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April 3, 2020 Digests

Posted By Administration, Tuesday, April 7, 2020

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN RE ROSIE M. QUINN
NO. 119,148—APRIL 3, 2020

FACTS: In 2018, Quinn's license to practice law in Kansas was indefinitely suspended. She filed a petition for reinstatement in 2019, and a hearing panel heard her application for reinstatement. After that hearing, the panel unanimously recommended Quinn's reinstatement, subject to certain conditions.

HELD: The court agrees with the hearing panel and grants the petition for reinstatement. Prior to her return to active practice, Quinn must comply with annual CLE requirements and pay all fees. Quinn's practice must be supervised for two years, and she must enter a monitoring agreement with the Kansas Lawyers Assistance Program.

Civil

ADMINISTRATIVE LAW—UTILITIES
IN RE JOINT APPLICATION OF WESTAR ENERGY AND
KANSAS GAS AND ELECTRIC CO
KANSAS CORPORATION COMMISSION—COURT OF APPEALS IS REVERSED, KCC IS REVERSED, CASE REMANDED
NO. 120,436—APRIL 3, 2020

FACTS: In 2018, Westar and Kansas Gas sought a rate increase and certain changes in residential rate design. When considering the rate design, the companies had to address a two-part rate, involving both a flat service charge and a variable energy charge based on the amount of energy used during a billing period. Some of the utilities' fixed costs are recovered through the variable energy charge. Some of the utilities' customers are attached to the electric grid but also get power through an alternative source, such as solar or wind. These customers, known as "partial requirements customers", use less generated electricity and may have zero due for variable energy charges. This creates an issue for the utility, which has the same fixed costs regardless of how much energy is purchased. In an attempt to attempt to even the ledger, the utilities received approval for a new rate structure, applicable only for partial users. Some of the parties to the agreement objected to the rate structure meant only for partial users. After that rate structure was approved, two intervenors appealed to the Court of Appeals.

ISSUE: (1) Whether the rate structure approved by the KCC is allowable

HELD: Kansas statute bars a utility from establishing higher rates or charges for any customer who uses alternative energy. Under the proposed dual-rate system, partial users will pay more for electricity than other customers. The Court of Appeals erred when it found a conflict in our statutes. The utilities are allowed to use a different rate structure for partial use customers, but that structure cannot result in price discrimination.

STATUTES: 16 U.S.C. §796 (17)(A); K.S.A. 66-117d, -118a(b), -118c, -1265(e), 77-621(c)(4)

criminal

criminal procedure—motions—sentences—statutes
state v. coleman
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,293—april 3, 2020

FACTS: Coleman convicted in 2012, 2013, and 2014. In 2015 she was convicted of two counts of theft that were committed weeks after the effective date of the 2015 amendment of  K.S.A. 21-6810 in the Kansas Sentencing Guidelines Act (KSGA). Probation revoked in Coleman’s three prior cases. Coleman challenged the legality of her sentences in those three prior cases, and filed a direct appeal from the 2015 sentence. District court denied relief on all claims. Court of Appeals affirmed in unpublished opinion. In consolidated appeal, review granted on common issue of whether district court erred in scoring Coleman’s prior 1992 Kansas involuntary manslaughter conviction as a person felony.

ISSUES: (1) Classification of prior Kansas conviction—direct appeal; (2) classification of prior Kansas conviction—probation revocation

HELD: The identical-or-narrower test adopted in State v. Wetrich, 307 Kan. 552 (2018), for classifying prior out-of-state convictions applies as well to in-state Kansas convictions for crimes committed before KSGA used person and nonperson designations. Coleman’s arguments that the 1992 involuntary manslaughter statute was broader than the statute making involuntary manslaughter a person offense at the time of her 2015 theft convictions are examined and rejected. District court properly scored the 1992 conviction as a person felony when sentencing Coleman’s 2015 theft convictions.

            Coleman may not file a motion to correct an illegal sentence based on a constitutional challenge, and her 1992 conviction was properly scored in the earlier sentences. Court does not resolve whether the identical-or-narrower test, or the judicially adopted comparability rule for pre-KSGA Kansas offenses in State v. Keel, 302 Kan. 560 (2015), is applicable when pre-KSGA Kansas offenses are used to sentence crimes committed before K.S.A. 2015 Supp. 21-6810 codified the comparability requirement. 

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6804(a), -6810, -6811(e)(3); K.S.A. 2015 Supp. 21- 6810; K.S.A. 2014 Supp. 21-6810(d)(2); K.S.A. 2013 Supp. 21-5801(b)(6); K.S.A. 2011 Supp. 21-5202(j), -5405, -5801(b)(6); K.S.A. 20-3018(b), 21-3201(c), 60-2101(b); K.S.A. 21-3201, -3201(c), -3404 (Ensley 1988)

 

Kansas Court of Appeals

Civil

SUBROGATION—WORKERS COMPENSATION
HAWKINS V. SOUTHWEST KANSAS CO-OP SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 118,379—APRIL 3, 2020

FACTS: Hawkins suffered catastrophic injuries while working for Southwest Kansas Co-op; his injuries require on-going care. Southwest Kansas Co-op provided workers compensation benefits to Hawkins in excess of $850,000, with the expectation that payments would continue. Hawkins also filed a civil action against other parties who he believed contributed to the accident and his resulting injuries. Southwest Kansas Co-op chose not to intervene in this civil action. Hawkins either settled or received jury verdicts against multiple defendants, resulting in an award of over $4 million. After all proceedings were complete, Southwest Kansas Co-op filed a request in the workers compensation proceeding for a determination of its statutory subrogation lien and any credit for future benefits. An ALJ worked up a mathematical formula to determine how much credit Southwest Kansas Co-op should receive. Three members of the Workers Compensation Board of Appeals agreed with the ALJ and affirmed the result. Hawkins appealed the Board's decision and Southwest Kansas Co-op cross-appealed.

ISSUE: (1) Amount of subrogation award for Southwest Kansas Co-op

HELD: K.S.A. 44-504 does not anticipate liens and credits for employers based on third-party litigation with multiple settlements and verdicts. It is undisputed that Southwest Kansas Co-op is entitled to some lien and future credit, but the statute is unclear as to exactly how much. A jury found that the co-op was 25 percent at fault for Hawkins's injuries. Southwest Kansas Co-op's subrogation amount should have been decreased by an amount acknowledging their 25 percent fault. The terms of a settlement agreement between Hawkins and other parties make it difficult to calculate the amount of any subrogation lien. When recalculating the subrogation amount, the Board must consider each annual payment as a recovery actually paid.

STATUTE: K.S.A. 44-504, -504(b), -504(d), 60-258a

 

Tags:  administrative law  Attorney discipline  criminal procedure  KCC  motions  sentences  statutes  subrogation  utilities  workers comp 

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