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March 17, 2017, Appellate Court Digests
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Kansas Supreme Court – Civil

Appellate Procedure–Judicial Review–Utilities
Sierra Club v. Mosier
Appeal From Kansas Department Of Health And Environment Court – Affirmed
No. 112,008 – March 17, 2017
FACTS:

This appeal involved the issuance of a permit to build a coal-fired electric generating unit near Holcomb. A previous appeal sent the case back to the Kansas Department of Health and Environment for further fact finding. Instead of starting the permitting process from scratch, KDHE issued an Addendum to the initial permit. Sierra Club contends not only that an entirely new permitting process was required but also that KDHE failed to incorporate certain regulations. After a public comment period, KDHE produced the Addendum to the earlier permit. Sierra Club alleges several points of error related to the Addendum and underlying permit.

ISSUES: (1) Was KDHE allowed to issue an addendum or did the remand trigger an entirely new permitting process, (2) Whether KDHE erred in setting 1-hour emission limits, (3) Whether the Addendum appropriately addressed emission limits, (4) Whether the court can consider new source performance standards
HELD:

This appeal was governed by the Kansas Judicial Review Act. Under federal and Kansas law, a permit must contain limitations on greenhouse gas emissions based on the application of the best available control technology only if that permit was issued after January 2, 2011. Because this permit was issued before the effective date of the regulations, KDHE was not required to add limits when issuing the Addendum. Because Sierra Club failed to challenge a stay in prior administrative proceedings, it cannot raise that issue on appeal, and the prior Kansas Supreme Court decision does not mandate a new permitting process. Instead, the scope of the remand proceedings was explicitly left to KDHE's discretion. The permit Addendum incorporated specific 1-hour emission limitations and KDHE claimed that the plant will not cause or contribute to violations of 1-hour emission standards. There was no evidence that KDHE's public comment period violated any applicable law and KDHE clearly considered all relevant data. Sierra Club's argument about the legality of KDHE's approach here was not adequately preserved for review. Sierra Club's arguments about emission limits for hazardous air pollutants involved a moot question under existing law. Sierra Club did not raise the issue of new source performance standards until its reply brief. Because new issues cannot be raised in a reply brief, the court would not consider the argument.

CONCURRENCE (Hornbaker, J.):

Because Sierra Club failed to raise issues in the proper way, the court could not consider certain substantive arguments. Were the court allowed to reach the merits of those issues, the outcome of the case might have been different.

STATUTES: 42 U.S.C. § 7412(b), -7412(d)(3), -7475(a)(2), -7475(e)(2) (2012); 42 U.S.C. § 7475(a)(3) (2006); 42 U.S.C. § 7412(h)(1); K.S.A. 2015 Supp. 20-3017, 65-3005(b)(1), -3008a, -3008b(d), 77-617, -621(a), -621(c), -621(d), -621(e); K.S.A. 77-607, -616(a)

Kansas Supreme Court – Civil

Appellate Procedure–Search And Seizure
State v. Sharp
Johnson District Court – Reversed
Court of Appeals – Affirmed in part and vacated in part
No. 110,845 – March 17, 2017
FACTS:

An officer saw Sharp revving his tires while stopped for a red light. Although Sharp did not accelerate out of the intersection at an excessive rate of speed, the officer followed him and initiated a traffic stop. During the stop, the officer noticed that Sharp exhibited signs of impairment. A preliminary breath test showed that Sharp was over the legal alcohol limit. Sharp was charged with "exhibition of speed" and DUI. Sharp moved to suppress all evidence, alleging that the officer lacked reasonable suspicion to conduct the traffic stop. The motion was denied, with the district court reasoning that Sharp's display of tire revving was an announcement that Sharp intended to drag race. Sharp was convicted as charged after a bench trial. The Court of Appeals ruled that K.S.A. 8-1565, the "exhibition of speed" statute, was unconstitutionally vague. Alternatively, the panel found that the officer lacked reasonable suspicion to conduct the traffic stop. The State's petition for review was accepted.

ISSUE: Was there reasonable suspicion for the officer to stop Sharp
HELD:

The statutory language "exhibition of speed or acceleration" denotes movement. There was no evidence that Sharp accelerated or moved his vehicle at the time the officer decided to initiate a stop. There was nothing to suggest that Sharp was committing or was about to commit a crime at the time that reasonable suspicion would have been formed. Because there was no reasonable suspicion for a stop, the district court erred by denying Sharp's motion to suppress. The court needed not decide the constitutional issues raised by the Court of Appeals, and those findings were vacated.

DISSENT (Stegall, J.):

Evidence shows that Sharp altered his behavior because he saw the officer and wanted to avoid a citation. Reasonable suspicion cannot be lost if the suspect altered the suspicious behavior in order to avoid detection.

STATUTE: K.S.A. 8-1565

Kansas Court of Appeals – Civil

Statutory Construction–Tax Appeals
In re Tax Appeal of Reeve Cattle Co.
Court of Tax Appeals – Tax Appeals Court – Affirmed
No. 116,005 – March 17, 2017
FACTS:

Reeve Cattle owns several mixer-feeder trucks, which are used to mix feed ingredients and then haul the feed to cattle within the feedlot. The trucks are limited as to how quickly they can drive, and they are wider than technically allowed on a public roadway. In 2015, the county appraiser assessed a property tax penalty on Reeve Cattle for failing to pay taxes on its mixer-feeder trucks for the 2013 and 2014 tax years. Reeve Cattle paid the penalty under protest, claiming that the mixer-feeder trucks were exempt from taxation under the farm machinery and equipment exemption. Before BOTA, Reeve Cattle argued that the mixer-feeder trucks were not "trucks" but were rather "implements of husbandry." BOTA agreed, finding that the mixer-feeder trucks did not meet the definition of "truck." The county appealed.

ISSUE: Whether mixer-feeder trucks are exempt farm equipment or a vehicle subject to property taxation
HELD:

A mixer-feeder truck does not meet the statutory definition of truck. The vehicles are rarely driven off of the feedlot and do not carry more than 10 passengers. Because they are not trucks, BOTA correctly found that the property is exempt from taxation as farm machinery and equipment.

STATUTE: K.S.A. 2015 Supp. 8-126(l), -(p)(5), -126(dd), -126(ll), -126(nn), 77-621, 79-201j

Kansas Court of Appeals – Civil

Child Support–Divorce–Findings of Fact
In Re Marriage of Brin
Saline District Court – Affirmed
No. 114,746 – Published March 6, 2017
(Previously filed as an unpublished opinion on Oct. 21, 2016)
FACTS:

The Brins were divorced in August 2007. After a change in circumstances, the parties reached an agreement covering parenting time, child support, and the division of child-related expenses. Several years later, Kristina filed a motion to modify. She was satisfied with the parenting-time arrangement, but claimed Mark was not paying certain childcare expenses. She also asked the court to clarify which parent was responsible for certain expenses related to extracurricular activities. The district court increased Mark's child support obligation, declined to make a parenting time adjustment or to calculate support based on equal parenting time, and ordered the parties to share equally the school tuition. Kristina was ordered to pay the children's fees and expenses for extracurricular activities and other out-of-pocket expenses. Mark appealed.

ISSUE: Whether the district court was required to calculate child support based on a shared custody determination or grant him a parenting time adjustment
HELD:

When calculating parenting time, the district court properly considered that non-waking hours count as parenting time. Under this appropriate calculation, Mark only had the children for 30% of their non-school time. Mark's request for a cost adjustment was based on the amount of time he had with the children and not on added expenses that he actually incurred.

STATUTE: None

Kansas Court of Appeals – Civil

DUE PROCESS–HABEAS CORPUS–PRISONS
Norwood v. Roberts
Leavenworth District Court – Affirmed
No. 115,911 – March 17, 2017
FACTS:

Norwood was found guilty of a prison disciplinary offense after an officer reported that Norwood shoved a door into the officer. Norwood was allowed to question the officer during his disciplinary hearing. Norwood claims that his due process rights were violated because the evidence did not support the conviction and because he should have been present when the hearing officer watched a video of the incident.

ISSUES: (1) Whether some evidence supported the disciplinary conviction, (2) Whether due process required Norwood's presence when the videotape was viewed
HELD:

In a prison discipline context, due process is satisfied if some evidence supports the hearing officer's decision. The disciplinary report written by the officer provides that evidence. The court cannot weigh evidence or evaluate credibility. Due process did not require that Norwood be present when the videotape was played for the hearing officer. A regulation prohibits inmates from watching such videotapes, which correlates with the facility's interest in maintaining security.

STATUTE: K.S.A.2016 Supp. 60-1501

Kansas Court of Appeals – Criminal

SENTENCING–STATUTORY INTERPRETATION
State v. Powell
Sedgwick District Court – Sentence vacated, case remanded
No. 115,457 – March 17, 2017
FACTS:

Powell pled guilty to aggravated indecent liberties with a child under the age of 14. Before sentencing, Powell moved for a downward durational departure from the presumptive 25-year sentence, seeking a shorter prison term. After considering the evidence, the district court concluded there were no substantial and compelling reasons to depart from the hard 25 sentence. When imposing that sentence, the district court also ordered Powell to have no contact with the victim or with another witness who testified at the hearing. Powell appeals, arguing that the district court's denial of his departure motion was an abuse of discretion.

ISSUES: (1) Did substantial and compelling reasons warrant a departure sentence, (2) Did the imposition of a no-contact order combined with a hard 25 prison term render Powell's sentence illegal
HELD:

Sentencing courts must follow a two-step process when evaluating a defendant's motion for departure. The record on appeal in this case does not definitely disclose whether the district court properly considered Powell's claimed mitigating circumstances without weighing them against the State's aggravating circumstances. Because that analysis is missing, the case must be remanded for resentencing. A sentencing court may not impose a no-contact order in combination with a prison sentence. The State conceded the error. The no-contact order was vacated.

DISSENT (Malone, J.):

The district court properly considered all presented evidence and properly sentenced Powell in accordance with established procedure. The Kansas Supreme Court case which establishes the procedure – State v. Jolly – is difficult to apply.

STATUTES: K.S.A. 2016 Supp. 21-6604, -6627, -6627(a), -6627(d)(1); K.S.A. 22-3504
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