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September 15, 2017 Digests

Posted By Administration, Tuesday, September 19, 2017
Updated: Monday, September 18, 2017

Kansas Supreme Court

 

 

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF ELDON L. BOISSEAU
NO. 8,022—SEPTEMBER 13, 2017

FACTS: In a letter dated August 31, 2017, Eldon L. Boisseau, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. A complaint was pending at the time of surrender; the complaint alleged that Boisseau violated Kansas Rules of Professional Conduct by having been convicted of attempting to evade or defeat tax.

HELD: The court found that the surrender should be accepted and that Boisseau should be disbarred.

 

Criminal 

 

APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—STATUTES
STATE V. BROWN
SEDGWICK DISTRICT COURT—AFFIRMED
No. 11,2782—SEPTEMBER 15, 2017

FACTS: In a consolidated trial, Brown was convicted of offenses including felony murders of Tampone and Rhone, each with an underlying felony of aggravated robbery. On appeal, he claimed his statements to the police should have been suppressed because detective misinformed him of Miranda right to counsel. He next claimed insufficient evidence supported his conviction for felony murders. Third, he claimed reversible errors in district court’s instructions to the jury, citing: a narrowed instruction for felony murder as not matching the information; an attempted aggravated robbery instruction that broadened the crime charged; an instruction defining “intent to aid and abet attempted aggravated robbery” as unconstitutionally vague; and an instruction defining “reckless” criminal discharge of a firearm as being irrational.

ISSUES: (1) Miranda warnings, (2) sufficiency of the evidence, (3) jury instructions

HELD:  Pursuant to Duckworth v. Eagan, 492 U.S. 195 (1989), and under facts in this case, the detective informing Brown that an attorney would be appointed for him “if he was charged” did not render the Miranda warnings constitutionally inadequate because in their totality, the warnings reasonably conveyed to Brown his rights as required by Miranda. Brown’s claim for first time on appeal that his interrogation was tainted by unnecessary delay between his arrest and his first appearance, is not considered.

Jury heard sufficient evidence to reasonably conclude that Brown knowingly took a cell phone and Cadillac from the presence of Tampone by using lethal force, and that Brown’s associates orchestrated the robbery and fired the shots killing Rhone with Brown’s help as the wheelman.

The jury instructions were not clearly erroneous. Pursuant to State v. Brown, 299 Kan. 1021 (2014), overruled on other grounds by State v. Dunn, 304 Kan. (2016), district court’s narrowing of the instructions for felony murder was legally and factually appropriate. If discrepancy in the attempted aggravated robbery instruction was even error, it was not reversible error.  Brown invited any error in the instruction defining “intent.” And the instruction defining “reckless” comported with statutory definition of that term and the corresponding pattern instruction. 

STATUTES:  K.S.A. 2016 Supp. 21-5301(a); K.S.A. 2012 Supp. 21-5202(h), -5210(a), -5420, -5420(a)(2), -5420(b), -5420(c)(1)(D), -5420(i), 22-3414(3); K.S.A. 22-2901, -3203, -3601(b)(3)

 

 

Kansas Court of Appeals

 

 

Civil

 

DEBTOR AND CREDITOR—LIENS—TRUSTS
CHANEY V. ARMITAGE
MONTGOMERY DISTRICT COURT—AFFIRMED
NO. 115,977—SEPTEMBER 15, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Armitage created a trust that would hold certain assets, including real estate that he designated as a homestead. After that time, the district court entered judgment in Chaney's favor against Armitage. Armitage's health failed, and he moved to a care facility, which prompted Chaney to file an application for writ of special execution against Armitage's homestead. The district court issued the writ and directed the sheriff to levy execution. Armitage later died with no family living at the homestead. His heirs moved to set aside the writ of special execution claiming that no judgment lien could ever attach to Armitage's homestead. The district court denied the motion, finding that because there was no spouse or children living at the property after Armitage's death, the assets were subject to summary execution. The heirs appealed.

ISSUE: Whether a writ of special execution can ever attach to homestead property, even after the death of the homestead owner

HELD: The homestead designation on Armitage's property expired at his death because it was not occupied by his children or spouse. Because it no longer had a homestead exemption, the residence became trust property and, under the terms of the trust, was to be used to pay the estate's debts and expenses.

STATUTES: K.S.A. 2016 Supp. 60-2301; K.S.A. 58a-505(a)(1), -505(a)(3), 59-401, 60-2202(a)

 

EMPLOYMENT—INSURANCE—WORKERS COMPENSATION
HENSON V. DAVIS
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 112,292—SEPTEMBER 18, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Henson was badly injured at work. Coworkers attempted to take him to the hospital, but a manager for the employer—Belger Cartage—redirected Henson to a clinic. A doctor at that clinic treated Henson for several days before returning Henson to work. A later physician discovered the severity of Henson's injuries. He eventually underwent surgery and was unable to return to work. Henson later recovered damages from a medical malpractice action that he brought against the first physician who misdiagnosed him. The damages included costs not available in a workers compensation action, but did not include any damages for future medical expenses. After the jury returned its verdict in the malpractice action, Belger Cartage asked for a lien against the verdict for payments it had already made to Henson. The district court paid some reimbursement to Belger Cartage but denied its request for a credit against any future medical expenses. Belger Cartage appealed.

ISSUE: Is Belger Cartage entitled to a credit against potential future medical expenses

HELD: Because the malpractice verdict did not contain any provision for future medical expenses, Belger Cartage is not entitled to any credit.

STATUTE: K.S.A. 44-504(b)

 

EMPLOYMENT—STATUTES
MULLEN V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
RENO DISTRICT COURT—AFFIRMED
NO. 115,682—SEPTEMBER 15, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Mullen sustained a workplace injury and was unable to work for 2 years. He was terminated in April 2013 and filed for unemployment compensation. That claim was denied on grounds that he did not file for benefits within 4 weeks of being released to return to work. An appeals referee affirmed on grounds that Mullen failed to file his claim within 24 months of the injury. After Mullen filed a petition for judicial review, the district court affirmed on the same grounds. Mullen appealed.

ISSUE: Is K.S.A. 2016 Supp. 44-705(g)(2) ambiguous when applied to claimants that remain employed more than 24 months following a qualifying injury

HELD: The language of K.S.A. 2016 Supp. 44-705(g) is clear and unambiguous. Because Mullen did not file an unemployment claim within 24 months of sustaining a qualifying injury, he cannot qualify for an alternative base period. While the outcome may not be fair, the statute must be read as written.

STATUTES: K.S.A. 2016 Supp. 44-702, -703(b), -703(d), -703(h)(h), -705(e), -705(g)(2), -706(a), -709(i), 77-621(a)(1), -621(c)

 

 

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September 8, 2017 Digests

Posted By Administration, Tuesday, September 12, 2017
Updated: Monday, September 11, 2017

Kansas Supreme Court

 

Criminal

 

IDENTITY THEFT; PREEMPTION
STATE V. GARCIA
JOHNSON DISTRICT COURT – COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 112,502 – SEPTEMBER 8, 2017

FACTS: An investigation revealed that Garcia used identity information belonging to another person when he obtained employment. As a result of this investigation, Garcia was charged with one count of identity theft. Prior to trial, Garcia filed a motion to dismiss in which he claimed that his prosecution was preempted by the Immigration Reform and Control Act of 1986 (IRCA). The district court denied the motion and Garcia was convicted as charged. His conviction was upheld by the Court of Appeals and his petition for review was granted.

ISSUE: Is State prosecution preempted by the IRCA

HELD: Garcia raisesd an "as-applied" preemption claim. During oral argument, Garcia narrowed his claim and argued that an as-applied, field preemption existed. But he made other claims in earlier proceedings, and the court will consider any type, category, and sub-type of preemption. The IRCA does not allow state prosecution for identity theft as this prosecution is expressly preempted by federal statute.

CONCURRENCE: (Luckert, J.) State prosecution of Garcia was preempted. But the doctrines of field and conflict preemption apply rather than express preemption.

DISSENT: (Biles, J.) Garcia's use of someone else's identify information to secure employment is not expressly preempted by federal statute. And although it is a narrower question, implied preemption is similarly inapplicable. The majority's holding will make it difficult to prosecute anyone for identity theft in Kansas.

DISSENT: (Stegall, J.) The majority's reading of IRCA gives Congress power that it does not have. Justice Stegall joins Justice Biles with the exception that he does not believe implied preemption is a close call.

STATUTES: 8 U.S.C. § 1324a, § 1324a(a), § 1324a(b), §1324a(e), (f), § 1324a(h)(2), 18 U.S.C. § 1546(b)

 

 

IDENTITY THEFT; PREEMPTION
STATE V. MORALES
JOHNSON DISTRICT COURT – COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 111,904 – SEPTEMBER 8, 2017

FACTS: Morales applied for a job and provided a Social Security number, permanent resident card, and Social Security card. A subsequent investigation revealed that the Social Security number provided by Morales belonged to someone else. Morales was charged with identity theft and making a false information. Prior to trial Morales filed a motion to dismiss, claiming that his prosecution was preempted by the Immigration Reform and Control Act of 1986 (IRCA). The district court denied Morales' motion and Morales was convicted after a bench trial. His conviction was upheld by the Court of Appeals.

ISSUE: Is State prosecution preempted by the IRCA

HELD: It is questionable whether this issue was properly preserved for appellate review. But the court chose to address the merits because Morales' dispositive issue is one of law, and justice required a decision on the merits. State prosecutions such as this one are expressly preempted by IRCA.

 CONCURRENCE: (Luckert, J.) Justice Luckert did not agree with the majority that express preemption applies. But she believed that the doctrines of field and conflict preemption did apply.

DISSENTS: (Biles and Stegall, J.J.) They dissented for reasons elaborated upon in State v. Garcia.

STATUTE: 8 U.S.C. § 1324a(b)(5)

 

 

 

IDENTITY THEFT; PREEMPTION
STATE V. OCHOA-LARA
JOHNSON DISTRICT COURT – COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 112,322 – SEPTEMBER 8, 2017

FACTS: Ochoa-Lara obtained identify information belonging to other people in order to obtain employment. After he was discovered, the State charged Ochoa-Lara with identity theft and making a false information. Prior to trial, Ochoa-Lara filed a motion to dismiss in which he claimed that the State's prosecution was preempted by federal law. That motion was denied and Ochoa-Lara was convicted. His conviction was affirmed by the Court of Appeals and the Supreme Court granted his petition for review.

ISSUE: Is State prosecution preempted by the IRCA

HELD: It is questionable whether this issue was properly preserved for appellate review. But the court chose to address the merits because the dispositive issue was one of law, and justice required a decision on the merits. State prosecutions such as this one are expressly preempted by IRCA. 

CONCURRENCE: (Luckert, J.) Justice Luckert did not agree with the majority that express preemption applied. But she believed that the doctrines of field and conflict preemption did apply.

DISSENTS: (Biles and Stegall, J.J.) They dissented for reasons elaborated upon in State v. Garcia.

STATUTE: 8 U.S.C. § 1324a(b)(5)

 

 

OFFENDER REGISTRATION; STATUTES
STATE V. WATKINS
RENO DISTRICT COURT – COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 110,702 – SEPTEMBER 8, 2017

FACTS: After being convicted of several felonies, Watkins was required to register under the Kansas Offender Registration Act (KORA) because the district court found that Watkins used a deadly weapon when committing the offenses. For the first time on appeal, Watkins argued that the registration requirement violated his constitutional rights because the facts that prompted registration were not found by a jury beyond a reasonable doubt. The Court of Appeals decided to address the merits of Watkins' claim and rejected his arguments. The Supreme Court granted review.

 ISSUES: Could Watkins' punishment be enhanced without a jury finding the presence of aggravating factors

HELD: Precedent holds that KORA is a non-punitive, civil regulatory scheme and lifetime registration requirements are not a punishment. Because the registration requirement was not a punishment, there is no need for a jury to make the deadly weapon-use finding.

CONCURRENCE: (Malone, J.) The doctrine of stare decisis required this decision, but he believed that KORA is so punitive in effect that it negated any legislative intent to the contrary.

STATUTES: [No substantive statutes cited.]

 

 

Kansas Court of Appeals

 

Civil

 

STATUTES; TRUSTS
HUTSON V. MOSIER
DOUGLAS DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, REMANDED
NO. 117,020 – SEPTEMBER 8, 2017

FACTS: While in her 70s, Hutson transferred assets to a pooled supplemental needs trust. The trustee was given the authority to administer the trust and meet needs that were not being met by either any public agency or source of private income. While the trust was still in place, Hutson applied for Medicaid benefits to assist with her long-term care needs. The Medicaid application was approved, but a transfer penalty was put in place; Hutson's Medicaid benefits were delayed 313 days. Hutson appealed, and the district court eventually determined that federal statutes required the transfer penalty because Hutson did not receive fair market value for the transfer. Hutson appealed.

ISSUES: (1) Did the district court incorrectly interpret the rules and regulations surrounding Medicaid eligibility; (2) Did the district court err by finding that Hutson did not receive fair market value for her transfer

HELD: The trust to which Hutson contributed satisfied the requirements for a pooled supplemental or special needs trust. But a person over age 65 who transfers assets to such a trust is subject to the imposition of a transfer penalty if the transfer is for less than fair market value. The evidence in the record on appeal was insufficient to show whether Hutson received fair market value for her transfer. The case was remanded to the district court for supplemental fact finding on that issue.

STATUTES: 42 U.S.C. § 1396a(a), § 1396(c), § 1396p(c), § 1396p(d)(4)(A), § 1396p(d)(4)(C); K.S.A. 2016 Supp. 77-621(a)(1); K.S.A. 77-425, -622(b)

 

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September 1, 2017 Digests

Posted By Administration, Tuesday, September 5, 2017
Updated: Tuesday, September 5, 2017

 

Kansas Supreme Court

 

Attorney Discipline

 

 

ORDER OF DISBARMENT
IN THE MATTER OF DAVID R. ALIG
NO. 17,358— AUGUST 25, 2017

FACTS: In a letter signed August 21, 2017, David R. Alig voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending against Alig.

HELD: The court accepted the surrender and Alig was disbarred.

 

ORDER OF DISBARMENT
IN THE MATTER OF BILL HAROLD RAYMOND
NO. 15,504—AUGUST 25, 2017

FACTS: In a letter signed August 21, 2017, Bill Harold Raymond, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a disciplinary complaint was pending which alleged violations of the KRPC.

HELD: The court found that the surrender of Raymond's license should be accepted and Raymond was disbarred.

 

Kansas Court of Appeals

 

Civil 

 

ATTORNEY AND CLIENT—HABEAS CORPUS
MCINTYRE V. STATE
DOUGLAS DISTRICT COURT—REVERSED AND REMANDED
NO. 111,580—SEPTEMBER 1, 2017

 

FACTS: McIntyre was convicted of several serious felonies. His convictions were confirmed upon direct appeal, and his first K.S.A. 60-1507 motion was denied by the district court; that denial was affirmed on appeal. More than 10 years later, McIntyre filed a second 1507 motion claiming that counsel for his first 1507 was ineffective. That motion was summarily denied by the district court—the grounds given for the denial were that McIntyre had no right to counsel because there was no rule requiring effective retained counsel in a collateral, civil attack. McIntyre appealed that ruling, and it was affirmed by the Court of Appeals on different grounds. But the Supreme Court granted review and sent the case back to the Court of Appeals so that McIntyre's substantive claims could be addressed.

ISSUE: Statutory right to effective assistance of counsel in 1507 appeals

HELD: The statutory right to counsel for 1507 movants is based on the apparent merits of the 1507 action rather than the financial means of the movant. A statutory right to counsel attaches once the district court determines that the motion presents substantial questions of law or triable issues of fact. Once that statutory right attaches, the movant is entitled to effective representation regardless of whether counsel is appointed or retained. In this case, the fact that the district court held a hearing on McIntyre's 1507 motion means there were substantial questions of law—which also means that he had the right to effective assistance of counsel. And once an appeal is filed, the statutory right to effective assistance attaches regardless of the relative merits of the motion and regardless of whether counsel was appointed or retained. 

STATUTE: K.S.A. 22-4501, -4506, -4506(b), -4506(c), 60-1507

 

 

Criminal

 

JURISDICTION—SENTENCING
STATE V. REEVES
RILEY DISTRICT COURT—AFFIRMED
NO. 117,120—SEPTEMBER 1, 2017

  

FACTS: After a conviction, the district court made border box findings and sentenced Reeves to 36 months' probation with an underlying presumptive sentence of 32 months' imprisonment. Reeves had a rocky start with probation and was before the court on multiple occasions for probation violation hearings. Reeves finally acknowledged that probation was not working for him, and he asked to be sent in to do his time. But he asked that his prison sentence be reduced from 32 months to 23 months. The district court denied the request to modify the sentence and Reeves appealed.

ISSUE: Whether the district court erred by refusing to modify the sentence 

HELD: The district court did have jurisdiction to modify Reeves' sentence had it chosen to do so. Reeves is not attempting to appeal his original sentence under the Kansas Sentencing Guidelines Act. His appeal is limited to the sentence imposed at revocation and there is statutory authority for this appeal. But under the facts of the case, the district court did not err by refusing to modify Reeves' sentence.

STATUTE: K.S.A. 2016 Supp. 21-6815(a), -6820(c)(1), 22-3601(a), -3602(a), -3608(c), -3716(c)(1)(E)

 

 

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August 25, 2017 Digests

Posted By Administration, Monday, August 28, 2017

 

Kansas Supreme Court 

  

 

Civil

 

DUTY—NEGLIGENCE—TORTS
RUSSELL V. MAY
SEDGWICK DISTRICT COURT— COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART—CASE REMANDED
NO. 111,671— AUGUST 25, 2017

FACTS: Russell discovered a lump in her breast in 2008. Dr. Goering, her primary care physician, sent Russell for diagnostic imaging. The physicians who viewed the images felt that the mass was benign and sent Russell back to Dr. Goering. Russell's obstetrician recommended that Russell have a biopsy to put her mind at ease, but Russell did not follow up. A few years later there were signs that the lump was growing, so Russell again called Dr. Goering, who ordered diagnostic testing. At that time a biopsy was performed and cancer was discovered. Russell filed suit against Dr. Goering plus two other physicians who provided care. The district court granted Dr. Goering's motion for judgment as a matter of law but denied the motion as to the other two doctors. A jury found that neither of those doctors was at fault. The court of appeals affirmed the district court's grant of the motion for judgment as a matter of law and the Supreme Court granted a petition for review.

ISSUES: (1) Grant of motion for judgment as a matter of law; (2) admission of expert testimony

HELD: Russell presented sufficient evidence to show that Dr. Goering owed a duty to meet the standard of care. Russell and Dr. Goering had a physician-patient relationship. And there was sufficient evidence presented to show that Dr. Goering breached the appropriate standard of care and that a reasonable jury could conclude that this breach was a proximate cause of Russell's delayed diagnosis. There is no evidence that the district court's grant of the motion for judgment as a matter of law was harmless. The disputed answers given by the expert were ambiguous, and there is no reasonable probability that the assumed error affected the verdict against Dr. May. 

STATUTES: K.S.A. 60-250(a), -260(a), -261; K.S.A. 60-404

 

criminal 

 

appeals—constitutional law—criminal procedure
state v. tappendick
saline district court—affirmed; court of appeals—affirmed
no. 109,272—august 25, 2017

FACTS: Tappendick convicted in 2011 of offenses committed in 2008.  Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). For first time on appeal, Tappendick argued the KORA registration requirement violated the Ex Post Facto Clause because KORA required only a 10-year registration period in 2008. Court of appeals concluded this issue was not properly preserved, rejecting Tappendick’s reliance on two exceptions for considering the issue for first time on appeal. Tappendick filed petition for review, alleging court of appeals incorrectly ruled he could not raise this claim for first time on appeal. 

ISSUE: Preservation of issue on appeal

HELD: The petition for review failed to challenge the panel’s stated reasons for concluding that Tappendick did not satisfy the exceptions’ requirements. Panel’s decision to not consider the ex post facto claim is affirmed.  

STATUTES: K.S.A. 2016 Supp. 22-4906(d)(3); K.S.A. 22-4901 et seq.

 

 

Kansas Court of Appeals 

 

Civil

 

ADMINISTRATIVE LAW; WORKERS COMPENSATION
VIA CHRISTI HOSPITALS V. KAN-PAK LLC
WORKERS COMPENSATION BOARD - REVERSED
NO. 116,692 – AUGUST 25, 2017

FACTS: Pinion was burned while working for Kan-Pak LLC and was treated at Via Christi Hospital. Although Pinion's treatment cost over $1 million, Kan-Pak's insurance carrier paid much less than that to Via Christi. The 2010 fee schedule for workers compensation introduced the "stop-loss method" that was meant to be applied to particularly costly services. That fee schedule persisted in 2011, but an addition was made which instructed that providers should be reimbursed using either the stop-loss method or the traditional method, whichever was least. It is unclear how or when the rule was amended, and insurers who inquired were told to ignore it. But Kan-Pak's insurer would not, claiming that this was a properly published regulation that must be followed. Both the hearing officer and Board found that they could not alter the written language of the regulation, and this appeal followed.

ISSUE: Is the language in the 2011 regulations enforceable

HELD: The Division of Workers Compensation has a statutory obligation to adopt rules and regulations which establish a fee schedule. Every step of the process must follow the statutory rules. The 2011 amendment to the fee schedule that introduced the "whichever is least" language did not follow the required procedure; there was no cost study to gauge the impact of the addition of the statement. Because the rule process here did not follow proper procedure and the rule change was apparently an accident, the court was not required to enforce it.

STATUTES: K.S.A. 2016 Supp. 44-510i(a), -510i(b), -510i(c), -510i(d), 77-415, -416(b)(1); K.S.A. 2010 Supp. 44-510j; K.S.A. 1990 Supp. 44-510(a)(1)

 

CONTEMPT—DUE PROCESS
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—VACATED AND REMANDED

NO. 115,776—AUGUST 25, 2017

FACTS: Jacobs and Ogle had a child together and then separated. After the separation, Ogle persisted in making disparaging remarks about Jacobs, both in front of his child and to the community at large. Ogle's remarks did not stop even after Jacobs was given sole custody of the child and Ogle's parenting time was restricted to supervised visits and monitored phone calls. After Ogle shared remarks about Jacobs with her employer, Jacobs lost her job. She asked the district court to hold Ogle in contempt for violating its order not to share accusations about her with third parties. Ogle was ordered to appear at a contempt hearing but he failed to do so despite knowing about the hearing. The district court held the hearing in Ogle's absence and found Ogle was in contempt. The judge ordered monetary sanctions plus a 30-day jail term that would be suspended if Ogle paid. Ogle appealed. 

ISSUE: (1) District court's ability to hold the hearing 

HELD: Statutory provisions did not allow the district court to hold a hearing without Ogle. When Ogle did not attend the hearing the district court should have either attempted to secure his presence with a phone call or issued a bench warrant for his arrest. Because the hearing violated Ogle's due process rights, the district court's order was vacated.

STATUTES: K.S.A. 2016 Supp. 20-1204a, -1204(b), -1204a(b), -1204a(c)

 

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August 18, 2017 Digests

Posted By Administration, Tuesday, August 22, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF DANIEL L. BALDWIN
NO. 16283 – AUGUST 16, 2017

FACTS: In a letter signed August 16, 2017, Daniel L. Baldwin, attorney licensed to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Baldwin surrendered his license a formal hearing was pending regarding two docketed disciplinary complaints. The complaints involved issues of competence, diligence, safekeeping property, and fees.

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Baldwin's license should be accepted and that he should be disbarred.

 

Criminal

constitutional law—criminal procedure—sentences—statutes
State v. shaylor
reno district court—affirmed on issues subject to review
court of appeals—affirmed on issues subject to review
no. 108,103—august 18, 2017

FACTS: Shaylor was convicted of manufacturing methamphetamine. Kansas Offender Registration Act (KORA) was subsequently amended to define an “offender” required to register as including Shaylor’s offense unless a court found the manufacturing of the controlled substance was for personal use. Shaylor was then convicted of failing to register as a drug offender. On appeal, she claimed the retroactive application of the KORA amendment violated the Ex Post Facto Clause, and also claimed for first time on appeal the district court’s finding as to whether Shaylor possessed drug precursors for personal use violated Apprendi. In an unpublished opinion, Court of Appeals affirmed on these issues. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto and Apprendi

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Shaylor’s case failed to make this required showing. This also defeats her Apprendi claim about the district court’s finding as to personal use.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissent is consistent with votes in Meredith and State v. Huey, 306 Kan. __ (2017). The current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2002 Supp. 22-4902; K.S.A. 20-3018(b), 22-4901 et seq., -4902(a)(11)(A), 60-2101(b)

  

Kansas Court of Appeals

 

Civil

IMMUNITY—NEGLIGENCE
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,883—AUGUST 18, 2017

FACTS: The Williams family was at home when several armed representatives of C-U-Out Bail bonds came to their door searching for their daughter-in-law, who had absconded. Although they told the bond company that the daughter-in-law was not at the house, the company refused to leave and forced its way in with a steel battering ram. The Williamses called the police department for help. Overland Park police officers came near the scene but never on the Williams' property, and the officers watched while the bond company entered the home and allegedly threatened the occupants. The Williamses filed suit against both the bond company and the Overland Park Police Department. The district court granted the city's motion to dismiss for failure to state a claim, finding that the police officers who responded to the call owed no duty to the Williamses, and that the city was immune from liability under the discretionary function exception to the Kansas Tort Claims Act. The Williamses appealed.

ISSUES: (1) Proper standard of review; (2) did the police department owe a duty to the Williamses? (3) is there immunity under the KTCA?

HELD: Kansas has not yet adopted the federal standard of review for motions to dismiss. The court is not required to accept as true legal conclusions that are contained within the petition. Under the "public duty doctrine", a governmental agency owes a duty to the public at large rather than to individuals. Here, the officers' act of responding to a 911 call did not create a special relationship. Deciding whether to make an arrest is discretionary on the officers' part. Their investigation here is not meant to be subject to judicial review, and the district court properly found immunity under the KTCA.

STATUTES: K.S.A. 2016 Supp. 22-2202(m), 60-208(a), 75-6104(c), -6104(e), -6104(n); K.S.A. 13-1339, 22-2401, -2405(3), -2809

STATUTORY INTERPRETATION—ZONING
LAYLE V. CITY OF MISSION HILLS
JOHNSON DISTRICT COURT—REVERSED
NO. 116,095—AUGUST 18, 2017

FACTS: The Layles' fence at their residence did not meet zoning regulations in Mission Hills. But over 20 years, the Layles were given two variances to either repair or replace the fence, even though it would not meet regulations. In 2012, the Layles sought to remove and replace the pickets and rails of the fence without changing the fence posts. The city denied the request, finding that the work could not be authorized without approval from the Architectural Review Board and the Board of Zoning Appeals. After a number of appeals, the ultimate decision was that the proposed work was a replacement of the fence requiring new variances. The Layles appealed.

ISSUES: (1) Application of correct standard of review; (2) was the proposed work a repair or a replacement

HELD: An issue that requires a court to interpret regulatory or statutory criteria uses a de novo standard of review and not a review for reasonableness. Whether the proposed fence project constituted a repair or a replacement was actually a question of law. Repair of fence sections did not constitute a full replacement. Repairs do not require a variance and the city could have granted the building permit that was requested by the Layles.

STATUTES: K.S.A. 12-759(e)(1), -759(f)

CIVIL PROCEDURE—CONTRACTS—DIVORCE—EVIDENCE
IN RE MARRIAGE OF JOHNSTON
JOHNSON DISTRICT COURT—REVERSED AND VACATED
NO. 115,256—AUGUST 18, 2017

FACTS: The Johnstons divorced in 2011. Despite having significant assets and debts and highly technical military pay, the couple created a separation agreement without the assistance of counsel. They agreed that Jim would pay Pamela $1,000 per month from his military retirement pay for the rest of her life, unless she remarried. He also agreed to a lump-sum transfer of $100,000 from his retirement account. After 3 years, Jim motioned the district court to relieve him of his duty to pay Pamela $1,000 because, he alleged, Pamela was living in a marriage-like relationship. That motion was denied. But the district court sua sponte put a 121-month cap on Jim's maintenance obligation. Pamela did not appeal this order, but she did obtain counsel and sought to reopen the separation agreement regarding Jim's military retirement benefits. After hearing testimony, the district court divided Jim's military retirement benefits equally between both parties but did not alter the obligation to pay maintenance for 121-months. Jim appealed.

ISSUES: (1) Authority to modify property settlement agreement; (2) ability to modify earlier order on spousal maintenance

HELD: Authority to modify the separation agreement would have had to come from K.S.A. 60-260(b)(6). There was no ambiguity in the agreement or any evidence of mistake. But even if there was, Pamela failed to seek relief within one year. Because a more specific provision of K.S.A. 60-260(b) applied, Pamela is barred from using the catchall provision at 260(b)(6) in an attempt to circumvent the statutory time limits. The district court had no jurisdiction to modify the prior separation agreement and its order doing so is void. Parties may agree to extend maintenance beyond the 121-months mentioned in the statute.

DISSENT: (Leben, J.) The property settlement agreement was ambiguous, giving the district court jurisdiction to modify it under K.S.A. 60-260(b)(6).

STATUTES: K.S.A. 2016 Supp. 23-2712, -2801, -2904, 60-260(b); K.S.A. 60-260(b)

ATTORNEY FEES—JUDGMENT
RICHARDSON V. MURRAY
JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 115,745—AUGUST 18, 2017

FACTS: The Richardsons purchased a home from the Murrays, and brought suit after experiencing water intrusion in the residence. Before trial, the Murrays submitted an offer of judgment and the Richardsons accepted it. After judgment was entered, the Richardsons sought attorney fees and expenses. The district court allowed court costs but not attorney fees, and the Murrays promptly tendered payment. The Richardsons failed to timely file a satisfaction of judgment. As a result, the Murrays sought an award of statutory penalties and attorney fees. The district court granted that motion and the Richardsons appealed.

ISSUES: (1) Decision on attorney fees and related expenses; (2) untimely satisfaction of judgment

HELD: The offer of judgment was silent on whether attorney fees were included with court costs. Generally, attorney fees are not part of costs and are available only if a statute or other authority defines costs to include attorney fees. As the offering party, the Murrays were obligated to make a clear and unambiguous offer. Because the offer was silent on this matter, the Richardsons were allowed to seek attorney fees outside the context of costs. Under the terms of the contract, the Murrays must reimburse the Richardsons for all reasonable attorney fees for work reasonably performed in pursuing relief. Filing a satisfaction of judgment would not have prevented the Richardsons from appealing the district court's denial of their request for attorney fees. For that reason, the district court did not err in assessing the statutory penalties against the Richardsons.

STATUTES: K.S.A. 2016 Supp. 60-254(a), -2002, -2003, -2803; K.S.A. 50-634(e) 

 

Criminal  

constitutional law—criminal procedure—evidence—Fourth Amendment—jury trial—search and seizure
state v. chavez-majors
butler district court—affirmed in part, reversed in part, remanded
no. 115,286—august 18, 2017

FACTS: Chavez-Majors had a motorcycle accident, and was unconscious when officer and EMS arrived at scene. Observing evidence that Chavez-Majors had been under the influence of alcohol, officer directed EMS to conduct warrantless blood draw. Test results showed twice the legal blood-alcohol limit. District court denied Chavez-Majors’ motion to suppress the test result, finding officer had probable cause with exigent circumstances to justify the warrantless search and seizure. Chavez-Majors was convicted at a bench trial of aggravated battery while driving under the influence (DUI). On appeal, he claimed for first time that he did not waive his right to a jury trial. He also claimed the district court erred by denying motion to suppress evidence that was unconstitutionally obtained.

ISSUES: (1) Waiver of right to jury trial, (2) motion to suppress blood draw evidence

HELD: Waiver claim was considered. Two-part test in State v. Irving, 216 Kan. 588 (1975), is applied finding Chavez-Majors did not knowingly and voluntarily waive right to jury trial. District court’s mention that plea agreement was in part “in contemplation of waiver of right to jury trial” did not satisfy Irving’s first requirement, and there was no compliance with Irving’s second requirement. The conviction was reversed and case was remanded to afford right to jury trial or to effect a valid waiver.

Consent exception, or applicability of Kansas implied consent statute, was not asserted  in this case, and third requirement of three-part test in Schrmerber v. California, 384 U.S. 757 (1966), was not challenged. The first two parts of the Schrmerber test were applied to the two claimed exceptions. Limited Kansas case law found applying Schmerber’s exigent circumstances requirement in warrantless blood draw DUI cases. Comparable U.S. Supreme Court reviewed for guidance, finding the metabolism of blood alcohol is a factor that can be considered. Under totality of circumstances in this case, district court’s conclusion that probable cause with exigent circumstances justified the warrantless blood draw was supported by substantial competent evidence.

STATUTES: K.S.A. 2014 Supp. 8-142, -262(a)(1), -1001 et seq., -1001(b)(2), 21-5413(b)(3)(A),  22-2502(a), 40-3104(d); K.S.A. 8-1567, 22-3403(1)

Tags:  Attorney Discipline  Butler  Johnson  Reno 

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August 11, 2017 Digests

Posted By Administration, Monday, August 14, 2017

Kansas Supreme Court

 

Criminal

 

constitutional law—criminal procedure—sentences—statutes
state v. burdick
riley district court—affirmed; court of appeals—affirmed
no. 110472 - august 11, 2017

FACTS: Burdick was convicted of a drug offense, and was required by Kansas Offender Registration Act (KORA) to register with sheriff within ten days of residing in the county. KORA was later amended to require registration updates within three business days. Burdick was subsequently arrested and charged with failing to timely update his registration. Burdick sought dismissal of the charge, arguing application of the amended registration period violated the Ex Post Facto Clause. District court denied the motion. Court of Appeals affirmed in unpublished opinion, holding the registration requirement was not punishment. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy the “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Burdick’s case is not sufficiently developed to satisfy the “clearest proof” standard.”  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4905(g); K.S.A. 2008 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq., -4904(a)(2)

 

constitutional law—criminal procedure—sentences—statutes
state v. donaldson
sedgwick district court—affirmed—court of appeals—affirmed
no. 109,671—august 11, 2017

FACTS: On appeal Donaldson alleges in part his lifetime offender registration under Kansas Offender Registration Act (KORA) violates the Ex Post Facto Clause because at the time he committed the crimes, he would have been subject to registration only if the victim of the aggravated kidnapping charge was under the age of 18. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Donaldson’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(d)(10); K.S.A. 2010 Supp. 22-4902(a)(4)(B), -4906(a); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. hill
crawford district court—affirmed; court of appeals—affirmed
no. 111,226—august 11, 2017

FACTS: Hill was convicted of two drug offenses. District court required her to register as a violent offender, pursuant to the Kansas Offender Registration Act (KORA) as amended prior to Hill’s sentencing. On appeal Hill claimed the retroactive application of the registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act—Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hill’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4902(f)(2); K.S.A. 2009 Supp. 22-4902(a)(11)(B)

 

constitutional law—criminal procedure—sentences—statutes
state v. hirschberg
shawnee district court—
affirmed; court of appeals—affirmed
no. 109,689—august 11, 2017

FACTS: Hirschberg was convicted of a drug offense and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to his sentencing. On appeal Hirschberg claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hirschberg’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(O); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. huey
shawnee district court—affirmed as to issues subject to review
court of appeals—affirmed as to issues subject to review
no. 109,690—august 11, 2017

FACTS: Huey was convicted of robbery and aggravated burglary, and was ordered to register as a violent offender under Kansas Offender Registration Act (KORA) after district judge found Huey used a deadly weapon to commit those offenses. On appeal, Huey claimed for first time that the KORA registration requirement violated Booker/Apprendi because jury did not find he had used a deadly weapon.

ISSUES: Kansas Offender Registration Act—Apprendi

HELD: State v. Petersen-Beard, 304 Kan. 192, cert. denied (2016), held that KORA registration for sex offenders was not cruel and unusual punishment under Eighth Amendment.  This overturned caselaw that supported State v. Charles, 304 Kan. 158 (2016), thus Charles is not viable authority for Huey or other violent offenders as to whether KORA is punitive. That issue may be resolved only upon an evidentiary record supplying the clearest proof to overcome the legislature’s intent that KORA be a regulatory scheme that is civil and nonpunitive. Huey did not establish such a record in this case. District court’s offender registration order is affirmed.

DISSENT (Beier, J., joined by Rose and Johnson, JJ.): Would not explicitly or implicitly overrule Charles. Huey met any burden of proof he bears on whether the imposition of the registration requirement qualifies as punishment. Under Apprendi and its progeny, Huey’s registration requirement should be vacated because he cannot be subjected to that requirement on the basis of a judge-made fact finding that he used a deadly weapon.

STATUTES: K.S.A. 20-3018(b), 22-4901 et seq., 60-2101(b)

 

constitutional law—criminal procedure—sentences—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,055—August 11, 2017

FACTS: Kilpatrick filed motion to correct an illegal sentence, arguing the retroactive imposition of registration requirements under the Kansas Offender Registration Requirements (KORA) violated the Ex Post Facto Clause. District court denied the motion, agreeing with State’s arguments that KORA’s provisions are not punishment, and that Kilpatrick waived jurisdictional attacks on his sentence by not raising them in his case. Court of Appeals affirmed in unpublished opinion. Petition for review of the registration requirement granted.

ISSUE: Motion to Correct Illegal Sentence - Ex Post Facto Claim

HELD: District court's decision is affirmed for a different reason. Following State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), district court had jurisdiction to hear and consider Kilpatrick’s motion to correct an illegal sentence, but his ex post facto claim has no merit because definition of an illegal sentence does not include a claim the sentence violates a constitutional provision.   

STATUTES: K.S.A. 2013 Supp. 22-3716(c)(9); K.S.A. 22-4902; K.S.A. 22-4901 et seq., -4902(a)(11)(B)

 

constitutional lawcriminal law—criminal procedure—evidence—
instructions—juries—speedy trial—statutes
state v. robinson
wyandotte district court—affirmed; court of appeals—affirmed
no. 110,040—august 11, 2017

FACTS: A jury convicted Robinson of aggravated burglary, aggravated battery, and criminal damage to property. Robinson appealed, claiming in part: (1)  a violation of his statutory rights to a speedy trial because continuance granted to State for a material witness was not supported by a sufficient showing of unavailability; (2) insufficient evidence supported his aggravated burglary conviction because he was a cohabitant;  (3) the jury instruction on “bodily harm” was erroneous because it directed jury that certain circumstances are bodily harm as a matter of law, and thereby precluded jury from finding that element beyond a reasonable doubt; (4) district court erred in refusing to redact victim’s statement to a doctor; (5) district court erred in admitting K.S.A. 60-455 evidence without providing a limiting instruction; (6) the written format of district court’s answer to jury’s deliberation questions violated Robinson’s rights to be present, to have a public trial, and to  have an impartial judge; and  (7) cumulative error denied him a fair trial. Court of Appeals affirmed in unpublished opinion. Review granted.  

ISSUES: (1) Speedy Trial, (2) Sufficiency of the Evidence - Aggravated Battery, (3) “Bodily Harm” Instruction, (4) Motion to Redact, (5) Limiting Instruction, (6) Written Response to Jury’s Questions, (7) Cumulative Error

HELD: Robinson’s statutory speedy trial rights were not violated. While a slim record substantiates State’s claim that the witness was unavailable, and better practice would be to present evidence in support of a request for such a continuance, Robinson’s claim in this case is unpreserved. Sufficient evidence supported Robinson’s conviction of aggravated burglary. Under conflicting facts viewed in light most favorable to the State, a reasonable juror could conclude that Robinson lacked authority to enter the home. Robinson’s constitutional challenge to the aggravated battery statute, raised for first time on appeal, is not reviewed. 

District court’s instruction on “bodily harm” was legally and factually appropriate. Under facts in this case, Robison’s objection to the doctor’s testimony was not properly preserved for appellate review. District court failed to provide a limiting instruction regarding the admission of K.S.A. 60-455 evidence, but this was harmless error under facts in the case. Robinson abandoned his arguments regarding rights to a public trial and an impartial judge. Even assuming a violation of Robinson’s right to be present, the error was harmless in this case. Robinson’s cumulative error claim fails because evidence against him was strong, and the two assumed errors in this case were harmless.  

STATUTES: K.S.A. 2016 Supp 22-3402(a), -3414(3); K.S.A. 21-3414(a)(1)(A)-(B), 22-3402, -3402(3), -3402(5), -3402(5)(c), 60-402, -455

 

constitutional law—criminal procedure—
sentences—statutes
state v. wingo
crawford district court—affirmed; court of appeals—affirmed
no. 108,275—august 11, 2017

FACTS: Wingo convicted of second-degree intentional murder and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to her sentencing. On appeal Wingo claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.  

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Wingo’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(G); K.S.A. 2009 Supp. 22-4902(d)(3); K.S.A. 22-4901 et seq., -4906(a)

 

 

Kansas Court of Appeals –

 

Civil

 

ADMINISTRATIVE LAW—JURISDICTION
WALL V. DEPARTMENT OF REVENUE
RUSSELL DISTRICT COURT—AFFIRMED
NO. 116,779—AUGUST 11, 2017

FACTS: Wall was arrested for driving under the influence of alcohol. The arresting officer completed a DC-27 form showing that Wall failed a breath test. But the actual test results show that no breath sample was given. The officer also failed to mark several boxes on the form that must be completed in the event that a test subject fails a breath test. Wall appealed, arguing lack of reasonable grounds to request the test and that his due process rights were violated. After the suspension of Wall's driver's license was upheld, he filed a petition for judicial review. At that proceeding Wall argued for the first time that the suspension should be dismissed because of the irregularities with the DC-27 form. The district court granted Wall's motion for summary judgment and the Department of Revenue appealed.

ISSUE: Jurisdiction to suspend Wall's driver's license

HELD: Because subject matter jurisdiction may be raised at any time there was no error in considering Wall's argument even though he failed to raise it at the administrative proceeding. And the Department of Revenue had an independent, statutory duty to verify the validity of the DC-27 form. Because the form was not properly completed the Department of Revenue lacked subject matter jurisdiction to suspend Wall's license and the district court correctly overturned the suspension.

STATUTE: K.S.A. 2016 Supp. 8-1002(a), -1002(a)(1), -1002

Tags:  Crawford  Reno  Riley  Russell  Sedgwick  Shawnee 

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August 4, 2017 Digests

Posted By Administration, Monday, August 7, 2017

Kansas Supreme Court

Civil

EVIDENCE—JURIES—TORTS
BULLOCK V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT— COURT IS APPEALS IS AFFIRMED—DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,599—AUGUST 4, 2017

FACTS: While working for BNSF, Bullock slipped and was injured after stepping in diesel fuel. It was later determined that the fuel was spilled by one of Bullock's co-workers. Bullock sued BNSF and BNSF claimed the affirmative defense that Bullock was contributorily negligent for failing to appreciate the danger posed by the diesel fuel. Evidence at trial showed that Bullock was not disciplined for his conduct but that the employee who caused the spill was disciplined. The jury found BNSF 100 percent at fault. After BNSF appealed, the Court of Appeals found that evidence of the other employee's discipline was a subsequent remedial measure barred by K.S.A. 60-451, and that court ordered the matter remanded for a new trial. Bullock's petition for review was granted.

ISSUES: (1) Use of post-accident employee discipline as evidence; (2) counsel's statements during closing argument

HELD: The post-accident discipline of another employee constitutes a subsequent remedial measure and is barred from introduction by K.S.A. 60-451. This is true even if a party attempts to use evidence of subsequent remedial measures to prove causation or defeat a claim of contributory negligence. But evidence of an employer's post-event investigation is admissible under that same statute. A jury should not be instructed to act on their feelings about what is fair or to be concerned with community standards or community conscience. Counsel's remarks during closing argument were inappropriate.

STATUTE: K.S.A. 60-451, 3701(d)(1)

Criminal

CONFRONTATION CLAUSE—EVIDENCE—FINDINGS OF FACT
STATE V. JONES
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 113,409—AUGUST 4, 2017

FACTS: Jones and a co-defendant were convicted of killing a man by injecting him with a lethal amount of methamphetamine. Jones appealed two issues to the Kansas Supreme Court.

ISUES: (1) Admission of forensic test results; (2) admission of out-of-court statements

HELD: The lab's chief toxicologist interpreted data to determine that there were high levels of methamphetamine present in the decedent's blood. From that information, the coroner determined that the victim died from methamphetamine toxicity. The coroner testified at trial about the toxicology results and what they meant, and the toxicologist testified about the results of the laboratory tests. Even if the person who actually performed the testing did not testify, any error stemming from that fact is harmless. The issue of whether evidence was properly admitted under the co-conspirator exception to the hearsay rule was not preserved for appeal.

STATUTE: K.S.A. 2016 Supp. 60-460, -460(i)(2)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. MEREDITH
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED
NO. 110,520—AUGUST 4, 2017

FACTS: Meredith pled no contest to a drug crime in 2009. At the time he committed the offense, the Kansas Offender Registration Act (KORA) required Meredith to register as an offender for 10 years. But mistakes in both the sentencing procedure and the journal entry made it unclear how long Meredith's registration period was to run. After Meredith's probation was revoked, the district court noted that the current statute required a 15-year registration period and that sentence was imposed. Meredith appealed and the Court of Appeals affirmed, finding that KORA does not violate the Ex Post Facto Clause. Meredith's petition for review was granted.

ISSUE: Retroactive application of KORA

HELD: The legislature intended KORA to be a non-punitive civil regulatory scheme for all offenders. The record on appeal does not show any evidence that registration is punitive for drug offenders. Since the registration requirement is not a punishment, it cannot be an Ex Post Facto violation.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.) KORA constitutes punishment even if that was not the legislature's intent.  

STATUTES: United States Constitution Article I, § 10; K.S.A. 2011 Supp. 22-4906(a); K.S.A. 2008 Supp. 65-4161(a)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. REED
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 110,277—AUGUST 4, 2017

FACTS: Reed was convicted of a sex crime and, as a result, was required to register as a sex offender for 10 years. Reed stipulated that for a period of time during that 10 years, he did not comply with registration requirements. Before Reed's registration period expired, the legislature amended the Kansas Offender Registration Act (KORA) and added a tolling period for periods of registrant noncompliance or incarceration. When he was convicted for registration violations, Reed claimed that he could not be convicted because his registration period had expired prior to being charged. After his conviction, Reed appealed, claiming that the tolling provision added by the legislature could not be applied to him without violating the Ex Post Facto Clause of the United States Constitution. The Court of Appeals affirmed the district court, finding that the amendments to KORA were not punitive. Reed's petition for review was granted.

ISSUE: Retroactive application of KORA amendments

HELD: The court has jurisdiction to hear this statutory argument even though it was not raised below. Registration under KORA for sex offenders is not punishment, so retroactive application of any provision cannot violate the Ex Post Facto Clause.

DISSENT: (Johnson, J., joined by Beier and Rosen, JJ.) KORA is punitive in effect rendering this an Ex Post Facto Violation.

STATUTES: K.S.A. 2016 Supp. 22-3210(d)(2), -3210(e)(2); K.S.A. 1994 Supp. 22-4902(b)(3), -4906(a); K.S.A. 22-4906(a)

 

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. SEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 114,417—AUGUST 4, 2017

FACTS: Sean was convicted of first-degree premeditated murder and other serious felonies after he allegedly killed a man by injecting him with a lethal amount of methamphetamine. Most of the state's evidence was provided by codefendants. Sean appealed.

ISSUES: (1) Suppression of interrogation statements; (2) prosecutorial misconduct; (3) erroneous admission of bad acts evidence; (4) erroneous admission of hearsay statements; (5) motion for mistrial; (6) limitation on cross-examination; (7) improper sympathy evidence; (8) cumulative error

HELD: The court cannot and will not reach the merits of Sean's argument about his custodial statements because his attorney did not properly preserve this issue for appeal. The introduction of evidence about drugs did not violate the order in limine. Comments about Sean's retention of an attorney were beyond the latitude afforded to prosecutors, but the error was not so prejudicial as to require reversal. The prosecutor's comment on a witness' testimony was a fair comment on facts in evidence and not inappropriate commentary on that witness' credibility. The issue of prior bad acts evidence is not properly before the court due to the lack of a contemporaneous objection. Several of the statements about which Sean now complains are not hearsay. The other statements might have been hearsay, but their admission was harmless. Testimony about gang affiliation was a passing comment by a witness and not a deliberate violation of a pretrial order. And while that testimony was a fundamental failure of the proceedings, the district court did not abuse its discretion by deciding that any resulting prejudice could be mitigated. The subject matter that was excluded during cross-examination offered no substantive or exculpatory evidence and was consequently not wrongly excluded. The court will not review any claim of error regarding testimony of the victim's mother because the issue was not preserved for appeal by a contemporaneous objection. Sean was not prejudiced by cumulative error.

STATUTES: K.S.A. 2016 Supp. 60-261, -455, -460, -460(j); K.S.A. 22-3423(1)(c), 60-404, -2105

Kansas Court of Appeals

Civil

 DEFAULT JUDGMENT—GARNISHMENT
MAINLAND INVESTMENT GROUP V. DIVERSICARE
LYON DISTRICT COURT—REVERSED AND VACATED
NO. 116,921—AUGUST 4, 2017

FACTS: Mainland filed a petition against Tonya Smith after she allegedly wrote a bad check. Smith did not respond to the petition and Mainland received a default judgment. Mainland tried to collect on that judgment for 10 years but was apparently unable to locate Smith. After finally tracking her down, Mainland received an order of garnishment and served Diversicare, who Mainland believed was Smith's employer. Diversicare did not answer the order of garnishment and Mainland sought judgment against Diversicare for lack of compliance. At this point Diversicare sought permission to file an out-of-time answer, claiming that it never received the original garnishment order and that it had never employed Smith. The district court ultimately denied this motion and ordered Diversicare to pay the judgment plus costs.

ISSUE: Ability to garnish

HELD: Diversicare failed to answer the order of garnishment, but it is undisputed that Mainland released Diversicare from the order of garnishment. In the absence of any garnishment order there is nothing upon which to enter default judgment against Diversicare, and the district court erred by entering judgment against Diversicare.

STATUTES: K.S.A. 2016 Supp. 61-3003(g), -3504(a), -3504(b), -3507, -3507(a), -3507(b), -3508, -3510; K.S.A. 61-3502, -3514

 

ICWA—PARENTAL RIGHTS
IN RE D.H., JR.
MEADE DISTRICT COURT—AFFIRMED IN PART, REMANDED WITH DIRECTIONS
NO. 116,422—AUGUST 4, 2017

FACTS: D.H., Jr. caught the attention of state officials shortly after his birth, when it was suggested that Mother used methamphetamine during her pregnancy. As the child's life progressed, there was a series of contacts with the police over drug use and domestic violence, and the family had no stability in housing or employment. D.J., Jr. finally came in to custody after both parents were incarcerated. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficient evidence to terminate father's rights; (2) sufficient evidence to terminate mother's rights; (3) ineffective assistance of counsel; (4) compliance with ICWA requirements

HELD: Father did not make sufficient efforts to regain custody of his child. His continued positive drug tests were a primary cause of this. There was sufficient evidence that Father's rights should have been terminated. Mother was similarly situated. She had a long history of drug abuse and instability. In addition, mother was subject to statutory presumptions of unfitness. Mother's first attorney has been disbarred, and the record shows that his representation of mother fell below minimum standards. But that representation came early in the case, and the two other lawyers who were appointed for mother ably represented her. Providing information to a tribe is mandatory under ICWA. When the tribe requested more information the state had an obligation to provide it. The case must be remanded so that an attempt can be made to provide missing information to the tribe.

STATUTES: 25 U.S.C. § 1903(4); K.S.A. 2016 Supp. 38-2269(a), -2269(b), -2269(c), -2269(f), -2269(g)(1), -2271(a)(1), -2271(a)(3), -2271(b)

Tags:  Lyon  Meade  Riley  Sedgwick  Wyandotte 

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July 28, 2017 Digests

Posted By Administration, Monday, July 31, 2017

Kansas Supreme Court

Criminal 

constitutional law—criminal law—search and seizure—statutes
state v. bannon
sedgwick district court
court of appeals reversed and remanded to court of appeals for reconsideration
no. 112,212—july 28, 2017

FACTS: Wichita State University officers were told that Bannon always carried a handgun and had other guns and ammunition in his university apartment. Officers entered the restricted access apartment building, approached Bannon in a common area, and found a concealed handgun in his waistband. Bannon was charged with criminal carry of a firearm, K.S.A. 2012 Supp. 21-6302(a)(4). He filed a motion to dismiss, arguing he could not be convicted for possessing a concealed gun in his abode or within its curtilage. District court denied the motion. Bannon then filed motion to suppress the gun, arguing the warrantless patdown search was presumptively unreasonable, the stop-and-frisk exception under Terry v. Ohio, 392 U.S. 1 (1968), did not apply, and no probable cause supported his arrest. District judge denied the motion, finding in part the patdown was within the scope of Terry because officers had reasonable suspicion that Bannon was carrying a gun, and they were entitled to search to ensure officer safety. Bannon appealed the denial of both motions. Court of Appeals reversed in unpublished opinion. Panel assumed the officers had a reasonable suspicion that

Bannon was violating the law, but Terry’s second prong was not met because there was no evidence the officers were actually subjectively concerned for their safety or the safety of others. Panel did not address Bannon’s second issue regarding the motion to dismiss. Petition for review granted.

ISSUE:  Terry Stop - subjective vs. objective belief of officer

HELD:  Terry stops were examined, identifying conflicting federal and state cases regarding whether Terry’s second prong is a subjective or an objective test. Court holds the test is objective: whether an officer would reasonably suspect that the person stopped is armed and presently dangerous. Any testimony on the officer’s actual subjective belief or suspicion on that point is just one factor to consider in the totality of the circumstances. Panel incorrectly treated the lack of officer testimony as a dispositive negative determinant on the constitutionality of the Terry frisk. Court of Appeals is reversed and case is remanded for consideration under the correct test. If it determines on remand that the gun did not require suppression, then it must consider and decide Bannon’s second appellate issue.  

STATUTES:  K.S.A. 2012 Supp. 21-6302(a)(4); K.S.A. 22-2402

 

constitutional law—criminal procedure—sentencing—statutes
state v. Donaldson
sedgwick district court—affirmed; court of appeals—affirmed
no. 108,801—july 28, 2017

FACTS: Donaldson filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), the lower courts had jurisdiction to consider Donaldson’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTE: K.S.A. 22-3504, -4901 et seq.

 

constitutional law—criminal procedure—sentencing—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,054—july 28, 2017

FACTS: Kilpatrick filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese,  306 Kan. 279 (2017), the lower courts had jurisdiction to consider Kilpatrick’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTES: K.S.A. 22-3504, -4901 et seq.; K.S.A. 2005 Supp. 22-4902

 

Kansas Court of Appeals

Civil 

ATTORNEY FEES—CONTRACTS—DAMAGES
HARDER V. FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART—REMANDED
NO. 116,117—JULY 28, 2017

FACTS: Harder purchased a house from Foster. The house sat on land and had a lake and a dam. After the purchase concluded, Harder learned that the dam was illegal because it was constructed without a permit, and that obtaining a permit would require extensive repairs. Harder filed suit against Foster in 2013 alleging negligent misrepresentation and other claims related to the house purchase. A jury eventually found in Harder's favor. Citing language in the real estate purchase contract, the district court granted Harder's motion for attorney fees. There was a protracted process after that decision while the district court decided Foster's motion to alter or amend. Because of the delay, Harder filed a second motion for attorney fees to recoup funds spent litigating the attorney fee issue. That motion was denied, as the court found that the second set of attorney fees were not related to the real estate purchase contract. Harder filed a second suit against Foster in 2015, claiming that he fraudulently conveyed the proceeds of the purchase to his children so that he was insolvent after the judgment was issued. Foster passed away, but his estate paid to the district court funds sufficient to satisfy the judgment and attorney fees awarded to Harder. The district court believed that Harder had been satisfied and dismissed the 2015 action as moot.

ISSUES: (1) Error in denying the second motion for attorney fees from the 2013 case; (2) error to dismiss the 2015 case

HELD: Harder's first motion for attorney fees compensated her for expenses incurred through December 16, 2014. But Harder incurred costs far beyond that as the parties worked through the post-trial motions filed by Foster. All of those fees were related to Foster's default under the contract; as such, Harder should have been compensated. The merger doctrine does not deny Harder's second request for attorney fees, and she did not waive any of those fees. The 2015 action was not moot because Harder potentially had a cause of action under the Uniform Fraudulent Transfer Act and, under that Act, potentially had a right to attorney fees to any act related to the third-party claim. Harder was not entitled to punitive damages because punitive damages can only be collected from a wrong-doer, and Foster is now deceased.

STATUTE: K.S.A. 33-102, -201(c), -201(d), -201(g), -204, -204(a), -204(b), -207, -210 

COMITY—DIVORCE—JURISDICTION
WARD V. HAHN
OSBORNE DISTRICT COURT—REVERSED
NO. 116,654—JULY 28, 2017

FACTS: During divorce proceedings, a Nebraska court awarded Ward Hahn one-half interest in land in Osborne County. Ward subsequently petitioned a Kansas court to enforce the Nebraska order and to partition the land between herself and Hahn's parents. The district court noted that the Nebraska court did not have subject matter jurisdiction to directly transfer legal title of the Kansas land to Ward, but it partitioned the land anyway under the principle of comity. The Hahns appealed.

ISSUE: Did the Nebraska court have jurisdiction to direct a land transfer in Kansas

HELD: Courts of one state generally cannot directly affect the legal title to land situated in another state. The Nebraska court could have ordered Hahn, over whom it did have personal jurisdiction, to transfer ownership of the land to Ward. But that did not happen here. The Kansas district court's application of the principle of comity was an abuse of discretion because the Nebraska decree was a violation of Kansas public policy.

STATUTE: No statutes

Criminal

attorney and client—criminal law—evidence—statutes
state v. boatwright
sedgwick district court—reversed and remanded
no. 115,075—july 28, 2017

FACTS: During meeting with attorney to discuss State’s plea offer in criminal cases charging Boatwright with violating a protective order and stalking, Boatwright threatened to kill his ex-fiancé. After checking with supervisor and obtaining clearance from the disciplinary administrator, attorney disclosed Boatwright’s communication to sheriff’s office. Boatwright was acquitted on the protective order and stalking charges, but then was charged with criminal threat. At trial, the attorney and the detective to whom she reported the communication testified about Boatwright’s threats. Based on the disciplinary rule relating to client-lawyer relationship and confidentiality of information, KRPC 1.6, the district court admitted the statements over Boatwright’s repeated objections. Jury convicted Boatwright. He appealed, arguing his statement to his attorney was protected by the attorney-client privilege.

ISSUE: Attorney-client privilege

HELD: In determining the admissibility of Boatwright’s statement to his attorney, parties and district court failed to argue or address the statutory rule of evidence prescribing the attorney-client privilege, K.S.A. 2016 Supp. 60-426, which is different from the concept of client confidentiality under KRPC 1.6. District court erred in admitting Boatwright’s threat under KRPC 1.6(b), as it is not a rule of evidence and does not govern the admissibility of evidence at trial. Here, K.S.A. 2016 Supp. 60-426 barred the admission of Boatwright’s statement to his attorney. State’s argument for the crime-fraud exception is rejected because Boatwright’s meeting with his attorney was for the specific purpose of discussing State’s plea offer and not for seeking legal advice in order to enable or aid the commission or planning of a crime.

District court’s error was not harmless under facts in this case. Boatwright’s conviction is reversed.

STATUTE: K.S.A. 2016 Supp. 60-426, -426(a), -426(b)(1)

Tags:  Reno  Sedgwick 

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July 21, 2017 Digests

Posted By Administration, Tuesday, July 25, 2017

Kansas Supreme Court

 

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF MARGO E. BURSON
NO. 10,805—JULY 19, 2017

FACTS: In a letter signed July 18, 2017, Margo E. Burson voluntarily surrendered her license to practice law in Kansas. At the time the respondent surrendered her license, a complaint was pending with the Office of the Disciplinary Administrator. The complaint alleged violations of various rules of professional conduct relating to competence, communication, and candor toward the tribunal.

HELD: The court examined the files of the Office of the Disciplinary Administrator and found that the surrender of Burson's license should be accepted and that she should be disbarred.

 

Civil

 

INDIGENTS' DEFENSE—MANDAMUS
LANDRUM V. GOERING
ORIGINAL ACTION—WRIT OF MANDAMUS GRANTED IN PART
NO. 116,447—JULY 21, 2017

FACTS: This original action in mandamus questions whether a partially indigent defendant who has retained counsel may receive funding for certain services through the State Board of Indigents' Defense Services (BIDS). Landrum has privately retained counsel, but he moved to be declared partially indigent. The district court made that declaration and provided Landrum with a copy of the preliminary hearing transcript at a reduced price. The court also approved funding for investigative services. But after the presiding judge changed, all further requests were denied; the new judge ruled that Landrum could access BIDS payments only for expenses associated with his defense through an appointed, not retained, attorney. Landrum filed a petition for writ of mandamus, and BIDS served as the primary respondent.

ISSUE: Whether BIDS is required to fund services for a partially indigent defendant who has privately retained counsel

HELD: The court has jurisdiction to consider this application for mandamus and Landrum has standing. The only attorneys specifically excluded in K.S.A. 22-4508 are public defenders. The statute considers only the financial inability of the defendant to pay for defense services and the necessity of the requested services. Therefore, a district court has a duty to conduct an ex parte hearing when an attorney, other than a public defender, asks the court to consider a defendant's request for services. The writ issued here extends only to the district court's duty to hold a hearing; the court does not dictate the outcome of that hearing, and any orders entered depend on whether Landrum shows that he cannot afford the requested services, and that those services are necessary to his defense.

STATUTE: K.S.A. 22-4503(a), -4503(c), -4503(e), -4504, -4507, -4508, -4509, -4522,  -4523, 60-801

 

ADMINISTRATIVE—STATUTORY INTERPRETATION
MIDWEST CRANE & RIGGING V. KANSAS CORPORATION COMMISSION
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED—
DISTRICT COURT IS REVERSED
NO. 114,168—JULY 21, 2017

FACTS: Midwest Crane & Rigging (Midwest) is a contractor that provides a crane service. One of Midwest's trucks was stopped by law enforcement; during the stop, the trooper noticed that the truck did not have a license plate. In addition to a violation for failing to display a license plate, the trooper identified a possible issue with Midwest's failure to pay the federal Unified Carrier Registration Act (UCR) fee. The truck had a crane permanently attached to the chassis, and the truck only carried the tools that were necessary to operate the crane. The KCC fined Midwest $300 for failing to register and pay the UCR fee. The fine was upheld after the KCC determined that the truck was a "commercial motor vehicle." The district court affirmed the KCC, as did a majority of the Court of Appeals' panel. The Supreme Court granted review.

ISSUE: Is the crane truck a commercial motor vehicle that is principally used to transport cargo

HELD: In order to qualify as a commercial motor vehicle, the truck in question must be used principally to transport cargo. In this case, the crane and its associated tools are not cargo. Because the crane is not cargo, the truck is not a commercial motor vehicle and Midwest need not pay a fee.

STATUTES: 49 U.S.C. § 14504a(a)(1)(A)(ii), § 31101(1), § 13102(14), § 31132(1), § 14504a(a)(8), § 14504a(a)(9), § 14504(c), § 14504(e); K.S.A. 2016 Supp. 8-128(b), 66-1,115, -1,139a, 77-621(c)(4)

 

 

Criminal:

 

criminal law and procedure—evidence—prosecutors
state V. banks
sedgwick district court—affirmed
no. 114,614—july 21, 2017

FACTS: Flores was convicted of premeditated first-degree murder. On appeal he claimed:  (1) insufficient evidence supported the conviction because state’s evidence of premeditation was based upon impermissible inference stacking; (2) prosecutorial error by encouraging jury to decide case based on unreasonable inferences rather than on direct or circumstantial evidence; and (3) district court’s exclusion of photographs that depicted handwritten notes found in Flores’ car violated Banks’ right to present evidence critical to his defense.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error, (3) admission of evidence

HELD: Flores mistakenly equates inference stacking with state’s reliance on multiple circumstances. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference. Under facts in this case, the state provided sufficient evidence that the killing of the victim was premeditated.

No error was found in prosecutor’s closing argument. Prosecutor may have come close to scripting the crime for the jury in more detail than the evidence justified, but the relevant inferences asserted by the prosecutor were supported by the evidence and were reasonable.

District court correctly refused to admit the unauthenticated writings. Banks made no effort to comply with authentication requirements of K.S.A. 60-464; there was no evidence as to whose handwriting appears in the photographed writings; and nothing in the content of the writings gives a clue as to who might have authored them.   

STATUTES: K.S.A. 2013 Supp. 21-5402(a)(1); K.S.A. 60-404

  

criminal procedure—evidence—statutes
state v. davey
johnson district court—affirmed; court of appeals—affirmed
no. 111,774—july 21, 2017

FACTS: Davey was convicted of attempted first-degree murder and conspiracy to commit first-degree murder of her husband. At trial, state introduced hearsay statements that were made among the conspirators. Davey appealed, claiming this evidence did not fit the coconspirator exception in K.S.A. 2016 Supp. 60-460(i)(2). Court of Appeals affirmed in an unpublished opinion. Sole issue in Davey’s petition for review was whether the co-conspirator exception to the hearsay rule is applicable where the state offers the hearsay through a co-conspirator.

ISSUES: Co-conspirator exception to the hearsay rule

HELD: The coconspirator exception to the hearsay rule, based upon K.S.A. 60-2016 Supp. 60-460(i)(2), does not require that the coconspirator’s statement be offered to the court by a third person who is not a participant in the conspiracy. The third person requirement for application of the coconspirator exception, as declared in the five-part test in State v. Bird, 238 Kan. 160 (1985), and its progeny, is disapproved and overruled. K.S.A. 2016 Supp. 60-460(i)(2) sets up just three requirements for the co-conspirator exception to the hearsay rule to apply:  (1) the out-of-court statement must have been made by one of the co-conspirators; (2) the statement of the co-conspirator must have been made while the conspiracy was in progress; and (3) the statement must be relevant to the plan or its subject matter. Substantial competent evidence supports the factual requirements for application of K.S.A. 2016 Supp. 60-460(i)(2) in this case. Trial court did not err in admitting the evidence.

STATUTES: K.S.A. 2016 Supp. 60-460(i), -460(i)(2); K.S.A. 60-404

 

district courts—criminal law and procedure—discovery—evidence
state v. pollard
sedgwick district court—affirmed
no. 114,005—july 21, 2017

FACTS: Jury convicted Pollard of first-degree felony murder and aggravated robbery. Prior to trial, Pollard filed pro se motion seeking to compel state’s production of certain evidence. County clerk’s response stated that no hearings were scheduled and no further action would be taken absent further direction from Pollard’s appointed defense counsel as to how to proceed. During trial, district court ruled that Pollard’s gang status was admissible to enable state to explain how Pollard became a suspect. On appeal, Pollard claimed the prosecutor erred by introducing gang affiliation evidence. He also claimed the Sedgwick County clerk’s method of dealing with pro se motions in criminal cases violated his due process rights.

ISSUES: (1) Prosecutorial error, (2) pro se motion for discovery

HELD: Prosecutor did not mislead the trial judge about the grounds for admitting gang affiliation evidence. Pollard’s identity was a central issue in the case, and law enforcement used the department’s gang database in the process of connecting Pollard to the crimes. No merit was found in any of Pollard’s related claims of error by the prosecutor and trial court.

Pollard’s challenge as to how the county clerk’s office handles pro se motions in other cases cannot be brought in Pollard’s direct appeal, and there is no support in the record for Pollard’s challenge to the clerk’s handling of his motion. Pollard also failed to establish that he was in any way prejudiced by having his motion referred to appointed defense counsel rather than heard on its own. Under facts in this case, Pollard was not denied meaningful access to the court.

STATUTES: K.S.A. 2016 Supp. 60-455; K.S.A. 60-402(b)

 

 

Kansas Court of Appeals


 

constitutional law—criminal law—jury instructions—prosecutors—statutes
State v. Taylor
johnson district court—reversed, sentences vacated
no. 114,779—july 21, 2017

FACTS: Taylor was arrested for driving on a suspended license. Search of car discovered a gun stolen more than a year earlier. Marijuana found in Taylor’s shoe during his booking at the county jail. Jury convicted Taylor of theft, possession of marijuana, trafficking contraband in a correctional facility, and driving with a suspended license. Taylor appealed, arguing prosecutor and court erred in telling jury that the theft statute made possession of a stolen gun enough for a theft conviction, and that insufficient evidence supported his conviction on this charge. He also argued he was unconstitutionally denied notice that marijuana was contraband such that he could be separately convicted on the trafficking charge, and that insufficient evidence supported that conviction.

ISSUES: (1) Theft statute, (2) prosecutorial error, (3) sufficiency of the evidence of theft, (4) constitutional application of trafficking in contraband statute

HELD: Nothing within the plain language of the theft statute provides that persons found to be in possession of stolen firearms are guilty of theft regardless of whether they had knowledge the firearms they possessed were stolen. Under no circumstances is the state relieved of its duty of establishing the defendant acted with the intent to commit theft.

By telling the jury that it is the legislature’s desire to convict persons who possess stolen firearms of theft regardless of whether those persons had knowledge the firearms were stolen, the prosecutor seriously misstated the law and erroneously conveyed to the jury that the prosecutor is the final arbiter of the legislature’s intent. Under facts in this case, the prosecutor’s error was prejudicial.

There was insufficient evidence that Taylor intended to permanently deprive the owner of the handgun. A theft conviction based solely upon possession of stolen property must be supported by sufficient evidence that the person provided unsatisfactory explanations for possessing the stolen property, and that the property they possessed had been recently stolen. Here, the gun found in Taylor’s possession some 14 to 20 months after it was reported stolen was too remote in time to be considered recently stolen. Taylor’s theft conviction was reversed and sentence was vacated without possibility of retrial.

The trafficking in contraband statute was unconstitutionally applied to Taylor. State v. Watson, 273 Kan. 426 (2002), makes clear that the statute can prohibit the introduction or attempted introduction of contraband only if the correctional institution’s administrator has given notice of what items constitute contraband. Controlled substances are not per se contraband under the statute. Under facts in this case, the jail administrator had not identified marijuana as contraband, thus Taylor was denied the notice to which he was entitled. Accordingly, insufficient evidence supported his trafficking in contraband conviction which was reversed and the sentence vacated. Error in trial court’s instructions were also noted.

STATUTES: K.S.A. 2016 Supp. 21-5202, -5203, -5701, -5801(a), , -5801(a)(1)-(a)(4), -5801(b)(1), -5801(b)(7), -5801(h), -5904, -5904(a), -5904(b), -5904(b)(2)(A)-(D), -5914(d)(1), -5914(d)(16), 50-1201 et seq., 65-4105(d)(16), 75-7c01 et seq.; K.S.A. 2014 Supp. 8-262, 21-5706(b)(3), -5801(a), -5914; K.S.A. 2001 Supp. 21-3826; K.S.A. 21-3826(c)(1), -5801

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July 7, 2017 Digests

Posted By Administration, Tuesday, July 11, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE NWAKANMA
NO. 116,773—JULY 7, 2017

FACTS: Nwakanma was accused of violating KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping of property), 1.16 (termination of representation), 3.4 (fairness to opposing party and counsel), 8.1 (bar admission and disciplinary matters), 8.4 (misconduct), and Kansas Supreme Court Rule 207 (cooperation). Nwakanma lives and practices in Texas and was accused of violating several Texas Disciplinary Rules of Professional Conduct. Nwakanma's Kansas license has been suspended on multiple occasions for failing to comply with annual requirements, and it was suspended at the time of the disciplinary hearing. Nwakanma was never licensed independently in Texas. At the time of the hearing, Nwakanma had no active license to practice law in any jurisdiction.

HEARING PANEL: The hearing panel determined that Nwakanma's actions violated the Kansas Rules of Professional Conduct. After considering the aggravating and mitigating factors, the hearing panel recommended that Nwakanma be disbarred.

HELD: Nwakanma filed no exceptions to the hearing panel's final report, and the panel's findings of fact were deemed admitted. Nwakanma failed to appear at the hearing before the court, despite being allowed a continuance. The court upheld the discipline of disbarment. 

Tags:  Attorney Discipline 

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