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February 19, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

ADMINISTRATIVE LAW; AGENCY; APPEAL AND ERROR; JURISDICTION; STATUTES
PATRICIA NORRIS V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
SHAWNEE DISTRICT COURT – JUDGMENT OF THE COURT OF APPEALS REVERSING THE DISTRICT COURT IS AFFIRMED; JUDGMENT OF THE DISTRICT COURT IS REVERSED
No. 109,428 – FEBRUARY 19, 2016

FACTS: Norris quit her job in August 2011, and a Kansas Department of Labor examiner denied her claim for unemployment benefits. The Kansas Employment Security Board of Review (Board) affirmed that denial and denied Norris' motion for reconsideration. Norris filed a petition for judicial review in district court 36 days after the Board mailed its decision affirming the denial of benefits. The petition for judicial review was filed beyond the 16 days allowed by K.S.A. 44-701 and by the Kansas Judicial Review Act (KJRA). For that reason, the district court dismissed the petition for judicial review. A panel of the Court of Appeals reversed that dismissal, finding that the time for filing a petition for judicial review had been extended by the motion for reconsideration. The Kansas Supreme Court accepted the case on a petition for review in order to clarify the time limits applicable to administrative appeals.

ISSUE: Whether the filing of a motion for reconsideration extends the time in which to file a petition for judicial review of an administrative ruling

HELD: Judicial review of a Board decision is governed by the KJRA. There is nothing in K.S.A. 2012 Supp. 44-709(i) which either authorizes or forbids the filing of a motion for reconsideration. But the KJRA "explicitly contemplates" that a motion for reconsideration may be filed prior to a petition for judicial review. At the time Norris filed her claim the Board's statutes incorporated the KJRA. For that reason, Norris' motion for reconsideration extended the time in which to file a petition for judicial review. Although there were subsequent statutory amendments that now bar the filing of a motion for reconsideration, those amendments do not apply retroactively to bar Norris' claim.

STATUTES: K.S.A. 2013 Supp. 44-709(i); K.S.A. 2010 Supp. 44-709; K.S.A. 44-701; K.S.A. 44-709; K.S.A. 77-601; K.S.A. 77-613

Kansas Court of Appeals – Civil

ATTORNEY FEES; DIVORCE; STATUTUES
IN THE MATTER OF THE MARRIAGE OF JOANN WILLIANS AND ALFONZA WILLIAMS
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 113,103 – FEBRUARY 19, 2016

FACTS: Joann and Alfonza were divorced in 1994. At the trial, without objection from Alfonza, the district court awarded Joann 25 percent of Alfonza's Army retirement benefits, with the expectation that Alfonza would retire in 1995. Nineteen years later, when Joann attempted to enforce that portion of the decree, Alfonza filed a motion to set aside that ruling, arguing that the district court lacked jurisdiction to make that award because he never consented to jurisdiction under 10 U.S.C. § 1408(c)(40(C). Alternatively, he asked that the district court revisit the retirement benefits award because he retired 18 years later than contemplated in the decree. The district court rejected Alfonza's jurisdictional argument, but ordered that the division should be recalculated to reflect the anticipated retirement date of 1995 rather than the actual retirement date of 2013. The district court also awarded attorney fees to Joann.

ISSUES: (1) Whether the district court had jurisdiction to divide military retirement benefits; (2) Whether attorney fees are properly awarded when the underlying claim is for garnishment

HELD: The phrase "consent to the jurisdiction of the court" refers to personal, not subject matter, jurisdiction. When examining personal jurisdiction, Kansas rejects the strict categories of "express" or "implied" consent. In this case, where the district court made the property division during the initial divorce proceeding, Alfonza could have objected to the district court's jurisdiction but did not. His failure to object or to appeal the decree amounts to a consent to jurisdiction. Although the word was used in her pro se pleading, Joann was not attempting to garnish, but was instead seeking to enforce the divorce decree. Because the actual issue was not a request for garnishment, the district court properly awarded attorney fees.

STATUTES: 10 U.S.C. § 1408 (2012); K.S.A. 2015 Supp. 23-2715; K.S.A. 23-201(b)

Kansas Court of Appeals – Civil

PARENTAL RIGHTS; STATUTES
IN THE INTEREST OF S.R.C.-Q., DOB 2012, FEMALE
MITCHELL DISTRICT COURT – AFFIRMED
NO. 113,483 – FEBRUARY 19, 2016

FACTS: S.R.C.-Q.'s mother resides in Wisconsin while the father is in Kansas. Although it was agreed that Wisconsin was the child's home state, it was declared an inconvenient forum, resulting in Wisconsin releasing jurisdiction to Kansas. Kansas ordered an expedited placement decision from Wisconsin under the Interstate Compact on Placement of Children (ICPC). After failing to receive necessary information from Wisconsin, and after a request from the mother, a district magistrate judge determined that the ICPC does not apply when an out-of-state placement is with the child's parent. The district magistrate judge terminated the Kansas Department for Children and Families' (DCF) custody of S.R.C.-Q. and placed the child in Wisconsin with the mother, with the father having visitation every two weeks for two-week periods. Father appealed the decision that the ICPC did not apply and further contended that the visitation schedule was an abuse of discretion.

ISSUES: (1) Whether the ICPC applies when the out-of-state placement is with a parent and (2) Whether a two-week visitation schedule is an abuse of discretion

HELD: Application of the ICPC in this context is an issue of first impression in Kansas appellate courts. The ICPC explicitly applies to out-of-state placements of children with foster parents or prior to adoption, but it does not explicitly apply to out-of-state placements of children with a parent. After reviewing case law from other jurisdictions, the panel concluded that the lack of explicit statutory language regarding out-of-state placements with parents bars application of the ICPC to placement with an out-of-state parent. After reviewing the facts of the case, the panel was unwilling to find that the district court's placement of the child with Mother was an abuse of discretion. Any challenge to the visitation schedule was moot because the child in need of care proceedings were terminated and the matter was being reviewed by the district court in a paternity action.

STATUTES: K.S.A. 38-1201; K.S.A. 38-1202; K.S.A. 38-2201

Kansas Court of Appeals – Criminal

CRIMES AND PUNISHMENTS
STATE V. DAWS
WYANDOTTE DISTRICT COURT – REVERSED; COURT OF APPEALS – REVERSED
NO. 108716 – FEBRUARY 16, 2016

FACTS: Homeowner returned to house and found Daws inside. Jury convicted Daws as charged of aggravated burglary for unlawfully entering a dwelling with a human being present, with intent to commit theft therein. Daws appealed, arguing in part that there was insufficient evidence of aggravated burglary because victim was not present upon Daws’ entry into the dwelling. Court of Appeals affirmed in unpublished opinion, based on existing caselaw that victim does not have to be in the dwelling at the time the defendant enters, so long as the victim arrives before defendant leaves. Review of this issue granted.

ISSUE: Aggravated burglary

HELD: Aggravated burglary requires presence of human being in dwelling, but crime can be committed either by “entering into” or “remaining within” the structure. Notes to PIK Crim. 4th 58.130 fail to distinguish between these two means. When a defendant is charged only with entering into means of committing aggravated burglary, the human being must be present at time of entry. Contrary holdings in State v. Reed, 8 Kan.App.2d 615, rev. denied 234 Kan. 1077 (1983) and progeny are overruled. Under aggravated burglary statute and facts in this case, State should have charged Daws with “remaining within” dwelling means of committing aggravated burglary. Daws’ conviction on the charged offense is reversed.

DISSENT (Luckert, J., joined by Rosen and Stegall, JJ.): Disagrees with majority’s decision to overrule Reed and progeny, and disagrees that insufficient evidence supports the aggravated burglary conviction. Does not believe legislature intended to create two alternative “means” of committing burglary by describing two factual circumstances that amount to burglary. Reads statute as allowing crime to be proven by establishing concurrence of all elements and attendant circumstances at some point in time while burglar remains within structure without authority. Statutory and common law history of burglary and aggravated burglary is reviewed. District court’s failure to instruct jury on lesser included offense of burglary was harmless in this case.

STATUTES: K.S.A. 2015 Supp. 21-5103(a), -5107(f), -5107(b)(1), -5807, -5807(a), -5807(b), 22-3414(3); K.S.A. 60-2101(b)

Kansas Supreme Court – Criminal

CRIMES AND PUNISHMENTS – CRIMINAL PROCEDURE – DOUBLE JEOPARDY
STATE V. BARLOW
SEWARD DISTRICT COURT – AFFIRMED; COURT OF APPEALS – REVERSED
NO. 108830 – FEBRUARY 19, 2016

FACTS: State charged Barlow with attempted second-degree murder and aggravated assault. Barlow did not assert Stand-Your-Ground immunity before trial, but jury was instructed on defense theory that Barlow used gun in defense of another, in this case to stop what Barlow believed to be the rape of an unconscious person. Jury convicted Barlow of attempted second-degree murder and one count of aggravated assault. Prior to sentencing, district court judge entered order finding Barlow qualified for K.S.A. 2014 Supp. 21-5231 immunity from prosecution on the second-degree murder charge, vacated that conviction and dismissed that count, and proceeded to sentencing on the aggravated assault conviction. State appealed from an arrest of judgment, K.S.A. 22-3602(b)(2), and on question reserved, K.S.A. 22-3602(b)(3). Court of appeals reversed in unpublished opinion, reinstating the second-degree murder conviction by relying on statement in State v. Jones, 298 Kan. 324 (2013), that a criminal defendant must assert Stand-Your-Ground immunity before trial opens or dispositive plea is entered. Panel also determined it had appellate jurisdiction under K.S.A. 2012 Supp. 22-3602(b)(1), allowing a State appeal from an order dismissing a complaint, information or indictment. Barlow’s petition for review granted.

ISSUES: (1) Judgment of acquittal, (2) Question reserved

HELD: State’s argument that district court’s order was mere arrest of judgment is not supported by the record. Instead, the order underlying this appeal was a judgment of acquittal where jeopardy had clearly attached, and district judge’s ruling that Barlow’s version of events was true by a preponderance of the evidence qualified as a resolution of factual elements of the charged offense. Court of appeals lacked jurisdiction to reinstate Barlow’s conviction. Also, because State did not select jurisdiction under K.S.A. 22-3602(b)(1), this was not an available option to support appellate jurisdiction in this case.

Question reserved is interpreted as: “May a district judge sua sponte grant Stand-Your-Ground immunity to a criminal defendant after a jury has returned a guilty verdict but before sentence on the conviction has been pronounced.” The answer is yes. Jones and State v. Ultreras, 296 Kan. 828 (2013), are compared and distinguished from this case. Any error in district judge’s timing, or application of wrong standard of proof, does not support an appellate court’s reinstatement of Barlow’s second-degree murder conviction. Court also notes that when a Stand-Your-Ground immunity issue arises pretrial, the State should be provided an opportunity to meet its enhanced probable cause burden via an evidentiary hearing.

STATUTES: K.S.A. 2014 Supp. 21-5108(c), -5231, 22-3502, -3602(b)(1), -3602(b)(2), -3602(b)(3); K.S.A. 2012 Supp. 22-3602(b)(1); K.S.A. 21-3219, -3219(a), -3502, -3602(b)(2), -3602(b)(3)

Kansas Supreme Court – Civil

DUE PROCESS – INVOLUNTARY COMMITMENT
IN RE CARE AND TREATMENT OF SYKES
WYANDOTTE DISTRICT COURT – AFFIRMED; COURT OF APPEALS – AFFIRMED
NO. 108856 – FEBRUARY 19, 2016

FACTS: Prior to expiration of 1987 sentence for burglary and aggravated sexual battery, State filed petition to have Sykes adjudicated under the Kansas Sexually Violent Predator Act (SVPA). Wyandotte District Court ordered evaluation at Larned State Hospital under K.S.A. 22-3303, which determined Sykes was not competent to stand trial and involuntary civil commitment proceedings should commence. Pawnee District Court dismissed involuntary civil commitment proceedings, holding K.S.A. 22-3301 et seq. applied only to criminal defendants subject to sexually violent predator proceedings, not to respondents in proceedings for civil commitments in other proceedings. Following further competency evaluations, Wyandotte District Court held Sykes not competent to stand trial in a criminal proceeding, but as matter of first impression, held incompetence to answer a civil complaint was legally distinct from competence in criminal context. Matter proceeded to trial, with district court committing Sykes to be committed as a sexually violent predator. Court of appeals affirmed. 49 Kan.App.2d 859 (2014). Review granted on single issue of whether due process requires a respondent be competent to understand the nature of a sexually violent predator commitment proceeding and be able to assist counsel in such a proceeding.

ISSUE: Due process and Kansas Sexually Violent Predator Act

HELD: Based on challenge in this case, the SVPA complies with constitutional requirements for substantive and procedural due process. A respondent does not have to be mentally competent to assist in his or her own defense in order to be civilly adjudicated a sexually violent predator under SVPA.

CONCURRENCE (Johnson, J.): Compelled by holdings in U.S. and Kansas Supreme Courts to concur with majority’s result, but writes separately to opine the result reached here is a much closer call than majority suggests, and that this case stretches due process near, if not past, its breaking point. Comparing SVPA and Care and Treatment Act for Mentally Ill Persons (CTA), K.S.A. 29-59-2945 et seq., a sexually violent predator is not automatically a member of a subset of mentally ill persons subject to involuntary commitment, and treatment regimen in SVPA would not provide care and treatment required under CTA. These distinctions could provide basis for treating procedures under each act differently.

STATUTES: K.S.A. 2014 Supp. 22-3208(4), -3302, 59-29a02(a), -29a02(b), -29a07(a), -2946(e), -2946(f)(1), -2946(f)(2); K.S.A. 22-3301 et seq., -3303, 59-29a01 et seq., -29a07(g), -2945 et seq., 60-2102(c)

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