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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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February 28, 2020 Digests

Posted By Administration, Monday, March 2, 2020
Updated: Monday, March 2, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE LAUREL R. KUPKA
NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka's workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge's signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel's factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

 

criminal 

constitutional lawcriminal lawcriminal procedurejury instructionsprosecutorssentences
state v. becker
ford district court—affirmed in part, vacated in part
NO. 118,235—february 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder. Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

ISSUES: (1) Prosecutorial error; (2) jury instructionslesser included offenses; (3) Constitutional claims; (4) jury instructionvoluntary intoxication; (5) cumulative error; (6) sentencing

HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed without decidingthat a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case. And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims. Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s  claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 Supp. 21-5202(h), 5402(a), -6620(c)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 21-5109(b)(1); K.S.A. 2014 Supp. 21-5205(b); K.S.A. 60-2106(c)

appeals—criminal law—criminal procedure—evidence—jury instructions
state v. gray
sedgwick district court—affirmed
NO. 117,747—february 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instructionlesser included offense

HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a)(1); K.S.A. 60-455

 

Kansas Court of Appeals

Civil

MECHANIC'S LIENS
IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 
121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic's lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was "fraudulent" and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was "fraudulent"

HELD: A party asserting a mechanic's lien must strictly comply with our mechanic's lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien's status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic's lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108

WORKERS COMPENSATION
AIKINS V. GATES CORPORATION
WORKERS COMPENSATION APPEALS BOARD—AFFIRMED
NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach

HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins's award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties' arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates's appeal, and the Board properly reversed the ALJ's award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l)(2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a)

HABEAS CORPUS—MOOTNESS
BURCH V. HOWARD
PAWNEE DISTRICT COURT—AFFIRMED
NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP

HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501

 

criminal

criminal law—criminal procedure—restitution—sentences—statutes
state v. henry
sedgwick district court—affirmed
no. 119,895—february 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver. District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal, Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions, and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multi-decade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution

HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.  On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c)(7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b)(3), -5801(b)(4)

Tags:  appeals  attorney discipline  Constitutional law  criminal law  criminal procedure  evidence  habeas corpus  jury instructions  mechanic's liens  mootness  prosecutors  restitution  sentences  statutes  workers comp 

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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. murdock
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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