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June 14, 2019 Digests

Posted By Administrator, Monday, June 17, 2019

Kansas Supreme Court

Civil

CONSTITUTIONAL ISSUES—DAMAGES
HILBURN V. ENERPIPE LTD.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 112,765—JUNE 14, 2019

FACTS: Hilburn was injured when her car was rear-ended by a semi owned by Enerpipe Ltd. Hilburn sued, claiming that the driver's negligence caused the accident, and that Enerpipe was vicariously liable for the driver's actions. Enerpipe admitted to both of these facts, and a trial was held only on the issue of damages. A jury awarded Hilburn $335,000 which included $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. Defense counsel prepared a verdict form with a total award of $283,490.86 which represented the jury's total award with the amount adjusted to reflect the $250,000 cap of K.S.A. 60-19a02(d). Hilburn objected, claiming the statutory cap was unconstitutional under sections 1, 5, and 18 of the Kansas Constitution Bill of Rights. The district court affirmed the lesser award and Hilburn appealed. The court of appeals affirmed, believed itself to be bound by prior Supreme Court decisions. Hilburn's petition for review was granted.

ISSUES: (1) Issue preservation; (2) quid pro quo test for section 5 claims; (3) facts versus policy

HELD: The version of Supreme Court rule 8.03 in effect at the time Hilburn filed her petition for review allows the court to address a plain error not presented. The issue of whether the quid pro quo test applies to Hilburn's section 5 claim was properly preserved under the old rule because Hilburn preserved it in the district court and it was addressed by the court of appeals. Section 5 of the Kansas Constitution Bill of Rights preserves the jury trial right as it historically existed at common law. This protection extends to a determination of noneconomic damages. K.S.A. 60-19a02 infringes on this constitutional right. In the past, this infringement has been excused by the two-part quid pro quo test applied through a section 18 analysis. However, continued application of the prior decision in Miller, relying on stare decisis, cannot withstand scrutiny. The section 5 right to jury trial is completely distinct from the section 18 right to remedy. A statutory cap substitutes the legislature's nonspecific judgment for a jury's specific judgment. This runs afoul of the constitution's grant of an "inviolate" right to a jury. The cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.

CONCURRENCE: (Stegall, J.) Justice Stegall agrees that the quid pro quo test should be reversed in favor of an application of the plain and original public meaning of section 5. He first considers whether K.S.A. 60-19a02 even implicates section 5 and concludes that it does, since K.S.A. 60-19a02 is a procedural measure affecting who decides a particular question.

DISSENT: (Luckert, J. joined by Biles, J.) She would continue to apply stare decisis and follow Miller, analyzing this issue under the quid pro quo test. She believes Hilburn did not properly preserve this issue in her petition for review. And even if the issue is analyzed on the merits, she believes that mandatory motor carrier liability insurance provides an adequate substitute remedy for litigants.

STATUTES: Kansas Constitution Bill of Rights Sections 1, 5, and 18; K.S.A. 60-19a02, -19a02(d)

DUI—FIELD SOBRIETY TESTS—SEARCH AND SEIZURE
CASPER V. KANSAS DEPARTMENT OF REVENUE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS AFFIRMED
NO. 115,352—JUNE 14, 2019

FACTS: Casper's driving privileges were suspended after she was arrested and refused to take a blood alcohol test. An officer saw Casper make a wide turn. He followed her and did not notice any other indicators of impairment, but he still initiated a stop. The officer testified that Casper was initially cooperative but later claimed that she failed her field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. After these failures, Casper was arrested. She refused to take a breathalyzer test. Based on her refusal to take a blood test, Casper's driving privileges were suspended. She appealed, but the decision was affirmed after the hearing officer found that law enforcement had reasonable grounds to believe that Casper was under the influence. The district court disagreed, holding that Casper showed that the officer lacked reasonable grounds for believing that she was driving under the influence. The Department of Revenue appealed and the court of appeals reversed the district court, finding that there were adequate grounds for the stop and arrest. Casper's petition for review was granted.

ISSUE: (1) Factual grounds for a stop

HELD: Casper's license could only be suspended if the initial arrest was lawful. And in order to have a lawful arrest, there must have been probable cause to justify the arrest. There was no evidence that Casper's breath bore a strong odor of alcohol. The district court correctly heard all of the testimony and reviewed the recordings. The evidence before the district court was substantial and competent and the court made reasonable inferences from that evidence. The court of appeals improperly discounted those findings and should have given more deference to the district court as fact-finder. The district court's reversal of the hearing officer was supported by substantial competent evidence and should be affirmed.

STATUTE: K.S.A. 2018 Supp. 8-1002(a)(1), -1001(b)(1)(a), -1020(a), -1020(h)(1)(B)

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—PROPOSED REMEDY
SUBSTANTIALLY COMPLIES
NO. 113,267—JUNE 14, 2019

FACTS: In June 2018, the court acknowledged that almost all issues in the long-running school finance litigation had been resolved. The court found that the equity piece was satisfied, and although the adequacy piece was not yet met, the court recognized an "intent to comply." The mandate was stayed until the end of the fiscal year in order to give the State more time to make financial adjustments and reach constitutional compliance for adequacy. The legislature's proposed remedy was through passage of 2019 House Substitute for Senate Bill 16, which was passed and signed by the governor in April 2019. The bill attempts to cover inflation with additional funding, completing the safe harbor remediation plan. Senate Bill 16 now comes to the court for review.

ISSUE: (1) Compliance with safe harbor plan and accounting for inflation

HELD: The "safe harbor" plan involves the State returning to the basic funding plan approved in 2009-10, with adjustments made for inflation. These 2009-10 calculations included adjustments for virtual state aid. S.B. 16 accounts for inflation by increasing the specific base aid figure for each of the remaining four years of the remediation plan. S.B. 16 substantially complies with prior court decisions and adequately funds education. The court retains jurisdiction to ensure continued implementation of the scheduled funding.

STATUTES: Article 6, § 6(b) of the Kansas Constitution; K.S.A. 72-5132(a) 

Criminal

CRIMINAL HISTORY—JURISDICTION—SENTENCING
STATE V. WEBER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 113,472—JUNE 14, 2019

FACTS: Weber pled guilty to attempted robbery. The plea agreement assumed that his criminal history score would be C. A presentence investigation report revealed two Michigan convictions which, if scored as person felonies, would increase his criminal history score to B. The district court imposed sentence using the B score. Weber did not directly appeal his conviction or sentence. Some years later, Weber filed a motion to correct illegal sentence based on the State v. Murdock holding; he argued that because Kansas statutes did not use the person/nonperson designations at the time of his conviction, his out-of-state convictions should be designated as nonperson felonies. The district court denied his motion and Weber appealed. The court of appeals affirmed, citing Keel and Murdock II and noting that the test was to look for comparable offenses. Weber's petition for review was granted.

ISSUES: (1) Letter of additional authority; (2) sentencing authority

HELD: The State could not use a Rule 6.09(b) letter as a substitute for a responsive brief. The statutory changes and case law updates occurred well before the State's briefing deadline would have passed. Wetrich was a change in the law. Under the law at the time of Weber's sentencing, offenses had to be comparable but not identical. Because Weber's Michigan offense was comparable to a Kansas offense, his sentence was not illegal.

STATUTES: K.S.A. 2018 Supp. 21-6811(e), -6811(e)(3); 22-3504(3); K.S.A. 21-4711(e)

Kansas Court of Appeals

Civil

PATERNITY
STATE EX REL SECRETARY OF DCF V. MANSON
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,134—JUNE 14, 2019

FACTS: Traig Manson executed a voluntary acknowledgement of paternity (VAP) acknowledging that he was C.M.'s father. When Manson was asked to pay child support, he produced genetic testing results which allegedly showed that he was not C.M.'s biological father. He also claimed that he had no relationship with the child and that the child referred to another man as "Dad." The district court conducted a Ross hearing to determine whether official genetic testing was in two year old C.M.'s best interests. At the hearing, Manson explained that he allowed his name to go on C.M.'s birth certificate to help out the biological mother, but that he had never really had a true paternal relationship with C.M. In an effort to obtain support for C.M., DCF produced the VAP that Manson signed and noted that he did not rescind the signature within one year. The district court ruled that genetic testing was not in C.M.'s best interests and Manson appealed.

ISSUE: (1) Effect of VAP

HELD: Because Manson did not rescind his acknowledgement of paternity within one year, he remains C.M.'s father. Even if testing revealed that Manson was not C.M.'s father, he would still be required to pay child support because of the VAP. For that reason, the district court correctly refused to order genetic testing.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2204(b)(1)

Tags:  DUI  field sobriety tests  paternity  school finance  search and seizure  Sedgwick District  Shawnee District 

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June 7, 2019 Digests

Posted By Administration, Monday, June 10, 2019
Updated: Friday, June 7, 2019

Kansas Supreme Court

Attorney Discipline

INDEFINITE SUSPENSION
IN RE THOMAS CALEB BOONE
NO. 120,744—JUNE 7, 2019

FACTS: A hearing panel determined that Boone violated KRPC 1.1 (competence); 1.3 (diligence); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Boone also stipulated to a violation of 3.4(d) (failure to comply with a discovery request). The allegations arose after Boone twice failed to prosecute a civil action, missing multiple deadlines and failing to comply with district court orders. Boone appealed the dismissal of one action but the court of appeals affirmed the district court, finding that Boone's appellate brief failed to comply with court rules.

HEARING PANEL: The hearing panel found evidence to support the allegations made in the complaint. When considering discipline, the panel noted Boone's prior history of discipline, the pattern of misconduct, and the number of rule violations. In mitigation, the panel acknowledged the illness and death of Boone's father and Boone's genuine remorse for his actions. The disciplinary administrator recommended that Boone's license be indefinitely suspended. Boone asked that he be placed on probation, but because some of his conduct involved dishonesty, the panel determined that probation was not appropriate. The hearing panel agreed with the disciplinary administrator that indefinite suspension was the appropriate discipline.

HELD: There were no exceptions filed to the hearing panel's report, so it was deemed admitted. The court denied Boone's request for probation, finding that the misconduct was not amenable to probation. The court adopted the recommendation of the hearing panel and ordered that Boone's license be indefinitely suspended.

ORDER OF DISBARMENT
IN RE MATTHEW EDGAR HULT
NO. 24,854—JUNE 6, 2019

FACTS: Hult's law license was indefinitely suspended in February 2018. Since that time, four additional complaints have been filed alleging additional violations of the KRPC. In a letter, Hult voluntarily surrendered his license to practice law in Kansas.

HELD: The court accepts the surrender of Hult's license, and he is disbarred.

Civil

CONSERVATORSHIP—FACTFINDING—GUARDIANSHIP
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF B.H.
WILSON DISTRICT COURT—COURT OF APPEALS IS REVERSED
CASE REMANDED
NO. 118,188—JUNE 7, 2019

FACTS: Biological mother and father relinquished custody of their children to relatives through a legal guardianship. Once that placement was made, the state terminated child- in-need-of-care proceedings that were pending against the parents. Both parents spent time in prison, neither paid the child support that was ordered, and father left the state after he completed his prison term. After some time passed, mother and father sought to terminate the guardianship, citing a constitutional right to parent. After hearing evidence, the district court denied the motion, citing clear and convincing evidence that the guardianship was in the children's best interests. The parents appealed and the court of appeals reversed, finding that the district court erred by considering the best interests of the children. That court believed that the district court should have applied the parental preference doctrine because there had never been a finding of parental unfitness. The guardians' petition for review was granted.

ISSUE: (1) Termination of guardianship

HELD: The purposes of the Code for Care of Children were circumvented by the shift from a CINC proceeding to a guardianship action. Normally, voluntary guardianships are voluntary and may be terminated at any time for any reason. Under ordinary circumstances, parental preference rights would require termination of the guardianship. In this case, though, the voluntary guardianship stopped a final CINC determination and put the CINC action in limbo. There have never been parental fitness findings made in this case, and it is unclear whether the district court attempted to make those findings when refusing to terminate the guardianship. Because the record is unclear, this case is remanded to the district court for additional findings of fact and conclusions of law. If extraordinary circumstances exist to justify the continuation of the guardianship, those findings must be clearly made.

STATUTES: K.S.A. 2018 Supp. 38-2201(a), -2203(a), -2203(c), -2255, -2255(e), -2255(f), -2264, -2272, -2272(a)(1), -2272(b), -2272(h); K.S.A. 59-3091, -3091(h)

ADVERSE POSSESSION—MINERAL RIGHTS
OXY USA V. RED WING OIL
HASKELL DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,973—JUNE 7, 2019

FACTS: Oxy USA, Inc. developed a productive oil and gas well on a unitized production unit of land. The unitized area included a quarter section of land which is the subject of this dispute. The well is not located on the property in question, but the owner of the minerals under that property can receive royalties from the production under the unitization agreement. However, Oxy was unable to determine which party owned a disputed one-half interest in the minerals under the property. To resolve that question, Oxy filed this interpleader and quiet title action to determine the rightful owner of the minerals under the property. Alice La Velle King owns the surface rights and an undisputed half interest in the minerals rights, and she claims the other half interest also belongs to her. Opposing her are 41 different people or groups all claiming ownership. The district court granted summary judgment to the other property owners, finding that King's claim to the royalties was barred by the statute of limitations. The court of appeals reversed on adverse possession grounds. The petition for review was granted.

ISSUE: (1) Can the surface owner of land enforce a reversionary interest in minerals at a later date, or is she barred by the statute of limitations or adverse possession

HELD: The misappropriation of royalties, standing alone, does not establish adverse possession of a mineral interest. It doesn't matter whether King knew about royalty payments being made to the other landowners. The surface owner is the legal owner of the minerals located underground. Title to the mineral rights quiets in her favor.

STATUTE: K.S.A. 60-503, -507 

criminal 

constitutional law—fourth amendment—MOTIONS—search and seizure
state v. andrade-reyes
johnson district court—reversed and remanded;
court of appeals—reversed
no. 115,044—june 7, 2019

FACTS: Two officers approached both sides of a car lawfully parked in dark area of an apartment complex lot, shined flashlights on the 2 individuals in the front seat, and repeatedly asked passenger (Andrade-Reyes) to open his hands. Once he did, the baggie dropped and retrieved tested positive for cocaine. Andrade-Reyes charged with possession of cocaine and drug paraphernalia. He filed motion to suppress evidence obtained through an unlawful seizure. District court denied the motion, finding the encounter was voluntary, or in the alternative, the detention was justified for officer safety.

ISSUE: 1) Unlawful seizure

HELD: Andrade-Reyes was unlawfully seized. The encounter was not voluntary. Under totality of the circumstances a reasonable person would not have felt free to terminate the encounter. And prior to Andrade-Reyes dropping the white substance, the officers lacked reasonable suspicion to detain him. Officer safety concerns alone do not justify an investigatory detention. State v. Reiss, 299 Kan. 291 (2014), is distinguished. All evidence obtained as a result of the unlawful seizure must be suppressed. Reversed and remanded.

DISSENT (Luckert, J.): Agrees with majority’s synthesis of the applicable law, but disagrees with its application of the law to facts in this case. Would hold that once officers initiated the encounter, a reasonably prudent officer would have been warranted in believing, because of specific and articulable facts, that Andrade-Reyes was armed and posed an immediate danger. Because of this belief, it was reasonable for officers to demand that he open his hand. This limited intrusion was reasonable and appropriate for officer safety purposes.

STATUTE: K.S.A. 20-3018(b), 22-2402

constitutional law—criminal law—criminal procedure—
Fourth Amendment—jury instructions—motions—Sixth Amendment—Statutes
state v. Barrett
riley district court—affirmed in part, reversed in part, and remanded
court of appeals—affirmed in part and reversed in part
no. 113,767—june 7, 2019

FACTS: Barrett convicted of reckless second degree murder and sentenced for the killing of an exterminator who had entered Barrett’s apartment to kill bugs. Trial delayed over six years until Barrett was competent to stand trial. Key question for jury was whether Barrett’s mental condition prevented him from forming a culpable mental state. On appeal, he claimed reversible error in district court’s failure to deny a requested instruction on imperfect self-defense voluntary manslaughter. In unpublished opinion, Court of Appeals affirmed, finding instructional error but the error was harmless under the “skip rule.”  Panel also rejected Barrett’s claim that his mental illness made his post-Miranda statements involuntary under Blackburn v. Alabama, 361 U.S. 199 (1960), and claim that State’s failure to force him to take his antipsychotic medication for four years violated the Kansas speedy trial statute. Review granted on all claims.

ISSUES: (1) Jury instructions - skip rule, (2) motion to suppress, (3) speedy trial

HELD: District court committed reversible error when it failed to give an imperfect self-defense voluntary manslaughter instruction. “Skip rule” is revisited, clarified, and corrected. The “skip rule” is a logical deduction that may support a finding of harmless error when it reasonably applies, but it does not replace longstanding harmlessness tests. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test. In this case, failure to give the imperfect self-defense voluntary manslaughter instruction was reversible error because jury could have reasonably convicted Barrett of voluntary manslaughter. Reversed and remanded for a new trial.

            Blackburn is distinguished. Colorado v. Connelly, 379 U.S. 157 (1986), is controlling, holding that coercive police activity is a necessary predicate to finding a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. District court found no evidence of coercive police activity in this case, and correctly dismissed Barrett’s motion to dismiss.

            Denial of Barrett’s motion to dismiss on speedy trial grounds is affirmed. Sixth Amendment did not require State to force-medicate Barrett with potentially life-threatening medication to maintain his competency to stand trial.

STATUTE: K.S.A. 21-3403(b), 22-3220, 60-261

criminal law—sentences—statutes
state v. newton
saline district court—affirmed
court of appeals—affirmed
no. 116,098—june 7, 2019

FACTS: Newton was convicted of attempted rape. Years later, he filed motion to correct an illegal sentence, arguing the district court incorrectly calculated his criminal history score by classifying pre-1993 convictions as person felonies contrary to State v. Murdock, 299 Kan. 312 (2014)(Murdock I), overruled by State v. Keel, 302 Kan. 560 (2015). District court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed. While appeal was pending, Keel overruled Murdock I. Court of appeals affirmed in an unpublished opinion, applying State v. Vandervort, 276 Kan. 164 (2003), to find district court properly scored Newton’s California conviction as a person felony. Review granted of Newton’s criminal history challenge, and parties were directed to address State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: 1) Criminal history calculation

HELD: Resolution of this appeal does not resolve parties’ arguments regarding Wetrich. Instead, following State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Newton’s 1977 California robbery conviction was properly classified as a person felony under Kansas caselaw in 2008 when his sentence in the Kansas case became final.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 20-3018(b), 21-4710 et seq., -4711(e), 60-2101(b)

constitutional law—fifth amendment—motions—venue
state v. palacio
saline district court—affirmed
NO. 116,899—june 7, 2019

FACTS: Palacio fired shots into a truck, killing the passenger. Palacio filed motion for change of venue, arguing significant pretrial publicity made it impossible to receive an impartial jury. District court denied the motion. Palacio also filed motion to suppress his confession because officers continued to interrogate him after he asked for a lawyer, or alternatively, the officers used coercive tactics. District court suppressed statements Palacio made in-between time he asked for a lawyer and the time he told officers he wanted to say something. Jury convicted Palacio of first-degree murder under theories of premeditation and felony murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. On appeal he claimed the district court’s refusal to change venue violated K.S.A. 22-2616. He also claimed the officers violated his Fifth Amendment rights, or alternatively, his confession was involuntary.

ISSUES: (1) Change of venue statute, (2) motion to suppress confession

HELD: District court’s weighing of factors in K.S.A. 22-2616 is reviewed and upheld, including the slight favor of prejudice attributed to the severity of Palacio’s crimes that included a homicide. Same factor compared to weight of prejudice in cases involving more severe crimes of capital murder and rape.

            Kansas Supreme Court has never directly addressed whether explicit questioning is always interrogation, but cases have indicated it is not. Court now confirms that an officer’s words or actions, including explicit questions, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect. In this case, the officers’ comments and questions were not interrogation and did not violate Fifth Amendment. Palacio thus was free to waive his previously invoked right, and knowingly and intelligently did so. Under facts in this case, district court did not err in finding the officers did not threaten, coerce, or engage in deceptive practices, and in concluding Palacio’s confession was voluntary.

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

STATUTE: K.S.A. 22-2616, -2616(1)

appeals—criminal law—evidence
state v. rucker
wyandotte district court—affirmed
NO. 117,143—june 7, 2019

FACTS: Rucker was convicted of first-degree felony murder. He appealed, challenging the sufficiency of the evidence supporting that conviction. He also claimed the district court erred in admitting gruesome photographs of the victim that had no probative value on issues in dispute at trial, and that only inflamed passions of the jury.

ISSUES: (1) Sufficiency of the evidence, (2) admission of photographs

HELD: State alleged the victim was killed while Rucker was “in the commission of” or “attempt to commit” one or more of four inherently dangerous felonies: robbery, rape, aggravated kidnapping, and aggravated burglary. Rucker’s challenge to the sufficiency of the evidence supporting this alternative means crime fails because the evidence considered in the light most favorable to the state supports a jury finding that Rucker committed the four underlying felonies.

            At trial, Rucker did not object to the admission of any of the photographs, and stipulated to their admission. Rucker did not preserve this issue for appeal, and merits of his argument are not reached.

STATUTE: K.S.A. 21-3401(b), -3426, -3436(a)(2), (3), (5), (10), -3716 (Furse)

 

Kansas Court of Appeals

 

criminal

criminal law—statutes
state v. glover
sumner district court—affirmed
NO. 120,098—june 7, 2019

FACTS: Glover entered unlocked church and entered locked sacristy where he stole items from a locked cabinet. State charged him with burglary. District court dismissed the charge, reasoning the State did not prove Glover entered the building without authorization because church was open to the public. State appealed, arguing the sacristy can be considered a building or structure under the Kansas burglary statute.

ISSUE: 1) Kansas burglary statute—building or structure

HELD: A locked sacristy inside an unlocked church is not a building or structure as the terms are used in K.S.A. 2018 Supp. 21-5807(a). Published and unpublished opinions in Court of Appeals are reviewed as seeming to read into the burglary statute a definition of building or structure that hinges, in part, on whether an individual or entity is renting or leasing a space within the main building. But under plain language of the statute which the Legislature has not modified for 19 years, the sacristy was nothing more than a room within the church building. District court’s dismissal of the burglary charge is affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5807(a)(2)

Tags:  Attorney Discipline 

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May 31, 2019 Digests

Posted By Patti Van Slyke, Monday, June 3, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF PAMELA J. THOMPSON
NO. 120,818—MAY 31, 2019

FACTS: A hearing panel found that Thompson violated KRPC 1.15 (safekeeping property); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice). The allegations arose after Thompson hired Qualified Plan Solutions to provide administrative services for 401(k) retirement accounts for Thompson and her employees. Thompson was the plan's administrator and trustee. Beginning in January 2016, Thompson withheld funds from her paychecks and her employees' paychecks. But except on one occasion, she did not deposit the funds as required by the plan. It was not until February 2017 that Thompson's employees noticed that their 401(k) accounts were underfunded. Thompson worked with QPS to get the accounts current, including both salary deferrals and earned interest. It was alleged that Thompson got the money to make these deposits by converting money from estate cases without being given approval by the court.  

HEARING PANEL: Thompson stipulated to the violations. The hearing panel noted several aggravating factors, including a dishonest or selfish motive and a pattern of misconduct. The misconduct was somewhat mitigated by Thompson's personal and emotional problems, but the panel did not believe that Thompson's stress and anxiety excused the misconduct. The disciplinary administrator recommended that Thompson be disbarred. Thompson asked that discipline be limited to a one-year suspension. A majority of the hearing panel recommended that Thompson be indefinitely suspended.

HELD: Thompson did not file exceptions to the report and the findings were deemed admitted. After considering the facts, the court agreed with the disciplinary administrator and ordered disbarment. The court found that Thompson's misconduct was too serious to justify a lesser sanction.

criminal 

appeals—criminal procedure—motions
state v. douglas
reno district court—reversed and remanded
court of appeals—affirmed
no. 119,170—may 31, 2019

FACTS: During traffic stop, officer observed a capsule sticking out of Douglas’ pants pocket. Capsule then dropped while Douglas exited the car. Capsule was retrieved and tested positive for methamphetamine. Douglas filed motion to suppress, arguing violation of constitutional rights. District court agreed, stating no description of the capsule was provided to the court, thus no basis to find the detention was based on a reasonable and articulable suspicion. State appealed, citing officer’s testimony about the capsule. Court of appeals reversed and remanded with directions to deny the motion to suppress. Dissenting judge agreed to the reversal, but would remand for district judge to reevaluate findings based on evidence the officer in fact described the capsule observed in Douglas’ pocket. Douglas’ petition for review granted.

ISSUE: Ruling on motion to suppress - reversal and remand

HELD: When a district court judge’s ruling in favor of defense motion to suppress is infected with an obviously incorrect assessment of State’s evidence that is equivalent to an arbitrary disregard of a portion of that evidence, an appellate court cannot be certain if the district judge, once the error was pointed out, would arrive at the same or a different conclusion. In such circumstances, wisest course for appellate court is to reverse and give district judge another chance to review the record. Panel majority’s reversal and remand with directions to draw an opposite conclusion of law short-circuits that chance. Reversed and remanded for further proceedings. Panel’s decision is affirmed but its instructions to the district court are modified.

STATUTE: K.S.A. 22-3216(2)

appeals—criminal procedure—restitution—sentences
state v. johnson
montgomery district court—affirmed in part—vacated in part
no. 117,788—may 31, 2019

FACTS: Johnson entered a no contest plea to charges of felony murder, aggravated kidnapping, aggravated assault, and criminal possession of firearm. Sentencing included: inconsistent references as to whether the life sentence for felony murder included possibility of parole after 25 years or required lifetime postrelease supervision; ambiguity about what sentences were to run concurrent or consecutive; and journal entry stating that restitution was “to be determined (TBD).” Johnson appealed on sentencing claims.

ISSUES: (1) Lack of preservation of consecutive sentencing issue, (2) jurisdiction to impose restitution, (3) illegal sentence aspects requiring correction without remand

HELD: Merits of Johnson’s claim—that district court relied on facts outside the record in sentencing consecutive terms on felony murder and aggravated kidnapping convictions—is not considered. Johnson failed to raise this issue in district court, and does not explain why issue should be considered for first time on appeal.

            District court’s failure to follow procedure mandated in State v. Hall, 298 Kan. 978 (2014), and State v. Charles, 298 Kan. 993 (2014), deprived district court of jurisdiction to set restitution later. That portion of journal entry and subsequent nunc pro tunc order indicating restitution remains “TBD” is vacated.

            State concedes that judge’s inconsistent statements about parole eligibility after 25 years, not lifetime postrelease supervision, made this aspect of Johnson’s sentence illegal. The lifetime postrelease supervision term imposed at sentencing is vacated. Also, on face of record that clearly shows judge’s intention, no further action is required to correct the criminal possession sentence to make it concurrent with the other three sentences.

STATUTE: K.S.A. 2018 Supp. 21-6620(b)(1), -6820(i), 22-3504(1), -3504(3), -3717(b)(2)

criminal procedure—jurisdiction—motions—sentences—statutes
state v. smith
sedgwick district court—affirmed
court of appeals—affirmed
No. 113,828—may 31, 2019

FACTS: Smith was convicted in 1984 on a guilty plea to charges of burglary and theft. Jail credit not addressed at sentencing or in final journal entry. No appeal from subsequent revocation of probation in the 1984 case. Smith filed 2014 motion for jail credit for time spent in county jail and residential facility. District court denied the motion, finding any jail credit issue had been waived. Smith appealed, arguing broad interpretation of his pro se motion as one filed under K.S.A. 60-1507, or under K.S.A. 22-3504 citing State v. Guzman, 279 Kan. 812 (2005). Court of appeals affirmed in unpublished opinion. Smith petitioned for review, seeking resolution of conflict in court of appeals’ opinions regarding district court’s jurisdiction to review post-conviction jail credit motions.

ISSUES: (1) Jurisdiction, (2) clerical error

HELD: Smith’s failure to raise issue of jail credit on direct appeal does not foreclose a motion under the nun pro tunc provision in K.S.A. 22-3504(2) to review clerical errors in judgments. The words “at any time” in that subsection means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Contrary holdings are disapproved in unpublished panel opinions in this case, State v. Muldrow (No. 107291), State v. Blazier (No. 110070), State v. Olson (No. 102226),  State v. Burnett (No. 112681), State v. Brown (No. 111052), State v. Arculeo (No. 110974), State v. Lakin (No. 111060), State v. Walker (No. 109309), and any other court of appeals decision holding that a criminal defendant cannot move for correction of jail credit if the defendant failed to raise the issue in a direct appeal.

            Summary dismissal of Smith’s motion was warranted. Smith requested 18 months of jail credit, but identified no clerical error. Instead, Smith makes conclusory statements, presents no evidentiary support and provides nothing in the record warranting relief.

CONCURRENCE AND DISSENT (Luckert, J.): Agrees that Smith’s failure to raise issue of jail credit on direct appeal did not result in waiver of the issue if relief is sought under K.S.A. 22-3504(2). Disagrees with majority’s conclusion that district court can be affirmed because Smith failed to allege a jurisdictional basis for his motion. Reasons cited for why the merits of Smith’s motion cannot be evaluated at this time, including whether standard for “clerical error” stated in State v. Storer, 53 Kan.App.2d 1 (2016), should be adopted. Would remand to allow parties to develop their procedural, factual and legal arguments about whether a clerical error occurred.

STATUTES: K.S.A. 2018 Sup. 21-6615, 22-3504(1), -3504(2), -3717(d)(1), -3717(q); K.S.A. 21-4614, 22-3504(1), -3504(2), 22-3722, 60-1507

 

Kansas Court of Appeals

Civil

EXHAUSTION OF ADMINISTRATIVE REMEDIES—UNEMPLOYMENT
LUCKETT V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
GEARY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,717—MAY 31, 2019

FACTS: After losing her job, Luckett filed for weekly unemployment insurance benefit claims with the Kansas Department of Labor. Although some of her claims were denied, Luckett was awarded unemployment benefits for a certain period of time. In a letter dated more than 60 days after the last decision was rendered, Luckett sought payment of the benefits that were awarded as well as reconsideration of another decision. The referee who received Luckett's letter construed it as a motion to reconsider and denied it on grounds that it was untimely and failed to establish excusable neglect for a late appeal from a denial. The referee did not address Luckett's claim that she had not yet been paid the benefits that were awarded to her. Luckett again sent a letter clarifying that she wanted to be paid the benefits that she was awarded. Luckett filed a petition for judicial review. The district court ultimately granted KDOL's motion to dismiss, finding that Luckett's appeals were untimely. She appealed.

ISSUES: (1) Correct standard; (2) finding of excusable neglect; (3) motion to amend

HELD: Luckett's appeal was based on the KJRA. For that reason, a summary judgment standard is inappropriate. It is undisputed that Luckett's November 2017 letter was filed beyond the 16-day time limit established by statute. But that letter was not an appeal of an adverse decision. And the examiner's original decision allowed for reconsideration within one year assuming that Luckett provided some necessary information. That was what Luckett was attempting to do. The KDOL erred by construing Luckett's letter as an appeal. Luckett's filings were not untimely, and she was not required to exhaust administrative remedies before receiving relief. Luckett had claims consistent with a mandamus action. It was error to dismiss Luckett's petition for review without considering her motion to amend.

STATUTES: K.S.A. 2018 Supp. 44-703(d), -709(b)(2), -709(b)(3), -709(i), 60-215(a)(2), 77-603(a), -621(a)(1), -621(c)(4), -621(c)(7), -621(d); K.S.A. 60-

Criminal

criminal procedure—motions—sentences
state v. gonzalez
sedgwick district court—affirmed
no. 119,311—may 31, 2019

FACTS: Gonzalez pleaded guilty to criminal charges in 2012 and was granted probation. In 2013, he violated probation and served an 8-month prison sentence. In 2016, he was ordered to be deported. He filed a 2017 motion to withdraw his plea, arguing his attorney had not explicitly discussed deportation. He then amended his motion to claim excusable neglect for his untimely motion, citing his belief at the time of his plea that he was a lawful permanent resident noncitizen entitled to same protections as a United States citizen. District court denied the motion, finding Gonzalez failed to show excusable neglect.

ISSUE: Post-sentence motion to withdraw plea

HELD: In this case, the acknowledgment of rights and entry of plea form that Gonzalez received during his plea hearing, reviewed with his attorney, understood and signed satisfied the requirements in Padilla v. Kentucky, 559 U.S. 356 (2010), as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(1)(A), -3210(e)(2), -3608(c)

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May 24, 2019 Digests

Posted By Administrator, Tuesday, May 28, 2019

Kansas Court of Appeals

Civil

ADMINISTRATIVE REMEDIES
BURCH V. KECK
PAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,813—MAY 24, 2019

FACTS: Burch is a resident of the Sexual Predator Treatment Program in Larned. He filed a §1983 action claiming that SPTP officials violated his constitutional rights by seizing his property without due process. The Kansas Department for Aging and Disability Services moved to dismiss, claiming that Burch failed to exhaust administrative remedies before filing suit. The district court agreed and the case was dismissed. Burch appealed.

ISSUE: (1) Duty to exhaust administrative remedies

HELD: Section 1983 does not contain a requirement that movants exhaust administrative remedies before bringing an action under the statute. K.S.A. 2018 Supp. 59-29a24 does require participants in SPTP to exhaust administrative remedies. The federal statute pre-empts the exhaustion requirement of K.S.A. 2018 Supp. 59-29a24. The case must be remanded for proceedings on Burch's original motion.

STATUTES: 28 U.S.C. § 1915, 42 U.S.C. § 1983, § 1997 (1)(B), § 1997e; K.S.A. 2018 Supp. 59-29a01, -29a02, -29a24

NEGLIGENCE—STATUTE OF REPOSE
DETERS V. NEMAHA-MARSHALL ELECTRIC COOPERATIVE ASSOCIATION
NEMAHA DISTRICT COURT—AFFIRMED
NO. 119,200—MAY 24, 2019

FACTS: In 1994, the Deterses purchased from Nemaha-Marshall a GTS, a device which allowed them to safely connect a generator to household wiring. The GTS was installed by Nemaha-Marshall on the Deterses' electric pole. In 2000, the Deterses transferred all of their electricityincluding the GTSto a new house, shop, and implement shed on their property. Over the course of a year, the Deterses had to replace multiple appliances due to malfunctions. The Deterses claimed this was due to faulty wiring in the GTS. Alliance, their homeowners insurer, denied their claim, pointing to a lack of coverage for low voltage events. The Deterses sued both Nemaha-Marshall and Alliance for damages related to replacement appliances. Nemaha-Marshall moved for summary judgment on statute of repose grounds, since it had been at least 10 years since the GTS was connected to the Deterses' property. Alliance also moved for summary judgment, citing a lack of coverage in the Deterses' insurance policy. Both motions were granted and the Deterses appeal.

ISSUES: (1) Statute of repose; (2) insurance coverage; (3) bad faith investigation

HELD:The statute of repose clock begins running on the last act giving rise to the cause of action, not the last contact between the parties. Plaintiffs must bring their negligence action within 10 years of the original wrongful act. In this case, that act occurred in 2000 and the Deterses' claim is barred by the statute of repose. Much of the Deterses' argument is waived due to the failure to adequately brief the argument. To the extent that issues have been preserved, the district court correctly found that the homeowners' insurance policy provided no coverage for low voltage events. Alliance investigated this claim appropriately, especially since the Deterses proposed two different causes for the damage.

STATUTE: K.S.A. 60-513, -513(a)(4), -513(b)

criminal

criminal procedure—motions—sentences—statutes
state v. sheppard
wyandotte district court—affirmed
no. 119,454—may 24, 2019

FACTS: Sheppard was convicted in 2006 of second-degree murder and criminal possession of a firearm. Convictions were affirmed in 2009. Sheppard filed in 2017 a pro se motion to dismiss, reiterating the claim in his unsuccessful 2011 K.S.A. 60-1507 motion that he was arrested without probable cause because affidavit facts were false. District court denied Sheppard’s motion for leave to file the motion to dismiss out of time, finding no showing of excusable neglect. Sheppard appealed. He then filed a pro se motion to correct an illegal sentence, arguing that under the 2016 amendments to K.S.A. 21-6810, the district court improperly included a decayed 1994 Missouri juvenile adjudication in calculating criminal history. District court denied the motion. Sheppard appealed. Appeals consolidated.

ISSUES: (1) Excusable neglect; (2) motion to correct illegal sentence—decayed juvenile adjudications

HELD: A showing of excusable neglect under different statutes, cases and administrative regulations is discussed. Under facts in this case and circumstances surrounding the untimely filing, the appellate court found no abuse of the district court’s discretion in finding Sheppard failed to establish excusable neglect.

The 2016 amendments to K.S.A. 21-6810 do not apply to Sheppard’s case. Court of appeals panels have consistently held the 2016 amendments to the juvenile decay rules are substantive in nature, and the legislature has included no clear language that intended the 2016 amendments to operate retroactively. District court correctly included Sheppard’s 1994 juvenile residential burglary adjudication in the criminal history score.

STATUTES: K.S.A. 2018 Supp. 21-5807, -6803, -6803(e), -6810(d), -6810(e), 22-3208(4), -3504, -3504(3), 60-206(b)(1)(B), 60-206(b)(1)(B); K.S.A. 21-3715, -4710, -6810, 60-206(b), -260(b)(1), -1507; K.S.A. 21-4710 (Furse 1995)

criminal law—restitution—sentences—statutes
state v. Smith
shawnee district court—affirmed
no. 119,356—may 24, 2019

FACTS: Smith was convicted of possession of stolen property: a motorcycle that was damaged; and a scooter the Highway Patrol had towed, and then the towing company sold the scooter without first contacting the owner. Restitution order included $1365.77 for motorcycle repair, and $2141.93 replacement value for the scooter. Smith appealed, arguing insufficient evidence supported the amount of damage to the motorcycle. He also claimed that given the actions of law enforcement and the towing company there was no direct causal link between his crime and loss of the scooter, and argued the scooter owner should have been awarded fair market value rather than replacement cost.

ISSUES: (1) Restitution—sufficiency of the evidence; (2) restitution—causal link; (3) restitution—replacement value

HELD: District court found the motorcycle owner’s testimony about the condition of the motorcycle before and after it was stolen, and the need for the estimated repairs, was uncontroverted. Substantial competent evidence supported the district court’s findings.

As in State v. Arnett, 307 Kan. 648 (2018), but for Smith’s crime the scooter would not have been seized and towed. Applying Arnett, the district court’s factual determination of causation is accepted.

Under the restitution statute, K.S.A. 2015 Supp. 21-5801(a)(4), the district court was legally permitted to order replacement costs as restitution, and Smith agreed that the scooter owner’s loss exceeded $2000.

STATUTES: K.S.A. 2018 Supp. 21-6604(b)(1); K.S.A. 2015 Supp. 21-5801, -5801(a)(4); K.S.A. 21-6604(b)(1)

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May 17, 2019 Digests

Posted By Administration, Monday, May 20, 2019

Kansas Supreme Court

CIVIL

DOUBLE JEOPARDY—HABEAS CORPUS
IN RE PETITION FOR HABEAS CORPUS BY BOWMAN
ORIGINAL ACTION—WRIT IS GRANTED
NO. 119,270—MAY 17, 2019

FACTS: Bowman was charged with rape, aggravated criminal sodomy, and intimidation of a witness after he allegedly sexually abused his three-year-old granddaughter. At trial, witnesses testified about what the child told them and the tape of a 911 call was introduced. The child was called to testify by closed-circuit television with a comfort aide next to her. But despite repeated prompting, the child would not respond when questioned about whether she would tell the truth, and she would not take the witness oath. When it became apparent that the child was not going to take the oath, the district court asked for guidance on how to address the hearsay issue that was now present. The district court granted the State's motion for mistrial and the jury was dismissed. Bowman later moved to have the case dismissed with prejudice since jeopardy had attached. The district court found that manifest necessity warranted allowing the State to try Bowman for a second time. Bowman sought original review of that decision.

ISSUES: (1) Original jurisdiction; (2) mistrial; (3) double jeopardy

HELD: The court may take jurisdiction over this matter under K.S.A. 60-1501 in order to address the double jeopardy claim. All analysis is based on statutory language rather than constitutional provisions. The child's failure to take the oath made the trial more difficult for the State, but it did not make the trial physically impossible. Jurors could have been instructed to ignore testimony that was now hearsay and jurors knew that counsel's arguments were not evidence. And the prosecutor knew that relying on a young child's testimony could be risky, yet chose to introduce hearsay evidence before attempting to have the child take the oath. In the absence of any statutory authority, the district court judge abused its discretion by granting a mistrial. Jeopardy clearly attached in Bowman's first trial. The child's refusal to take the witness oath did not render a verdict "impossible", as required by the double jeopardy statute, which means that the district court erred by finding that a second trial was permissible. Bowman's criminal case must be dismissed, and he must be released from confinement.

DISSENT: (Luckert, J., joined by Nuss, C.J. and Stegall, J.) The district court did not abuse its discretion by declaring a mistrial. The prosecutor's comments made it impossible for Bowman to receive a fair trial. Because of this fact, a second prosecution is not barred by double jeopardy.

STATUTES: K.S.A. 2018 Supp. 21-5110, -5110(a)(3)(C), -5110(f), 60-1501, -1501(a); K.S.A. 22-3423, -3423(1)(a), -3423(1)(c), 60-418, -460(a), -460(dd)

 

CRIMINAL 

constitutional law—criminal law—evidence—jury instructions—statutes
state v. macomber
shawnee district court—affirmed;
court of appeals—affirmed on issues subject to review
NO. 113,869—may 17, 2019

FACTS: Macomber charged with first-degree murder for fatally shooting an unarmed man in the victim’s driveway. He filed motion to dismiss the case, asserting self-defense immunity under K.S.A. 2018 Supp. 21-5231. District court denied the motion, finding State presented sufficient evidence to establish probable cause that deadly force was not statutorily justified. Jury found Macomber guilty of involuntary manslaughter, a conviction the Court of Appeals affirmed in unpublished opinion, finding in part that any error was harmless in district court’s denial of the request for an instruction on self-defense presumption of reasonable belief that deadly force is necessary. Macomber’s petition for review granted on two issues: (1) whether district court erred by denying the pretrial motion to dismiss on self-defense immunity grounds; and (2) whether district court’s failure to instruct jury on presumption of reasonableness violated Macomber’s due process rights to a fair trial.

ISSUES: (1) Self-defense immunity, (2) presumption instruction

HELD: There was probable case that Macomber’s use of deadly force was not statutorily justified. Disputed facts supporting the district court’s findings are itemized. District court’s probable cause determination was correct based on substantial competent evidence supporting the district court’s factual findings.

            Kansas Supreme Court has never addressed whether jury must be instructed on the presumption, and no suggestion by parties or Kansas caselaw that the requested instruction was not legally appropriate. Because failing to instruct on presumption in this case would not have affected burden of proof—i.e. State’s duty to disprove the affirmative defense—any error in failing to give the instruction at issue would be classified as a state-law error. Statutory presumptions for and against the accused are discussed and compared. While evidence is inconclusive whether Macomber acted in self-defense, his own statements strongly undercut any claim that he subjectively believed deadly force was necessary to prevent harm to himself. Panel’s finding of harmless error is affirmed.

CONCURRENCE and DISSENT (Johnson, J.)(joined by Nuss, C.J., and Luckert, J.): Agrees with majority opinion until majority improperly engages in evidence-weighing and credibility-assessment by ignoring contradictory evidence and relying on selected statements by Macomber that support its conclusion that he did not actually believe deadly force was necessary. Believes the conflicting testimony could not, as a matter of law, definitively rebut the statutory presumption that self-defense was necessary. Because evidence is not viewed in light most favorable to the State in this circumstance, would hold that State did not meet its burden to show that withholding an instruction on the presumption was harmless.   

STATUTES: K.S.A. 2018 Supp. 17-7207(a)-(c), 21-5222, -5224, -5224(b), -5231, 23-2208(b), 44-501(b)(1)(C); K.S.A. 20-3018(b), 60-2101(b)

 

criminal law—criminal procedure—sentences—statutes
state v. smith
johnson district court—vacated and remanded
court of appeals—affirmed
No. 116,586—may 17, 2019

FACTS: Smith was convicted of trafficking contraband in a jail. In calculating criminal history, sentencing court included Smith’s Missouri municipal ordinance violation for endangering welfare of a child as a person misdemeanor. Smith appealed, arguing her criminal history should not have included this out-of-state ordinance violation. Court of Appeals agreed in unpublished opinion, holding the rule of lenity applied because sentencing guidelines were silent about how to classify an out-of-state ordinance violation when the convicting jurisdiction does not consider an ordinance violation to be a crime. State’s petition for review granted.

ISSUE: 1) Classification of an out-of-state municipal ordinance violation

HELD: Panel’s decision is affirmed on different reasoning. It is undisputed that Smith’s ordinance violation is not a crime under Missouri state law or the city’s Municipal Code. Plain language of K.S.A. 2015 Supp. 21-6811(e)(2) precludes a sentencing court from scoring a municipal ordinance violation when the convicting jurisdiction’s municipal code fails to designate that violation as either a felony or misdemeanor while it uses those designations for other violations. The court cannot delete vital portions from a statute or supply vital omissions. No matter what the legislature may have intended, if it did not in fact do so under any reasonable interpretation of the language used, the defect is one the legislature alone can correct.  

STATUTES: K.S.A. 2018 Supp. 21-5601(a), -5601(c)(1); K.S.A. 2015 Supp. 21-6602(a), -6801, -6803(c), -6809, -6810, -6811, -6811(a), -6811(e)(2); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

 

CIVIL

PARENTAL RIGHTS
IN RE K.H.
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,239—MAY 17, 2019

FACTS: The Mother's children were removed from her care after allegations of physical abuse. Mother appeared at all hearings during the reintegration process. Ultimately, the State moved to terminate Mother's parental rights, in part because she was recently incarcerated. At the termination hearing, Mother did not appear in person but did appear through her court-appointed attorney. The district court recessed for 10 minutes in order to allow Mother to attend, but when she did not come to court, the district court granted the State's motion for default judgment. Mother moved to reconsider, but her motion was denied; and Mother appealed.

ISSUE: (1) Ability to enter default judgment

HELD: There is statutory authority for a parental termination hearing where counsel attends in lieu of the parent appearing personally. If the parent does not appear, the State may proceed by proffer if there is no objection from the parent's counsel. If there is, the State must present evidence to the court in support of termination. The district court failed to follow this statutory procedure. Because of that failure, the record on appeal does not contain any evidence in support of termination. The case must be remanded to the district court for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2248(f), -2249(a), -2266(a), -2269(a), -2269(b), -2269(c), -2269(g)(1), -2267(d), -2234(a)(8), 60-255

 

ADVERSE POSSESSION—EASEMENTS
CENTRAL KANSAS CONSERVANCY, INC. V. SIDES
MCPHERSON DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 119,605—MAY 17, 2019

FACTS: In 1997, Union Pacific Railroad and the Central Kansas Conservancy entered into a line donation contract where Union Pacific gave the Conservancy a quitclaim deed to its easement rights for over 12 miles of railroad corridor. With that deed, the Conservancy obtained the right to develop a recreational trail on the easement. Part of the trail runs through the Sideses' land. In 2015, the Conservancy petitioned the district court for quiet title and an injunction concerning its trail use easement. It claimed that the Sideses attempted to block access to the easement with fencing and equipment in the roadway. The Sideses admitted that fact, but claimed that these actions constituted adverse possession of the Conservancy's ownership interest or, in the alternative, that they had a prescriptive easement on the land. The parties filed competing summary judgment motions and the district court granted the Conservancy's motion and denied the Sideses'. The district court eventually granted the Conservancy's request for an injunction which required the Sideses to allow the Conservancy to have access to the easement property. The order further discussed the erection of a fence that would keep the Sideses' cattle from straying. The Sideses appealed.

ISSUES: (1) Jurisdiction; (2) adverse possession and prescriptive easement; (3) application of time limit; (4) fencing

HELD: The Conservancy's original petition brought claims of quiet title, injunction, and damages. A decision on that petition could not be final until all three claims were addressed. There was a gap in time before the district court held a hearing and issued a decision on the injunction, and the decision was not final until that ruling was issued. Some real property cannot be adversely possessed or obtained by prescriptive easement, including property that is meant for public use. The Conservancy's trial use easement is meant for public use, which prevents the Sideses from obtaining rights through either adverse possession or prescriptive easement. The Conservancy's right to develop a trail arose before the KRTA went into effect, which means the district court properly ruled that the two-year time limit did not apply. And even if it did, the Sideses' only remedy would be to require the Conservancy to complete the trailthere is no remedy that would allow the property to revert to the Sideses. The district court violated the plain language of the statute when it ordered the Sideses to pay for half of the cost of fencing. The Conservancy must install barbed wire and electric fencing along the railroad corridor. The Conservancy may enter the Sideses' property when constructing a fence.

STATUTES: 16 U.S.C. § 1247(d); K.S.A. 2018 Supp. 58-3215; K.S.A. 58-3212, -3213, -3213(a)(3), -3213(c), -3213(d), 60-503, -509

 

CRIMINAL

criminal procedure—motions—sentences—statutes
state v. Young
sedgwick district court—appeal dismissed
NO. 119,265—may 17, 2019

FACTS: Young was convicted in 1999 of aggravated indecent liberties with a child. Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). In 2017, Young entered guilty plea to fourth KORA violation which occurred while on probation for his third KORA violation with an underlying 61-month guideline sentence. In a combined hearing, district court revoked probation for the third KORA violation and ordered service of the underlying 61-month sentence. For the fourth KORA violation, district court rejected Young’s request for a concurrent downward departure sentence, and imposed the minimum-89 month guideline sentence under the Kansas Sentencing Guidelines Act (KSGA) with consecutive service of the sentences. Young appealed, arguing the district court abused its discretion in failing to make a special finding that manifest injustice would occur by allowing his KORA violation sentence to run consecutive rather than concurrent to sentence in his prior criminal case. State contends there is no jurisdiction to appeal the presumptive guideline sentence.

ISSUE: 1) K.S.A. 2018 Supp. 21-6819(a)—manifest injustice

HELD: Under K.S.A. 2018 Supp. 21-6819(a) which is part of the Kansas sentencing guidelines, the consecutive sentence called for in K.S.A. 2018 Supp. 21-6606(c) when a defendant commits a crime while on probation for a previous felony conviction, is not required if imposition of such a sentence would be manifestly unjust. Here, the district court considered whether a consecutive sentence would be manifestly unjust and determined that it would not. District court did not depart from sentencing guidelines by imposing a guidelines sentence with consecutive service. Appeal is dismissed because an appellate court has no jurisdiction to entertain challenges to imposition of consecutive guideline sentences.

DISSENT (Arnold-Burger, J.): Dissents from majority’s conclusion that there is no jurisdiction to hear this appeal. Issue is whether Young can appeal a ruling on the existence of manifest injustice under K.S.A. 2018 Supp. 21-6819(a). Statute is clear and unambiguous. Under K.S.A. 2018 Supp. 21-6819(a) a court has discretion to determine whether manifest injustice exists to override the mandatory non-KSGA sentencing rule in K.S.A. 2018 Supp. 21-6606(c). Such a decision is distinctly different than whether to impose consecutive or concurrent presumptive KSGA sentences. On facts in this case, would affirm on the merits because the district judge did not abuse discretion in denying Young’s request for concurrent sentences.

STATUTES: K.S.A. 2018 Supp. 21-6606(c), -6801 et seq., -6803(f), -6803(i), -6803(q), -6819(a), -6819(b), -6820(a), -6820(c), -6820(c)(1), 22-4901 et seq., -4903(a), -4903(c)(1)(C), -4905(g); K.S.A. 21-4721(c)(1)

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May 10, 2019 Digests

Posted By Administration, Wednesday, May 15, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF SUSPENSION
IN RE KEVIN T. CURE
NO. 120,518 – MAY 10, 2019

FACTS: A hearing panel determined that Cure violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(d) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (failure to report felony charge). The complaint was filed after Cure had four DUI convictions and appeared in court under the influence.

HEARING PANEL: The panel noted Cure's multiple convictions as well as his conduct which directly affected clients. The panel considered both aggravating and mitigating factors, which included Cure's alcoholism. The disciplinary administrator recommended an indefinite term of suspension. Cure asked that he be placed on probation. The hearing panel recommended an 18-month suspension, with Cure required to undergo a Rule 219 hearing prior to the consideration of a petition for reinstatement.

HELD: Cure filed no exceptions to the hearing panel's report. The court found that Cure has made significant strides towards changing his circumstances. But his ethical violations were serious. For that reason, a majority of the court agreed with the panel's recommendation of an 18-month suspension. A minority of the court would have imposed lesser discipline.

ORDER OF SUSPENSION
IN RE DAVID E. HERRON, II
NO. 119,726—MAY 10, 2019

FACTS: A hearing panel determined that Herron violated KRPC 1.6 (confidentiality); 3.3(a)(1) and (d) (candor toward tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Charges arose after Herron told law enforcement that his client told him that she was faking urine tests in order to hide positive results. There was also an issue with a different client when Herron allegedly lied to the court about opposing counsel's willingness to reargue an issue after a bench warrant was issued. Herron was fired and his former employer filed a disciplinary complaint.

HEARING PANEL: The hearing panel found several instances where Herron lied to the district court. The hearing panel found a number of aggravating factors, including the submission of false evidence during the disciplinary process. The disciplinary administrator recommended disbarment. The hearing panel recommended that Herron be suspended for 30 days.

HELD: Herron disputed the hearing panel's findings. After considering Herron's arguments, the court adopted most of the hearing panel's report, but found that some actions flagged by the hearing panel as misconduct were within the realm of appropriate representation. A majority of the court concluded that a 60-day suspension was appropriate discipline. A minority of the court would have imposed a longer suspension.

Civil

DRAM SHOP LAW—TORTS
KUDLACIK V. JOHNNY'S SHAWNEE, INC.
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,869—MAY 10, 2019

FACTS: Kudlacik was gravely injured by Smith, who was intoxicated after spending the evening drinking at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's, claiming that bartenders continued to serve Smith even after they knew or should have known that he was intoxicated to an extent that he was a danger to others. Johnny's moved to dismiss on grounds that Kansas does not recognize a cause of action for a third-party to sue dispensers of alcoholic beverages for harm done to the third party. Kudlacik appealed and the Court of Appeals summarily affirmed. The Supreme Court granted Kudlacik's petition for review.

ISSUES: (1) Existence of negligence claim; (2) aiding and abetting

HELD: Kansas has repeatedly refused to impose a dram shop liability. Kudlacik's arguments that the current rule is outdated and bad public policy have merits, but not enough to change the status quo. There is no duty of care that runs from tavern owners to third-parties injured by tavern patrons after they have left the premises. Aiding and abetting claims exist only under narrow circumstances which are not applicable here.

STATUTES: No statutes cited.

 

QUO WARRANTO—STATUTORY INTERPRETATION
STATE V. KELLY
ORIGINAL ACTION—QUO WARRANTO GRANTED
NO. 121,061—MAY 10, 2019

FACTS: A vacancy on the Kansas Court of Appeals was created by the retirement of Judge Patrick McAnany on January 14, 2019. As required by statute, 60 days later, Governor Kelly nominated Judge Jeffry Jack to fill the vacancy. It is undisputed that the nomination was made and accepted within the statutory time frame. On March 18, 2019, Judge Jack sent a letter informing the Senate that he was withdrawing his name from consideration at the governor's request. The following day, Governor Kelly communicated this withdrawal to the Senate Majority Leader. In that same communication, Governor Kelly told the Senate Majority Leader that she would make a new appointment within 60 days. This prompted a discussion between the Governor, the Attorney General, and the Senate President about what could be done to fill the vacancy. Acting on a request from the Attorney General, the State filed this quo warranto action in an attempt to determine who holds the appointing authority. After the action was filed, Governor Kelly appointed a different attorney to fill the vacancy.

ISSUES: (1) Senate's capacity to be sued; (2) authority to appoint replacement judge

HELD: A quo warranto action demands that an individual or corporation show by what authority it has engaged in a challenged action—in this case, the action being challenged is Governor Kelly's second nomination. Although the Senate participated in this action and did not object to service, there is no authority giving the Senate President unilateral power to enter the Senate into litigation. There was no chamber resolution or authorization from the coordinating council directing action in this matter. The Senate has not engaged in any allegedly unauthorized action. Under these circumstances, the Senate is not a proper party to this action, and it is dismissed. K.S.A. 2018 Supp. 20-3020 governs appointments to the Court of Appeals. That statute provides that appointments are effective at the time they are made and does not contain any language for withdrawing a nomination. The parties rely on K.S.A. 75-4315b. But it is inapplicable for several reasons. First, Judge Jack withdrew his own name from consideration. More importantly, K.S.A. 2018 Supp. 20-3020(b) establishes different rules regarding the vote process. There is no statutory provision for a nominee to be withdrawn. This silence in the statute is an indication that the Legislature did not intend to provide this power, especially because the prior Court of Appeals appointment statutes did address the ability to withdraw a nominee from consideration. The only way for Judge Jack's nomination to be closed is for the Senate to vote. Because his nomination was still active at the time the second candidate was named, the second nomination is a legal nullity and is treated as though it never happened.

STATUTES: Kansas Constitution Article III, section 3, section 18; K.S.A. 2018 Supp. 20-3020, -3020(a), -3020(b), 46-1222a(a), -1222a(f); K.S.A. 60-1202(l), 75-4315b

Criminal

constitutional law—criminal procedure—sentences—statutes
state v. brook
Nemaha district court—affirmed; court of appeals—affirmed
no.115,657—may 10, 2019

FACTS: Brook entered a no contest plea to sexual exploitation of a child in 2013. Sentence imposed included 36-month prison term suspended for 36 months’ probation, and 2 years postrelease supervision. When Brook committed another crime, district court revoked probation and imposed the original sentence, correcting the postrelease term from two-year to a lifetime term as required for a sexually violent crime. Brook appealed, arguing the postrelease term could not be corrected as an illegal sentence, citing K.S.A. 2018 Supp. 22-3717(d)(3) and K.S.A. 2013 Supp. 22-3717(d)(1). He also claimed lifetime postrelease supervision is cruel and unusual punishment. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUES: (1) K.S.A. 2018 Supp. 22-3717(d)(3); (2) K.S.A. 2013 Supp. 22-3717(d)(1); (3) Constitutional claim

HELD: Book’s statutory arguments are rejected. Imposition of an underlying prison term after a probation violation is not equivalent to “incarceration for a supervision violation,” thus a period of postrelease supervision term may be modified while serving the underlying prison sentence after probation revocation.

The original sentence was illegal because the two-year postrelease term did not conform to applicable statutory requirements, thus it was subject to later correction.

Brook’s categorical constitutional challenge to lifetime postrelease supervision is defeated by State v. Williams, 298 Kan. 1075 (2014). State v. Dull, 302 Kan. 32 (2015), applicable to juvenile offenders, is distinguished and not expanded.

STATUTES: K.S.A. 2018 Supp. 22-3504(1), -3717, -3717(d)(1), -3717(d)(1)(D), -3717(d)(3); K.S.A. 2013 Supp. 22-3717(d)(1)(D), -3717(d)(1)(G); K.S.A. 22-3504

criminal procedure—motions—sentences
state v. edwards
sedgwick district court—affirmed in part, vacated in part, remanded
117,305—may 10, 2019

FACTS: Criminal charges filed against Edwards, including two counts of capital murder. District court appointed two experienced public defenders. Edwards filed a pro se motion for appointment of new counsel, claiming pressure to accept a plea deal. District court denied the motion. He eventually entered a guilty plea to two counts of felony murder, aggravated burglary and aggravated robbery. Two weeks later, he filed a pro se motion to withdraw his plea, alleging pleas resulted from attorney manipulation and lies, and that he engaged in sexual encounters with one of the public defenders. Hearing held with new appointed counsel. District court applied factors in State v. Edgar, 281 Kan. 30 (2006), finding: overwhelming evidence supported the competency of Edwards’ attorneys; Edwards was not misled, coerced, mistreated, or unfairly taken advantage of; and the allegations of sexual misconduct were not credible. At sentencing, district court imposed lifetime postrelease supervision for the felony-murder convictions and orally waived payment of the BIDS administrative fee, but journal entry assessed a $100 BIDS fee. Edwards appealed claiming district court erred in denying motion to withdraw plea. He also claimed district court lacked authority to order lifetime postrelease supervision, and the journal entry must be corrected to show district court’s waiver of the BIDS administrative fee.

ISSUES: (1) Lifetime postrelease supervision; (2) waiver of BIDS administrative fee; (3) motion to withdraw plea

HELD: State concedes that sentence for off-grid first-degree felony murder should have ordered lifetime parole instead of lifetime postrelease supervision.

The judge’s oral pronouncement is controlling. Any journal entry variance from a judge’s oral pronouncement during sentencing is a clerical error that may be corrected at any time. District court is ordered to correct the journal entry to properly reflect the waiver of BIDS fees.

Edwards relies exclusively on second Edgar factor to claim he was coerced into taking his plea, but evidence of his dissatisfaction with counsel is insufficient to establish good cause to withdraw a guilty plea. Edwards also objected to district court’s comments regarding plea offers by State in a co-defendant’s case. However, district court expressly confined itself to Edgar factors when deciding Edwards’ motion, and no abuse of district court’s discretion is shown. Edwards’ motion to withdraw his guilty plea is affirmed.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(1), -3504(2), -3601(b)(3)

appellate procedure—criminal law—criminal
procedure—evidence—jurisdiction—sentences—statutes
state v. garcia-garcia
montgomery district court—convictions affirmed,
sentence vacated in part, case remanded
116,648—may 10, 2019

FACTS: Garcia-Garcia was involved in a high-speed chase in Oklahoma, with shots fired from Garcia-Garcia’s car. After entering Kansas, he obtained a ride from Shafer, who felt threatened by a gun and was able to escape. Garcia-Garcia then obtained ride with Henderson, who was injured when officer Grimes stopped Henderson’s truck and exchanged gunfire with Garcia-Garcia. Prior to trial, district court denied a motion in limine to bar evidence about Garcia-Garcia’s criminal acts in Oklahoma. Jury convicted Garcia-Garcia of attempted capital murder of Grimes, kidnapping of Shafer, and interference with law enforcement. Sentence imposed included hard 25 life sentence with consecutive presumptive sentences for the remaining offenses. Garcia-Garcia appealed: (1) challenging relevancy and prejudice of evidence about his Oklahoma criminal acts, (2) claiming prosecutor error in voir dire and closing argument; (3) alleging district court should have given unrequested jury instruction on attempted kidnapping because overwhelming evidence that Shafer escaped; and (4) arguing district court erroneously  imposed BIDS fees as a percentage of attorney fees without knowing the exact amount. Supplemental briefing ordered on the notice appeal, which was titled to the Kansas Court of Appeals instead of the Kansas Supreme Court.

ISSUES: (1) Appellate jurisdiction; (2) evidence of Oklahoma crimes; (3) prosecutorial error; (4) lesser included offense instruction; (5) BIDS fee assessment

HELD: Kansas Supreme Court’s jurisdiction under K.S.A. 2016 Supp. 22-3601(b)(3) and (b)(4) is examined, holding the court has jurisdiction despite the misdirected notice of appeal.

Under facts in case, no abuse of district court’s discretion to find evidence of the Oklahoma criminal acts was not unduly prejudicial. Garcia-Garcia did not preserve his challenge to relevancy of the Oklahoma evidence.

Prosecutor’s voir dire explanation of reasonable doubt did not alter or lower the State’s burden. Prosecutor’s suggestion during closing argument that Garcia-Garcia had a duty to act in defense of officers was harmless error in this case.

By showing his gun, Garcia-Garcia gained sufficient control over Shafer to complete the crime of kidnapping. An instruction on lesser included offense of attempted kidnapping was not factually appropriate.

Court reviews the newly raised BIDS issue. Under State v. Robinson, 281 Kan. 538 (2006), district court’s failure to fulfill its statutory duty to consider the defendant’s financial resources and burden created by the attorney fees before granting a partial waiver was reversible error. Attorney fees assessment is vacated and case remanded for reconsideration of Garcia-Garcia’s obligation.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(3). -5301(a), -5401(a)(5), -5408(a)(2), -6620(a)(2)(A), 60-455, -455(b), -2103(b); K.S.A. 2016 Supp. 22-3601(b), -3601(b)(3), -3601(b)(4)(G); K.S.A. 2015 Supp. 21-5401(c), -6620(a)(2)(A); K.S.A. 22-4513, 60-404, -455

 

criminal law—criminal procedure—sentences
state v. moore
wyandotte district court—sentence vacated in part and case remanded
No. 117,275—may 10, 2019

FACTS: Moore and Warren were tried together and convicted of premeditated first-degree murder, intentional second-degree murder, and attempted premeditated first-degree murder. Hard 50 life sentences were imposed for the off-grid premeditated murder convictions. In Moore’s case, gridbox sentences of 195 months and 155 months were imposed, with all of Moore’s sentences to run concurrent. Convictions in both cases were affirmed on appeal, but hard 50 sentences were vacated due to Alleyne v. United States, 570 U.S. 99 (2013). On remand, the district court imposed hard 25 sentences for first-degree murder convictions, modified the duration and concurrent nature of the on-grid convictions, and ordered all sentences to run consecutive instead of concurrent. Moore appealed.

ISSUE: Sentencing on remand

HELD: Applying the controlling holding in State v. Warren,  307 Kan. 609 (2018), district court on remand erred by changing life sentence from “running concurrent with,” to “consecutive to,” Moore’s sentences for his two non-vacated on-grid crimes, and by modifying the two non-vacated, on-grid sentences in length and sequence. Sentence vacated in part and case remanded for resentencing to reinstate Moore’s original 195-month and 155-month concurrent grid sentences, to run concurrent with the new hard 25 sentence.

STATUTE: K.S.A. 2018 Supp. 21-6801 et seq., 22-3601(b)(3)

Kansas Court of Appeals

Civil

DRIVER'S LICENSE—STATUTORY CONSTRUCTION
JARVIS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,116—MAY 10, 2019

FACTS: Officer Hirsch stopped Jarvis on suspicion of DUI. Officer Hirsch read the implied consent advisories to Jarvis, who refused to take a breath test. This resulted in the administrative suspension of Jarvis' driver's license. Jarvis requested an administrative hearing but the suspension was upheld. Jarvis then sought judicial review, claiming that the officer lacked reasonable suspicion to initiate the stop. After hearing testimony and reviewing the evidence—including video of the traffic stop—the district court reversed the suspension. In so holding, the district court found that Officer Hirsch's testimony was not credible. The Department of Revenue appealed.

ISSUES: (1) Reasonable suspicion for the car stop; (2) effect of 2016 amendment to K.S.A. 8-1020(p); (3) good faith exception

HELD: Appellate courts are unable to review a lower court's factual findings regarding witness credibility, and the district court found that Officer Hirsch's testimony was not credible. Legislative history shows that the 2016 amendment to K.S.A. 8-1020(p) was designed to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in a driver's license suspension case. In this case, the district court's ruling was not based on an application of the exclusionary rule. The district court did not suppress evidence but rather set aside the suspension of Jarvis' license finding that the plain language of K.S.A. 2018 Supp. 8-1020(p) justified reversal of the suspension. The issue of application of the good faith exception was not raised below. As such, it will not be reviewed for the first time on appeal. Even if the court were to address it on the merits, it would not be a winning argument, since the reversal of Jarvis' suspension was not based on the exclusionary rule.

STATUTES: K.S.A. 2018 Supp. 8-1020(p); K.S.A. 8-1020(h)(2)

BANKS—CONSUMER PROTECTION
COMMUNITY FIRST NATIONAL BANK V. NICHOLS
WABAUNSEE DISTRICT COURT—AFFIRMED
NO. 118,981—MAY 10, 2019

FACTS: Sarah Grace and Kurtis Nichols obtained two home loans from Community First National Bank. When the Nicholses failed to make payments, the bank filed this foreclosure action. The Nicholses filed several counterclaims alleging violations of the Kansas Consumer Protection Act. The bank filed a motion for partial summary judgment arguing that it was not subject to the KCPA. The district court granted that motion, dismissed the rest of the Nicholses' counterclaims, and granted the Bank's motion for foreclosure. The Nicholses appealed.

ISSUES: (1) Applicability of the KCPA; (2) application of payments; (3) fraud in applying credit; (4) ability to charge late fees; (5) accrual of interest during deferral period

HELD: The plain text of the KCPA states that banks are not included in the definition of "supplier" if the bank is subject to state or federal regulation related to disposition of repossessed collateral. This holding is in line with Kansas federal courts and gives meaning to the plain language of the statute. The mortgage contract is clear about how interest is accrued but silent on how payments should be applied. The district court erred by finding that the contract was unambiguous. However, any error was harmless, as the amount owed by the Nicholses was ultimately correct. The Nicholses' claims about fraud are unsupported by the record on appeal. The evidence supports the district court's findings that any errors in late fee calculation were unintentional and minimal. The deferral agreement clearly deferred payments but did not stop interest accrual.

STATUTES: K.S.A. 2018 Supp. 50-624(1), -626, -627; K.S.A. 16a-2-103(2)(a), -502(l), -5-201(3), -5-201(4), -5-201(7)

Criminal

criminal law—criminal procedure—sentences—statutes
state v. pollman
finney district court—sentence vacated and case remanded for resentencing
no.118,672—may 10. 2019

FACTS: Pollman was charged in 2011 with discharging a firearm at an occupied vehicle, and two counts of criminal damage to property. Pursuant to plea agreement he entered no-contest plea to amended charge of discharge of firearm at an unoccupied vehicle—a crime that did not exist—and State dismissed the two criminal damage counts. District court accepted the plea, categorized the nonexistent offense as a severity level 8 person felony, ordered $4000+ in restitution, imposed a 10-month prison term, and granted 18-month probation. Pollman was charged and convicted in 2017 on a drug possession charge. Sentencing court scored the nonexistent 2011 offense as a person felony. Pollman appealed the 2017 sentence, arguing that rule of lenity or by treating the 2011 conviction as an unclassified crime, the 2011 crime should be scored as a nonperson misdemeanor. In supplemental briefing on appellate court questioning the validity of the 2011 conviction, Pollman argued the 2011 conviction for a noncriminal act was invalid or void for purpose of his criminal history.  

ISSUES: (1) Use of nonexistent offense in criminal history score, (2) scoring the nonexistent offense for purposes of criminal history

HELD: Pollman’s 2011 conviction for discharging firearm at an unoccupied vehicle stands. He forfeited right to attack an underlying infirmity in the charge to which he pleaded, as established by cited cases in Kansas and other jurisdictions. Other nonexistent or hypothetical crimes are discussed. Factors in Spencer v. State, 24 Kan. App. 2d 125 (1997), aff’d on other grounds 264 Kan. 4 (1998), for pleading to a nonexistent crime are satisfied. Pollman pleaded to a nonexistent crime as part of a plea agreement. He was initially brought into court on a valid pleading that alleged only crimes defined by Kansas Legislature. He received a beneficial plea agreement. And he voluntarily and knowingly entered into the plea agreement.

Pollman’s 2011 conviction is not among the exclusive statutory exceptions to general rule that requires all convictions are to be counted. The 2011 conviction was a verified conviction. By nature of penalty imposed, it was a felony, and this unclassified felony should have been scored as a nonperson crime. The rule of lenity does not apply because criminal code guides how to classify unclassified, omitted, or unranked convictions. Pollman’s 2017 sentence is vacated and remanded for resentencing to score the 2011 offense as a nonperson felony rather than a person felony.

DISSENT (Atcheson, J.): Dissents from majority’s result and reasoning. District court’s acceptance of Pollman’s plea created a common-law crime existing by judicial declaration rather than legislative enactment. This is contrary to Kansas Criminal Code; it ignores controlling Kansas Supreme Court precedent; and almost certainly violates Kansas Constitution’s separation of powers. Majority’s broad endorsement of plea agreements and convictions for common-law crimes is unjustified. Plea bargaining in Kansas does not contemplate common-law crimes. Majority misapplied judicial reasoning by analogy. Cases cited by majority are distinguished as resulting in convictions for statutory crimes, unlike Pollman’s 2011 conviction for an offense not in the Kansas Criminal Code. Future problems in plea bargaining are envisioned, and the majority failed to consider collateral consequences apart from scoring criminal histories.

STATUTES: K.S.A. 2018 Supp. 2-2449(a), 8-2118(c), 21-5210, -5301,-5302, -5813, -6308, -6613, -6614, 22-4902(c), -4902(c)(16), -4902(c)(18), 47-830(e); K.S.A. 2016 Supp. 21-5102, -5102(a), -5102(d),  -5103(a), -6602(a)(4), -6806(c), -6807(c)(1)-(3),  -6810(c), -6810(d), -6810(d)(1), -6810(d)(6), -6810(d)(9), -6813(b)(5); K.S.A. 2011 Supp. 22-4902(e)(2); K.S.A. 2010 Supp. 21-4217(a)(1), -4217(a)(2), 22-3502; K.S.A. 8-1534(d), 21-3102, -3105, -3720, -3720(b)(2), -4219, -4219(b), -5301(c)(1), 22-3504, -4901 et seq., 60-1507, 65-6615(a)(2)

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May 3, 2019 Digests

Posted By Administration, Monday, May 6, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN RE JOHN S. SUTHERLAND
BAR DOCKET NO. 8,791—MAY 2, 2019

FACTS: In a letter signed April 23, 2019, John S. Sutherland voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Sutherland was facing a disciplinary complaint connected with his convictions for mail fraud and making a false statement.

HELD: The Court accepts the surrender of Sutherland's license and he is disbarred.

 

Kansas Court of Appeals

CIVIL

JURISDICTION—STANDING—TRUSTS
IN RE ESTATE OF MOUCHAGUE
JOHNSON DISTRICT COURT—APPEAL DISMISSED
NO. 118,287—MAY 3, 2019
 

FACTS: Mouchague died in 2012. Terry Diehl was appointed as executor of her estate. The sole beneficiary of the estate of Mouchague's trust. Leonard and Patricia Kowalski have an 80% equitable interest in the trust as beneficiaries, but neither Leonard nor Patricia serve as a trustee. In her role as executor, Diehl moved for attorney fees for costs incurred in a quiet title action. The district court in this probate action awarded Diehl fees not only for the quiet title action but also for a prior appeal in which the Kowalskis challenged another attorney fee award. The Kowalskis appealed.

ISSUES: (1) Standing; (2) actions by the trustee; (3) appellate attorney fees

HELD: The Kowalskis are aggrieved here because Diehl has been awarded fees out of estate funds, which leaves less money to eventually pass on to the Kowalskis. But neither Kowalski is a beneficiary of Mouchague's will—the only beneficiary is the trust. The Kowalskis lack standing to pursue an action on their own behalf when the appropriate party would be the trustee. But an exception would allow them to pursue this action if they could prove that the trustee failed to protect their interests as beneficiaries. The Kowalskis failed to prove that the trustee improperly failed to protect their interests in trust property. In light of this absence of proof, only the trustee has standing to appeal. Documents provided to the court show that Diehl is entitled to appellate attorney fees. But the motion failed to include the detailed affidavit that is required by Rule 7.07(b)(2). In the absence of that required affidavit, the motion for fees is denied.

STATUTES: Kansas Constitution, Article 3, § 1; K.S.A. 58a-816(24), -1001(a), 59-1717, -2224

 

CRIMINAL 

constitutional law—criminal law—evidence—statutes
state v. warnke
dickinson district court—reversed
No. 118,738—May 3, 2019

FACTS: Auto driven by Warnke collided with horse-drawn open two-wheeled buggy traveling on K-43, resulting in death of horse and injuries to the two boys in the buggy. Some evidence that Warnke may have been on her cell phone right before the accident. Jury found Warnke guilty of felony reckless aggravated battery and misdemeanor criminal damage to property.  Warnke also convicted on two traffic infraction charges tried to the court. On appeal Warnke challenged the sufficiency of the evidence supporting her convictions, arguing the record contains at most evidence of inattentive driving, and no evidence she acted knowingly. She also argued the phrase “can be inflicted” in the aggravated battery statute is unconstitutionally vague. 

ISSUES: (1) Aggravated battery, (2) misdemeanor criminal damage to property, (3) constitutionality of K.S.A. 2018 Supp. 21-5413(b)(2)(B)

HELD: Reckless aggravated battery statute, requiring a showing of reckless conduct, is contrasted with vehicular homicide statute which does not require proof of reckless or intentional misconduct. Speaking on a cell phone while driving is not a violation of Kansas traffic laws. In this case, Warnke clearly was at fault for failing her common-law duty to keep a proper lookout of the road ahead, but her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery. Convictions on those two charges are reversed.

            Warnke was aware that she was talking on cell phone as she drove down the highway, but evidence does not support that she was aware that talking on cell phone while driving was reasonably certain to cause her collision with the buggy. Conviction for criminal damage to property is reversed. 

            Warnke’s constitutional claim is dismissed as moot.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(i), -5202(j), -5406, -5406(a), -5406(c), -5413(b)(2), -5813(a)(1), -5813(c)(3); K.S.A. 2016 Supp. 8-15,111, 21-5413(b)(2)(A), -5413(b)(2)(B), -5813(a)(1), -5813(c)(3); K.S.A. 21-3405

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April 26, 2019 Digest

Posted By Administration, Monday, April 29, 2019

Kansas Supreme Court

 

Civil

EQUAL PROTECTION—KANSAS CONSTITUTION
HODES & NAUSER, MDS V. SCHMIDT
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 114,153 – APRIL 26, 2019

FACTS: Senate Bill 95 bans the most common type of second-trimester abortion, referred to in medical terms as Dilation and Evacuation (D&E). Doctors Hodes and Nauser, who perform both regular abortions and D&Es, sought to temporarily enjoin SB 95 on grounds that it violates sections 1 and 2 of the Kansas Constitution Bill of Rights. The State objected, arguing both that the Kansas Constitution does not provide a right to abortion or, in the alternative, that SB 95 is not unduly burdensome. The district court agreed with the doctors and issued the temporary injunction. The State immediately appealed and the Kansas Court of Appeals, sitting en banc, affirmed the district court by splitting 6-1-7. The State's petition for review was granted.

ISSUES: (1) Establishing a constitutional right; (2) level of scrutiny

HELD: Sections 1 and 2 of the Kansas Constitution Bill of Rights have much the same effect as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, but the Kansas Supreme Court has the right to interpret the amendments more expansively than do federal courts who interpret the corresponding federal provisions. Section 1 of the Kansas Constitution Bill of Rights acknowledges rights that are distinct from and broader than the United States Constitution. This includes the right to personal autonomy and, in turn, the right of a woman to make her own decisions regarding her body, health, and family formation. The State may encroach on these natural rights only with a compelling justification. The fundamental right implicated here demands that strict scrutiny be used to evaluate the proposed legislation; the court rejects the Casey standard of "undue burden." Even though the district court used an undue burden standard the error is harmless. The district court correctly issued the temporary injunction because the doctors proved that they are substantially likely to prevail on their claim that SB 95 does not promote a compelling government interest.    

CONCURRENCE: (Biles, J.) The correct result was reached, including the findings on the meaning of section 1 of the Kansas Constitution. But the strict scrutiny established by the majority offers little guidance for application or how to differentiate from the undue burden standard.  

DISSENT: (Stegall, J.) The majority's decision fundamentally alters the structure of our government. Section 1 of the Kansas Constitution Bill of Rights is a guarantee of the right of republican self-government. Instead of using a strict scrutiny analysis as relates to a fundamental right, the proper standard is "rational basis with bite." The linchpin of the analysis is questioning what Kansas citizens have authorized the legislature to do on their behalf. Here, the analysis would question whether SB 95 is reasonably related to the furtherance or protection of the common welfare.

STATUTES: Kansas Constitution Bill of Rights, sections 1 and 2

Tags:  8805  Shawnee District  Vol. 88  Weekly20190430 

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April 19, 2019 Digests

Posted By Administrator, Monday, April 22, 2019

Kansas Supreme Court

CIVIL

DATE OF INJURY—WORKERS COMPENSATION
KNOLL V. OLATHE SCHOOL DISTRICT NO. 233
WORKERS COMPENSATION BOARD OF APPEALS—REVERSED and REMANDED

COURT OF APPEALS—AFFIRMED 
NO. 116,167—APRIL 19, 2019

FACTS: Knoll filed a claim for workers compensation coverage and requested a hearing. The claim did not proceed to final hearing within three years, so the school district moved for dismissal. The ALJ denied that request, holding that under K.S.A. 2009 Supp. 44-523(f) Knoll had five years to either proceed to final hearing or request an extension of time. The Board affirmed that holding but the Court of Appeals reversed, finding that K.S.A. 2011 Supp. 44-523(f)(1) controlled Knoll's claim and required either a final hearing or a motion within three years. Knoll's petition for review was granted.

ISSUE: (1) Which version of K.S.A. 44-523 controlled Knoll's claim

HELD: The only issue is which version of the statute controls—the 2009 version, which allows five years, or the 2011 version, which allows three years. The beginning point for applicable law in a workers compensation case is the date of injury. For Knoll, that was in 2009. But when a law changes, the amendments apply to the worker if the changes are procedural in nature. Statutes of limitation are considered procedural, and the 2011 amendments to K.S.A. 44-523 were very similar to a statute of limitation. And the changes went into effect before Knoll filed her application for hearing. K.S.A. 2011 Supp. 44-523(f)(1) applies to any cases that were pending during its enactment where the claimant did not file an application for hearing until after the 2011 amendments took effect.

DISSENT: (Rosen, J.) The 2011 changes to K.S.A. 44-523 do not create a three-year time limit. While the 2011 statute was the correct one to apply to Knoll's claim, it does not bar the ALJ from considering Knoll's request for an extension of time.

STATUTES: K.S.A. 2011 Supp. 44-523(f)(1); K.S.A. 2009 Supp. 44-523(f)

ELECTRONIC FILING—MOTIONS TO DISMISS
LAMBERT V. PETERSON
WYANDOTTE DISTRICT COURT—AFFIRMED
NO. 117,344—APRIL 19, 2019
 

FACTS: Lambert filed a medical malpractice action as the administrator of the estate of Stan Novak. All defendants filed motions to dismiss on grounds that Lambert's petition was barred by the statute of limitations; file stamps on the petition showed it was filed one day after the two-year limitations period expired. Lambert responded by claiming that she electronically filed the petition within the statute of limitations but it was rejected by the clerk's office. Once she learned of the rejection she made the required changes and uploaded the petition for a second time, although it was outside of the statute of limitations. Lambert argued that the petition should be deemed filed as of the date of payment. The district court heard the motion, at which Lambert provided no testimony and presented no affidavit or declaration. The district court ruled that it was unable to equitably extend the statute of limitations and dismissed the action. Lambert appealed and the Supreme Court took the case on transfer.

ISSUE: (1) Date of filing

HELD: It is undisputed that the limitations period ran two years following Novak's death, and it is undisputed that the petition was filed one day after that date. Lambert's claim that the petition was actually filed on that date is not supported by any evidence in the record on appeal. Lambert had the opportunity to present evidence, through an affidavit or declaration, but she failed to do so. Lambert also failed to present the actual documents that were transmitted in her first attempt to electronically file the petition. Lambert's failure to present adequate evidence means the district court's ruling must be affirmed.

STATUTES: K.S.A. 2018 Supp. 60-212(d), -256, -656(c)(2), -656(e)(2); K.S.A. 60-513(a)(4), -513(a)(5), -513(a)(7)

WORKERS COMPENSATION
GLAZE V. J.K. WILLIAMS LLC
WORKERS COMPENSATION BOARD—BOARD OF APPEALS IS AFFIRMED
BOARD IS AFFIRMED
NO. 115,763—APRIL 19, 2019

FACTS: Glaze claimed that he was injured while working for J.K. Williams, LLC, and he filed a motion for hearing. In 2016, Williams moved to dismiss claiming that Glaze's claim should be dismissed because the claim had been neither heard nor settled within three years of filing the application for hearing. After the motion was filed, Glaze filed a request for extension of time. The ALJ granted Williams' motion to dismiss, finding that K.S.A. 2011 Supp. 44-523(f)(1) required dismissal because Glaze did not request an extension of time within three years of the filing of his application for hearing. This decision was confirmed by the Workers Compensation Board of Appeals and again by the Court of Appeals. Glaze's petition for review was granted.

ISSUE: (1) Requirements of K.S.A. 2011 Supp. 44-523(f)(1)

HELD: K.S.A. 2011 Supp. 44-523(f)(1) unambiguously prohibits an ALJ from granting an extension of time unless the motion for extension has been filed within three years of the filing of the application for hearing.

DISSENT: (Rosen, J.) Justice Rosen would look beyond the majority's grammatical reasoning when considering ambiguity. This statute is susceptible to multiple interpretations and for that reason, he believes the Legislature intended the three-year time limit to apply to a conclusive presumption of good cause.

STATUTE: K.S.A. 2011 Supp. 44-523(f)(1)

CRIMINAL 

consTitutional law—criminal law—criminal procedurE—evidence—motions—sentences—statutes
state v. boysaw
sedgwick district court—affirmed
court of appeals—affirmed
NO. 112,834—april 19, 2018

FACTS: Boysaw was charged with aggravated indecent liberties with a child. He filed motion in limine to bar evidence of his criminal history or uncharged conduct. Finding probative value of the proffered evidence was not outweighed by prejudicial effect, district court allowed State to introduce evidence of Boysaw’s 1987 Nebraska sexual assault conviction, for purposes of showing both propensity and motive or intent and absence of mistake. Jury convicted Boysaw on the charged offense. Life sentence without parole imposed.  Boysaw appealed claiming: (1) State provided insufficient evidence his conduct was intended to arouse or satisfy sexual desires; (2) admission of evidence of the Nebraska conviction violated fair trial guarantees in U.S. and Kansas constitutions; (3) district court erred in weighing probative value of prior conviction evidence against prejudicial effect; and (4) error to use the Nebraska conviction to sentence him as a habitual sex offender. Court of appeals affirmed, 52 Kan. App. 2d 635 (2016). Review granted.

ISSUES: (1) Sufficiency of the evidence; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d); (3) probative value of prior conviction versus prejudicial effect; (4) sentencing

HELD: Evidence of Boysaw’s intent was circumstantial but compelling enough on the record to provide more than sufficient evidence to prove elements of the crime.

K.S.A. 2018 Supp. 60-455(d) does not violate federal constitutional protections. Court outlines law in effect for admission of evidence under K.S.A. 60-455 in State v. Prine, 287 Kan. 713 (2009)(Prine I), the Legislature’s amendment of the statute in response, and rejection of the ex post facto challenge to application of the amended statute in State v. Prine, 297 Kan. 460 (2013)(Prine II). Given the historical use of propensity evidence in Kansas, coupled with safeguard of weighing probative against prejudicial effect of the evidence, the statute does not offend any principle of justice so rooted in traditions and conscience of the people of Kansas that it must be deemed fundamental. State constitutional argument is not decided because Boysaw failed to adequately brief why a different result should follow under state guidelines. Long history of coextensive analysis of rights under the two constitutions is noted for consideration in any future argument on this issue.

K.S.A. 2018 Supp. 60-455 and Fed.R.Civ.P. 403 are compared. In Kansas, the weighing of probative value versus prejudicial effect is a judicial construct rather than rule based. Factors to be considered in that weighing are set forth. In this case, district court’s analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence is approved and upheld.

Boysaw abandoned his claim that the Nebraska conviction did not qualify as a sexually violent crime in Kansas, and his challenge to the constitutionality of K.S.A. 2018 Supp. 21-6626 was defeated by controlling caselaw.

STATUTES: K.S.A. 2018 Supp. 21-5506(b)(3), -6626, 60-455, -455(d); K.S.A. 2012 Supp. 21-5506(b)(3)(A), -5506(c)(3); K.S.A. 2009 Supp. 21-4642; K.S.A. 60-455

appeals—criminal procedure—motions—sentences—statutes
state v. murphy
shawnee district court—reversed and remanded
NO. 117,315—april 19, 2019

FACTS: Murdock was convicted of aggravated robbery and robbery. On appeal, Kansas Supreme Court reversed and remanded for resentencing, finding Murdock’s prior out-of-state convictions must be scored as nonperson offenses, and holding the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. 299 Kan. 312 (2014). At resentencing, district court applied Murdock and scored the out-of-state convictions as nonperson felonies, resulting in a criminal history of C instead of A. Six months later, State v. Keel, 302 Kan. 560 (2015), overruled Murdock, holding the comparable Kansas offense is the one in effect at the time the current crime of conviction was committed. State then moved to correct Murdock’s sentence. District court granted the motion and sentenced Murdock a third time, finding a criminal history score of A. Murdock appealed, arguing his second sentence was legally imposed under Murdock, and did not become illegal after Keel changed the law. While his appeal was pending, the legislature amended K.S.A. 22-3504 to state a sentence is not made illegal by a change in the law after the sentence is pronounced. Case transferred to Kansas Supreme Court, which granted supplemental briefing on retroactive application of the amended statute, and on Murdock’s alternative argument based on State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Legality of sentence

HELD: Under K.S.A. 22-3504, the legality of a sentence is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. K.S.A. does not give either party the benefit of later changes in the law, but does give both parties the opportunity to revisit a merits determination of legality in the limited circumstance when there is reason to think that determination was wrong in the first place. Here Murdock’s second sentence was legally imposed according to the Murdock mandate, and Keel did not render Murdock’s second sentence illegal. Reversed and remanded to reinstate Murdock’s lawful sentence. Applicability of Wetrich and retroactivity of the amendment to K.S.A. 22-3504 is not considered.

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

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2015 Supp. 21-6810(d)(2), -6811(e)(3); K.S.A. 21-4711(e), 22-3504, -3504(1) 

criminal law—criminal procedure—jury instructions
state v. qualls
shawnee district court—reversed and remanded
NO. 115,648—april 19, 2019

FACTS: Qualls convicted of premeditated first-degree murder. Conviction reversed, based on district court’s failure to give lesser included offenses instructions. 297 Kan. 61 (2013). On retrial, jury again found him guilty of premeditated first-degree murder. Qualls appealed on issues including alleged error in not granting a defense request for a self-defense instruction.

ISSUE: (1) Self-defense instruction

HELD: State v. Haygood, 308 Kan. 1387 (2018), clarified the objective and subjective requirements that must be met to receive a self-defense instruction, and the kind of evidence that suffices to meet those requirements. In the present case, a self-defense instruction was legally appropriate, and under Haygood, Qualls’ testimony was sufficient to make the self-defense instruction factually appropriate. Under facts in this case, denying the requested self-defense instruction was error, and the error was not harmless. Reversed and remanded to district court.

STATUTE: K.S.A. 2017 Supp. 21-5108(c), -5222

constitutional law—criminal law—criminal procedure—evidence—motions—sentences—statutes
state v. razzaq
sedgwick district court—affirmed; court of appeals—affirmed
NO. 114,325—April 19, 2019

FACTS: Razzaq was convicted of aggravated indecent liberties with a child. Court of appeals affirmed the conviction in an unpublished opinion. Razzaq’s petition for review granted on claims that: (1) district court erred in allowing a State witness to introduce fact of Razzaq’s prior convictions in Missouri for sex crimes, (2) K.S.A. 2918 Supp. 60-455(d) violates Kansas Constitution’s right to fair trial; (3) Court of appeals inadequately addressed the speedy trial issue raised in supplemental briefing; and (4) constitutional error to use prior convictions to enhance sentence.

ISSUES: (1) Probative value of prior convictions versus prejudicial effect; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d) under Kansas Constitution; (3) speedy trial; (4) sentencing

HELD: As held in State v. Boysaw (Case No. 112,834, decided this date), safeguards in Kansas courts for admission of evidence of other bad acts resemble Federal Rule of Evidence 403, requiring a district court to weigh probative value of such evidence against the danger of unfair prejudice. In this case, the district court implicitly weighed the probative value of evidence of the Missouri convictions against danger of undue prejudice and did not abuse its discretion in admitting the evidence.

No violation of the Kansas Constitution. To the extent Razzaq argues that other states have found state constitutional violations in their bad-acts evidentiary statutes, no similarity to Kansas Constitution is shown.

District court and court of appeals correctly determined that the record does not support Razzaq’s speedy trial claims.

Constitutional challenge to Razzaq’s sentence is defeated by State v. Ivory, 273 Kan. 33 (2002).       

STATUTES: K.S.A. 2018 Supp. 22-3402(b), 60-455(d); K.S.A. 2013 Supp. 60-455(d); K.S.A. 21-3504(a)(1) 

criminal procedure—jurisdiction—motions —post-conviction relief
stAte v. robertson
butler district court—affirmed
NO. 118,427—april 19, 2019

FACTS: Robertson was convicted of first-degree murder, arson, and aggravated burglary. The Kansas Supreme Court affirmed the convictions and sentences on direct appeal, 279 Kan. 291 (2005), and rejected various post-conviction motions seeking relief under K.S.A. 22-3504 and K.S.A. 60-1507. Robertson then invoked jurisdiction under K.S.A. 22-3504 to file motion to correct illegal sentence and motion to dismiss for lack of jurisdiction. He alleged fatal defect in the charging document because it named him as an individual rather than sovereign, and used an incorrect (non-trust) version of his name. He also reserved rights not to perform under Kansas statutes that he construed as commercial contracts. District court summarily denied relief. Robertson appealed.

ISSUES: (1) Motion to correct illegal sentence; (2) motion to dismiss and K.S.A. 60-1507

HELD: Robertson cannot collaterally attack a conviction through a motion to correct an illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the district court lacked jurisdiction to convict. Personal jurisdiction distinguished from Robertson’s reliance on subject matter jurisdiction caselaw.

K.S.A. 2018 Supp. 22-3504 provides no statutory basis for jurisdiction over  Robertson’s motion to dismiss. Even if liberally construed as a motion under K.S.A. 2018 Supp. 60-1507, the motion would be procedurally barred as successive and filed out of time.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(1), -3504(3), -3601(b)(3), 60-1507, -1507(c), -1507(f)(1), -1504(f)(2); K.S.A. 22-3504, 60-1507 

Kansas Court of Appeals

CIVIL

PARENTS AND CHILDREN
IN RE W.L.
CRAWFORD DISTRICT COURT—AFFIRMED
NO. 119,536—APRIL 19, 2019

FACTS: M.S. and E.L. were in a same-sex relationship but never married. E.L. conceived two children during the relationship, using artificial insemination. There was never a written agreement regarding parentage and it is undisputed that M.S. is not a biological parent and never adopted the children. There was testimony that M.S. was not very involved during the pregnancy and made few decisions regarding the care of the children. After the couple split, M.S. saw the children regularly but E.L. had concerns over whether M.S. was a fit parent. M.S. filed a parentage action. After a trial, the district court concluded that even if M.S. could establish a presumption of parentage under the Kansas Parentage Act, E.L. rebutted that presumption by proving that M.S. failed to meet the criteria of a functional parent.  

ISSUES: (1) Presumption of parentage; (2) rebuttal of presumption; (3) best interests analysis; (4) equal protection

HELD: Under the KPA, an unmarried person seeking to establish a parent-child relationship with a child conceived using artificial reproductive technology must attempt to do so by using the procedure established by the KPA. Although there was no written acknowledgment of parentage in this case, the district court seemed to apply the presumption, to M.S.'s benefit. Although it would have been better to have explicitly done that analysis, any failure by the district court to do so was harmless. The absence of a written agreement makes it difficult to interpret the parties' intent. In the absence of that written agreement, E.L. met her burden to overcome the presumption in favor of M.S. This is especially true because the district court found E.L. to be more credible than M.S., and credibility determinations are not reviewable on appeal. The district court was not required to make a best interests finding, but doing so was not erroneous. M.S. fails to prove that the KPA treats classes of people differently.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2205, -2208(a), -2208(a)(4), -2208(b), -2220, -2302, -2303, 59-2114, -2115

Tags:  Butler District  Crawford District  Sedgwick District  Shawnee District  Weekly20190423  Workers Comp  Wyandotte District 

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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.

 

Tags:  Disbarment  Reno District  Saline District 

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