINER V. HODGE
JOHNSON DISTRICT COURT – AFFIRMED
NO. 117,034 – NOVEMBER 9, 2017

FACTS: Police officers in the City of Mission received two reports of a suspicious truck. Both callers reported seeing a man park the truck and then walk into the woods. While Officer Hodge was investigating the second report, Schreiner walked out of the woods and back to his truck. Schreiner refused to answer Officer Hodge's questions and attempted to leave the scene in the truck. Officer Hodge temporarily detained Schreiner until he could finish the investigation. After the investigation did not disclose any illegal activity, Schreiner was allowed to leave. The entire encounter took between 20 and 25 minutes. Schreiner filed a pro se action against Officer Hodge seeking damages for assault, battery, false arrest, and false imprisonment. Officer Hodge moved for summary judgment claiming discretionary function immunity. The district court agreed and granted the motion. Schreiner appealed.

ISSUES: (1) Application of discretionary function immunity

HELD: A police officer may detain a citizen if the officer reasonably suspects that criminal activity is occurring. This is a discretionary act based on the officer's training and experience. Schreiner's actions were suspicious and his actions in dealing with Officer Hodge provided justification for the subsequent investigation. For this reason, Officer Hodge is entitled to discretionary function immunity and summary judgment was appropriate.

CONCURRENCE AND DISSENT (Atcheson, J.): Because Officer Hodge's action was unreasonable under the Fourth Amendment his behavior cannot be excused by the discretionary function exception.

 STATUTES:  K.S.A. 2016 Supp. 75-6104(e); K.S.A. 22-2402(1)

Tags:  Attorney Discipline  Johnson  Sedgwick 

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