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October 20, 2017 Digests

Posted By Administration, Monday, October 23, 2017

Kansas Supreme Court




NO. 117,517—OCTOBER 20, 2017


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

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

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



Kansas Court of Appeals




NO. 116,888—OCTOBER 20, 2017

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

ISSUE: Whether the policy exclusion applied to this loss

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

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

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No New Posts from Friday, October 13, 2017

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

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October 2, 2017 Digest

Posted By Administration, Tuesday, October 10, 2017

Kansas Supreme Court


NO. 113,267—OCTOBER 2, 2017

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

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

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

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

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

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

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September 29, 2017 Digests

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

Kansas Supreme Court – Attorney Discipline

NO. 17,370 – SEPTEMBER 29, 2017

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

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


NO. 99,410 – SEPTEMBER 29, 2017

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

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

Kansas Court of Appeals – Criminal

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

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

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

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

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

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

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

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

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

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

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

Tags:  Attorney Discipline  order of reinstatement 

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September 22, 2017 Digests

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

Court of Appeals

NO. 116,500—SEPTEMBER 22, 2017

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

ISSUES: Constitutionality of the city's ordinance

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

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

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September 15, 2017 Digests

Posted By Administration, Tuesday, September 19, 2017
Updated: Monday, September 18, 2017

Kansas Supreme Court



Attorney Discipline


NO. 8,022—SEPTEMBER 13, 2017

FACTS: In a letter dated August 31, 2017, Eldon L. Boisseau, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. A complaint was pending at the time of surrender; the complaint alleged that Boisseau violated Kansas Rules of Professional Conduct by having been convicted of attempting to evade or defeat tax.

HELD: The court found that the surrender should be accepted and that Boisseau should be disbarred.




No. 11,2782—SEPTEMBER 15, 2017

FACTS: In a consolidated trial, Brown was convicted of offenses including felony murders of Tampone and Rhone, each with an underlying felony of aggravated robbery. On appeal, he claimed his statements to the police should have been suppressed because detective misinformed him of Miranda right to counsel. He next claimed insufficient evidence supported his conviction for felony murders. Third, he claimed reversible errors in district court’s instructions to the jury, citing: a narrowed instruction for felony murder as not matching the information; an attempted aggravated robbery instruction that broadened the crime charged; an instruction defining “intent to aid and abet attempted aggravated robbery” as unconstitutionally vague; and an instruction defining “reckless” criminal discharge of a firearm as being irrational.

ISSUES: (1) Miranda warnings, (2) sufficiency of the evidence, (3) jury instructions

HELD:  Pursuant to Duckworth v. Eagan, 492 U.S. 195 (1989), and under facts in this case, the detective informing Brown that an attorney would be appointed for him “if he was charged” did not render the Miranda warnings constitutionally inadequate because in their totality, the warnings reasonably conveyed to Brown his rights as required by Miranda. Brown’s claim for first time on appeal that his interrogation was tainted by unnecessary delay between his arrest and his first appearance, is not considered.

Jury heard sufficient evidence to reasonably conclude that Brown knowingly took a cell phone and Cadillac from the presence of Tampone by using lethal force, and that Brown’s associates orchestrated the robbery and fired the shots killing Rhone with Brown’s help as the wheelman.

The jury instructions were not clearly erroneous. Pursuant to State v. Brown, 299 Kan. 1021 (2014), overruled on other grounds by State v. Dunn, 304 Kan. (2016), district court’s narrowing of the instructions for felony murder was legally and factually appropriate. If discrepancy in the attempted aggravated robbery instruction was even error, it was not reversible error.  Brown invited any error in the instruction defining “intent.” And the instruction defining “reckless” comported with statutory definition of that term and the corresponding pattern instruction. 

STATUTES:  K.S.A. 2016 Supp. 21-5301(a); K.S.A. 2012 Supp. 21-5202(h), -5210(a), -5420, -5420(a)(2), -5420(b), -5420(c)(1)(D), -5420(i), 22-3414(3); K.S.A. 22-2901, -3203, -3601(b)(3)



Kansas Court of Appeals





NO. 115,977—SEPTEMBER 15, 2017

FACTS: Armitage created a trust that would hold certain assets, including real estate that he designated as a homestead. After that time, the district court entered judgment in Chaney's favor against Armitage. Armitage's health failed, and he moved to a care facility, which prompted Chaney to file an application for writ of special execution against Armitage's homestead. The district court issued the writ and directed the sheriff to levy execution. Armitage later died with no family living at the homestead. His heirs moved to set aside the writ of special execution claiming that no judgment lien could ever attach to Armitage's homestead. The district court denied the motion, finding that because there was no spouse or children living at the property after Armitage's death, the assets were subject to summary execution. The heirs appealed.

ISSUE: Whether a writ of special execution can ever attach to homestead property, even after the death of the homestead owner

HELD: The homestead designation on Armitage's property expired at his death because it was not occupied by his children or spouse. Because it no longer had a homestead exemption, the residence became trust property and, under the terms of the trust, was to be used to pay the estate's debts and expenses.

STATUTES: K.S.A. 2016 Supp. 60-2301; K.S.A. 58a-505(a)(1), -505(a)(3), 59-401, 60-2202(a)


NO. 112,292—SEPTEMBER 18, 2017

FACTS: Henson was badly injured at work. Coworkers attempted to take him to the hospital, but a manager for the employer—Belger Cartage—redirected Henson to a clinic. A doctor at that clinic treated Henson for several days before returning Henson to work. A later physician discovered the severity of Henson's injuries. He eventually underwent surgery and was unable to return to work. Henson later recovered damages from a medical malpractice action that he brought against the first physician who misdiagnosed him. The damages included costs not available in a workers compensation action, but did not include any damages for future medical expenses. After the jury returned its verdict in the malpractice action, Belger Cartage asked for a lien against the verdict for payments it had already made to Henson. The district court paid some reimbursement to Belger Cartage but denied its request for a credit against any future medical expenses. Belger Cartage appealed.

ISSUE: Is Belger Cartage entitled to a credit against potential future medical expenses

HELD: Because the malpractice verdict did not contain any provision for future medical expenses, Belger Cartage is not entitled to any credit.

STATUTE: K.S.A. 44-504(b)


NO. 115,682—SEPTEMBER 15, 2017

FACTS: Mullen sustained a workplace injury and was unable to work for 2 years. He was terminated in April 2013 and filed for unemployment compensation. That claim was denied on grounds that he did not file for benefits within 4 weeks of being released to return to work. An appeals referee affirmed on grounds that Mullen failed to file his claim within 24 months of the injury. After Mullen filed a petition for judicial review, the district court affirmed on the same grounds. Mullen appealed.

ISSUE: Is K.S.A. 2016 Supp. 44-705(g)(2) ambiguous when applied to claimants that remain employed more than 24 months following a qualifying injury

HELD: The language of K.S.A. 2016 Supp. 44-705(g) is clear and unambiguous. Because Mullen did not file an unemployment claim within 24 months of sustaining a qualifying injury, he cannot qualify for an alternative base period. While the outcome may not be fair, the statute must be read as written.

STATUTES: K.S.A. 2016 Supp. 44-702, -703(b), -703(d), -703(h)(h), -705(e), -705(g)(2), -706(a), -709(i), 77-621(a)(1), -621(c)



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September 8, 2017 Digests

Posted By Administration, Tuesday, September 12, 2017
Updated: Monday, September 11, 2017

Kansas Supreme Court




NO. 112,502 – SEPTEMBER 8, 2017

FACTS: An investigation revealed that Garcia used identity information belonging to another person when he obtained employment. As a result of this investigation, Garcia was charged with one count of identity theft. Prior to trial, Garcia filed a motion to dismiss in which he claimed that his prosecution was preempted by the Immigration Reform and Control Act of 1986 (IRCA). The district court denied the motion and Garcia was convicted as charged. His conviction was upheld by the Court of Appeals and his petition for review was granted.

ISSUE: Is State prosecution preempted by the IRCA

HELD: Garcia raisesd an "as-applied" preemption claim. During oral argument, Garcia narrowed his claim and argued that an as-applied, field preemption existed. But he made other claims in earlier proceedings, and the court will consider any type, category, and sub-type of preemption. The IRCA does not allow state prosecution for identity theft as this prosecution is expressly preempted by federal statute.

CONCURRENCE: (Luckert, J.) State prosecution of Garcia was preempted. But the doctrines of field and conflict preemption apply rather than express preemption.

DISSENT: (Biles, J.) Garcia's use of someone else's identify information to secure employment is not expressly preempted by federal statute. And although it is a narrower question, implied preemption is similarly inapplicable. The majority's holding will make it difficult to prosecute anyone for identity theft in Kansas.

DISSENT: (Stegall, J.) The majority's reading of IRCA gives Congress power that it does not have. Justice Stegall joins Justice Biles with the exception that he does not believe implied preemption is a close call.

STATUTES: 8 U.S.C. § 1324a, § 1324a(a), § 1324a(b), §1324a(e), (f), § 1324a(h)(2), 18 U.S.C. § 1546(b)



NO. 111,904 – SEPTEMBER 8, 2017

FACTS: Morales applied for a job and provided a Social Security number, permanent resident card, and Social Security card. A subsequent investigation revealed that the Social Security number provided by Morales belonged to someone else. Morales was charged with identity theft and making a false information. Prior to trial Morales filed a motion to dismiss, claiming that his prosecution was preempted by the Immigration Reform and Control Act of 1986 (IRCA). The district court denied Morales' motion and Morales was convicted after a bench trial. His conviction was upheld by the Court of Appeals.

ISSUE: Is State prosecution preempted by the IRCA

HELD: It is questionable whether this issue was properly preserved for appellate review. But the court chose to address the merits because Morales' dispositive issue is one of law, and justice required a decision on the merits. State prosecutions such as this one are expressly preempted by IRCA.

 CONCURRENCE: (Luckert, J.) Justice Luckert did not agree with the majority that express preemption applies. But she believed that the doctrines of field and conflict preemption did apply.

DISSENTS: (Biles and Stegall, J.J.) They dissented for reasons elaborated upon in State v. Garcia.

STATUTE: 8 U.S.C. § 1324a(b)(5)




NO. 112,322 – SEPTEMBER 8, 2017

FACTS: Ochoa-Lara obtained identify information belonging to other people in order to obtain employment. After he was discovered, the State charged Ochoa-Lara with identity theft and making a false information. Prior to trial, Ochoa-Lara filed a motion to dismiss in which he claimed that the State's prosecution was preempted by federal law. That motion was denied and Ochoa-Lara was convicted. His conviction was affirmed by the Court of Appeals and the Supreme Court granted his petition for review.

ISSUE: Is State prosecution preempted by the IRCA

HELD: It is questionable whether this issue was properly preserved for appellate review. But the court chose to address the merits because the dispositive issue was one of law, and justice required a decision on the merits. State prosecutions such as this one are expressly preempted by IRCA. 

CONCURRENCE: (Luckert, J.) Justice Luckert did not agree with the majority that express preemption applied. But she believed that the doctrines of field and conflict preemption did apply.

DISSENTS: (Biles and Stegall, J.J.) They dissented for reasons elaborated upon in State v. Garcia.

STATUTE: 8 U.S.C. § 1324a(b)(5)



NO. 110,702 – SEPTEMBER 8, 2017

FACTS: After being convicted of several felonies, Watkins was required to register under the Kansas Offender Registration Act (KORA) because the district court found that Watkins used a deadly weapon when committing the offenses. For the first time on appeal, Watkins argued that the registration requirement violated his constitutional rights because the facts that prompted registration were not found by a jury beyond a reasonable doubt. The Court of Appeals decided to address the merits of Watkins' claim and rejected his arguments. The Supreme Court granted review.

 ISSUES: Could Watkins' punishment be enhanced without a jury finding the presence of aggravating factors

HELD: Precedent holds that KORA is a non-punitive, civil regulatory scheme and lifetime registration requirements are not a punishment. Because the registration requirement was not a punishment, there is no need for a jury to make the deadly weapon-use finding.

CONCURRENCE: (Malone, J.) The doctrine of stare decisis required this decision, but he believed that KORA is so punitive in effect that it negated any legislative intent to the contrary.

STATUTES: [No substantive statutes cited.]



Kansas Court of Appeals




NO. 117,020 – SEPTEMBER 8, 2017

FACTS: While in her 70s, Hutson transferred assets to a pooled supplemental needs trust. The trustee was given the authority to administer the trust and meet needs that were not being met by either any public agency or source of private income. While the trust was still in place, Hutson applied for Medicaid benefits to assist with her long-term care needs. The Medicaid application was approved, but a transfer penalty was put in place; Hutson's Medicaid benefits were delayed 313 days. Hutson appealed, and the district court eventually determined that federal statutes required the transfer penalty because Hutson did not receive fair market value for the transfer. Hutson appealed.

ISSUES: (1) Did the district court incorrectly interpret the rules and regulations surrounding Medicaid eligibility; (2) Did the district court err by finding that Hutson did not receive fair market value for her transfer

HELD: The trust to which Hutson contributed satisfied the requirements for a pooled supplemental or special needs trust. But a person over age 65 who transfers assets to such a trust is subject to the imposition of a transfer penalty if the transfer is for less than fair market value. The evidence in the record on appeal was insufficient to show whether Hutson received fair market value for her transfer. The case was remanded to the district court for supplemental fact finding on that issue.

STATUTES: 42 U.S.C. § 1396a(a), § 1396(c), § 1396p(c), § 1396p(d)(4)(A), § 1396p(d)(4)(C); K.S.A. 2016 Supp. 77-621(a)(1); K.S.A. 77-425, -622(b)


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September 1, 2017 Digests

Posted By Administration, Tuesday, September 5, 2017
Updated: Tuesday, September 5, 2017


Kansas Supreme Court


Attorney Discipline



NO. 17,358— AUGUST 25, 2017

FACTS: In a letter signed August 21, 2017, David R. Alig voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending against Alig.

HELD: The court accepted the surrender and Alig was disbarred.


NO. 15,504—AUGUST 25, 2017

FACTS: In a letter signed August 21, 2017, Bill Harold Raymond, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a disciplinary complaint was pending which alleged violations of the KRPC.

HELD: The court found that the surrender of Raymond's license should be accepted and Raymond was disbarred.


Kansas Court of Appeals




NO. 111,580—SEPTEMBER 1, 2017


FACTS: McIntyre was convicted of several serious felonies. His convictions were confirmed upon direct appeal, and his first K.S.A. 60-1507 motion was denied by the district court; that denial was affirmed on appeal. More than 10 years later, McIntyre filed a second 1507 motion claiming that counsel for his first 1507 was ineffective. That motion was summarily denied by the district court—the grounds given for the denial were that McIntyre had no right to counsel because there was no rule requiring effective retained counsel in a collateral, civil attack. McIntyre appealed that ruling, and it was affirmed by the Court of Appeals on different grounds. But the Supreme Court granted review and sent the case back to the Court of Appeals so that McIntyre's substantive claims could be addressed.

ISSUE: Statutory right to effective assistance of counsel in 1507 appeals

HELD: The statutory right to counsel for 1507 movants is based on the apparent merits of the 1507 action rather than the financial means of the movant. A statutory right to counsel attaches once the district court determines that the motion presents substantial questions of law or triable issues of fact. Once that statutory right attaches, the movant is entitled to effective representation regardless of whether counsel is appointed or retained. In this case, the fact that the district court held a hearing on McIntyre's 1507 motion means there were substantial questions of law—which also means that he had the right to effective assistance of counsel. And once an appeal is filed, the statutory right to effective assistance attaches regardless of the relative merits of the motion and regardless of whether counsel was appointed or retained. 

STATUTE: K.S.A. 22-4501, -4506, -4506(b), -4506(c), 60-1507





NO. 117,120—SEPTEMBER 1, 2017


FACTS: After a conviction, the district court made border box findings and sentenced Reeves to 36 months' probation with an underlying presumptive sentence of 32 months' imprisonment. Reeves had a rocky start with probation and was before the court on multiple occasions for probation violation hearings. Reeves finally acknowledged that probation was not working for him, and he asked to be sent in to do his time. But he asked that his prison sentence be reduced from 32 months to 23 months. The district court denied the request to modify the sentence and Reeves appealed.

ISSUE: Whether the district court erred by refusing to modify the sentence 

HELD: The district court did have jurisdiction to modify Reeves' sentence had it chosen to do so. Reeves is not attempting to appeal his original sentence under the Kansas Sentencing Guidelines Act. His appeal is limited to the sentence imposed at revocation and there is statutory authority for this appeal. But under the facts of the case, the district court did not err by refusing to modify Reeves' sentence.

STATUTE: K.S.A. 2016 Supp. 21-6815(a), -6820(c)(1), 22-3601(a), -3602(a), -3608(c), -3716(c)(1)(E)



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August 25, 2017 Digests

Posted By Administration, Monday, August 28, 2017


Kansas Supreme Court 





NO. 111,671— AUGUST 25, 2017

FACTS: Russell discovered a lump in her breast in 2008. Dr. Goering, her primary care physician, sent Russell for diagnostic imaging. The physicians who viewed the images felt that the mass was benign and sent Russell back to Dr. Goering. Russell's obstetrician recommended that Russell have a biopsy to put her mind at ease, but Russell did not follow up. A few years later there were signs that the lump was growing, so Russell again called Dr. Goering, who ordered diagnostic testing. At that time a biopsy was performed and cancer was discovered. Russell filed suit against Dr. Goering plus two other physicians who provided care. The district court granted Dr. Goering's motion for judgment as a matter of law but denied the motion as to the other two doctors. A jury found that neither of those doctors was at fault. The court of appeals affirmed the district court's grant of the motion for judgment as a matter of law and the Supreme Court granted a petition for review.

ISSUES: (1) Grant of motion for judgment as a matter of law; (2) admission of expert testimony

HELD: Russell presented sufficient evidence to show that Dr. Goering owed a duty to meet the standard of care. Russell and Dr. Goering had a physician-patient relationship. And there was sufficient evidence presented to show that Dr. Goering breached the appropriate standard of care and that a reasonable jury could conclude that this breach was a proximate cause of Russell's delayed diagnosis. There is no evidence that the district court's grant of the motion for judgment as a matter of law was harmless. The disputed answers given by the expert were ambiguous, and there is no reasonable probability that the assumed error affected the verdict against Dr. May. 

STATUTES: K.S.A. 60-250(a), -260(a), -261; K.S.A. 60-404




appeals—constitutional law—criminal procedure
state v. tappendick
saline district court—affirmed; court of appeals—affirmed
no. 109,272—august 25, 2017

FACTS: Tappendick convicted in 2011 of offenses committed in 2008.  Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). For first time on appeal, Tappendick argued the KORA registration requirement violated the Ex Post Facto Clause because KORA required only a 10-year registration period in 2008. Court of appeals concluded this issue was not properly preserved, rejecting Tappendick’s reliance on two exceptions for considering the issue for first time on appeal. Tappendick filed petition for review, alleging court of appeals incorrectly ruled he could not raise this claim for first time on appeal. 

ISSUE: Preservation of issue on appeal

HELD: The petition for review failed to challenge the panel’s stated reasons for concluding that Tappendick did not satisfy the exceptions’ requirements. Panel’s decision to not consider the ex post facto claim is affirmed.  

STATUTES: K.S.A. 2016 Supp. 22-4906(d)(3); K.S.A. 22-4901 et seq.



Kansas Court of Appeals 




NO. 116,692 – AUGUST 25, 2017

FACTS: Pinion was burned while working for Kan-Pak LLC and was treated at Via Christi Hospital. Although Pinion's treatment cost over $1 million, Kan-Pak's insurance carrier paid much less than that to Via Christi. The 2010 fee schedule for workers compensation introduced the "stop-loss method" that was meant to be applied to particularly costly services. That fee schedule persisted in 2011, but an addition was made which instructed that providers should be reimbursed using either the stop-loss method or the traditional method, whichever was least. It is unclear how or when the rule was amended, and insurers who inquired were told to ignore it. But Kan-Pak's insurer would not, claiming that this was a properly published regulation that must be followed. Both the hearing officer and Board found that they could not alter the written language of the regulation, and this appeal followed.

ISSUE: Is the language in the 2011 regulations enforceable

HELD: The Division of Workers Compensation has a statutory obligation to adopt rules and regulations which establish a fee schedule. Every step of the process must follow the statutory rules. The 2011 amendment to the fee schedule that introduced the "whichever is least" language did not follow the required procedure; there was no cost study to gauge the impact of the addition of the statement. Because the rule process here did not follow proper procedure and the rule change was apparently an accident, the court was not required to enforce it.

STATUTES: K.S.A. 2016 Supp. 44-510i(a), -510i(b), -510i(c), -510i(d), 77-415, -416(b)(1); K.S.A. 2010 Supp. 44-510j; K.S.A. 1990 Supp. 44-510(a)(1)



NO. 115,776—AUGUST 25, 2017

FACTS: Jacobs and Ogle had a child together and then separated. After the separation, Ogle persisted in making disparaging remarks about Jacobs, both in front of his child and to the community at large. Ogle's remarks did not stop even after Jacobs was given sole custody of the child and Ogle's parenting time was restricted to supervised visits and monitored phone calls. After Ogle shared remarks about Jacobs with her employer, Jacobs lost her job. She asked the district court to hold Ogle in contempt for violating its order not to share accusations about her with third parties. Ogle was ordered to appear at a contempt hearing but he failed to do so despite knowing about the hearing. The district court held the hearing in Ogle's absence and found Ogle was in contempt. The judge ordered monetary sanctions plus a 30-day jail term that would be suspended if Ogle paid. Ogle appealed. 

ISSUE: (1) District court's ability to hold the hearing 

HELD: Statutory provisions did not allow the district court to hold a hearing without Ogle. When Ogle did not attend the hearing the district court should have either attempted to secure his presence with a phone call or issued a bench warrant for his arrest. Because the hearing violated Ogle's due process rights, the district court's order was vacated.

STATUTES: K.S.A. 2016 Supp. 20-1204a, -1204(b), -1204a(b), -1204a(c)


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August 18, 2017 Digests

Posted By Administration, Tuesday, August 22, 2017

Kansas Supreme Court

Attorney Discipline

NO. 16283 – AUGUST 16, 2017

FACTS: In a letter signed August 16, 2017, Daniel L. Baldwin, attorney licensed to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Baldwin surrendered his license a formal hearing was pending regarding two docketed disciplinary complaints. The complaints involved issues of competence, diligence, safekeeping property, and fees.

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Baldwin's license should be accepted and that he should be disbarred.



constitutional law—criminal procedure—sentences—statutes
State v. shaylor
reno district court—affirmed on issues subject to review
court of appeals—affirmed on issues subject to review
no. 108,103—august 18, 2017

FACTS: Shaylor was convicted of manufacturing methamphetamine. Kansas Offender Registration Act (KORA) was subsequently amended to define an “offender” required to register as including Shaylor’s offense unless a court found the manufacturing of the controlled substance was for personal use. Shaylor was then convicted of failing to register as a drug offender. On appeal, she claimed the retroactive application of the KORA amendment violated the Ex Post Facto Clause, and also claimed for first time on appeal the district court’s finding as to whether Shaylor possessed drug precursors for personal use violated Apprendi. In an unpublished opinion, Court of Appeals affirmed on these issues. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto and Apprendi

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Shaylor’s case failed to make this required showing. This also defeats her Apprendi claim about the district court’s finding as to personal use.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissent is consistent with votes in Meredith and State v. Huey, 306 Kan. __ (2017). The current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2002 Supp. 22-4902; K.S.A. 20-3018(b), 22-4901 et seq., -4902(a)(11)(A), 60-2101(b)


Kansas Court of Appeals



NO. 116,883—AUGUST 18, 2017

FACTS: The Williams family was at home when several armed representatives of C-U-Out Bail bonds came to their door searching for their daughter-in-law, who had absconded. Although they told the bond company that the daughter-in-law was not at the house, the company refused to leave and forced its way in with a steel battering ram. The Williamses called the police department for help. Overland Park police officers came near the scene but never on the Williams' property, and the officers watched while the bond company entered the home and allegedly threatened the occupants. The Williamses filed suit against both the bond company and the Overland Park Police Department. The district court granted the city's motion to dismiss for failure to state a claim, finding that the police officers who responded to the call owed no duty to the Williamses, and that the city was immune from liability under the discretionary function exception to the Kansas Tort Claims Act. The Williamses appealed.

ISSUES: (1) Proper standard of review; (2) did the police department owe a duty to the Williamses? (3) is there immunity under the KTCA?

HELD: Kansas has not yet adopted the federal standard of review for motions to dismiss. The court is not required to accept as true legal conclusions that are contained within the petition. Under the "public duty doctrine", a governmental agency owes a duty to the public at large rather than to individuals. Here, the officers' act of responding to a 911 call did not create a special relationship. Deciding whether to make an arrest is discretionary on the officers' part. Their investigation here is not meant to be subject to judicial review, and the district court properly found immunity under the KTCA.

STATUTES: K.S.A. 2016 Supp. 22-2202(m), 60-208(a), 75-6104(c), -6104(e), -6104(n); K.S.A. 13-1339, 22-2401, -2405(3), -2809

NO. 116,095—AUGUST 18, 2017

FACTS: The Layles' fence at their residence did not meet zoning regulations in Mission Hills. But over 20 years, the Layles were given two variances to either repair or replace the fence, even though it would not meet regulations. In 2012, the Layles sought to remove and replace the pickets and rails of the fence without changing the fence posts. The city denied the request, finding that the work could not be authorized without approval from the Architectural Review Board and the Board of Zoning Appeals. After a number of appeals, the ultimate decision was that the proposed work was a replacement of the fence requiring new variances. The Layles appealed.

ISSUES: (1) Application of correct standard of review; (2) was the proposed work a repair or a replacement

HELD: An issue that requires a court to interpret regulatory or statutory criteria uses a de novo standard of review and not a review for reasonableness. Whether the proposed fence project constituted a repair or a replacement was actually a question of law. Repair of fence sections did not constitute a full replacement. Repairs do not require a variance and the city could have granted the building permit that was requested by the Layles.

STATUTES: K.S.A. 12-759(e)(1), -759(f)

NO. 115,256—AUGUST 18, 2017

FACTS: The Johnstons divorced in 2011. Despite having significant assets and debts and highly technical military pay, the couple created a separation agreement without the assistance of counsel. They agreed that Jim would pay Pamela $1,000 per month from his military retirement pay for the rest of her life, unless she remarried. He also agreed to a lump-sum transfer of $100,000 from his retirement account. After 3 years, Jim motioned the district court to relieve him of his duty to pay Pamela $1,000 because, he alleged, Pamela was living in a marriage-like relationship. That motion was denied. But the district court sua sponte put a 121-month cap on Jim's maintenance obligation. Pamela did not appeal this order, but she did obtain counsel and sought to reopen the separation agreement regarding Jim's military retirement benefits. After hearing testimony, the district court divided Jim's military retirement benefits equally between both parties but did not alter the obligation to pay maintenance for 121-months. Jim appealed.

ISSUES: (1) Authority to modify property settlement agreement; (2) ability to modify earlier order on spousal maintenance

HELD: Authority to modify the separation agreement would have had to come from K.S.A. 60-260(b)(6). There was no ambiguity in the agreement or any evidence of mistake. But even if there was, Pamela failed to seek relief within one year. Because a more specific provision of K.S.A. 60-260(b) applied, Pamela is barred from using the catchall provision at 260(b)(6) in an attempt to circumvent the statutory time limits. The district court had no jurisdiction to modify the prior separation agreement and its order doing so is void. Parties may agree to extend maintenance beyond the 121-months mentioned in the statute.

DISSENT: (Leben, J.) The property settlement agreement was ambiguous, giving the district court jurisdiction to modify it under K.S.A. 60-260(b)(6).

STATUTES: K.S.A. 2016 Supp. 23-2712, -2801, -2904, 60-260(b); K.S.A. 60-260(b)

NO. 115,745—AUGUST 18, 2017

FACTS: The Richardsons purchased a home from the Murrays, and brought suit after experiencing water intrusion in the residence. Before trial, the Murrays submitted an offer of judgment and the Richardsons accepted it. After judgment was entered, the Richardsons sought attorney fees and expenses. The district court allowed court costs but not attorney fees, and the Murrays promptly tendered payment. The Richardsons failed to timely file a satisfaction of judgment. As a result, the Murrays sought an award of statutory penalties and attorney fees. The district court granted that motion and the Richardsons appealed.

ISSUES: (1) Decision on attorney fees and related expenses; (2) untimely satisfaction of judgment

HELD: The offer of judgment was silent on whether attorney fees were included with court costs. Generally, attorney fees are not part of costs and are available only if a statute or other authority defines costs to include attorney fees. As the offering party, the Murrays were obligated to make a clear and unambiguous offer. Because the offer was silent on this matter, the Richardsons were allowed to seek attorney fees outside the context of costs. Under the terms of the contract, the Murrays must reimburse the Richardsons for all reasonable attorney fees for work reasonably performed in pursuing relief. Filing a satisfaction of judgment would not have prevented the Richardsons from appealing the district court's denial of their request for attorney fees. For that reason, the district court did not err in assessing the statutory penalties against the Richardsons.

STATUTES: K.S.A. 2016 Supp. 60-254(a), -2002, -2003, -2803; K.S.A. 50-634(e) 



constitutional law—criminal procedure—evidence—Fourth Amendment—jury trial—search and seizure
state v. chavez-majors
butler district court—affirmed in part, reversed in part, remanded
no. 115,286—august 18, 2017

FACTS: Chavez-Majors had a motorcycle accident, and was unconscious when officer and EMS arrived at scene. Observing evidence that Chavez-Majors had been under the influence of alcohol, officer directed EMS to conduct warrantless blood draw. Test results showed twice the legal blood-alcohol limit. District court denied Chavez-Majors’ motion to suppress the test result, finding officer had probable cause with exigent circumstances to justify the warrantless search and seizure. Chavez-Majors was convicted at a bench trial of aggravated battery while driving under the influence (DUI). On appeal, he claimed for first time that he did not waive his right to a jury trial. He also claimed the district court erred by denying motion to suppress evidence that was unconstitutionally obtained.

ISSUES: (1) Waiver of right to jury trial, (2) motion to suppress blood draw evidence

HELD: Waiver claim was considered. Two-part test in State v. Irving, 216 Kan. 588 (1975), is applied finding Chavez-Majors did not knowingly and voluntarily waive right to jury trial. District court’s mention that plea agreement was in part “in contemplation of waiver of right to jury trial” did not satisfy Irving’s first requirement, and there was no compliance with Irving’s second requirement. The conviction was reversed and case was remanded to afford right to jury trial or to effect a valid waiver.

Consent exception, or applicability of Kansas implied consent statute, was not asserted  in this case, and third requirement of three-part test in Schrmerber v. California, 384 U.S. 757 (1966), was not challenged. The first two parts of the Schrmerber test were applied to the two claimed exceptions. Limited Kansas case law found applying Schmerber’s exigent circumstances requirement in warrantless blood draw DUI cases. Comparable U.S. Supreme Court reviewed for guidance, finding the metabolism of blood alcohol is a factor that can be considered. Under totality of circumstances in this case, district court’s conclusion that probable cause with exigent circumstances justified the warrantless blood draw was supported by substantial competent evidence.

STATUTES: K.S.A. 2014 Supp. 8-142, -262(a)(1), -1001 et seq., -1001(b)(2), 21-5413(b)(3)(A),  22-2502(a), 40-3104(d); K.S.A. 8-1567, 22-3403(1)

Tags:  Attorney Discipline  Butler  Johnson  Reno 

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