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July 29, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

Ambrosier v. Brownback
District Court – Mandamus denied
No. 115,982 – July 29, 2016

FACTS: A district magistrate judge from the 26th Judicial District retired in February 2016. Governor Sam Brownback received the statutorily required notice of the retirement and notified Chief Judge Ambrosier that the governor's office would accept applications to fill the vacancy. The governor indicated that an interim district magistrate judge would be appointed within the 90-day period established by K.S.A. 2015 Supp. 25-312a. However, after applications were received, the governor notified all applicants that he did not intend to fill the position and would instead allow voters in the district to make a choice in the August 2, 2016, primary election. The chief judge and two district court judges of the 26th Judicial District filed an action in mandamus against the governor asking him to immediately appoint an interim district magistrate judge for Haskell County.

ISSUE: Whether K.S.A. 2015 Supp. 25-312a establishes a ministerial duty to appoint that would render mandamus an appropriate remedy

HELD: Although concurrent jurisdiction exists, the question of statewide importance and the inherent delay in seeking a remedy in district court warrant the invocation of the Supreme Court's original jurisdiction. K.S.A. 2015 Supp. 25-312a reads that any appointment by the governor shall be made within 90 days following receipt of a notice of vacancy. Using the tools of statutory construction, it is clear that the word "shall" as used in the statute is directory rather than mandatory. Because there is no mandatory or ministerial duty, mandamus is not an appropriate remedy and the petition for writ is denied.

STATUTES: Article 3, § 3 of the Kansas Constitution; K.S.A. 2015 Supp. 20-2909, -2911, -2914, 25-312a

Kansas Court of Appeals – Civil

Grandparent visitation; Jurisdiction; Protection from Abuse Act
Baker v. McCormick
Johnson District District Court – Affirmed in part, reversed in part, remanded with directions
No. 114,756 – July 29, 2016

FACTS: Two sets of grandparents filed a Protection from Abuse (PFA) action against McCormick, claiming that he physically and verbally abused the children's mother, placing the children in fear of imminent bodily injury. Baker asked that orders of protection be entered against McCormick in order to protect the children. At the time the action was filed, the children and their mother were living with Baker. But within days of the filing of the action, the mother moved out, taking the children. Baker responded by filing a motion asking for court-established visitation with the grandchildren. The evidence presented at the PFA hearing established significant acts of abuse against the children's mother. The district court refused to grant a PFA on grounds that the children were not living with the grandparents at the time the PFA application was filed. The district court also determined that there was no mechanism for allowing grandparent visitation within the scope of a PFA proceeding. Baker appealed.

ISSUES: (1) Can a PFA claim continue if a child no longer resides with the adult who filed the action, (2) Can grandparents bring a claim for grandparent visitation within a PFA proceeding

HELD: The district court erred when it determined that the children were not residing with Baker when he filed the PFA application. Under the facts of this case, the children were residing with Baker at the time the application was filed. And because of the broad purposes of the PFA, it is sufficient if the children resided with the adult at the time of filing, even if the children moved subsequent to the filing of the application. Because the district court did not consider the PFA claims on their merits in regards to one of the children, the case must be remanded. There is no mention in the Protection from Abuse Act of grandparent visitation rights, which strongly suggests that grandparent visitation rights are not available to be litigated in PFA cases. Accordingly, the district court correctly determined that grandparent visitation issues were not properly before the court within the context of the PFA proceeding.

STATUTES: K.S.A. 2015 Supp. 23-3301(a), 60-3101(b), -3102(a), -3103, -3104(b), -3107, 76-729, 77-201 Twenty-third; K.S.A. 20-331, 25-407, 72-1046

Kansas Court of Appeals – Criminal

Criminal procedure; Evidence; Fourth Amendment
State v. Wissing
Reno District District Court – Reversed and remanded
No. 115,235 – July 29, 2016

FACTS: Officers arrested Wissing on outstanding warrants, then escorted him into house to allow him to talk to his mother. While handcuffed, Wissing removed his wallet and placed it on a dresser. Officer retrieved and searched the wallet. Wissing charged with drug offenses based on evidence found in the wallet. Wissing filed motion to suppress, arguing the search and seizure of his wallet was not incident to arrest because officers neither feared for their safety nor sought to preserve evidence of crime for which Wissing was arrested. District court granted the motion. State filed interlocutory appeal.

ISSUE: Search incident to arrest

HELD: Fourth Amendment principles apply because no Kansas statute governs scope of lawful searches incident to arrest. State did not need to prove that officers’ safety was in jeopardy, or that officers believed their safety was in jeopardy, to have authority to seize personal property within Wissing’s immediate control. As summarized in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), search-incident-to-arrest authority is strictly categorical, and is not based on a case-by-case approach. Wissing’s arrest on outstanding warrants was lawful, the search was substantially contemporaneous with Wissing’s arrest, and wallet was in an area accessible to him. No authority supports argument that intervening act of Wissing removing wallet after his arrest converted the wallet to a non-searchable object. Reversed and remanded for further proceedings.