Print Page | Contact Us | Sign In | Register
April 15, 2016, Appellate Court Digests
Share |

Kansas Supreme Court – Attorney Discipline

Original Proceeding in Discipline
In the Matter of Joan M. Hawkins
18 Month Suspension
No. 113,579 – April 15, 2016

FACTS: The misconduct alleged included numerous violations of Kansas Rules of Professional Conduct (KRPC) 1.16(d), 3.2, 3.3, 3.4, 8.1(b), and 8.4(c) and (d). The hearing panel characterized the conduct as a "common theme [of] . . . obstruction", finding that Ms. Hawkins "engaged in subterfuge in order to either increase her billable fees" or "cause unnecessary and unreasonable delay." The disciplinary administrator recommended that Ms. Hawkins be either indefinitely suspended or disbarred. After considering the evidence, a majority of the hearing panel recommended that Ms. Hawkins be suspended for 18 months.

HELD: The court found clear and convincing evidence that Ms. Hawkins violated KRPC 1.6(d), 3.2, 3.3(a)(1), 3.4(d), 8.1(b), and 8.4(c) and (d). Based on this evidence, a majority of the court accepted the hearing panel's recommendation and imposed the recommended discipline of 18 months' suspension. A minority of the court would have imposed a shorter term of suspension.

Kansas Supreme Court – Attorney Discipline

Original Proceeding in Discipline
In the Matter of Joan M. Hawkins
Published Censure
No. 114,543 – April 15, 2016

FACTS: After a hearing, the hearing panel found that Mr. Thurston violated Kansas Rules of Professional Conduct (KRPC) 1.15(a) and 1.16(d), relating to the safekeeping of property and the termination of representation. Mr. Thurston's issues arose primarily from his incomplete time records, which made it difficult to calculate earned fees. The hearing panel recommended that Mr. Thurston be publicly censured, with conditions attached to the censure. These conditions included a trust account audit, the submission of written policies regarding time records and fee agreements, and the payment of full restitution to the injured client. All of the conditions were supposed to be completed prior to the disciplinary hearing before the Kansas Supreme Court.

HELD: Since there were no exceptions, the hearing panel's findings of fact were deemed admitted. On that basis, the panel's findings and conclusions were adopted. The primary issue before the court was whether the hearing panel had the authority to impose mandatory directives to disciplinary respondents. The court answered that question in the negative, finding that nothing in the Kansas Supreme Court Rules permits a disciplinary hearing panel to impose discipline or to require or enforce any conditions. The hearing panel's sole task is to recommend discipline; the imposition of discipline is left solely to the Kansas Supreme Court. After finding that the hearing panel had no authority to require Mr. Thurston to perform certain behavior, the court imposed discipline of only a published censure.

Kansas Supreme Court – Civil

Appellate Practice; Jurisdiction; Statutory Interpretation
Wiechman v. Huddleston
Sedgwick District Court – Decision of the Court of Appeals is affirmed
No. 110,656 – April 15, 2016

FACTS: This litigation commenced in 2007, when Wiechman sued Huddleston for negligence after a car accident. After an insurance carrier offered to pay policy limits, the case settled and was dismissed by the district court for lack of prosecution. More than 4 years later, Wiechman moved to set aside the dismissal claiming that although the case settled, he never received payment. There was disagreement about what time limit governed the motion to set aside, which in turn controlled whether the district court had jurisdiction to set aside the 2008 dismissal order. Without addressing which time limit controlled or whether the 4 year delay was reasonable, the district court granted the motion to be set aside. Huddleston appealed to the court of appeals without seeking certification for this interlocutory appeal. He instead argued that a common-law jurisdictional exception allowed for an immediate appeal from an order setting aside a final judgment. The appeal was dismissed by the court of appeals for lack of jurisdiction, and Huddleston's petition for review was granted by the Kansas Supreme Court.

ISSUES: (1) Whether this appeal is moot, (2) Whether a judge may create exceptions which confer appellate jurisdiction in the absence of statutory authority

HELD: A case will be dismissed for mootness only if it is clearly and convincingly shown that the actual controversy has ended and any judgment rendered would be ineffectual for any purpose. The parties' representations at oral argument show that there are ongoing disputes in this case that can be resolved via judgment, rendering it ripe for decision and not moot. The court's prior holding in Brown v. Fitzpatrick created a "jurisdictional exception" to the statutory requirement that decisions appealed must be final. But decisions in the intervening years have overruled the doctrine of unique circumstances and have cemented the idea that appellate courts cannot create equitable exceptions to statutory jurisdiction requirements. In the absence of statutorily conferred jurisdiction, this appeal must be dismissed.

STATUTES: K.S.A. 2015 Supp. 60-260(b) and (c), -2102(a) and (c); K.S.A. 60-2101(b)

Kansas Supreme Court – Criminal

Crimes and Punishment; Restitution
State v. Shank
Thomas District Court – Affirmed
No. 112,982 – April 15, 2016

FACTS: Shank entered guilty pleas to charges of first-degree murder for a premeditated killing, aggravated arson for setting the victim’s house on fire, and aggravated burglary for entering the residence with intent to kill the victim. District court imposed consecutive prison terms on all counts, and assessed restitution primarily as compensation for the fire-damaged house. Shank appealed to challenge length of consecutive rather than concurrent sentences. He also argued restitution order was unworkable given his present lack of assets and his lengthy prison term.

ISSUES: (1) Consecutive sentences, (2) Restitution

HELD: Under facts in this case, no abuse of the district court’s discretion in concluding consecutive sentences were proportionate to the harm and culpability associated with Shank’s convictions.
No abuse of the district court’s discretion in ordering restitution. As in State v. King, 288 Kan. 333 (2009), Shank’s overall failure to object to the proposed restitution includes a failure to raise any specific argument about the restitution plan’s unworkability. This fails to preserve the issue for review, and constitutes Shank’s failure to meet his burden of proving unworkability. Also, as in State v. Alcala, 301 Kan. 832 (2015), Shank failed to present evidence of his inability to pay restitution after his incarceration.

STATUTES: K.S.A. 2015 Supp. 21-6604(b)(1), -6604(b)(3), -6604(b)(4), -6819(b); K.S.A. 22-4513