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November 15, 2019 Digests

Posted By Administration, Monday, November 18, 2019

Kansas Supreme Court

Civil

DUTY OF AN EMPLOYER
REARDON V. KING
LEAVENWORTH DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 114,937—NOVEMBER 15, 2019

FACTS: King, who was a licensed attorney, was employed by Trust Company of Kansas. TCK had a policy prohibiting employees from practicing law during employment. Despite that policy, and without TCK's knowledge, King represented Marilyn Parsons, a TCK client, during his tenure with TCK. Once TCK learned of this work, TCK filed a complaint of suspected elder abuse and a disciplinary complaint. An investigation revealed that Parsons had paid King over $250,000 in fees during his TCK employment. King voluntarily surrendered his law license and Parsons filed suit against both King and TCK. A jury found TCK liable for "negligent training" and King liable for breach of fiduciary duty. TCK appealed and the court of appeals reversed, finding the evidence insufficient. The Supreme Court granted review.

ISSUE: (1) Adequacy of jury instructions

HELD: A crucial instruction must be the district court's articulation of the duty owed by the defendant to the plaintiff. Kansas law imparts a duty to employers whose employees injure a third party. The employer owes a duty of reasonable care under the circumstances to prevent harm by employees acting within the scope of their employment. Determining whether that duty has been breached is a fact question for the jury. It was clearly erroneous to instruct the jury that TCK had definable duties to "train" and "supervise" its employees. Because the duty was misstated, both the jury instructions and verdict form were erroneous and the case must be reversed.

STATUTES: No statutes cited.

 

HABEAS CORPUS
JAMERSON V. SCHNURR
RENO DISTRICT COURT – REVERSED AND REMANDED
NO. 120,233 – NOVEMBER 15, 2019

FACTS: Jamerson is in custody after a 2001 felony conviction. In 2016, Jamerson was resentenced after the district court recalculated his criminal history score. During the recalculation, the Kansas Department of Corrections withheld good time credits. This prompted Jamerson to file a K.S.A. 60-1501 petition challenging that good time credit decision. The district court summarily denied this petition, finding that Jamerson failed to prove error. Jamerson filed a posttrial motion in which he alleged that KDOC deprived him of dur process by failing to hold a hearing before depriving him of good time credits. Apparently in response, the district court held a hearing and amended Jamerson's good time credit award. Jamerson appealed the decision to the Secretary of Corrections. Jamerson's motion was still pending, though, and the district court considered the matter and denied it as unripe. That decision was affirmed by the court of appeals. In August 2017, Jamerson filed a second K.S.A. 60-1501 petition challenging KDOC's August 2016 good time credit calculation. This 2017 petition was dismissed as untimely and Jamerson appealed.

ISSUE: (1) Timeliness of petition

HELD: The district court's finding that Jamerson failed to exhaust administrative remedies is not supported by substantial evidence. Jamerson's grievance procedure remained pending until Jamerson received actual notice of the KDOC's final administrative decision. The evidence in the record on appeal shows that Jamerson timely filed his K.S.A. 60-1501 petition within 30 days of receiving notice of the final administrative decision, and the district court erred by summarily denying the petition.

STATUTES: K.S.A. 2018 Supp. 60-1501(b); K.S.A. 75-52,138, 60-1501

 

Kansas Court of Appeals

 

criminal

constitutional law—criminal law—fourth amendment—evidence—motions
state v. ellis
lyon district court—reversed and remanded
no. 120,046—november 15, 2019

FACTS: Welfare check requested regarding woman (Ellis) who had been in a convenience store bathroom for a long time. Ellis reported she had been dealing with stomach problems, and complied with officer’s instruction to come out of stall and to hand over driver’s license for identification purposes. Officer found no medical assistance was needed, but held Ellis’ license to run a background check which resulted in her arrest on outstanding warrant. Officers then searched Ellis’ purse, finding methamphetamine and paraphernalia. Ellis was arrested and convicted on drug charges. District court denied motion to suppress, finding Ellis had voluntarily handed over license, and even if officer’s conduct was illegal, discovery of the outstanding warrant independently justified the arrest under Utah v. Strieff, 579 U.S. __ (2016).  Ellis appealed, arguing the officer exceeded the scope of the welfare check by retaining her license and checking for warrants after concluding she did not need assistance.

ISSUE: Fourth Amendment—welfare check

HELD: Officer’s actions exceeded the scope of the authorized welfare check - the only constitutionally authorized encounter in this case. Ellis voluntarily providing identification did not relieve law enforcement of constitutional necessity of a reasonable and articulable suspicion before an investigation is permitted. Strieff is factually distinguished. No showing the attenuation doctrine applies in this case, and totality of circumstances warrant excluding evidence gained as a result of officer’s unlawful detention of Ellis.   

STATUTES: None

 

 

Tags:  Constitutional Law  Criminal Law  Duty of an Employer  Evidence  Fourth Amendment  Habeas Corpus  Leavenworth District Court  Lyon District Court  Motions  Reno District Court 

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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

constitutional law—criminal procedure—motions—trials —statutes
state v. HAMMERSCHMIDT
Ellis District Court—reversed and remanded
no. 120,016—november 8, 2019

FACTS: Hammerschmidt was charged with a misdemeanor DUI. He filed motion to suppress evidence from the stop, arguing he was not given proper notices before the breath test. He also referenced two pending decisions awaiting rehearing in Kansas Supreme Court. District court granted continuances on its own initiative, citing the pending rehearing decisions. 607 days after a motion to suppress was filed, and 360 days after State v. Nece, 306 Kan. 679 (2017) (Nece II), and State v. Ryce, 306 Kan. 682 (2017) (Ryce II), the district court denied the motion to suppress. Hammerschmidt filed motion to dismiss, alleging violation of speedy trial statute. District court granted that motion and dismissed the complaint. State appealed, arguing in part that K.S.A. 2018 Supp. 22-3402(g) bars dismissal.

ISSUE: Speedy trial statute

HELD: District court erred by dismissing the case on statutory speedy trial grounds. Hammerschmidt first requested delay in the case by filing motion to suppress, and that delay was originally attributable to him. Because the matter was taken under advisement for an unreasonable amount of time and because it was unclear if Hammerschmidt consented to the delay, district court later attributed the delay to the State. Although the delay here was several hundred days, the legislature removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. K.S.A. 2018 Supp. 22-3402(g). Hammerschmidt did not argue that prosecutorial misconduct precipitated the lengthy delay or that application of K.S.A. 2018 Supp. 22-3402(g) violated his constitutional speedy trial rights, and his statutory speedy trial claim is based on circumstances which expressly forbid dismissal on statutory speedy trial grounds.

STATUTE: K.S.A. 2018 Supp. 22-3402, -3402(b), -3402(g)

constitutional law - criminal procedure - evidence - fourth amendment - motions
state v. fisher
Sedgwick District Court—affirmed
no. 120,031—november 8, 2019

FACTS: Officers entered the house in response to a 911 call report that someone in the house had been shot. No injured person was found, but officers discovered Fisher with drugs in plain view. Fisher was charged with drug offenses. He filed a motion to suppress, claiming the officers lacked a lawful justification to enter the house because they failed to first ask the two women standing outside the house any clarifying questions or whether they were injured. District court denied the motion, finding the clearing of the house to find if someone was hurt or dying was not unreasonable under the circumstances. Fisher was convicted in bench trial on stipulated facts. He filed timely appeal.

ISSUE: Emergency aid exception to warrantless search

HELD: District court did not err in denying the motion to suppress. The emergency aid exception test stated in State v. Neighbors, 299 Kan. 234 (2014), is applied, but an Eleventh Circuit Court of Appeals case is identified as more factually similar to the present case. Officers had authority under the emergency aid exception to act until assured that no one needed assistance. The mere presence of people outside the house where gunshots were reported did not remove the officer’s reasonable basis to search the house for victims. The possibility of someone suffering from a gunshot wound inside necessitated an immediate search.

STATUTES: None

criminal procedure—sentences—statutes
state v. wilmore
shawnee district court—affirmed
no. 120,171—november 8, 2019

FACTS: Wilmore was convicted of two counts of indecent liberties with a child. On appeal, he claimed the district court imposed an illegal sentence in calculating criminal history by using two prior domestic battery cases that had been used in an earlier case to elevate the classification of a third domestic battering conviction to a felony.

ISSUE: Sentencing—criminal history calculation of prior domestic battery charges

HELD: Wilmore’s “double-counting” challenge is rejected for same reasons stated in numerous unpublished court of appeals decisions. District court did not violate K.S.A. 2018 Supp. 21-6810(d) in calculating Wilmore’s criminal history score. Wilmore’s alternative interpretation of the statute is unreasonable. Under court’s longstanding interpretation of K.S.A. 2018 Supp. 21-6819(d), the unambiguous statutory language does not prohibit a district court from aggregating prior domestic battery person misdemeanors to create a person felony for criminal history purposes even when those same domestic battery convictions were used in an earlier case to elevate a domestic battery charge from a misdemeanor to a felony.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6810(d)(10), -6811(a), 22-3504(1)
K.S.A. 2015 Supp. 21-6810(d)(9)

Tags:  Constitutional Law  criminal procedure  Ellis District Court  evidence  Fourth Amendment  motions  Sedgwick District Court  sentences  Shawnee District Court  statutes  trials 

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals

criminal

constitutional law—criminal law—fourth amendment—
probation—sentences—statutes
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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November 21, 2018 Digests

Posted By Administration, Monday, November 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018

FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.

HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.

HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.

Civil

ADMINISTRATIVE LAW—TENURE
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018

FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.

ISSUES: (1) Savings statute; (2) substantial evidence

HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.

CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.

STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518

Criminal

constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018

FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.

ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report

HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.

State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.

STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)

criminal law—criminal procedure—evidence—
jury instructions—prosecutors—statutes
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018

FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.

ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter

HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.

Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.

In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.

STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108

criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018

FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.

ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter

HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)

Tags:  administrative law  Attorney Discipline  constitutional law  Dickinson District  Douglas District  evidence  fourth amendment  jury instructions  statutes  tenure  Wyandotte District 

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