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April 9 and April 12, 2019 Digests

Posted By Administration, Monday, April 15, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF DISBARMENT
IN RE PATRICK GEORGE COPLEY
NO. 20,699—APRIL 9, 2019

FACTS: In a letter dated April 1, 2019, Patrick George Copley surrendered his license to practice law in Kansas. At the time of surrender, two disciplinary complaints were pending with the Disciplinary Administrator.

HELD: The Court accepts the surrender of Copley's license and orders that he be disbarred.

 

Civil

WORKERS COMPENSATION
ESTATE OF GRABER V. DILLON COMPANIES
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS AFFIRMED,
BOARD IS REVERSED, CASE REMANDED
NO. 113,412 – APRIL 12, 2019

FACTS: Graber was injured after he fell down some stairs while at work. Graber did not remember the accident, and there were no witnesses or any evidence to suggest how the accident happened. Graber applied for workers compensation benefits. An ALJ awarded him benefits, finding that the injury arose in and out of the course of his employment. Dillon appealed, claiming that because the cause of the accident was unknown, Graber's injuries arose from an idiopathic cause and were not compensable. The Board agreed with Dillon, holding that after 2011 amendments to the workers compensation statutes, idiopathic falls are not compensable. The Court of Appeals reversed, holding that "idiopathic" means something personal or innate to the claimant. The Supreme Court granted Dillon's petition for review.

ISSUES: (1) First impression question of the meaning of the term "idiopathic causes"

HELD: The legislative history does not address the "idiopathic causes" exclusion. "Idiopathic" means more than "spontaneous" or "unknown." Rather, it is connected with medical conditions and is not a synonym for all unknown causes. For that reason, the idiopathic exclusion is narrow. It applies only if there is proof that an injury or accident arose directly or indirectly from a medical condition or medical event of unknown origin which is peculiar to the claimant. The case must be remanded for further factfinding by the Board.

STATUTE: K.S.A. 2018 Supp. 44-501b(b), -508(f), -508(f)(3)(A)(iii), -508(f)(3)(A)(iv), 77-621(a), -621(c), -621(d)

 

Kansas Court of Appeals

 

Civil

INSURANCE—WRITTEN INSTRUMENTS
SHORT V. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC.
SALINE DISTRICT COURT—AFFIRMED
NO. 118,688—APRIL 12, 2019

FACTS: Short was involved in an accident which required the amputation of both legs—one below the knee and one above the knee. Short requested that Blue Cross and Blue Shield of Kansas, Inc. provide coverage for multiple prosthetics. One of the requested prosthetics was an Ottobock X3 Microprocessor leg and knee. Blue Cross denied coverage, citing the insurance contract which excluded from coverage "deluxe or electrically operated" prosthetics. Blue Cross acknowledged that a prosthetic leg was medically necessary, and it offered to pay the price of a standard knee. Short believed that Blue Cross should pay for the Ottobock X3, and he sued for breach of contract. During discovery Short requested documents beyond the insurance contract in an attempt to delve in to the policy behind Blue Cross' denial. Blue Cross refused to provide them, on grounds that the case was a straightforward contract dispute. The district court agreed and refused to compel production of the documents requested by Short. The district court granted Blue Cross' motion for summary judgment, finding that the Ottobock X3 was clearly excluded from coverage by the plain language of Short's insurance policy. Short appealed.

ISSUES: (1) Whether insurance policy is ambiguous; (2) listings of exclusions; (3) summary judgment review; (4) scope of discovery

HELD: There is no dispute that a prosthetic knee is medically necessary for Short. The insurance policy provides enough detail to support the district court's ruling that the policy is not ambiguous. The policy covers a nonelectric device that does what is absolutely necessary to treat the insured's condition. If the insured wants a device that does more, Blue Cross will pay for a standard device and the insured can pay the difference. Because the policy is unambiguous, there is no need to apply doctrines of construction. This insurance policy does not contravene public policy. It is undisputed that the Ottobock X3 is an electronically operated device, which is excluded by the plain language of Short's insurance policy. This case centers on application of a limitations clause, which involves questions of fact. For this reason, Short should have been given access to the documents he requested in discovery. The district court abused its discretion by failing to compel discovery. But the error was harmless.

DISSENT: (Atcheson, J.) There is some ambiguity in the insurance contract and there remain questions of fact. For that reason, summary judgment was inappropriate. This case should be remanded for further proceedings.

STATUTES: No statutes cited.

 

Criminal

EVIDENCE—SUPPRESSION—WELFARE CHECK
STATE V. MANWARREN
RENO DISTRICT COURT—AFFIRMED
NO. 119,520—APRIL 12, 2019

FACTS: After receiving a tip, officers found Manwarren lying in a ditch. When the officers arrived on the scene Manwarren rose to greet them. The officers began a welfare check and noted there was no indication of criminal activity, and Manwarren did not appear to be injured or intoxicated. Officers asked for and received Manwarren's photo ID. Instead of returning the card to Manwarren, officers ran a warrant check which returned a warrant for failure-to-appear. After confirming the warrant, Manwarren was arrested. After he was handcuffed, Manwarren answered officers' questions by admitting that he had drugs and scales in his backpack. Manwarren was charged with various crimes relating to this drug possession. Prior to trial, he filed a motion to suppress in which he claimed that the police impermissibly converted a welfare check to an investigatory detention without having reasonable suspicion of criminal activity. The district court agreed, finding that running a warrant check was beyond the scope of a welfare check where there was no reasonable suspicion of criminal activity. The State appealed.

ISSUES: (1) Voluntariness of the encounter; (2) application of the attenuation doctrine

HELD: The encounter between police and Manwarren began as a welfare check. But once the officer obtained and then kept Manwarren's identification card, the encounter turned into a seizure. In the absence of any evidence of criminal activity, the warrant check went beyond the scope of a welfare check and evolved into an illegal detention.  Very little time elapsed between the illegal seizure of Manwarren and the discovery of the drugs in his backpack. Police officers were polite and courteous and did not appear to know they were violating Manwarren's rights. But running a warrant check as part of a welfare check is not a good-faith mistake. It is misconduct and should be punished by excluding the evidence discovered.

STATUTES: No statutes cited.

 

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April 5, 2019 Digest

Posted By Administration, Monday, April 8, 2019

Kansas Court of Appeals

 

CIVIL

 

CHILD CUSTODY
IN RE MARRIAGE OF BAHLMANN
RILEY DISTRICT COURT—AFFIRMED
NO. 120,019—APRIL 5, 2019

FACTS: When Rebecca Bahlmann filed for divorce, she received ex-parte temporary orders for custody and parenting time. After an extensive hearing, the district court adopted Rebecca's parenting plan. Bruce later filed several motions including the one at issue here—a motion to modify child custody in which he claimed that Rebecca had become physically and emotionally abusive to the children. Rebecca moved to dismiss these motions, denying any material change in circumstances. The parties filed a joint motion for mediation, and Bruce's attorney filed a motion for hearing on that motion. Rebecca appeared at the hearing with counsel and Bruce appeared only through counsel. At the hearing, the district court addressed Bruce's motion to modify and Rebecca's motion to dismiss that motion. Finding that Bruce's motion lacked specificity, the district court granted Rebecca's motion to dismiss the motion to modify. Bruce appealed.

ISSUES: (1) Standard to evaluate motion to dismiss; (2) merits of Bruce's motion to modify; (3) notice requirement

HELD: The district court had a good reason to not assume the truth of Bruce's factual allegations. Unlike a regular civil case, a motion to modify child support is different and the district court has the benefit of much more information. A child custody decree is res judicata with respect to facts existing at the time of the decree. A change is made only if there is a material change in circumstances. K.S.A. 2018 Supp. 23-3219(a) requires that allegations must be made with specificity, and that the moving party must file a verification or accompanying affidavit. Bruce's motion was not accompanied by an affidavit, although it purports to be a verified motion. Because there was never an agreed parenting plan between Rebecca and Bruce, he had the burden to show a material change of circumstances. The claims that Bruce put forward were not verified factual assertions and they lacked specificity as to time and place. If neither party requests oral argument, a district court may either set the matter for hearing or rule on the motion without a hearing. After Bruce and Rebecca filed their motions, the district court waited the requisite seven-day response time. Although ruling on the motion at a hearing that was ostensibly being held to consider the parties' motion for mediation is not ideal, it is also not error.

STATUTES: K.S.A. 2018 Supp. 23-3218, -3218(a), -3219(a), 60-206(c)(1), -207(a); K.S.A. 53-502(c)

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March 29, 2019 Digests

Posted By Administrator, Monday, April 1, 2019

Kansas Supreme Court

CIVIL

CONTRACTS—EMPLOYMENT
PETERS V. DESERET CATTLE FEEDERS, LLC
HASKELL DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 113,563—MARCH 29, 2019

FACTS: Peters supervised a cattle feedlot. He started the job in 2006, working for Hitch Enterprises as an employee-at-will. Hitch sold the business to Deseret Cattle Feeders in 2010. When the sale was announced, employees were told that there would be no layoffs and that employees would be retained by Deseret as long as they did their jobs. This message was reinforced by Deseret after it took control of the operation. Peters continued to work in his existing position. He signed several contracts with Deseret but none that specified that he was working as an employee-at-will. Peters was terminated in 2011 because of a reduction in Deseret's workforce—there was no evidence of misconduct or poor job performance. Peters filed suit claiming breach of an employment contract. The district court granted Deseret's motion for summary judgment, finding there was no evidence of an implied-in-fact employment contract. The court of appeals reversed, finding that disputed facts precluded summary judgment. The Supreme Court granted Deseret's petition for review.

ISSUES: (1) Existence of implied-in-fact employment contract; (2) promissory estoppel claim

HELD: Parties can become contractually obligated by conduct or words. An implied contract must be mutual and cannot be created solely by an employee's subjective understanding of employment terms. The parties' intent is a fact question for a jury. The comments made by Deseret when it purchased Hitch create a jury question about whether an implied-in-fact contract existed. For that reason, summary judgment was inappropriate and the court of appeals correctly reversed the district court. A question remains about whether Peters' employment with Deseret was at-will or through an implied-in-fact contract. Any estoppel issue must be addressed on remand.

STATUTE: K.S.A. 60-256

HABEAS CORPUS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF EASTERBERG
ORIGINAL PROCEEDING—REMANDED TO THE DISTRICT COURT
NO. 117,933—MARCH 29, 2019

FACTS: Easterberg was charged with rape and aggravated criminal sodomy in 2007. But he pled guilty to other offenses, and the sex crime charges were dismissed under the plea agreement. The journal entry of sentencing did not reflect that Easterberg's crimes were sexually motivated. Prior to Easterberg's release from prison, the Department of Corrections provided notice that Easterberg might meet the criteria of a sexually violent predator under the Kansas Sexually Violent Predator Act. The attorney general filed a petition seeking to have Easterberg civilly committed. Easterberg challenged the motion, claiming he did not fit the statutory criteria for a sexually violent predator. The district court disagreed, and Easterberg filed this original action in habeas corpus with the Kansas Supreme Court.

ISSUES: (1) Original jurisdiction; (2) eligibility for civil commitment

HELD: The State's argument that the court lacks jurisdiction because it could not have heard the case in 1859—at the adoption of statehood—is rejected. The state constitution allows the court to hear original actions and Supreme Court Rule 9.01 provides details on how parties should proceed. If Easterberg is truly not subject to the KSVPA, any proceeding under that Act is illegal. Merely being charged with a sexually violent offense is insufficient to trigger involuntary commitment under the KSVPA. The district court found at sentencing that Easterberg's crime was not sexually motivated. But there is no evidence about whether that was truly the case, or whether there was little incentive to make such factual findings because of Easterberg's guilty plea. For this reason, the case must be remanded for a determination as to whether Easterberg's sexual motivation was litigated in the criminal case. If it was, the State is estopped from arguing to the contrary in this proceeding, and Easterberg is ineligible for civil commitment. If it was not, the KSVPA proceeding may continue.

CONCURRENCT AND DISSENT: (Johnson, J., joined by Luckert, J., and Malone, S.J.) The journal entry of sentencing is clear. There is no need to remand this case for more factfinding; the court should rely on the district court's prior finding that Easterberg's crime was not sexually motivated.

DISSENT: (Stegall, J.) Original actions in habeas corpus cannot take the place of appeals. Easterberg had remedies available in district court and should have used them. But since the court took jurisdiction, remand is the appropriate next step.

STATUTES: Kan. Const. art. 3, § 3; K.S.A. 2017 Supp. 59-29a02(a), -29a02(c), -29a02(d), -29a02(e), -29a02(e)(1), -29a02(e)(5), -29a02(e)(13), -29a03(a), -29a03(h), -29a04(a), -29a05(a), -29a06(a), -29a07(g), -29a20

 

CRIMINAL 

appellate procedure—criminal procedure—motions
state v. phillips
sedgwick district court—affirmed
no. 115,431—march 29, 2019

FACTS: Phillips was convicted of offenses including first-degree felony murder. The Supreme Court affirmed the convictions and prison terms, but vacated district court’s order of post-release supervision for life. State v. Phillips, 295 Kan. 929 (2012). Mandate issued in February 2013, with no order of remand. In August 2014 hearing, district court set aside the post-release supervision order. In March 2015, Phillips filed motion for a new trial  based on newly discovered evidence. District court denied the motion as time barred because it was filed more than two years after the February 2013 mandate. Phillips appealed, arguing the final judgment date for starting the statutory two-year period was in August 2014 when the district court conducted the “remand hearing.” 

ISSUE: (1) Motion for a new trial—date of mandate

HELD:  A district court’s judgment becomes final the date the mandate is issued, except in cases where remand instructions are given and further proceedings are necessary. In this case, the February 2013 mandate was fully determinative of the issues and therefore rendered the judgment final. District court correctly found Phillips’ motion was untimely filed.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3), -3601(b)(4); K.S.A. 2016 Supp. 22-3501; K.S.A. 22-3501, -3501(1), 60-1507, -2106(c)

 

appeals—appellate procedure—criminal procedure—motions—sentencing
state v. salary
wyandotte district court—affirmed
no. 116,406—march 29, 2019

FACTS: Salary was convicted of first-degree premeditated murder and arson. A hard 50 life sentence was imposed for the murder conviction. The Supreme Court affirmed the convictions but vacated the hard 50 and remanded for resentencing. State v. Salary, 301 Kan.586 (2015).  On remand, State chose to seek a hard 25 life sentence which a judge could constitutionally impose without a jury. At resentencing, the district court imposed the hard 25 sentence and denied Salary’s various pro se motions and letters, finding Salary was arguing issues that were raised or should have been raised in his direct appeal. Salary appealed claiming: (1) district judge erred in denying the motion to dismiss that Salary filed between his first appeal and his resentencing; (2) ineffective assistance of trial and appellate counsel; (3) district judge erred in denying Salary’s request for exculpatory evidence; and (4) district judge was biased and denied Salary right of allocution at resentencing hearing by not allowing him to present evidence of innocence.  

ISSUES: (1) Motion to dismiss, (2) ineffective assistance of counsel, (3) request for exculpatory evidence, (4) allocution

HELD:  Record in this case is reviewed under doctrine of res judicata, finding the district court did not err in denying Salary’s motion to dismiss at the resentencing hearing.

            Salary failed to argue below that trial counsel’s performance was deficient regarding the admission at trial of photographs of the deceased, and the record had insufficient information to analyze this issue for first time on appeal. Salary’s claim of ineffective assistance by appellate counsel is rejected.

              Reviewing the record, it is not clear what exculpatory evidence Salary seeks that he does not already have. Salary failed to provide record citations or supporting authority for this claim, or explain why the issue is properly before the court. The Issue is deemed waived or abandoned for noncompliance with court rules. 

            On remand, the hard 25 was the only available sentence once the State decided not to seek the hard 50, making any allocution error harmless.

STATUTES: K.S.A. 2018 Supp. 22-3424(e), -3424(e)(4), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 22-3212; K.S.A. 2013 Supp. 22-3424(e)(4); K.S.A. 21-4636(f), 60-1507

 

Kansas Court of Appeals

CIVIL

ATTORNEY FEES—SOVEREIGN IMMUNITY
STATE EX REL. SCHMIDT V. NYE
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 118,666— MARCH 29, 2019

 FACTS: Nye obtained KBA files relating to the 1959 murder of the Clutter family. The State filed an ex parte petition asking the district court to temporarily and then permanently enjoin Nye from the sale, publication, replication, or distribution of any of the materials. The district court issued an ex parte temporary restraining order and then, after a hearing, a preliminary injunction. After several rounds of motions and hearings, the district court dissolved the preliminary injunction after finding that it should never have been granted. Nye then filed a motion for attorney fees which was granted in an amount in excess of $150,000. The State appealed.

ISSUES: (1) Sovereign immunity; (2) injunction-bond rule; (3) reasonableness of attorney fees awarded; (4) award of appellate fees and costs

HELD: Sovereign immunity is jurisdictional. K.S.A. 60-905(b) addresses the State's liability for attorney fees if a temporary injunction is found to have been improvidently granted. In addition, case law provides that waiver can be premised on litigation conduct. The State's liability exists even though it was not statutorily required to post a bond at the time the temporary injunction was granted. Under K.S.A. 60-905(b), recovery is limited to fees actually and proximately resulting from the effect of the temporary injunction itself. The attorney fees ordered by the district court were reasonable under the circumstances. This appeal exists because the State challenged the district court's attorney fee award, which makes an award of appellate fees and costs permissible. Appellate fees and costs are awarded. But the amount billed by counsel was excessive, and the award is for a lower amount.

STATUTE: K.S.A. 60-905(b)

 

Tags:  Author: Patti Van Slyke 

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No New Decisions Published on Friday, March 22

Posted By Administration, Monday, March 25, 2019
The appellate courts did not issue any new published opinions on March 22, 2019. Therefore, there are no new digests for this date.

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March 15, 2019 Digests

Posted By Administration, Monday, March 18, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF PROBATION
IN THE MATTER OF SAM S. KEPFIELD
NOS. 112,897 AND 119,709 – MARCH 15, 2019

FACTS: Kepfield has a previous history of discipline; he received a three-year suspension which was suspended while Kepfield was placed on supervised probation. A new disciplinary complaint was filed in 2018 alleging violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.15(a) (safekeeping property); 1.16(d) (terminating representation); and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). After hearing evidence, the panel concluded that Kepfield did not violate KRPC 1.1 or 1.4. Kepfield stipulated to the other violations and the panel found evidence in support. The violations arose after Kepfield failed to file a petition for review on behalf of a client. Issues also arose after it was discovered that not only did Kepfield did not have an attorney trust account, he lied to investigators about that fact when asked.

HEARING PANEL: The panel not only found that Kepfield committed new violations but also that he violated the terms of his probation. The hearing panel considered the violations, the aggravating factors (dishonest or selfish motive, multiple offenses, and bad faith obstruction of the disciplinary process), and the mitigating factors (Kepfield's mental health, his cooperation in some aspects of the investigation, and his good character and reputation). The disciplinary administrator asked that Kepfield be disbarred. Kepfield asked that his probation be extended. The hearing panel recommended a three-year suspension with a probationary term entered after Kepfield serves 6 months of that suspension.

HELD: With no exceptions taken, the hearing panel's final report is deemed admitted. After hearing arguments, a majority of the court granted the motion to revoke probation and ordered the one-year suspension reinstated. After Kepfield serves this one-year suspension, the court recommended that Kepfield be suspended from practice for three years, with a three-year probation plan implemented after six months. A minority of the court agreed with the disciplinary administrator and would have imposed discipline of an indefinite suspension.

DISCHARGE FROM PROBATION
IN THE MATTER OF STEPHEN M. STARK
NO. 114,583 – MARCH 15, 2019

FACTS: In June 2016, the Kansas Supreme Court suspended Stark for two years, with the suspension stayed and Stark ordered to serve a two-year term of probation. Stark filed a motion for discharge from probation in February 2019.

DISCIPLINARY ADMINISTRATOR: The disciplinary administrator confirmed that Stark fully complied with the conditions of his probation. There was no objection to Stark's release from probation.

HELD: In the absence of any objection, the motion is granted. Stark is discharged from probation and this proceeding is closed.

Civil

STATUTE OF LIMITATIONS
DAWSON V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT – AFFIRMED
COURT OF APPEALS – REVERSED
NO. 112,925 – MARCH 15, 2019

FACTS: Dawson was diagnosed with arthritis in his back in 2004 and degenerative disc disease in 2008. Dawson was a train engineer, and after several rough rides his pain intensified. While seeking treatment in 2010, a doctor mentioned that he treated several railroad employees. Dawson claimed this was the first time he realized that his work duties could have caused his back pain. After a spinal fusion surgery Dawson was unable to continue to perform his job duties. In 2011 Dawson sued BNSF, his employer, under the Federal Employers' Liability Act alleging that negligence caused his back injuries. Although BNSF argued that Dawson's claims were time barred, the case went before a jury, which found in Dawson's favor. BNSF appealed and the Court of Appeals ruled that the district court erred when it ruled that Dawson's claims were timely. Dawson's petition for review was granted.

ISSUES: (1) Disregard of Dawson's factual assertions; (2) timeliness of Dawson's cumulative injury

HELD: Although Dawson failed to comply with Supreme Court Rule 6.02(a)(4) by providing pinpoint citations to the record on appeal, it was error to disregard the factual assertions supported by the record. Dawson properly requested all necessary materials but the Clerk of the District Court failed to compile an accurate record. Other pleadings that are in the record on appeal support Dawson's factual claims. Generally, a cause of action accrues when an injury occurs. With cumulative injuries, time begins to run when the injured person discovers or should have discovered the existence and cause of the injury. Dawson presented some evidence that he did not know about the cause of his injury until he was within three years before filing his claim. Because there was a factual dispute, the matter was properly sent to the jury. Dawson's cumulative injury claim was timely filed. The case must be remanded back to the Court of Appeals for consideration of Dawson's other claims.

STATUTES: 45 U.S.C. § 51, § 56 (2012); K.S.A. 2011 Supp. 60-250(a), -250(b), -259

DEATH OF A PARTY—DIVORCE—JUDGMENT
IN RE MARRIAGE OF TOWLE AND LEGARE
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,021 – MARCH 15, 2019

 FACTS: Dana and Louise were married in the late 1980s. Dana filed a petition for separate maintenance in 2015. The parties agreed to a temporary order which allowed the couple to live separately and ordered Dana to pay Louise's living expenses. While the process of working through the couple's assets was occurring, Louise was diagnosed with terminal lung cancer. The parties reached an agreement on property division and spousal support. The district court approved the agreement and filled out a docket sheet so that the parties could later attach a journal entry and get it filed. Unfortunately, Louise died before the journal entry was drafted and filed. Her counsel asked that her son, Mathieu, be substituted as a successor in interest. The district court granted that motion over Dana's objection. Mathieu's counsel continued to stall on preparing the journal entry, which was not complete until February 2018. Dana appealed.

ISSUES: (1) Whether death of party to a separate maintenance action required dismissal; (2) sufficiency of journal entry

HELD: A divorce action is purely personal and ends on the death of either spouse. A search of both common law and previous cases shows that a separate maintenance action is the same. It is personal and abates at the time of a party's death. The district court's docket sheet could not qualify as a judgment, as it is expressly excluded by statute. Although it was signed by the judge, the docket sheet was never filed. The district court is reversed and the separate maintenance action must be dismissed.

STATUTES: K.S.A. 2017 Supp. 60-2225(a), -258; K.S.A. 2016 Supp. 60-241(a), -258, -260(b); K.S.A. 60-1801

Kansas Court of Appeals

Civil

SCHOOLS—SCOPE OF REVIEW
B.O.A. V. U.S.D. 480 BOARD OF EDUCATION
SEWARD DISTRICT COURT—AFFIRMED
NO. 119,773 – MARCH 15, 2019
 

FACTS: An investigation revealed that B.O.A. threatened a school shooting on social media. B.O.A. explained that it was meant as a joke, and he apologized to the principal and the school district. The principal recommended a 186-day expulsion. B.O.A. requested and received a formal hearing. The hearing officer agreed with the principal and imposed a 186-day expulsion, the maximum allowed by statute. B.O.A. appealed. The superintendent acknowledged the gravity of B.O.A.'s mistake, but recommended a shorter expulsion. The Board of Education disagreed and expelled B.O.A. for 186 school days, beginning in January 2018. B.O.A. appealed to the district court, which found that the Board of Education's actions were arbitrary and capricious. The district court granted B.O.A. the relief he requested – limiting his expulsion to the spring of 2018. The Board appealed.

ISSUES: (1) Scope of permissible review

HELD: The record on appeal contains facts which support the district court's decision. There is evidence that B.O.A.'s social media post was a joke that went too far. He accepted responsibility and apologized. The Board offered no explanation as to why it imposed the maximum period of expulsion instead of following the superintendent's recommendation. The district court acted within its scope of review and is affirmed.

STATUTES: K.S.A. 60-2101(d), 72-6114(a) – (d), -6115(a)

appeals—criminal law—jurisdiction—juveniles—sentences—statutes
In re J.S.P.
wyandotte district court—dismissed
no. 118,790 — March 15, 2019

FACTS: J.S.P. entered no contest plea to charges for crimes occurring when he was 14 years old. In an extended juvenile jurisdiction proceeding (EJJP), district court imposed a juvenile sentence of 72 months with 24 months of conditional release, as well as adult sentence of 237 months to be served if J.S.P. failed to complete his juvenile sentence or comply with conditional release. Prior to expiration of the conditional release term, State filed motion to revoke the juvenile sentence and to impose the adult sentence. District court granted the motion, finding J.S.P. had violated conditions of his conditional release.  J.S.P. appealed, alleging denial of due process, insufficient evidence, and Eighth Amendment claims. State contended there was no statutory authority for the appeal. 

ISSUE: (1) Appellate Jurisdiction

HELD: The appeal is dismissed. Although juvenile offenders are entitled to similar constitutional protections as adults, they are not guaranteed the same statutory rights as adults unless specially provided for in the revised Juvenile Justice Code. Kansas statutes reviewed, finding none provide a juvenile offender with right to appeal an order revoking the juvenile sentence and ordering imposition of the stayed adult sentence in an EJJP.   

STATUTES: K.S.A. 2018 Supp. 38-2364, -2380, -2380(a), -2380(a)(1), -2380(b), -2380(b)(2)(A)-(B), -2382; K.S.A. 2015 Supp. 38-2364; K.S.A. 2014 Supp. 38-2380(b)

criminal

appeals—appellate procedure—criminal procedure—judgments— restitution—statutes
state v. dwyer
sedgwick district court—reversed
No. 118,940 — march 15, 2019

FACTS: Dwyer convicted of theft in 2003. Prison sentence with postrelease supervision imposed, and $8,450 in restitution ordered. In November 2017 he filed motion to release the restitution judgment. He argued the judgment went dormant after five years of inaction and was void and subject to release after no collection had been attempted for two additional years. Applying K.S.A. 60-2403 as amended in 2015 which reduced the collection period from ten to five years and provided that all restitution judgments not yet void were enforceable forever, district court found the judgment became void the minute the 2015 amendments went into effect and thus was not enforceable. District court granted Dwyer’s motion and released the restitution judgment. State appealed. Dwyer filed motion to dismiss the appeal arguing it was untimely filed within 14 days allowed in a criminal case, or within 30 days in a civil case. He also argued the appeal failed to satisfy any statutory circumstance for allowing an appeal in a criminal case, and failed to list the basis for jurisdiction in its notice of appeal.  

ISSUES: (1) Appellate Jurisdiction; (2) Statutory Interpretation—K.S.A. 2017 Supp. 60-2403

HELD: There is jurisdiction to hear the appeal. Proceedings regarding the collection of restitution judgments are civil in nature. Here, State filed timely notice of appeal within 30 days of the filing of the district court’s journal entry, and the notice of appeal satisfied all statutory requirements for filing an appeal in a civil case.

District court’s judgment is reversed. Under plain and unambiguous language of K.S.A. 2017 Supp. 60-2403, restitution judgments that were already void (or subject to mandatory release upon request) as of July 1, 2015, would not be subject to the new “never dormant” restitution provision because those judgments already had a predetermined expiration date. On facts in this case however, the collection clock on Dwyer’s restitution judgment began October 2003, making it subject to mandatory release in October 2015 after ten years dormant plus two additional years. The restitution judgment rendered against Dwyer is valid and is reinstated.

STATUTES: K.S.A. 2017 Supp. 22-3602, 60-258, -2403, -2403(a), -2403(b), -2403(d); K.S.A. 21-4603d(b)(2), 60-2101, -2101(a), -2102(a), -2102(a)(4), -2403, -2403(b), -2403(d)

Tags:  Attorney Discipline  Seward District  Wyandotte District 

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March 8, 2019 Digests

Posted By Administration, Monday, March 11, 2019

Kansas Supreme Court

Criminal  

criminal law—criminal procedure—jury instructions—statutes
state v. blansett
sumner district court—affirmed
no. 115,634—march 8, 2019

FACTS: Blansett convicted of first-degree premeditated murder and aggravated assault in stabbing son to death while she was in a psychotic episode. She appealed, claiming error in the jury instructions and arguing premeditation is a culpable mental state that can be negated by mental disease or defect defense. She also alleged prosecutorial error, and claimed cumulative error denied her a fair trial. Supplemental briefing ordered to address impact of State v. McLinn, 307 Kan. 307 (2018), which rejected the crux of Blansett’s claim of instructional error. Blansett then argued the jury instructions prevented jury from considering how evidence of her mental disease or defect affected her ability to premeditate. 

ISSUES: (1) Jury Instructions—Mental Disease and Defect; (2) Prosecutorial Error; (3) Cumulative Error 

HELD: The inclusion of premeditation in the challenged jury instruction was technically a misstatement of the law set forth in McLinn, but not reversible error And contrary to Blansett’s new arguments, the jury instructions as a whole did not prevent the jury from considering how her mental disease or defect affected her ability to premeditate. 

Three claims of prosecutorial error are examined. First, applying principles in State v. Williams, 299 Kan. 911 (2014), prosecutor did not suggest Blansett bore the burden of disproving the crimes charged when prosecutor told jury that defense had power to introduce evidence that defense counsel had inferred the State was hiding. Second, viewing State’s argument as a whole, prosecutor did not misstate evidence of Blansett’s intent with the knife. And distinguishing State v. Marks, 297 Kan. 1131 (2013), no error for prosecutor to argue that the nature of the weapons used and the multiple stab wounds were circumstantial evidence of premeditation.  Third, prosecutor misstated evidence by mistakenly commenting that Blansett had testified, but this error was harmless under facts in this case. 

Cumulative error doctrine does not apply to a single instance of prosecutorial error.

CONCURRENCE (Johnson, J.): Concurs in the result.

DISSENT (Beier, J.): Reiterates her dissent in McLinn. Would hold the inclusion of “premeditation” in the challenged instruction as an element of first-degree murder whose existence could be defeated by proof of Blansett’s psychosis was a correct statement of law.

The narrow definition of culpable mental state supplied by the instructions as a whole prevented jury from considering Blansett’s undisputed contemporaneous psychosis as competition for State’s evidence of her actions from which the jury might infer the existence of premeditation. Would hold this error was significant enough to reverse the first-degree premeditated murder conviction, vacate the sentence, and remand for further proceedings.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 5202(a), -5209

criminal law—criminal procedure—jury instructions—statutes
state v. murrin
clay district court—affirmed
court of appeals—affirmed
No. 115,110—march 8, 2019

FACTS: Murrin charged with drug offenses, criminal trespass, and interference with law enforcement. He requested a voluntary intoxication instruction for the drug-related charges, which the district court granted. Jury found Murrin guilty on all charges. Murrin appealed, claiming in part that although he had not requested it, district court should have instructed jury on voluntary intoxication as a defense to charges of criminal trespass and interference with law enforcement. Court of Appeals affirmed in unpublished opinion, finding criminal trespass and interference with law enforcement were both general intent crimes for which a voluntary intoxication instruction was not legally appropriate.  Review granted on this one issue.

ISSUE: (1) Jury Instruction—Voluntary Intoxication

HELD: Statutory and caselaw history concerning “intent” and “knowledge” is reviewed. Aggravated battery conviction in State v. Hobbs, 301 Kan. 203 (2015), is cited as illustrating both the shift in meaning of “intentionally” and the change in what it means to be a general intent crime. A voluntary intoxication defense is available under K.S.A. 2018 Supp. 21-5205(b) when a defining mental state is a stand-alone element separate and distinct from the actus reus of the crime.  In this case, the district court erred by not instructing on voluntary intoxication as a potential defense for both crimes. Criminal trespass is a classic specific intent crime because the statute requires a stand-alone particular intent or other state of mind as a necessary element—Murrin must know he was not authorized or privilege to enter or remain. The statute defining interference with law enforcement prescribes no such stand-alone particular intent or other state of mind as a necessary element, but the instruction given for this crime arguably set one up as necessary to convict—Murrin knew or should have know the officer was a law enforcement officer. Nonetheless, under facts in this case, the district judge’s failure to give a voluntary intoxication instruction did not rise to clear error. The convictions are affirmed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(b), -5202(h), -5202(i), -5205(b), -5414(a)(2), -5807(a)(1), -5808(a)(1)(A), -5812, -5812(1), -5904(a)(3), 22-3414(3); K.S.A. 21-3201(a), -3208(2)

criminal procedure—motions—statutes
state v. roberts
anderson district court—affirmed
No. 117,450—march 8, 2019

FACTS: Roberts pled no contest to rape of child under age of 14. Hard 25 year prison sentence imposed. Prior to his plea, a court ordered evaluation established that Roberts was competent. Years later Roberts filed motion to correct an illegal sentence, claiming he had never admitted he was older than 18 or that the victim was under 14 at time of the crime. District court denied the motion, finding both ages were established in the record. Roberts appealed. He conceded summary denial was appropriate on the age issue, but argued he was still entitled to relief because noncompliance with the statutory procedures for determining pre-plea competency deprived the district court of jurisdiction to sentence him.  

ISSUE: (1) Motion to Correct Illegal Sentence

HELD: District court’s summary dismissal of the motion to correct an illegal sentence is affirmed. Roberts does not advance a substantive competency claim.  A merely procedural failure to comply with competency statute, K.S.A. 2017 Supp. 22-3202, is not jurisdictional, thus a motion to correct an illegal sentence is foreclosed. And on facts in this case, even the existence of a procedural flaw is far from clear. Although the judge did not make an explicit competency finding in open court, the competency issue appears to have been resolved by the district judge after the evaluation was ordered.  

STATUTES: K.S.A. 2017 Supp. 22-3302, -3504(2); K.S.A. 21-3502(a)(2), 22-3302(1), -3302(3), -3504

Tags:  Anderson District  Clay District  Mental Disease and Defect  motions  statutes  Sumner District  voluntary intoxication  Weekly20190312 

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March 1, 2019 Digests

Posted By Administration, Monday, March 4, 2019

Kansas Supreme Court

criminal

appeals—constitutional law—criminal procedure—sentencing
state v. brown
brown district court—judgment vacated and case remanded:
court of appeals—reversed
no. 113,751—march 1, 2019

FACTS: Brown entered a guilty plea to aggravated sodomy. A 360 month prison term was imposed. In an unpublished opinion, court of appeals found district judge stated reasons for departure from Jessica’s Law mandatory life sentence to the sentencing grid, but failed to state reasons for departure from grid range of 554-618 months to the 360-month sentence. Sentence vacated and remanded for resentencing. District judge then imposed 372-month sentence, stating same reasons for departure and noting impact on victim and her family by Brown appealing the sentence. A divided court of appeals panel affirmed in unpublished opinion. Brown filed petition for review, claiming the longer sentence denied him due process and conflicted with U.S. caselaw and Kansas Supreme Court precedent.

ISSUE: (1) Due process—vindictive resentencing

HELD: Brown’s constitutional claim, raised for first time on appeal, is considered. Presumption of vindictiveness, articulated in North Carolina v. Pearce, 395 U.S. 711 (1969), and applied in subsequent cases, is discussed. Under those U.S. Supreme Court decisions and State v. Rinck, 206 Kan. 634 (1996), Brown’s due process rights were violated. His successful appeal was the only reason articulated for the increased prison term, distinguishing State v. Spencer, 291 Kan. 796 (2011). Sentence is vacated and case is remanded for resentencing.

STATUTE: K.S.A. 2017 Supp. 21-5504(b)(1), -6815(a)

 

criminal procedure—motions
state v. Woodring
saline district court—affirmed
no. 117,347—March 1, 2019

FACTS: In exchange for all other charges being dismissed, Woodring entered plea of no contest to felony murder based on his involvement in a vehicular shooting. Prior to sentencing months later, he filed pro se motion to withdraw plea, arguing he was innocent because he did not pull trigger, and claiming State’s deadline for accepting the plea agreement was coercive. District court denied the motion, finding none of the factors in State v. Edgar, 281 Kan. 30 (2006), supported withdrawal of the plea. Hard-25 life sentence imposed. Woodring appealed the denial of his motion.

ISSUE: (1) Motion to withdraw plea

HELD: Under facts in this case, Woodring failed to show the good cause required by K.S.A. 2017 Supp. 22-3210 for withdrawing his plea prior to sentencing. Theory of aiding and abetting defeats his claim of innocence, and the 10-day deadline for accepting the plea agreement was not unduly coercive. District court’s ruling is affirmed.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(2): K.S.A. 2017 Supp. 21-5210, 22-3210, -3210(a), -3210(b)

Tags:  8804  Brown District  Saline District  Weekly20190305 

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February 22, 2019 Digests

Posted By Administration, Monday, February 25, 2019
Updated: Monday, February 25, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF INDEFINITE SUSPENSION
IN RE LINDA S. DICKENS
NO. 119,198—FEBRUARY 22, 2019

FACTS: A hearing panel determined that Dickens violated Kansas Rules of Professional Conduct 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 1.8(e) (providing financial assistance to client); 1.16 (termination of representation); 3.2 (expediting litigation); 5.1 (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (reporting professional misconduct); 8.4(a) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). While representing a client, Dickens loaned the client $20,000 at 8.99% interest. After acknowledging that violation of the KRPC, Dickens entered the Kansas attorney diversion program. As part of that agreement, Dickens agreed to complete 16 hours of continuing legal education, including 6 hours of ethics. She failed to complete the required hours. The diversion was revoked in 2017 after Dickens had two new complaints filed against her. These complaints included allegations of entering a contingent fee arrangement without a written agreement and threatening clients when they did not give her money that was not earned. Dickens also had a pattern of missing deadlines.

HEARING PANEL: The hearing panel found that Dickens' violations were both knowing and negligent. In addition to several aggravating factors, the panel determined that there were mitigating factors, including Dickens' mental health. The disciplinary administrator recommended discipline ranging from a one-year suspension to disbarment, depending on which factual findings were made by the panel. Dickens asked that she be placed on probation and the panel agreed, finding that significant mitigating factors were compelling. The panel recommended a two-year suspension underlying a two-year term of probation.

HELD: Dickens did not contest the underlying factual allegations. Unlike the hearing panel, the Court was not persuaded that Dickens' underlying health conditions warranted probation in this case, where some of Dickens' actions involved dishonest conduct. Because Dickens showed bad faith and selfish motives when dealing with clients and the court, the Court determines that the appropriate discipline is an indefinite suspension with eligibility for reinstatement coming after three years. 

 

CIVIL

EVIDENCE—SEX OFFENDER TREATMENT
IN RE CONE
CLAY DISTRICT COURT—
AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 116,801—FEBRUARY 22, 2019

FACTS: In 2012, Cone was convicted of aggravated indecent solicitation of a child. Prior to his release from prison, the State sought to have him involuntarily committed as a sexually violent predator. During the trial on that motion, the State planned to have an expert witness testify about Cone's results on the Static-99R and Static-2002R tests, which are actuarial tools that attempt to measure an offender's risk of recidivism. Cone challenged the admissibility of the test results on grounds of relevance and reliability. The district court applied the Daubert standard and admitted both test results, in addition to other testimony. A jury found that Cone qualified as a sexually violent predator subject to involuntary commitment. The court of appeals affirmed that finding, holding that the district court did not abuse its discretion by admitting expert testimony about the actuarial tests. The Supreme Court then granted Cone's petition for review.

ISSUES: (1) Admissibility of expert testimony; (2) sufficiency of the evidence

HELD: In the absence of a cross-appeal, the court will presume that Daubert is the appropriate test for evaluating challenges to actuarial tools in a sexually violent predator case. Cone does not challenge the experts' qualifications and focuses only on the determination that the tests are reliable. After considering the Daubert factors, the court agrees that the district court did not abuse its discretion by admitting the expert testimony. Experts testified at Cone's hearing that he meets the diagnostic criteria for pedophilic disorder, and there was sufficient evidence to support that conclusion. This diagnosis allows for a finding that Cone is a sexually violent predator.

STATUTES: K.S.A. 2017 Supp. 59-29a02(b), 60-456(b); K.S.A. 2014 Supp. 60-456(b); K.S.A. 2011 Supp. 59-29a06(c)

 

JURISDICTION—SERVICE
SCOTT V. EWING
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,730—FEBRUARY 22, 2019

FACTS: Scott claims she was injured by fireworks during an Independence Day celebration in 2015. On June 30, 2016, Scott filed suit against Ewing, who hosted the event. Ewing answered, denying liability and raising a defense of comparative fault. On July 4, 2017, two years after the injury, Scott electronically filed a motion to amend her petition in order to add additional defendants. The district court allowed the amendment and Scott served the additional defendants in August 2017. The defendants moved to dismiss, claiming the statute of limitations barred recovery because Scott's actual motion to amend was not filed until July 5, 2017, after expiration of the statute of limitations. The district court granted the motion to dismiss, finding that the statute of limitations expired before Scott served the amended petition in August 2017. The court of appeals permitted an interlocutory review of this ruling.

ISSUES: (1) Expiration of the statute of limitations; (2) tolling of the statute of limitations

HELD: Although Scott was injured on July 4, 2015, the statute of limitations did not expire until July 5, 2017, because K.S.A. 60-206 extends the deadline until the next day that is not a holiday or weekend. The district court did not rule on Scott's motion to amend her pleading until after the statute of limitations had expired. K.S.A. 60-215(a) does not address how to handle this situation. The statute of limitations was tolled while the district court decided how to rule on Scott's motion to amend. The district court took more than 30 days to rule on the motion, and Scott should not be penalized for that delay.

STATUTES: K.S.A. 2017 Supp. 60-203(a), -206, -206(a)(1)(C), -206(a)(4)(A) -215(a), -215(a)(1), -215(a)(2); K.S.A. 60-513(a)(4)

Tags:  attorney discipline  Clay District  Wyandotte District 

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February 15, 2019 Digests

Posted By Administration, Tuesday, February 19, 2019

Kansas Supreme Court

criminal

appeals—constitutional law—criminal procedure—motions—postconviction remedies—statutes
state v. lapointe
johnson district court—affirmed 
court of appeals—affirmed on issue subject to review
cross-appeal sustained in part and denied in part on question reserved
No. 113,580—february 15, 2019

FACTS: LaPointe was convicted of aggravated robbery and aggravated assault. Trial evidence included hairs on clothing that jury knew probably did not belong to LaPointe, and damaging accomplice testimony. Years later, while in federal prison and subject to a Kansas detainer, LaPointe filed K.S.A. 2017 Supp. 21-2512 motion for DNA testing of the hairs. State argued the statute, which allows postconviction testing for crimes of first-degree murder and rape, did not apply to LaPointe’s crimes. State also argued LaPointe did not file his motion while he was in state custody, and argued the test results would not have affected jury’s verdict. District court granted the motion. Analysis confirmed one hair did not belong to LaPointe, and result on other hair was inconclusive but probably not his. LaPointe filed motion for new trial. Lower courts denied relief. LaPointe appealed. State cross-appealed the DNA testing decision. Court of appeals affirmed the decision denying a new trial, and dismissed State’s cross-appeal for lack of jurisdiction. Petitions for review by all parties granted.

ISSUES: (1) Motion for new trial; (2) K.S.A. 2017 Supp. 21-2512

HELD: Under facts in the case, the favorable DNA testing did not warrant a new trial. District court’s decision on this issue is affirmed.

There is jurisdiction to consider State’s statutory arguments as questions reserved. District court did not err in deciding LaPointe was in state custody.  K.S.A. 2017 Supp. 21-2512 does not apply to LaPointe. State v. Cheeks, 298 Kan. 1 (2013), which expanded postconviction DNA testing to a second-degree murder defendant to avoid perceived equal protection problems,, is examined and overruled to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom postconviction DNA testing is statutorily available.  

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ.): Agrees with majority’s treatment of the motion for a new trial and the statutory “in custody” argument. Agrees with the result on the remaining issue, but would find it unnecessary to overrule Cheeks  to hold LaPointe was ineligible to file motion for DNA testing.

STATUTES: K.S.A. 2017 Supp. 21-2512, -2512(a), -2512(f), -2512(f)(2), -2512(f)(2)(B)(iv), -6804, 22-3427(a), -3602(b)(3); K.S.A. 2000 Supp. 21-4704; K.S.A. 20-3018(b), 21-3410, -3427, 60-1507, -2101(b)

appeals—constitutional law—criminal procedure—Sixth Amendment
state v. moyer
sherman district court—affirmed
No. 105,183—February 15, 2019

FACTS: Moyer was convicted of sex crimes. On direct appeal, he claimed in part conflict of interest and ineffective assistance of defense counsel, who was also serving as guardian ad litem of J.T., a witness with potential exculpatory evidence who did not testify. He also claimed the district court judge should have recused because judge’s son was in the sheriff’s office, had secured and participated in Moyer’s arrest, and was listed as a prosecution witness. Instead, the district court judge banned any mention or reference to his son during the trial. Kansas Supreme Court reserved question of cumulative error and remanded to district court for hearing under State v. VanCleave, 239 Kan. 117 (1986), to determine whether Moyer was denied his Sixth Amendment right to counsel because the defense counsel’s concurrent representation of Moyer and J.T. created an adverse conflict of interest, and/or counsel’s failure to secure J.T.’s presence at trial or preserve J.T.’s testimony was deficient performance. 302 Kan. 892 (2015), as modified in 306 Kan. 342 (2017) (Moyer I). A different district court judge conducted the VanCleave hearing, finding defense counsel had a conflict of interest but Moyer was not prejudiced because the conflict had not adversely affected counsel’s representation. Alternatively, district court found the missing testimony would not have affected the verdict because J.T. was extremely unreliable and untruthful, and State’s evidence was overwhelming. Moyer appealed the VanCleave decision.

ISSUES: (1) Sixth Amendment right to counsel,—conflict of interest, (2) Sixth Amendment right to counsel—deficient performance, (3) cumulative error

HELD: Moyer’s argument for expanded scope of the remand and VanCleave hearing is rejected. Moyer’s constitutional right to effective assistance of counsel was implicated by defense counsel’s conflict of interest when J.T.’s testimony became difficult to secure, but Moyer failed to prove adverse effect. Various tests for proving adverse effect are examined and applied.

Moyer failed to establish that defense counsel’s performance with regard to J.T.’s testimony was deficient, and even if deficiency is assumed, no showing of prejudice.

Errors found in Moyer I are restated and considered with the additional error of defense counsel’s conflict of interest. In light of the overwhelming evidence of guilt, Court remains convinced that Moyer was not denied a fair trial.     

DISSENT (Rosen, J.): Adopts reasons stated in his dissent in Moyer I, as expanded by J. Malone’s dissent in this case.   

DISSENT (Johnson, J.): Cannot adopt majority’s holding that due to overwhelming evidence of guilt the cumulative effect of errors did not deny Moyer a fair trial. In this case there was a breakdown in the execution of duties by: trial judge with a conflict of interest, defense counsel with conflict of interest, and prosecutor’s gross and flagrant misconduct. This level of unfairness cannot be condoned even if there is unquestionable guilt. Would reverse and grant a new trial that is correct and fair.

DISSENT (Malone, J.): Agrees a new trial is required, free of numerous serious errors and conflicts, and adopts J. Rosen’s dissent in Moyer I. Focusing on the most egregious error, concludes the district judge’s conflict of interest substantially prejudiced Moyer and denied him a fair trial. Would reverse and grant a new trial before a different judge.  

STATUTE: K.S.A. 60-455

 

Kansas Court of Appeals

CIVIL

EVIDENCE—WORKERS COMPENSATION
WOESSNER V. LABOR MAX STAFFING
WORKERS COMPENSATION BOARD—REFERSED AND REMANDED
NO. 119,087— FEBRUARY 15, 2019

FACTS: Woessner died after being injured at work. While he was at the hospital for treatment a urine sample was obtained, which tested positive for THC. A follow-up sample was similarly positive. The employer introduced at the regular hearing lab results from both labs. Woessner's counsel objected on hearsay and foundation grounds, but those objections were denied. Admission of evidence showing drugs in Woessner's system triggered the statutory presumption that he was impaired at the time of his accident, excusing his employer from providing compensation to his widow. After the widow appealed, the Board reversed, finding that the lab results were not admissible. Moreover, the Board concluded there was no evidence that Woessner was impaired at the time of the accident. The employer appealed.

ISSUE: (1) Admissibility of lab results

HELD: The Kansas Rules of Evidence do not apply in workers compensation cases. This means that hearsay evidence is often allowed, although there is a threshold question about whether the hearsay evidence is reliable. The Board made a legal error when it found that the sample sent for verification was "collected by an employer". It wasn't; it was taken by hospital personnel. The employer presented ample evidence that the lab results were reliable. The employer introduced sufficient evidence to trigger the presumption that Woessner was impaired. The burden then shifts to his widow to prove by clear and convincing evidence that the impairment did not contribute to his death. The Board did not make sufficient findings about this burden to allow for review. The case must be remanded so that the Board can fully consider all relevant evidence.

DISSENT (Green, J.): The Board correctly interpreted K.A.R. 51-3-5a(a) when it found that it excluded from consideration certain types of hearsay evidence.

STATUTES: K.S.A. 2017 Supp. 44-501(a)(1)(C), -501(b)(1)(C), -501(b)(1)(D), -501(b)(3), -501(b)(2), -501(b)(3),  -515, -516, -523(a), -534a, -534a(a), -555c(a), 60-460(m); K.S.A. 44-519, 77-524(a)

 

IMPLIED EASEMENTS—ESTOPPEL
DEBEY V. SCHLAEFLI
OSBORNE DISTRICT COURT—AFFIRMED
NO. 119,218—FEBRUARY 15, 2019

FACTS: DeBey and the Schlaefli own adjoining tracts of land. DeBey operates a seed business from his tract, and traffic is often heavy. At the time DeBey purchased the land, both parties believed the tracts were separated by a dirt path. A later survey showed that was an incorrect assumption. Schlaefli's tract stretches farther to the east than first believed, to include the driveway that customers use to reach DeBey's seed business. Schlaefli attempted to build a fence to stop traffic from using the driveway. The district court found there was an implied easement by reservation or grant allowing continued traffic to DeBey's seed business. Schlaefli appealed.

ISSUES: (1) Implied easement by reservation or grant; (2) easement overburden; (3) easement by estoppel; (4) attorney fees

HELD: An implied easement by reservation or grant is based on the intent of the parties and what expectations one party could reasonably foresee the other party had from the sale of land. In this case, a quasi-easement existed from the time the tracts were developed. DeBey gained that quasi-easement when he bought the property from Schlaefli. Schlaefli knew that DeBey intended to expand his business, making the increased traffic foreseeable at that time. There is substantial competent evidence to support a finding of equitable estoppel. Schlaefli knew DeBey's business was expanding and made no objections to the increased traffic, even though he unquestionably knew about it. Schlaefli is not entitled to attorney fees because the district court's decision was correct.

STATUTE: K.S.A. 68-117

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February 8, 2019 Digests

Posted By Administration, Monday, February 11, 2019

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—sentences—statutes
state v. donahue
sedgwick district court—affirmed
No. 116,564—february 8, 2019

FACTS: Donahue filed a motion to correct an illegal sentence to challenge his 1974 life sentence with possibility of parole as violating the Eighth Amendment, arguing Miller v. Alabama, 567 U.S. 460 (2012), applicable to juveniles sentenced to life without possibility of parole, should be extended to his life sentence with the possibility of parole. District court summarily dismissed the motion.

ISSUE: Motion to correct an illegal sentence

HELD: District court’s decision was affirmed. Donahue’s Eighth Amendment claim does not implicate the sentencing court’s jurisdiction, and Kansas Supreme Court has repeatedly held a motion to correct an illegal sentence under K.S.A. 22-3504 cannot raise claims that the sentence violates the United States Constitution. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3); K.S.A. 22-3504, -3504(1); K.S.A. 1973 Supp. 21-3421, -4501(a), 22-3717(2)

 

Kansas Court of Appeals 

Civil

TIME LIMITATIONS—WORKERS COMPENSATION
SCHNEIDER V. CITY OF LAWRENCE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,340—FEBRUARY 8, 2019

FACTS: On two occasions, two years apart, Schneider injured his back while working as a firefighter. Schneider filed an application for hearing more than five years after the second injury. The City moved to deny the applications as untimely. Schneider responded that the application was timely because the City provided authorized medical care in 2012 and again in 2015, just a few weeks before the application was filed. The ALJ denied Schneider's claim as time-barred and the Board affirmed. Schneider appeals.

ISSUE: (1) Timeliness of Schneider's claims

HELD: The Graham case, decided in 1936, held that a statute of limitations cannot be revived by an employer's voluntary compensation once the time to file a claim has passed. But K.S.A. 44-534(b), the statute which applied to Schneider's claim, merely requires that an application be filed within two years of the employer's last compensation payment even if that payment was not voluntary. The Board read ambiguity into the statute where none existed. The legislature could have codified Graham during the overhaul of the workers compensation statutes but chose not to. Schneider's application was timely filed, and this case is remanded.

STATUTE: K.S.A. 44-520a, -534(b)

 

DISMISSAL—WORKERS COMPENSATION
GREEN V. GENERAL MOTORS CORP.
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,044—FEBRUARY 8, 2019

FACTS: Green suffered repetitive-use injuries at his job. He filed a claim for workers compensation benefits in 2009. Green had multiple preliminary hearings and actively sought both treatment and temporary benefits. But the case never progressed to a final hearing. In 2017, General Motors filed a motion to dismiss for lack of prosecution, citing K.S.A. 2008 Supp. 44-523(f). The ALJ granted the motion, and a majority of the Workers Compensation Board affirmed. Green appealed.

ISSUE: (1) Proper version of K.S.A. 44-523 to apply

HELD: The amendments to K.S.A. 44-523 are procedural and applied retroactively. The Board erred by using the 2008 version of the statute when addressing Green's claim. The 2017 version of K.S.A. 44-523(f) requires the employer to request dismissal for lack of prosecution. The ALJ must then notify the claimant and set the matter for a hearing. This is very different from the 2008 statute, which mandated dismissal if finality is not reached within a certain time. Because Green did not receive the hearing to which he is entitled by statute, the case must be remanded. On remand, the Board must provide Green with an appropriate forum and determine whether dismissal is warranted.

STATUTES: K.S.A. 2017 Supp. 44-523(f)(1), -534a, 60-241(b)(1), 77-621(c)(4); K.S.A. 2008 Supp. 44-523(f)

 

HABEAS CORPUS—JURISDICTION
PONDS V. STATE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 119,057—FEBRUARY 8, 2019

FACTS: Ponds was convicted of multiple felony charges in 2009. His conviction was affirmed on direct appeal. In 2017, Ponds filed a K.S.A. 60-1507 motion which raised issues that had been adversely decided on direct appeal. The district court summarily denied the motion. Ponds filed a timely motion for reconsideration, but before a decision was announced, he filed a notice of appeal. The district court denied the motion to reconsider, and Ponds did not file a second notice of appeal.

ISSUES: (1) Jurisdiction; (2) whether Ponds was entitled to a hearing on his motion

HELD: The appellate court only has jurisdiction over a final decision. K.S.A. 60-2103(a) requires the notice of appeal to be filed within 30 days of a final decision. That did not happen here, but Ponds filed a timely motion to reconsider which tolled the time in which to file a notice of appeal. Ponds' notice of appeal was premature because it was filed before the district court ruled on the motion to reconsider, and the denial of Ponds' motion was not announced from the bench. And Ponds did not file a second notice of appeal after the motion was denied. Case precedent shows that the appellate courts have taken an expansive reading of Supreme Court Rule 2.03 and applied it to situations like this. Under that precedent, the court has jurisdiction to consider the denial of Ponds' K.S.A. 60-1507 motion but lacks the authority to review the denial of the motion to reconsider. The claims raised in Ponds' K.S.A. 60-1507 motion are identical to the issues from his direct appeal. Any attempt to relitigate these issues is barred by the doctrine of res judicata.

STATUTES: K.S.A. 2017 Supp. 60-259(f), -2102(a)(4), -2103(a); K.S.A. 60-1507

 

criminal: 

criminal law—criminal procedure—evidence—juries—
jury instructions—motions—statutes
state v. shay
miami district court—affirmed in part, reversed in part, remanded
No. 118,303—february 8, 2019

FACTS: Shay was convicted of rape and aggravated criminal sodomy. On appeal, he claimed both convictions should be reversed because the State presented insufficient evidence the victim was unconscious or physically powerless, one of the alternative means of committing both charges. He also claimed the district court erred in overruling his objection to jury instructions that discouraged jury’s power of nullification. 

ISSUES: (1) Sufficient evidence of alternative means—rape, (2) sufficient evidence of alternative means—aggravated criminal sodomy, (3) jury instructions on nullification

HELD: Rape conviction was affirmed. Direct evidence the victim was sleeping when the rape occurred is sufficient evidence that Shay raped the victim while she was unconscious or physically powerless. 

            Aggravated criminal sodomy conviction is reversed. No evidence that Shay committed this act while the victim was sleeping, and victim’s testimony of being too scared to move does not satisfy statutory element that the crime was committed while she was unconscious or physically powerless.  State v. Parker, 48 Kan.App.2d 68 (2012), is factually distinguished. Remanded for new trial only on alternative means supported by sufficient evidence in the first trial—that this crime was committed while victim was overcome by force or fear. Double jeopardy bars retrial on alternative means that crime was committed while victim was unconscious or physically powerless.

            District court did not err in overruling Shay’s requested instructions. District court’s reasonable doubt instruction did not sidestep holding in State v. Smith-Parker, 301 Kan. 132 (2014), and no instruction to the jury came too close to directing a verdict for the State.

STATUTE: K.S.A. 2017 Supp. 21-5504(b)(3)

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