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October 27, 2017 Digests

Posted By Administration, Tuesday, October 31, 2017

Kansas Supreme Court

CIVIL

JURISDICTION—REAL PROPERTY
JENKINS V. CHICAGO PACIFIC CORPORATION
JACKSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 113,104—OCTOBER 27, 2017

FACTS: The Chicago Pacific Railway Company operated on the disputed property beginning in 1886. In 1985, Chicago Pacific quitclaimed its interests in the property to Dirt & Gravel, Inc. Jenkins acquired her ownership interest via quitclaim deed from Dirt & Gravel. Jenkins later sued to quiet title, asking for a determination that she was a fee simple owner. Jenkins alternately claimed that she acquired fee title through the quitclaim deed or that she acquired title through adverse possession. Chicago Pacific moved for summary judgment, claiming that the 1886 deed only allowed a right of way that would revert to abutting landowners when the property was abandoned by the railroad. The district court granted the motion, finding that Jenkins could not have acquired any title through a quitclaim deed. The district court granted Jenkins' K.S.A. 60-254(b) motion in order to allow an immediate appeal on the question of ownership.

ISSUES: (1) Jurisdiction; (2) real property acquisition from a railroad; (3) the language of the 1886 deed

HELD: Jenkins filed her notice of appeal before the district court made the proper K.S.A. 2016 Supp. 60-254(b) certification. But subsequent certification cured this defect, rendering her notice of appeal timely. When a railroad acquires land for a right of way it generally obtains only an easement. When that easement is abandoned, the estate reverts to the original land owners. In this case, the 1886 deed described the subject property in a manner consistent with a right of way.

STATUTE: K.S.A. 2016 Supp. 60-254(b), -2102, -2102(a), -2102(b), -2102(c)

criminal

criminal procedure—evidence—statutes
state v. gray
harvey district court—reversed on issues subject to review
court of appeals—reversed on issues subject to review
112,035—october 27, 2017

FACTS: Officer followed and eventually stopped Gray’s car for failing to use turn signal. Gray filed motion to suppress evidence obtained in search of car, alleging the officer violated the biased-based policing statute, K.S.A. 2014 Supp. 22-4609 et seq.  District court denied the motion, and in bench trial convicted Gray of charged offenses. Gray appealed, in part challenging the denial of his motion to suppress, and challenging the district court’s jurisdiction to convict Gray of felony possession of marijuana. Court of Appeals reversed or downgraded some conviction offenses but affirmed the district court’s suppression ruling, finding substantial competent evidence supported the determination that Gray was not actually stopped because of his race. 51 Kan.App.2d 1085 (2015). Review granted, in part, on this issue.   

ISSUE: Remedy for violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609

HELD: Issue of first impression regarding test to be applied under Kansas’ biased-based policing statutes, the availability of a suppression remedy, and the test for determining whether a biased-based policing violation occurred. This appeal involves statutory, rather than constitutional, consideration. K.S.A. 22-3216(1), which permits a defendant aggrieved by an unlawful search and seizure to move to suppress evidence, provides a suppression remedy for violation of K.S.A. 2014 Supp. 22-4606 et seq. When considering such a motion, the district judge must examine more than the ultimate justification of a traffic stop and must consider wether the officer unreasonably used race or any other characteristic listed in K.S.A. 22-4606(d) in deciding to initiate the enforcement action. Unable to determine from the record in this case whether the district judge applied the correct test and evaluated whether the officer unreasonably used raced in deciding to initiate the traffic stop. Convictions reversed and remanded for further action in accord with this decision.   

STATUTES: K.S.A. 2014 Supp. 22-4606 et seq., -4606(d), -4607, -4609, -4609(d); K.S.A. 8-1548, 20-3018(b), 22-3216, -3216(1), -3216(2), -4609

 

 

appeals—criminal procedure—jury instructions—jurisdiction 
state v. saylEr
kingman district court—affirmed; court of appeals—affirmed
11,0048—october 27, 2017

FACTS: Sayler convicted in Kingman county of failing to register under the Kansas Offender Registration Act (KORA). On appeal he argued for first time that the trial court lacked subject matter jurisdiction over the prosecution because the charging document failed to allege he resided in Kingman County, and similarly, that the jury instructions permitted the jury to convict him without finding this essential element of the offense.  In unpublished opinion, the Court of Appeals rejected both arguments and affirmed the conviction. Review granted on both issues. Thereafter, State v. Dunn, 304 Kan. 773 (2016), significantly changed the law on charging document sufficiency, holding the sufficiency of the charging document does not implicate the state courts’ subject matter jurisdiction in criminal cases.

ISSUES: (1) Sufficiency of the charging document, (2) jury instructions

HELD: Issue considered for first time on appeal because the appeal straddled the period before and after Dunn and because parties were expressly asked to brief Dunn’s impact on the merits. The charging document in this case was sufficient under Dunn because it alleged facts that, if proved beyond a reasonable doubt, would constitute the crime of failing to register under KORA.

No error found in the jury instructions.

STATUTES: K.S.A. 2016 Supp. 21-5108(a), 22-4905(b); K.S.A. 2011 Supp. 22-4903; K.S.A. 20-3018(b), 22-3201(f), 22-4901 et seq., 60-2101(b)

 

 

constitutional law—criminal procedure—crimes and punishment—jurisdiction
state v. scuderi
reno district court—affirmed
court of appeals—affirmed on issues subject to review
107,114—october 27, 2017

FACTS: In unpublished opinion, Court of Appeals affirmed Scuderi’s two convictions and sentences for failing to register under the Kansas Offender Registration Act. Review granted on his claims that: (1) the registration requirements are ex post facto punishment for a drug offense committed before registration was required; (2) his criminal history was unconstitutionally used to calculate the sentences imposed; and (3) the complaint initiating one of his convictions was deficient because it failed to allege he resided in the county where the State alleged he failed to register.

ISSUES: (1) Ex post facto challenge, (2) criminal history score in sentencing, (3) sufficiency of the charging document

HELD: Scuderi’s ex post fact challenge is foreclosed by State v. Shaylor, 306 Kan. 1049 (2017)(retroactive imposition of registration requirement was not punishment). Scuderi failed to create a factual record in support of his claim that registration impacts drug offenders differently than sex offenders by making reintegration into society more difficult.

Kansas Supreme Court has repeatedly rejected Scuderi’s Apprendi claim.

Scuderi’s challenge to the sufficiency of the complaint was defeated by State v. Sayler, 306 Kan. __ (2017)(decided this same date), applying State v. Dunn, 304 Kan. 773 (2016).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her dissents in State v. Meredith, 306 Kan. 906 (2017), and State v. Huey, 306 Kan. 1005 (2017), she dissented from majority’s decision in this case on the ex post facto challenge.

STATUTE: K.S.A. 20-3018(b), 22-4901 et seq., -4904, 60-2101(b), 65-4161

 

Kansas Court of Appeals

CIVIL

 

BAILMENT—MOTOR VEHICLES—PROBATE—STATUTE OF LIMITATIONS
MOULDEN V. HUNDLEY
LEAVENWORTH DISTRICT COURT—AFFIRMED
NO. 116,415—OCTOBER 27, 2017

FACTS: Moulden transferred title to two classic cars to his daughter, Hope Hundley, in 2005. The cars were stored in Moulden's garage when she wasn't using them, and they were in Moulden's garage when Hope died in 2012. Hope's widower, Dustin, transferred the car titles to his name in 2013. But when Dustin attempted to take possession of the cars, Moulden asked the court to determine the rightful owner of the cars. He claimed that he never meant for Hope to be a full owner of the cars. When filing suit, Moulden also sought the return of furniture that he loaned to Hope. Dustin countersued, claiming that Moulden waited too long to make any such claim and asking that he be declared the owner of the disputed furniture. The district court ruled that Hope – and subsequently Dustin – owned the cars but that Moulden owned the furniture.

ISSUE: Property ownership

HELD: K.S.A. 59-2239 operates as a special statute of limitations for claims against an estate. Moulden did not petition to have the cars returned within the 6 months allowed by the statute. Despite Moulden's claims to the contrary, K.S.A. 59-2239 applies to the facts of this case. Mere possession of the cars did not change their ownership. A two-year statute of limitations applied to Moulden's attempt to reclaim the furniture. Hope used the furniture under a bailment, with Moulden being the bailor. After Hope died, Dustin continued to possess the property under a constructive bailment. Because the bailment existed, the statute of limitations clock did not begin to run until Dustin refused to return the furniture to Moulden. Moulden's suit was not time-barred, and the district court's ruling on ownership was correct.

STATUTE: K.S.A. 8-126(cc), 59-2239, 60-513(a), -513(b) 

 

 

criminal

 

constitutional law—crimes and punishment—evidence—fourth amendment
state v. carr
shawnee district court—reversed and remanded
116,228 - october 27, 2017

FACTS: Officer stopped vehicle he associated with Carr, a suspect in a drive-by shooting. Officers found the driver of the car was Carr’s aunt, and Carr was a passenger. Officers arrested and searched Carr, finding a car key, a cell phone, and cash. Marijuana was found in Carr’s pocket during a subsequent search. Without a search warrant, police used Carr’s cell phone to determine its phone number. Then with search warrant, obtained phone records from cell phone provider to determine cell-tower information to locate Carr near the scene of the shooting. Carr filed motion to suppress all evidence obtained in an unlawful car stop. District court denied the motion, finding the stop was lawful. District court also found the officers unlawfully searched the phone, but police would have inevitably discovered the cell phone number by lawful means and used it to get a search warrant. Carr appealed the denial of his motion to suppress, and the admission of testimony by a cell phone provider employee about Carr’s cell phone records.

ISSUES: (1) Reasonable suspicion for vehicle stop, (2) suppression of cell phone records, (3) suppression of marijuana, (3) suppression of car key, (4) cell phone records

HELD: Officers lacked reasonable suspicion to believe Carr was in the vehicle they stopped. To stop a vehicle based on suspicion that a person subject to police investigatory detention is in it, an officer must have specific and articulable facts that the person is in the vehicle. If officer knows only that a relative of the suspect owns a similar car that had at some point been seen at the suspect’s residence, the officer does not have specific and articulable facts to support reasonable suspicion that the suspect is in the vehicle at the time. The key, the cash, and the marijuana should not have been admitted as evidence at trial.

Carr’s cell phone was obtained through an unlawful car stop, and police then used Carr’s cell phone number to obtain relevant phone records. Under facts in case, however, district court did not err in determining the cell phone records were admissible under the inevitable-discovery exception to the exclusionary rule.

Carr’s conviction for possession of marijuana is reversed because the only evidence supporting this conviction stemmed from the unlawful stop.

Carr was connected to a vehicle used in a drive-by shooting in part because officers found car key in his pocket during an unlawful car stop the day after the shooting. Based on evidence in the case, court cannot say beyond a reasonable doubt that the admission of the key and other inadmissible evidence obtained through the unlawful car stop had no effect on the jury’s verdict. Carr’s conviction for aggravated battery was reversed and remanded for a new trial.

District court did not err in admitting cell phone records maintained in the ordinary course of business by a cell phone provider.  

STATUTES: K.S.A. 2016 Supp. 60-460(m); K.S.A. 22-2402(1), -3216(2)

 

 

 

constitutional law—crimes and punishment—Fifth Amendment—evidence—expert testimony—jury instructions—statutes
state v claerhout
johnson district court—affirmed
115,227—october 27, 2017

FACTS: Claerhout caused car crash while driving under the influence (DUI), which resulted in the death of another motorist. He was charged with reckless second-degree murder, or alternatively, involuntary manslaughter. Prior to jury trial he conceded guilt to involuntary manslaughter, and unsuccessfully challenged the admission of: expert witness testimony; statements Claerhout made to officers at the scene without Miranda warnings; and his prior DUI diversion agreement. District court also instructed jury over Claerhout’s objection that voluntary intoxication was not a defense agains the crime of reckless second-degree murder. On appeal Claerhout argued the district court erred by: (1) admitting Claerhout’s prior DUI diversion agreement; (2) allowing police officer to testify as expert accident reconstructionist; (3) not suppressing statements made to an officer following the crash; and (4) not granting request for instruction on voluntary intoxication as a defense to reckless second-degree murder.

ISSUES: (1) Admission of prior DUI diversion agreement, (2) expert testimony, (3) admission of statements to officer, (4) jury instruction on voluntary intoxication

HELD: No abuse of district court’s discretion in admitting the prior DUI diversion agreement for the stated purpose of showing Claerhout’s state of mind. This evidence was relevant to prove that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Probative value of the exhibit outweighed its prejudicial effect where the court limited the purpose for which it could be used, and where Claerhout was permitted, but failed, to raise additional information about the diversion, including the underlying circumstances which did not include erratic driving. Even if abuse of the district court’s discretion is assumed, the error was harmless. Statutory rather than constitutional analysis applies to the erroneous admission of 60-455 evidence, and overwhelming evidence supports Claerhout’s conviction.

Any error resulting from trial court’s determination that the officer was qualified to testify as an expert accident reconstructionist was harmless under facts in this case.

Any error resulting from the admission of statements Claerhout made at the scene of the crash about his previous consumption of alcohol was harmless under facts in this case.

District court appropriately instructed jury that voluntary intoxication is not a defense to the charged crimes. Reckless second-degree murder is not a specific intent crime, approving the rationale in State v. Spicer, 30 Kan.App.2d 317 (2002), and two unpublished opinions. Claerhout’s reliance on State v. Kershaw, 302 Kan. 772 (2015), is criticized.

DISSENT (Green, J.): The admission of Claerhout’s previous DUI diversion agreement was error, and unconstitutionally infringed on his right to a fair trial. Majority’s decision that this evidence was relevant conflicts with safeguards mandated in State v. Gunby, 282 Kan. 39 (2006), regarding the admission of 60-455 evidence, and the holding in State v. Boggs, 287 Kan. 298 (2008). Claerhout’s previous DUI was of no legal relevance as to whether his conduct showed an extremely reckless behavior. The probative value of this evidence was substantially outweighed by risk of prejudice, confusion, and distraction on that issue where the admission of this evidence shattered Claerhout’s confession and avoidance defense, and the prosecutor’s closing and rebuttal arguments improperly revolved around the propensity inference from the diversion agreement.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5205(b), -5403(a)(2), -5405(a), 60-261, -455, -456(b); K.S.A. 2014 Supp. 21-5403(a)(2), -5403(a)(3); K.S.A. 8-1566, 60-455

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October 20, 2017 Digests

Posted By Administration, Monday, October 23, 2017

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

 

ORDER OF PROBATION
IN THE MATTER OF KURT L. JAMES
NO. 117,517—OCTOBER 20, 2017

 

FACTS: A hearing panel determined that James violated KRPC 1.3 (diligence), 1.4(a) (communication), 1.7(a)(2) (conflict of interest), 1.15(a) and (b) (safekeeping property), 1.16(a) (declining representation), 3.2 (expediting litigation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaints arose after James took on several clients with the promise to file post-divorce modification motions but failed to do so.

HEARING PANEL: The hearing panel concluded that James' lack of communication and diligence harmed his clients. James had a prior disciplinary record, but there was no evidence of dishonest motive, and James made his clients whole through refunds. Because of that fact, the disciplinary administrator recommended that James be suspended for 1 year but that the suspension be stayed while James served a period of probation. The hearing panel agreed, with the caution that James should serve a 2-year suspension, with that order stayed during a 3-year probation term.

HELD: The court adopted the hearing panel's findings and conclusions. After reviewing the record, the court ordered that James be suspended for 1 year, with the imposition of the suspension stayed pending successful completion of a 3-year period of probation.

 

 

Kansas Court of Appeals

 

CIVIL

 

HEARSAY—INSURANCE—SUMMARY JUDGMENT
ALLEN V. MARYSVILLE MUTUAL INSURANCE CO.
MONTGOMERY DISTRICT COURT—REVERSED AND REMANDED
NO. 116,888—OCTOBER 20, 2017

FACTS: The Allens owned a rental home in Montgomery County. While their tenants were away from home, a two-state police chase ended at the property. Two of the suspects were quickly apprehended but one eluded capture. That man eventually ended up inside the home owned by the Allens. It is unclear how he gained entry, it was either through an unlocked door or by breaking a window. While officers attempted to have the suspect surrender, both the Allens and the tenants gave permission for officers to enter the home. But because the suspect was accused of attempted murder, the officers felt like that strategy was too dangerous. Instead, law enforcement opted to use tear gas and pepper spray to drive the suspect from the home. In addition, in an attempt to be careful, officers also received a search warrant for the home. The tear gas canisters fired into the home caused extensive damage to the property, but the suspect was captured without further incident. The repair estimates obtained by the Allens exceeded the insured value of the home. Marysville, their insurance company, denied the claim because of a policy exclusion that denied coverage for a "loss which results from order of civil authority." The district court found that since law enforcement did obtain a search warrant, the damage was covered by the exclusion. The district court granted Marysville's motion for summary judgment, and the Allens appealed.

ISSUE: Whether the policy exclusion applied to this loss

HELD: The district court erred by finding that the order-of-civil-authority exclusion applied. Officers here did not need a warrant to enter the Allens' property; there was clearly probable cause that the suspect had committed attempted murder, and the officers knew that the suspect was inside the home. The search warrant was obtained in an effort to forestall an expected motion to suppress by the suspect. The damage caused to the residence had nothing to do with the search warrant. The Allens believe that Marysville was obligated to reimburse them under a policy provision which provided coverage for damage caused by vandalism, since the extensive damage that occurred was a proximate cause of the suspect's entry into the house. But there is no clear evidence to show whether the suspect entered the home by breaking a window (covered vandalism) or by walking through an unlocked door (not covered). More factual findings are necessary, so the case is remanded.

STATUTES: K.S.A. 2016 Supp. 60-256(e); K.S.A. 22-2401(c), -2405(3)

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No New Posts from Friday, October 13, 2017

Posted By Administration, Monday, October 16, 2017
No decisions were published the week of October 9-13, 2017

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October 2, 2017 Digest

Posted By Administration, Tuesday, October 10, 2017

Kansas Supreme Court

Civil

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—STATE FAILED TO SHOW THAT REMEDIAL LEGISLATION MEETS THE ADEQUACY AND EQUITY REQUIREMENTS OF ARTICLE 6
NO. 113,267—OCTOBER 2, 2017

FACTS: Article 6 of the Kansas Constitution requires the legislature to "make suitable provision for finance of the educational interests of the state." These plaintiffs filed suit in 2010, alleging both inequitable and inadequate funding of K-12 public education. In 2013, a three-judge panel agreed, finding that the State's school finance formula failed both equity and adequacy tests. After the legislature's CLASS legislation was struck as constitutionally insufficient, the legislature was tasked with bringing the state's education finance system into compliance with Article 6. The legislature responded with Senate Bill 19. The centerpiece of that legislation is the new Kansas School Equity and Enhancement Act, which established a new education funding formula under which some funds come from the State via an amount arrived at by formula, and some funds come from local option budgets. The base aid per student for year 2018-18 is $4,006; that amount increases to $4,128 in 2018-19. School districts may add on local funding up to 33% of the district's total foundation aid. Less wealthy districts may also qualify for supplemental state aid, in recognition of varying property wealth among districts. This appeal follows from the plaintiffs' challenge to the KSEEA.

ISSUES: (1) Adequacy requirements; (2) equity requirements; (3) equal access to substantially similar educational opportunity through similar tax effort; (4) effect of change to LOB equalization calculation; (5) at-risk funding procedures; and (6) remedies

HELD: The State did not meet its burden to show that the public education financing system established by SB 19 is constitutionally adequate. Over-reliance on local option budget (LOB)-generated funds tends to create an unconstitutional funding structure. Although the formula allots additional funds to at-risk students, the State failed to prove that the additional funds were calculated to improve student performance. Similar outcomes were shown for funding allotted for full-day kindergarten and early childhood education programs. A school finance formula is inequitable if it increases wealth-based disparities between districts. SB 19 allows school districts to use capital outlay funds to pay property and casualty insurance and utility expenses. This allows general funds or LOB funds to be used for other purposes, giving districts more flexibility in their spending, and this variable flexibility is tied to district wealth. A district's wealth is tied to its ability to gain voter approval of a proposed mill levy increase. For this reason, the provision in the school finance formula that allows some districts to impose a mill levy increase without facing either a protest-petition process or a mandatory election is inequitable. SB 19's lookback provision—which changes how supplemental aid is calculated relative to LOB funding—exacerbates the discrepancies caused by local funding that is tied to property values. As such, it is inequitable. SB 19 established a 10% floor for at-risk students in any given district. This provision uses a wealth-based standard and, as such, it is inequitable. The court declined to provide a specific dollar amount that would be constitutionally adequate. The state educational system has been more or less underfunded since the 2002-03 school year. The mandate in this case is stayed until June 30, 2018, but no longer.

CONCURRENCE AND DISSENT: (Johnson, J., joined by Rosen, J.) Justice Johnson agrees with the majority's rulings on adequacy and equity. But he disagrees that the State should be given additional time to come into compliance. He would have the State provide a proposed remedy by the end of this year.

CONCURRENCE AND DISSENT: (Biles, J.) Justice Biles agrees with the majority findings on adequacy and equity. But he would have immediately enjoined SB 19's inequitable features from being operational in the 2017-18 school year.

STATUTES: Kansas Constitution, Article 6; K.S.A. 2016 Supp. 72-1127, -6470, -6471(e), -8255, -8801(a), -8804, -9608; K.S.A. 2014 Supp. 72-6407(a), -6407(c), -6407(e), -6407(f), -6414(a), -6431, -6433, -6434, -6460, -8801, -8814(b); K.S.A. 2013 Supp. 72-6433(a)(1), -6434(a), -8814; K.S.A. 2012 Supp. 72-6414a(b); K.S.A. 2011 Supp. 72-6414a(b); K.S.A. 2008 Supp. 72-6433c(b)(9)(B); K.S.A. 2006 Supp. 72-6454; K.S.A. 2005 Supp. 46-1131(b), 72-1127; K.S.A. 60-409(b), -412(c), 72-6433(b)(9)(B)

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September 29, 2017 Digests

Posted By Administration, Tuesday, October 3, 2017
Updated: Tuesday, October 3, 2017

Kansas Supreme Court – Attorney Discipline

ORDER OF REINSTATEMENT
IN THE MATTER OF JOHN M. STUDTMANN
NO. 17,370 – SEPTEMBER 29, 2017

FACTS: Studtmann was disbarred in November 2003. He filed a petition for reinstatement in March 2016. A hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing and recommended that the petition be granted, with the condition that Studtmann continued to receive treatment.

HELD: The petition for reinstatement is granted, subject to conditions. Studtmann must continue to receive treatment from Dr. Parker until Dr. Parker believes that treatment is no longer necessary. Studtmann must also complete a bar review course that has been approved by the court and must pay all outstanding fees.

 

ORDER OF REINSTATEMENT
IN THE MATTER OF EDWARD F. WALSH, IV
NO. 99,410 – SEPTEMBER 29, 2017

FACTS: Walsh was indefinitely suspended from the practice of law in May 2008. He filed a petition for reinstatement in December 2016. After conducting a hearing, a hearing panel recommended that the petition be granted.

HELD: After considering the record, the court grants Walsh's petition for reinstatement. The reinstatement is conditioned on Walsh's compliance with the annual continuing legal education requirements and upon payment of all fees. 

Kansas Court of Appeals – Criminal

criminal procedure - Juries - prosecutors
state v. hirsh
barton district court:  affirmed in part, reversed in part, vacated in part, remanded
no. 116,356 – september 29, 2017

FACTS: Hirsh convicted of aggravated assault, criminal threat, and domestic battery.  During trial, jury asked if pillow over victim’s head could be considered a deadly weapon for aggravated assault, same as a gun pointed at victim’s pillowed head.  In response over Hirsh’s objection, district court told jury to refer to the instructions.    On appeal Hirsh claimed:  (1) district court’s response to jury’s question allowed jury to convict him of uncharged crime; (2) his two criminal threat convictions are multiplicitous; (3) prosecutor improperly commented that victim was telling the truth; (4) State violated Brady by not disclosing potential impeachment evidence that was disclosed when prosecutor cross examined Hirsh’s witness on last day of trial; (5) jury should have been recalled to investigate alternate juror’s claim that several jurors had not disclosed they were victims of domestic violence; (6) cumulative error denied him a fair trial; and (7) district court violated Apprendi by making “deadly weapon” finding to impose violent offender registration requirement.  

ISSUES: (1) Response to Jury Question, (2) Multiplicitous Convictions, (3) Comment on Victim Credibility, (4)  Brady Violation, (5) Recall - Jury Misconduct, (6) Cumulative Error, (7) Apprendi Violation - Sentencing

HELD:  On facts of this case, both a handgun and a pillow could be considered a deadly weapon to support the aggravated assault charge, but State charged Hirsch with committing the offense with a handgun.  The legally appropriate response would have been to inform jury that based on the charge, it must find the deadly weapon was a handgun rather than a pillow.  District court abused is discretion by failing to provide a meaningful response, and the error was not harmless in this case.  Aggravated assault conviction is reversed, sentence is vacated, and case is remanded for new trial on that charge.

Under the unit prosecution test, Hirsh’s criminal threat convictions are not multiplicitous.  He made one single communicated threat against his wife, and another single communicated threat against their children.

Prosecutor committed error by saying the victim was telling the truth, but under facts in case the error was harmless.

No Brady violation. Prosecutor did not suppress any evidence, and parties discovered the evidence at the same time while witness was on the stand.  Even if inadvertent suppression of this evidence, the error would have been harmless in this case. 

No abuse of district court’s discretion in denying Hirsh’s motion for recall. Counsel never asked any juror at issue whether they personally had experienced domestic violence or knew someone who had experienced it, and jurors were not required to volunteer this information.    

Aggravated assault conviction was reversed due to district court error. Remaining error committed by prosecutor during closing argument does not merit reversal of the remaining convictions. 

Apprendi claim not addressed because aggravated assault sentence, which included the violent offender registration, was vacated. 

STATUTES:  K.S.A. 2016 Supp. 21-5412(b)(1), -5415(a)(1); K.S.A. 22-3420(3), 60-261, -2105

Tags:  Attorney Discipline  order of reinstatement 

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September 22, 2017 Digests

Posted By Patti Van Slyke, Monday, September 25, 2017

Court of Appeals

Civil
MUNICIPALITY—ORDINANCES
HUFFMAN V. CITY OF MAIZE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,500—SEPTEMBER 22, 2017

FACTS: In 2014, the City of Maize passed an ordinance addressing certain issues found in mobile home parks. Huffman filed a petition for declaratory judgment and injunctive relief against the city, claiming that the ordinance exceeded the city's police powers and violated his constitutional rights to due process. The district court granted the city's motion for summary judgment and this appeal followed.

ISSUES: Constitutionality of the city's ordinance

HELD: The court's standard of review requires that it search for ways to uphold the ordinance as constitutional. Municipalities have police powers and the Home Rule Amendment gives municipalities broad powers to adopt ordinances on any subject not addressed by the state legislature. The subjects addressed by the disputed ordinance fall well within the city's police powers, as the ordinance was enacted to serve the health, safety and welfare of the residents of the mobile home park. There is no equal protection violation, and the district court made adequate findings of fact and conclusions of law.

STATUTES: Kansas Constitution, article 12, § 5; K.S.A. 2016 Supp. 60-252(a)(1), -256(c)(2)

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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 – REVERSED
COURT OF APPEALS – 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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