30 | B ankruptcy & Divorce: A Marriage of Inconvenience By The Hon. Robert D. Berger
Cover layout & design by Ryan Purcell, rpurcell@ksbar.org
10 | A Gift That Can Never Be Taken Away 12 | B ecause I Said I Would By Anne McDonald 18 | S uccession Planning Really Isn’t Optional (Particularly for the Solo Attorney) By Mark Bassingthwaighte
20 | Recommended Reading for Your Next Appeal By Gene Balloun and Zach Chaffee-McClure
21 | 2014 KBA Elections 24 | 2 014 KBA Awards 26 | State of the Judiciary By Chief Justice Lawton R. Nuss
Regular Features 6 | KBA President By Dennis D. Depew
16 | S ubstance & Style By Pamela Keller
8 | YLS President By Jeffrey W. Gettler
22 | M embers in the News
13 | T he Diversity Corner By Katherine Lee McBride 14 | A Nostalgic Touch of Humor By Matthew D. Keenan 15 | L aw Practice Management Tips & Tricks By Larry N. Zimmerman
22 | O bituaries 38 | Appellate Decisions 39 | A ppellate Practice Reminders 46 | Classified Advertisements
THE
JOURNAL
OF THE KANSAS BAR ASSOCIATION 2013-14
Journal Board of Editors Richard D. Ralls, chair, rallslaw@turnkeymail.com Terri Savely Bezek, BOG liaison, tbezek@ksbar.org Joan M. Bowen, joan@fcse.net Hon. David E. Bruns, brunsd@kscourts.org Boyd A. Byers, bbyers@foulston.com Toby J. Crouse, tcrouse@foulston.com Emily Grant, emily.grant@washburn.edu Connie S. Hamilton, jimandconniehamilton@gmail.com Katharine J. Jackson, jacksonkatie@gmail.com Michael T. Jilka, mjilka@jilkalaw.com Lisa R. Jones, lisa.jones@washburn.edu Hon. Janice Miller Karlin, judge_karlin@ksb.uscourts.gov Casey R. Law, claw@bwisecounsel.com Julene L. Miller, jmiller@ksbor.org Hon. Robert E. Nugent, judge_nugent@ksb.uscourts.gov Professor John C. Peck, jpeck@ku.edu Rachael K. Pirner, rkpirner@twgfirm.com Karen Renwick, krenwick@wbsvlaw.com Teresa M. Schreffler, tschreffler@gmail.com Richard H. Seaton Sr., seatonlaw@sbcglobal.com Sarah B. Shattuck, bootes@ucom.net Richard D. Smith, rich.smith@ksag.org Marty M. Snyder, marty.snyder@ksag.org Matthew A. Spurgin, spurgin@lawyer.com Catherine A. Walter, cwalter@topeka.org Beth A. Warrington, staff liaison, bwarrington@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Beth Warrington, communication services director, at bwarrington@ksbar.org. The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year. The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. Copyright Š 2014 Kansas Bar Association, Topeka, Kan. For display advertising information contact Bill Spillman at (877) 878-3260 or email bill@innovativemediasolutions.com. For classified advertising information contact Beth Warrington at (785) 2345696 or email bwarrington@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.
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The Journal of the Kansas Bar Association
Let your VOICE be 2013-14 Heard! KBA Officers & Board of Governors President Dennis D. Depew, ddepew@ksbar.org President-Elect Gerald L. Green, ggreen@ksbar.org Vice President Natalie Haag, nhaag@ksbar.org Secretary-Treasurer Stephen N. Six, ssix@ksbar.org Immediate Past President Lee M. Smithyman, lsmithyman@ksbar.org Young Lawyers Section President Jeffrey W. Gettler, jgettler@ksbar.org District 1 Toby J. Crouse, tcrouse@ksbar.org Gregory P. Goheen, ggoheen@ksbar.org Mira Mdivani, mmdivani@ksbar.org Jennifer K. Vath, jvath@ksbar.org District 2 Charles E. Branson, cbranson@ksbar.org Hon. Sally D. Pokorny, spokorny@ksbar.org District 3 Eric L. Rosenblad, erosenblad@ksbar.org District 4 Chad D. Giles, cgiles@ksbar.org District 5 Terri S. Bezek, tbezek@ksbar.org Cheryl L. Whelan, cwhelan@ksbar.org District 6 Bruce W. Kent, bkent@ksbar.org District 7 Matthew C. Hesse, mhesse@ksbar.org J. Michael Kennalley, mkennalley@ksbar.org Calvin D. Rider, crider@ksbar.org District 8 John B. Swearer, jswearer@ksbar.org District 9 David J. Rebein, drebein@ksbar.org District 10 Jeffery A. Mason, jmason@ksbar.org District 11 Nancy Morales Gonzalez, ngonzalez@ksbar.org District 12 William E. Quick, wquick@ksbar.org At-Large Governor Christi L. Bright, cbright@ksbar.org KDJA Representative Hon. Thomas E. Foster, tfoster@ksbar.org KBA Delegate to ABA Linda S. Parks, lparks@ksbar.org Rachael K. Pirner, rpirner@ksbar.org ABA Board of Governors Thomas A. Hamill, thamill@ksbar.org ABA State Delegate Hon. Christel E. Marquardt, cmarquardt@ksbar.org Executive Director Jordan E. Yochim, jeyochim@ksbar.org
Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.
DON'T FORGET TO MARK IT TODAY!
REGISTER ONLINE AT WWW.KSBAR.ORG/CLE March 7 3rd Annual Oil, Gas & Mineral Spring Conference Whiskey Creek, Hays 7.0 CLE credit hours, including 1.0 hour ethics and professionalism March 11 Telephone or Web Seminar TBD 1.0 CLE credit hour March 25 Telephone or Web Seminar TBD 1.0 CLE credit hour March 26 Telephone or Web Seminar TBD 1.0 CLE credit hour March 27 Telephone or Web Seminar TBD 1.0 CLE credit hour March 28 KBA Employment Law CLE The Dodge House, Dodge City 4.0 CLE credit hours, including 1.0 hour ethics and professionalism CLE is pending approval in Kansas and Missouri.
kba president
How Do You Like Your Furloughs?
I
n mid-December, the Court Budget Advisory Council made its report to the Kansas Supreme Court. The full report is available online at the Kansas Courts website: www. kscourts.org. Every attorney in Kansas who interacts with state courts should take the time to read the report. The council was made up of capable and intelligent people from across Kansas. They were given the unenviable task of figuring out how to trim $8.25 million from the judicial branch’s FY2015 budget. This was one of those appointments that would lead to a big sigh of relief when you didn’t get the call from Chief Justice Nuss to participate! Since the judicial branch budget is 96 percent salary expense for personnel, the only way to eliminate 8 percent of the total budget is to negatively impact people. The judicial branch has already been operating on a reduced budget, and fortunately (if there can be anything labeled as fortunate in the present predicament) the $8.25 million figure includes some expenditures that are not being made now. The fact remains, however, that the funding that has been approved for FY2015 by the Kansas legislature is 8.25 percent below what has been requested in a base budget request by the judicial branch. The council’s first recommendation is to recommend the elimination of 19.5 FTE court service officer positions across the state. These positions currently perform duties that are not required by current statute. Examples of this include screening of PFA and PFS applications, conducting domestic mediations, conducting criminal history reviews prior to pleas and sentencing, to name a few. Savings equal $1.08 million in FY2015. The next recommendation deals with the current number of authorized but unfilled staff positions across the state. This amounts to $2.5 million. These vacancies create hardship where they occur and lead to increased workloads on the staff that remains. The council recommends an increase in this number of up to a total of 120 authorized but unfilled staff positions. This will save $3.75 million in FY2015. The third recommendation from the council is to delay by 120 days filling district judge and magistrate judge positions when they become vacant. Based on anticipated retirements of four district judges and four magistrate judges, this strategy would save approximately $440,000 in FY2015. The final recommendation is that of unpaid staff furloughs. To reach the $8.25 million budget cut will require 12 unpaid furlough days at a savings of $250,000 per day. We have seen this strategy utilized before when there were funding and budget issues for the judicial branch. Obviously, this will have a huge impact on non-judicial employees of the judicial branch, amounting to a 4 percent pay cut. Keep in mind that these same employees have not seen a raise in a number of years and many are already actively looking for other, more stable, employment. If any of the other budget cutting strategies are not implemented, there will need to be further furloughs that will save enough money to equal the savings from the other strategies that were not used. So, the purpose of the title of this column now becomes apparent, as a group Kansas attorneys across the state are faced
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The Journal of the Kansas Bar Association
with the very real question of: “How do you like your furloughs?” There are a number of answers to this question, but the bar of Kansas and thus the KBA does need to carefully consider if it wants to offer its input to the judicial branch as it decides how to structure the coming furloughs. In the past, furloughs were spread out among multiple pay periods and multiple months so as to not leave employees with any one period of time when they had no income. This was also done to try to minimize the impact of the furloughs on the public and business interests that use the courts on a daily basis. Another option is not to close the courts but furlough different staff members in each court at different times. This allows the courts to stay open, but then dramatically increases the workload on everyone else in each court. In areas where courts are already understaffed due to the current backlog of authorized but unfilled positions, this practice would significantly increase the opportunity for error and delay in court operations. Perhaps the most controversial option would be to wait until the end of the fiscal year approaches when a more exact determination of what the budget shortfall will actually be. Once that number has been determined, then the courts would just shut down for the time period required to reach the needed savings. At a minimum, if all the other savings strategies named by the council were implemented, the courts would be closed 12 days, or two-and-a-half weeks. That time period would come in June, the last month of the fiscal year. If some of the other strategies to save money were not used, then the court shutdown would have to be longer. This option is controversial because it would create chaos for individuals, businesses, law enforcement, attorneys, and any other users of the Kansas court system. On a positive note, this option would allow laid off court staff to apply for unemployment benefits since the layoff would be for a longer period. One other result of this option might be to get the attention of many Kansas legislators who seem not to have the interest or desire to properly fund the third and co-equal branch of Kansas government. It is interesting to note that the Kansas Association of District Court Clerks and Administrators has voted to support the block furlough at the end of the year option. It is also significant that the Kansas District Judges Association has also voted to support the block furlough approach, even though the brunt of providing emergency services during the furlough period would fall on them. At the time this column is being written, the KBA has no position on the options available to implement furloughs in the judicial branch. The KBA’s position is that the judicial branch should be funded at a minimum at the base budget request level. The reasons why the judicial branch should be funded at the enhanced budget request level are material for another column or two, as are the other longer term budget strategies that the Budget Council considered but could not recommend due to how quickly they could be implemented. These strategies are numerous and include a number of things
kba president
that would significantly alter the current practice of law in the courts of Kansas. (Eliminating all court reporters is but one example.) FY2015 will be upon us in less than five months. The KBA Board of Governors will be discussing whether or not it should weigh in on the “how do you like your furloughs� question. Please consider this column as my request that the KBA membership let its regional Board of Governors members, KBA staff, and KBA officers know how you feel regarding this issue. If, by some miracle, the legislature adds supplemental funding so that furloughs are not required, then this exercise will have been for naught. If that miracle does not materialize, then all of us will be facing the certainty of furloughs, so the answer to the question of how they are implemented is one that the lawyers of Kansas have a very real interest in. n About the President Dennis D. Depew is an attorney with the Depew Law Firm in Neodesha. He currently serves as president of the Kansas Bar Association. ddepew@ksbar.org (620) 325-2626
www.ksbar.org | February 2014
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yls president
From Scout Law to the Law
A
s February approaches, I find myself in a reflective mood. No, I have not been looking in the mirror too long. I have made my resolutions. Enough about that. During my reflections, I realized there are some parallels in my life from my past to my chosen profession. For example, from high school debate, to the courtroom. But what really got me thinking was the number of former participants of scouting who are now attorneys. Even in my own firm, we have Jeff Chubb who earned the highest rank of Eagle Scout. And Dan Reynolds and myself who, while we didn’t go that far, did participate in scouting. Upon further reflection, I realized that scouting and lawyers basically follow much of the same core principles. We both strive to be “trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.” (Scout Law) While we may fall short in the brave, thrifty and reverent departments sometimes, in order to acquire and maintain good relationships with clients, fellow attorneys, and judges, it behooves us to make every effort to uphold the remainder of the Scout Law. And I find it ironic that it is the Scout “Law.” Not ideal, not goal, but LAW! A portion of the Scout Oath is to “. . . help other people at all times; to keep myself physically strong, mentally awake, and morally straight.” Here again, as attorneys we need to exhibit these attributes in our own lives in order to be attractive to clients searching for reputable attorneys. Are we above reproach? No. Are we held to a higher standard? Oftentimes, yes. If you are afforded the privilege, as I am, to practice in a relatively small community, especially the one in which you grew up, your personal life and behavior is called into play a little more often than if you are working in a larger city. This has its pros and cons. Pro: Little Scouting is a place old ladies from the church you attended as to build strong where a small child call you to friendships which do their estate planning they remember will last a lifetime. because how sweet you were runThe KBA Young ning between the pews. Lawyers Section is Con: They call you by older brother’s name the same type of your when they schedule their place. By joining, appointment. Pro: You go to dinner with an old you will interact out friend (female) from high with other young school to catch up. Con: lawyers who are in The next day your email explodes asking if you the same place you have broken up with your are professionally. serious girlfriend who resides out of town. At the core of scouting is the development of character and a spirit of community service. As I have mentioned in several previous articles, volunteering and involvement in community and civic organizations are pretty high on my priority list. I believe they should be for all young attorneys. Not only
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The Journal of the Kansas Bar Association
is it good for your community, but it is also a good networking tool for your business. Upon reflection, this probably has roots in my early experiences in scouting. In scouting, you “advance” your way up the ladder by earning badges and being recognized. As a young attorney, you “advance” by gaining your client’s trust and positive . . . [H]elp other outcomes. If you work at people at all times; a firm with a partnership track, your years of gain- to keep myself ing clients, their trust and physically strong, positive outcomes will hopefully result in you mentally awake, and advancing from associ- morally straight. ate to partner. Does this always happen? No. Do you try to “do your best” to achieve a positive outcome? Yes. Is that what your client is paying you to do? Yes. Goal achieved. Badge earned. Good job! Scouting is also fun! Being an attorney is fun! Not ALL the time. After all, it is a job. But when I think about a lot of people and what they do for a living, I’d much rather be an attorney than a whole lot of other jobs out there. Scouting is a place to build strong friendships which will last a lifetime. The KBA Young Lawyers Section is the same type of place. By joining, you will interact with other young lawyers who are in the same place you are professionally. They are facing many of the same conflicts and celebrating many of the same achievements. You will be provided several opportunities throughout the year to congregate, socialize and form friendships that will last a lifetime and will often prove very beneficial to your practice. Is this article about scouting? No. Is it a recommendation that all of you with children who hope they will one day become attorneys run out and sign them up immediately? No. Is scouting the only reason I became an attorney? No. Is scouting the only place I learned good character and citizenship? No. I do have some pretty great parents that played an important role in raising my brother and me, so I have to give a shout out to them. All I am saying is that I needed an article for this month’s edition of the KBA Journal and, when I was pondering what to write, I realized that at least three of the five attorneys in my own firm were involved in scouting. Reflections began. . . . n About the YLS President Jeffrey W. Gettler is a partner at the Independence law firm of Emert, Chubb & Gettler LLC. He is also the prosecutor for the City of Independence. jgettler@sehc-law.com
kansas bar foundation
A Gift That Can Never Be Taken Away 7 law students receive KBF scholarships The beautiful thing about learning is that no one can it away from you.
– B.B. King
T
American blues guitarist and songwriter
he KBF Scholarship Committee selected seven students to receive scholarships in 2014. Through generous endowments from individuals and firms, the KBF is able to offer the scholarships. Congratulations to these outstanding students! Case Moses & Zimmerman P.A. Law Student Scholarship
“Receiving this scholarship has been another example of how people dedicated to the state and this profession make a huge difference in the lives of students. This scholarship is going to help me make it through the last semester of school without having to take out any loans. That is truly amazing with the cost of a legal education. Beyond the financial support this award also serves as a reminder, as I am getting ready to graduate, that giving back to the legal community is important, and I plan to do my part.” Maxine S. Thompson Memorial Scholarship
This scholarship is intended to go to a future Kansas lawyer including both Kansas law schools and Creighton University School of Law. This award is specifically given to a second-year student who intends to practice law in the state of Kansas.
This scholarship promotes the practice of law in the state of Kansas by awarding a law student, originally from Kansas and attending the University of Kansas School of Law or Washburn University School of Law an annual scholarship. The award recipient must have completed no less than 60 hours toward a law degree and must plan to practice in a rural Kansas area, preferably western Kansas.
Richard W. “Rick” Smith, Washburn University School of Law
Christopher A. “Chris” Rohr, Washburn University School of Law
Married with two small children, Smith and his family came to Kansas from Ohio. He chose Kansas because his long-term plans include living and raising his family in Kansas. He is a law clerk for the Kansas Corporation Commission and hopes his experience there will help him make a valuable contribution to Kansas in several ways. Smith is involved in several community activities and service to others is an important part of his life. “The Kansas Bar Foundation is a positive reflection of the good that exists in the Kansas legal community. The scholarship benefits the community at large as much as it aids in my legal education. As a recipient of this scholarship, I feel a desire and obligation to contribute to the Kansas legal community in the years to come.” The Justice Alex M. Fromme Memorial Scholarship Award This award is provided to a law student attending the University of Kansas Law School or Washburn University Law School who is committed to practicing law in Kansas.
Katherine E. “Kate” Marples, University of Kansas School of Law
A native of Dodge City, Marples attended the University of Kansas and earned a B.A. in Germanic languages and literatures. She has lived her entire life in Kansas except for a year of study abroad in Germany. She will clerk for a federal magistrate judge for two years and then plans to practice in Kansas. She and her law school partner will be representing KU at the Pace National Environmental Law Moot Court Competition in late February 2014. When she is not busy with law school, she spends time rowing and coaching the KU Crew team.
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The Journal of the Kansas Bar Association
A native of Colby, Rohr attended Colby Community College and Fort Hays State University prior to attending law school. He has interned for the Washburn Law Clinic, has participated in numerous community events, including assisting third grade students in putting on their own mock trial. He plans to practice in a rural Kansas community. “I am very grateful to receive this scholarship and it is another example of how the KBA is committed to help future attorneys in Kansas. This scholarship is going to help me make it through the last semester of school and through bar prep without having to be so dependent on loans. Beyond the financial support, this award will also put me in a better position to help the people in my hometown community who have helped me through my law school journey.” The John E. Shamberg Memorial Law Student Scholarship This scholarship is for a Washburn University School of Law student who has an interest in plaintiff’s work as well as a bona fide intention to practice law in Kansas. Kurtis K. Wiard, Washburn University School of Law
A native Kansan, Wiard attended Little River High School and earned a degree in political science at Washburn University. After graduation, he will work as a research attorney for the Hon. David E. Bruns on the Kansas Court of Appeals. He is currently the Notes Editor of the Washburn Law Journal and works as a law clerk for the Kansas Department of Labor. He has previously worked as an extern for the Hon. David J. Waxse and was a Member of Parliament research assistant in London for Rob Wilson MP.
kansas bar foundation
“Thank you to the Kansas Bar Foundation for its support of my legal education. I am honored to receive the John E. Shamberg Memorial Scholarship. Like Mr. Shamberg, I hope to serve the people of my state, particularly those who cannot afford legal representation.” ... serving the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society. OFFICERS Katherine L. Kirk President kathykirk@earthlink.net
Lawrence
Edward J. Nazar President-elect ednazar@redmondnazar.com
Wichita
Laura L. Ice Secretary-Treasurer lice@cfc.textron.com
Wichita
Joni J. Franklin Immediate Past President joni@jfranklinlaw.com
Wichita
BOARD OF TRUSTEES John C. Brown Hays Amy Fellows Cline Wichita Melissa R. Doeblin Topeka Gregory P. Goheen Kansas City, Kan. James L. Hargrove El Dorado Scott M. Hill Wichita Aaron L. Kite Dodge City Charles D. Lee Hutchinson Kurtis I. Loy Pittsburg Amy E. Morgan Overland Park David H. Moses Wichita C. David Newbery Topeka Susan G. Saidian Wichita Todd N. Thompson Lawrence Kenneth W. Wasserman Salina Hon. Evelyn Z. Wilson Topeka Brooks G. Severson Wichita Young Lawyers Representative Margaret A. Farley Lawrence Kansas Association for Justice Representative Patrice Petersen-Klein Topeka Kansas Women Attorneys Association Representative Nathan D. Leadstrom Topeka Kansas Association of Defense Counsel Representative Sara S. Beezley Girard Kansas Bar Association Representative Bruce W. Kent Manhattan Kansas Bar Association Representative Timothy M. O’Brien Kansas City, Kan. Kansas Bar Association Representative EXECUTIVE DIRECTOR Jordan E. Yochim jeyochim@ksbar.org
Topeka
MANAGER, PUBLIC SERVICES Anne Woods Topeka awoods@ksbar.org
Hinkle Law Firm Student Scholarship This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Because community service is extremely important to Hinkle Law Firm LLC, applicants must also demonstrate a history of community involvement to be considered. Kayla Lynn Roehler, Washburn University School of Law
A Washburn Rural High School and Kansas State University graduate, Roehler intends to remain in Kansas to practice law. She is considering practicing in the areas of criminal law or medical malpractice. She plans to intern with the Shawnee County District Attorney’s Office during the summer of 2014. Roehler has served as a volunteer for several organizations, including Girl Scouts of America, cancer awareness programs, and disability awareness programs. “I would like to thank the Kansas Bar Foundation for selecting me to receive the Hinkle Scholarship. Working to help the community has always been important to me and my family; my earliest memories are community service projects with the Girl Scouts and Boy Scouts. I plan to continue working in the community after graduation. A major goal of mine is to help find the cure to pancreatic cancer by 2020. Pancreatic cancer is the fourth deadliest cancer with a life span of less than five years after diagnosis. I also plan to stay involved with the Race Against Breast Cancer. I plan to continue running the race and raise funds to provide no-cost mammograms to men and women of Shawnee and the six surrounding counties. I would like to, again, thank the Kansas Bar Foundation for this honor.” Lathrop & Gage Student Scholarship Award This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Applicants must demonstrate a history of community involvement to be considered.
Thomas Hiatt, University of Kansas School of Law
A fourth generation Kansan, Hiatt intends to practice law in Johnson County. He values the Kansas work ethic and has worked various jobs, including as an assistant manager for the Shawnee Mission Park Marina and as a resident assistant for KU Student Housing/ residence halls. He has also given time to help others by volunteering at a food pantry, participating in Relay for Life, and organizing various events and community service activities for Phi Alpha Delta at KU. “As a proud Kansan and a future member of the Kansas Bar, I am honored to have received the Lathrop & Gage Scholarship Award. Being a lawyer is so much more than just doing your job; it is about being an upstanding member of the community and giving back. When our communities are strengthened, we all are strengthened, and I look forward to contributing to the work the Kansas Bar Foundation is doing to help those in need.” Frank C. and Jeanne M. Norton Scholarship Award This scholarship is available exclusively to Washburn University School of Law students in their second or third year of study who are not receiving any other scholarship support.
Aaron Othmer, Washburn University School of Law
A graduate of Shawnee Heights High School and the University of Kansas, Othmer plans to use his environmental studies degree and his law degree to work on land and environmental issues in Kansas and surrounding areas. He plans to participate in several of the programs offered by Washburn’s Oil and Gas Law Center. “I would like to thank the Kansas Bar Association for choosing me to receive the Frank Norton Scholarship. Receiving this scholarship symbolizes the hard work I put in over the last few years and will provide incentive to continue my role as a contributing citizen to the surrounding community.” The scholarship recipients were recognized in February at the Court Appreciation Dinner. In addition, they had the opportunity to meet members of the families of the donors who established the scholarships. Contact Anne Woods, KBA public services manager, if you would like additional information about establishing a KBF scholarship fund or contributing to an existing fund at awoods@ksbar.org or at (785) 234-5696. n www.ksbar.org | February 2014
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kansas lawyers assistance program
Because I Said I Would
I
f you made any New Year’s resolutions, this is likely crunch time: some of us are keeping them but most of us have slacked off and many of us are probably feeling guilty about that. Last fall I traveled literally from Atlantic to Pacific – four trips by air, two to California, one to Chicago, and one to Maine. Lots of time to read Spirit, Southwest Airlines magazine. And I came across an article about Alex Sheen, a guy who started a movement and a nonprofit called “Because I said I would.” His father died and as he thought about his life, the one thing that stood out was that his dad had always kept his word. He decided he would honor his father by advocating for that behavior. But what my dad did do was keep a promise. If he said he was going to do it, it would certainly be done. Too often we make promises, little and big, that we do not honor. It becomes easy to say “I’ll get to it” or “tomorrow.” I want to remember my Dad and the promises he kept. I want to help others remember their commitments. (http://becauseisaidiwould.com) The website, http://becauseisaidiwould.com, says: “Because I said I would is a social movement and nonprofit organization dedicated to bettering humanity through the power of a promise. To encourage positive change and acts of kindness, we send ‘promise cards’ to anywhere in the world at no cost. People use these cards to remember the importance of their word, for promises both big and small.” The movement had gotten some publicity earlier in 2013 when Matthew Cordle, a young man who had killed someone in a drunken driving accident, made a video confession recorded and promulgated by bisiw. He said his confession was motivated in part by the bisiw web site and its goal of keeping a promise. Lawyers, as members of a profession, take special care to keep their word. The KBA Pillars of Professionalism introduction says: Admission to practice law in Kansas carries with it not only the ethical requirements found in the Kansas Rules of Professional Conduct, but also a duty of professionalism “. . . Kansas lawyers have a duty to perform their work professionally by behaving in a manner that reflects the best legal traditions, with civility, courtesy, and consideration. Acting in such a manner helps lawyers preserve the public trust that lawyers guard and protect the role of justice in our society . . .” These Pillars should guide lawyers in striving for professionalism. While our conduct as lawyers is guided by the Code of Professional Responsibility, our reputation is an important part of our practice and involves behavior beyond the baseline of the Code. One component of our reputation is whether we are known for keeping our word. Being trusted is part of our “best legal traditions.”
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The Journal of the Kansas Bar Association
So this is where New Year’s resolutions, the bisiw organization and the Pillars of Professionalism intersect. If we do something because we said we would and honor our commitment, we both keep our resolution and act in accordance with our best legal traditions. Now, here’s a riff on keeping our resolutions. You’ve probably heard or read that many people make too many or too broad or too vague resolutions, which often leads to the lack of follow through. And then we feel guilty and berate ourselves and what began as a hopeful and positive enterprise degenerates into negativity and despondency. Remember, the quote from the bisiw organization at the beginning of this article spoke about “promises both big and small.” So start small, just like your fitness coach tells you about your training – don’t begin by running 5 miles; start by walking 1 mile and build up from there. The more you do it, the better you feel and the more confidence you gain. BUT you still have to do it. The doing of it is as important as the what it is you are doing. We usually ask lawyers who work with KALAP to sign a short contract that sets out some goals and behaviors needed for growth. I explain that the purpose of the contract is twofold: to establish expectations and to build a record of compliance. There is something about putting a promise in writing that can be solemn and motivating. Of course the other thing is, one needs to believe that what he/she is promising to do is desirable and beneficial. There would be no point in promising to do something harmful, or even something you’re going to do anyway. No, it ought to be some niggling little something that you’ve been avoiding, or remiss about doing. Something that will make you feel better when you do it and that is accomplished fairly easily and for a finite time. It may sound wonderful and romantic to say you will love your spouse forever, or even that you will always be completely candid with your colleagues or clients. But “forever” and “completely” can become something between inconvenient and impossible over time. And of course there’s that Alcoholics Anonymous slogan “One Day at a Time” to keep in mind. So maybe today I say “Tomorrow I will (select one – and only one) 1) Meditate for 10 minutes; 2) Exercise or stretch for 10 minutes; 3) Call Mr. or Ms. Doe and follow up on that case; 4) Spend 5 minutes giving my full attention to my child, my spouse, or my client; 5) . . .” – well, you get the idea so pick your own promise. Just keep it. n About the Author Anne McDonald was appointed to the Lawyers Assistance Program Commission since its inception in 2001 and has served as the Executive Director of KALAP since 2009. She graduated from the University of Kansas School of Law in 1982. mcdonalda@kscourts.org
the diversity corner
The Association for Legal Career Professionals 2013 Review of Law Firm Diversity
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ALP, or the Association for Legal Career Professionals, is a legal association that provides career counseling and planning, recruitment and professional development for lawyers, law schools, law students, and law offices worldwide. The association reviews law firm demographics to understand the extent of women associate and minority associate representation across the United States.1 In late December 2013, NALP published its statistical findings and demographic analysis of both women and minority associate representation. Since I was unfamiliar with the breakdown of minority and women representation nationally, I thought that members of the bar would be interested in a summary of NALP’s findings. Partners NALP’s recent review of women and minority partners in law firms nationwide discovered a small increase in representation over the past year. For the majority of the 21 years that NALP has been gathering law firm demographic information, the association has recognized a slow but steady trend in firm representation of women and minorities, both as partners and associates. In 2013, minorities represented 7.10 percent of all partners in major firms, while women represented 20.22 percent. In NALP’s 2013 annual report of law firm demographics, the association has also reviewed the figures of minority and women attorney representation by geographic region. Specifically, the association has analyzed 40 cities with the most lawyers represented in their annual directory of legal employer data, the 2013-2014 NALP Directory of Legal Employers, finding that there is significant geographic variation of minority women partner representation. Firms in Miami reported the highest minority women partner representation, at 9.16 percent, while eight other cities (including Kansas City, Mo.) reported less than 1 percent of minority women partner representation. The cities of Los Angeles and San Francisco demonstrated the highest representation of women, minorities, and minority women. Smaller cities, such as Austin, San Jose, and Orange County, exceeded the national average of minority associate representation. However, cities such as Charlotte, Nashville, and Kansas City were below average on most or all diversity measures. In Kansas City, out of the 886 total partners, only 19.64 percent were women, 3.05 percent minority, and 0.79 percent minority women. Out of 426 Kansas City associates, women represented 42.96 percent, minorities represented 13.62 percent and minority women represented 6.34 percent.2 Footnotes 1. All information contained in this article derives from NALP research and statistical analysis, which can be found at The Association for Legal Career Professionals (NALP), Representation of Women Associates Falls for Fourth Straight Year as Minority Associates Continue to Make Gains –
Associates NALP found that representation of women associates had decreased for the fourth year in a row, though minority associate representation demonstrated improvement for the last three years. The association began gathering this statistical information in 1993, and has recognized an increase in women associate law firm representation from 38.99 percent in 1993 to 45.66 percent in 2009. Minority associate percentages documented a gain over this same period, from 8.36 percent to 20.93 percent. The recession’s blow to the legal profession explained a dip in both women and minority associate representation in 2009, but only minority representation has been able to bounce back. Summer Associates Since 2000, the percentage of minority law school graduates has ranged from 20 percent to 24 percent and the percentage of women law school graduates has ranged from 46 percent to 49 percent of graduates, according to the American Bar Association. In 2013, women accounted for 45.32 percent of summer associates, minorities amounted for 29.51 percent of summer associates (of this percentage, 15.75 percent of summer associates were minority women). Overall, there has been a slight decrease in the representation of women summer associates and a slight increase in representation of minority women summer associates. Figures for minority summer associates have demonstrated the most improvement, increasing almost 5.5 percent since 2009. n About the Author Katherine Lee McBride is an assistant revisor of statutes for the Office of Revisor of Statutes and a member of the KBA Diversity Committee. She received her J.D. from Washburn University School of Law in 2010 and her LL.M. in elder law from the University of Kansas School of Law in 2012. katherine.mcbride@rs.ks.gov
Women and Minority Partners Continue to Make Small Gains (December 11, 2013), available at http://www.nalp.org/lawfirmdiversity_2013. 2. NALP’s research indicates that these figures for Kansas City, Mo., were based on a total of nine offices. www.ksbar.org | February 2014
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a nostalgic touch of humor
B-4-I-Die: My Short List Editor’s note: This month’s column was originally published in February 2006.
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ast month I was driving to work and was listening to sports radio. As the jocks were babbling about the porous Chiefs’ defense, I started to channel surf. Eventually I ended up at National Public Radio. And what I heard there captured my attention for a bit. I caught the start of a story about a new advertising campaign for Alaska tourism featuring billboards with the slogan “B-4-U-DIE”— or “before you die.” The point is to enlist senior citizens to head to Alaska before their name appears in the obituary section. I started to think about that notion as I dodged cars on I-35. At first it sounded pretty stupid, but as I continued my 30-minute commute to work, I concluded it wasn’t a silly notion after all. I decided that maybe there were some things I wanted to do as a lawyer before I die. And in no time, my list began. And between 95th Street and 63rd, it had grown long. So here it is. B-4-I-Die, I want to pick a jury and take a verdict in the Barton County courthouse where my dad was once the county attorney. In that trial, I want my local counsel to be my two brothers, Tim and Marty, who live in Great Bend. After that trial is over, I want to drive to Chase County and do an opening statement in the courthouse at Cottonwood Falls. I would even settle for a pretrial conference there. There are a couple other spectacular courthouses I would love to visit on official business. Like the courthouses in Kingman, Russell, Thomas, and Harper counties. I want to finish a jury trial and have the jury foreman ask me for my business card. That would be cool. B-4-I-Die, I want to use my e-mail to tell a billion Blackberry users that “I’m waiting on a jury verdict right now, so I can’t respond to your messages anytime soon.” I want to be on the proverbial “short list” for an appointment to a judgeship to federal or state court with an accompanying photo that shows
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The Journal of the Kansas Bar Association
the benefits of digital enhancements. I want to win a pro bono case and have all my fees awarded with some additional premium added for “superior service.” B-4-I-Die, I want to free an innocent man. To have a client pay me before my bill is sent enclosing a letter using the kind of praise you consider framing. My list continued to grow. B-4-I-Die, I would love to get off a plane and have my entire family greet me there, with balloons or something nice, like I see all the time with other passengers on my business trips. There are some things outside the practice I would like to do. To live long enough to see my children marry. To see the sunrise in the Flint Hills. To get pulled over while speeding on Highway 56 and have the policeman say something like this: “Hey, aren’t you that guy who writes for the KBA Journal? You are probably trying to make your deadline. Just count this as a warning. Have a nice day.” I’d love to see one of my sons sworn into the U.S. Supreme Court, as I did with my dad last summer. And as I parked my car, one other thought came to mind. It would be cool to have an adversary write me a letter and say something nice about me with the punch line “You remind me of your father.” And once I accomplished all the above, then maybe a trip to Alaska might make my list. n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com
law practice management tips & tricks
Time Mastery for Lawyers
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oor planning and the unexpected caught me short an hour of CLE in 2013 for my Nebraska license. Time had run out and I was desperate in the last weeks of the reporting period. Fortunately, Kathryn Bellman, program coordinator for the Nebraska State Bar, has an ornery sense of humor and was willing to use it for a subtle jab at procrastinating attorneys. The barnburner, six-and-a-half hour CLE complete with two full ethics hours in the last full week of the reporting period was Time Mastery for Lawyers: Over 100 Ways to Maximize Your Productivity and Satisfaction by Frank Sanitate. How appropriate. Frank Sanitate Associates Mr. Sanitate presides over his firm in Santa Barbara focused on presenting “transformational workshops for professionals.” In other words, Sanitate’s company helps professionals buckle down and learn to discipline our behavior in a wide range of areas. Frank Sanitate Associates’ schedule for 2014 shows seminars on finances (Re-building a Successful Retirement), productivity (The Virtual Office), conflict resolution (Dealing with Difficult People), and practice management (Managing People, Performance and Pressure). Nine different presenters, including Sanitate, present the CLEs in-person, via webinar, or by DVD for groups and firms. Six hours of instruction on DVD runs about $199. The in-person training in Nebraska was $295. The full schedule with presenter biographies and curricula are at franksanitate.com. The CLE The program is quite detailed as you would imagine from the time involved. The objectives, however, necessitate the time commitment: • Eliminate time stress • Get over 100 practical ideas • Create a balance between your work life and personal life • Increase your productivity and satisfaction The program is not a lecture. Materials include a well-designed, 26-page workbook and it turns out to be a lot of work to complete it. Time Mastery for Lawyers is what I would call a Steven Covey approach – it focuses on your personal aspirations and motives first and then builds a practical framework designed to make achievement of those aspirations more possible. This is a different approach from something like Getting Things Done or Pomodoro Technique (both discussed here in prior articles) that are time management techniques that can be divorced from any grander understanding of our motives and values. The day begins with self-examination and introspection. A 20-point quiz is provided at the outset examining our impressions of how we use and manage our time. The competitive among us were not provided any explanation of what a passing grade would be but the 75-member audience was polled so we saw how we stacked up to those in the room. I think the best use of this quiz would involve asking staff or partners to provide a second opinion to check that our “introspection meter” is correctly engaged.
The first three or four hours are spent in various exercises that build on specific points of the 20-point quiz. How much of our time is spent managing versus doing? Where does my time go in a typical day? What do I want to achieve professionally? How do my professional achievements serve my personal goals? By lunchtime, attendees have pretty decent outlines of goals and some very specific, measurable action steps to achieve them. This process is solidified and strengthened by working with an “accountability buddy.” As you do the exercises, you also collaborate with a partner at the seminar to hone each other’s priorities and assessment method. Sanitate also asks for a four-week, post-seminar commitment. I have my buddy’s cell number and he has mine and we scheduled check-up appointments to report on our progress toward goal. I was a bit cynical about this part but surprised how seriously my colleagues took the assignment. Once our deeply personal goals for our professional life are established, the seminar transitions into training on actual techniques for time mastery. The program promises more than 100 tips and tricks to maximize productivity and the last page of the workbook is a checklist of each of those tips. As the seminar progresses, Sanitate refers to that page and asks attendees to mark any we believe apply or which we would be willing to attempt. Some of the specific helps for email include: • Set all out-bound email to deliver at 5:15 PM. This helps protect against being caught unexpectedly in day-long email conversations. • If an item in your inbox can or will be dealt with at a later date, forward it to yourself but set delivery time to that future date. • Turn off email and declare an email “holiday” with an auto-response that “Your mail will be received and addressed tomorrow.” Resolution Similar tips and tricks accumulate for virtually all areas of practice management. There are sections for phone management, controlling interruptions, clearing and organizing your desk, running efficient meetings, and pausing for well-being to name a few. The list is daunting and could easily turn into a checklist of all you do wrong if not for Sanitate’s careful guidance through selecting small steps and setting small goals. Sanitate’s former life as a monk comes out as he teaches “line upon line, precept upon precept” as the path to improvement. By the end of the day, I was exhausted from the introspection but energized by the prospects. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and an adjunct professory teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Section. kslpm@larryzimmerman.com www.ksbar.org | February 2014
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substance & style
Comes Now Must Go Now Have you recently read a document that begins like this? COMES NOW the Plaintiffs, TSC Operating Limited Partnership (hereinafter “TSC”) and Littus LLC (“Littus”), by and through their attorneys of record and file this, TSC and Littus’s Response of TSC Operating Limited Partnership and Littus, LLC to Motion of Henry H. Hineman for Stay Pending Appeal and would respectfully show to the court as follows:1 Have you asked yourself why lawyers still include “COMES NOW,” or why we can’t let go of repetitive phrases like “by and through”? Why do we hold on to this language? I don’t know why we do it. We have read articles and attended CLE sessions telling us that plain language is best, and we all nod in agreement. I suspect, though, that when it comes to documents we file with the court, we hesitate to change because we worry that judges still prefer a more formalistic style, especially in the opening paragraphs of our submissions. An empirical study designed to test whether judges want to see this formalistic style confirms that they do not. The study confirms that most judges do not prefer the legaleseladen writing style in the above paragraph but rather prefer a plain language style.2 In the study, judges were shown sample documents that were written in different writing styles but contained the same substantive law and arguments.3 The above paragraph opened the writing sample in the “legalese” style. A different sample, the “plain language” sample, incorporated the hallmarks of the plain language style: It avoided legalese, had fewer unnecessary words, avoided sentences that contain multiple ideas, used shorter sentences (an average of 17.8 words as opposed to 25.2 in the legalese sample), and had topic or thesis sentences that more clearly identified each paragraph’s purpose.4 Judges preferred plain language to legalese 66 percent to 34 percent.5 Whether a judge practiced in a rural or urban area had no correlation with whether she preferred plain language. A judge’s age or gender also had no correlation. State and federal judges preferred plain language at about the same rate, and so did trial and appellate judges.6 Perhaps this empirical evidence will persuade those who still resist to give their form pleadings and motions a modern edit. This empirical evidence suggests that most judges would welcome an opening paragraph that banishes “COMES NOW” and reads more like this:7 Footnotes 1. This is the opening paragraph of one of the writing samples used in the empirical study I refer to in this column. Sean Flammer, a trial attorney in a Texas law firm, conducted the study and published an article explaining his methodology and results. See Sean Flammer, Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 J. Legal Writing Inst. 183 (2010). This paragraph is an excerpt from an original court filing. Id. at 193. You can find a copy of the samples in their entirety in Mr. Flammer’s article. See id. at 213-19. 2. Id. at 199, 211-12. 3. Id. at 193. 4. Id. at 193-95, 216-17. 16
The Journal of the Kansas Bar Association
Plaintiffs, TSC Operating Limited Partnership and Littus LLC, respond as follows to Defendant Henry Hineman’s motion for stay pending appeal: The evidence also suggests that judges like introductions that provide a roadmap for an argument and sentences that directly state the inference the writer wants the reader to draw. Judges do not favor long sentences with lots of commas and clauses; a relatively simple sentence structure works well. You can see this by comparing the two introductions in the study samples, which are set out below. Judges strongly favored the plain language version: Legalese: Defendant Hineman is attempting to stay the force and effect of the remand orders entered by this court on February 25, 2004 (hereinafter the “Remand Orders”) under Federal Rule of Bankruptcy Procedure 8005 governing stays pending appeal because he believes that he will likely succeed on appeal to the District Court. Hineman, unlikely to prevail on appeal, cannot meet Rule 8005’s threshold inquiry which is a “strong showing” of the likelihood of success, and is, thus, incorrect in his analysis under Rule 8005. Furthermore, Hineman cannot make appropriate showings on the other three inquiries under the Rule: whether appellant will suffer irreparable injury absent a stay; whether a stay would substantially harm other parties in the litigation; and whether a stay is in the public interest. Hineman fails on all counts, and the request for stay must be denied. Plain language: Hineman seeks to stay the effect of the remand orders this court entered on February 25, 2004. Hineman is incorrect, however, in his analysis under Rule 8005, and he is unlikely to prevail on appeal for four reasons: 1. He has not met and cannot meet the “strong showing” of likely success threshold required under Rule 8005; 2. He cannot show that he will suffer irreparable injury absent a stay; 3. A stay could substantially harm other parties in the litigation; and 4. He cannot show that a stay is in the public interest. 5. Id. at 199. 6. Id. 7. At least one judge has ordered a party to give its brief a plain language edit. In an order denying plaintiffs leave to exceed the brief page limit, a Florida judge required plaintiffs to edit their brief to “eliminat[e] redundancy, verbosity, and legalisms.” Belli v. Hedden Enters., No. 8:12-CV1001-T-23MAP, 2012 WL 3255086, at *1 (M.D. Fla. Aug. 7, 2012). To provide plaintiffs an example of the possibilities for reducing the brief ’s size and improving clarity, the judge actually edited the brief ’s introductory paragraph. Id. The judge’s order was republished in a legal writing column in the Michigan Bar Journal, which you can access at http://www. michbar.org/journal/pdf/pdf4article2139.pdf.
substance & style
So what about the 34 percent? That puzzled me as well. I have trouble understanding why 34 percent of judges preferred a legalese style. I simply do not see how it can be more effective than what seems to me clearer prose. I suppose if you know the judge deciding your case likes a legalese style, a modern edit is unnecessary. If not, I would go with the odds and write in the plain language style that the majority of judges prefer. I suspect that if more lawyers filed documents in a plain language style, we would likely convince that 34 percent to jump on our plain language bandwagon. The next time you file a motion, give it a modern edit. Give it the hallmarks of the plain language style: • Reader friendly, but not informal • Use of roadmaps and thesis sentences • Clear assertions (sentences directly state the inference the writer wants the reader to draw) • Shorter sentences and paragraphs • Simpler sentence structures • No legalese n
About the Author Pamela Keller is a clinical associate professor and the Schroeder Teaching Professor at the University of Kansas School of Law. Keller also directs the lawyering skills program and the judicial clerkship program. Before teaching, she practiced employment law with Ice Miller in Indianapolis and clerked for the Hon. John W. Lungstrum. pkeller@ku.edu
In a future column, we would like to answer your legal writing questions. Email questions to pkeller@ku.edu with the subject line SUBSTANCE & STYLE. You can also mail your questions to Pam Keller, University of Kansas School of Law, 1535 W. 15th St., Lawrence, KS 66045.
www.ksbar.org | February 2014
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risk management
Succession Planning Really Isn’t Optional (Particularly for the Solo Attorney)
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t ALPS, be it from RISC visits, on applications for insurance, or at CLE events, we continue to find that a significant number of solo practitioners have yet to take the step of creating a succession plan. When working with these attorneys our message is always the same, if no plan is in place, now is the time. You really don’t want to leave the headache of having to deal with stacks of closed files to an unsuspecting non-lawyer spouse, and yes, such calls continue to come in. Always remember that someone paid for the production of every file you have in your possession and that someone has an interest in their file. We all know that client property cannot be destroyed whenever an attorney feels like doing so; but of course, non-lawyer spouses aren’t bound by our rules, and it happens because they don’t know what else to do. Heaven forbid that post attorney death and after a grieving spouse has had all the old files destroyed, a certain file is needed to properly defend against a claim of malpractice. Making matters worse, it turns out that there is no insurance in place to cover the fallout of the claim because no one knew they had to timely contact the malpractice carrier in order to purchase tail coverage after the attorney passed. The end result is that the deceased attorney’s estate may now not be what everyone was counting on it being. The failure to plan can end badly; but wait, there’s even more. Rule 1.3 of the ABA Model Rules of Professional Conduct addresses diligence. The Rule reads, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Most attorneys, if not all, are well aware of this rule. As lawyers, we are to act with commitment, dedication, and where appropriate even zealous advocacy. Our workloads are to be reasonable so that all matters can be resolved competently. Procrastination is an enemy to be avoided at all costs; for it has and will continue to lead to malpractice claims if and when clients are ever harmed as a result. In the end we are all to strive to deliver our services in a professional, competent and timely fashion. Yet our obligations do not end here. There is an obligation to prevent neglect of a client matter post attorney death or disability. In 2002 the comments to ABA Model Rule 1.3 were amended with the following language. Comment 5 now states, To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine if there is a need for immediate protective action. Given all that I have seen and experienced over my years with ALPS, I personally have trouble coming up with a set of circumstances where I would feel comfortable saying no such plan would be required for a solo. The only question for me is how to get there.
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The most important aspect of planning for your death or disability is in the designation of an attorney who will be responsible for administering the winding down of your practice. This attorney should be competent, experienced, and someone who displays the utmost professionalism. This person should have the time, or the ability to make the time, to come into the practice. She must be able to make rapid decisions and assume, at least for a period of time, something of an additional practice. Now remember that the purpose of the designated attorney is not to come in and take over the practice but rather to take the lead in winding down the practice. It’s about being expeditious with file review, client notification, protective action, and transitioning files to other attorneys. Perhaps these responsibilities could even be shared among a select group if time constraints are a concern. Obviously, the designated attorney ought to be someone quite familiar with your practice areas and also not likely to have a significant number of conflict concerns arise as a result of ever having to step in. Finally don’t overlook the importance of making certain that appropriate employees are aware of who the designated attorney is and how to contact that individual in an emergency. One added benefit of choosing a designated attorney (and often this is a reciprocal designation) is that the individual can also act as your backup attorney thereby allowing you to take extended absences from your office for work, pleasure, or health reasons. Beyond designating an attorney, there are a number of other things that should be done with your practice if they are not already taken care of. Consider providing notice of the existence of and reason for a designated attorney in your fee agreements so that clients are aware of the steps you have taken to protect their interests in the event of an emergency. Maintain a current office procedures manual that discusses the calendaring system, conflict system, active file list, open and closed file systems, accounting system, and any other key system as this can be valuable in expeditiously bringing the designated attorney up to speed on how your practice is run. It is imperative that critical systems such as the calendar and conflict systems be kept current at all times and make certain that all files are thoroughly documented. The designated attorney will need to review all client files as quickly as possible in order to make a determination whether any immediate protective action is necessary. Mistakes can and will be made with poorly documented files. Finally, write a letter for the designated attorney that details duties for all employees; includes passwords for and instructions on the use of the computer system; provides financial details, such as location and account numbers for all bank accounts, particularly client trust accounts; and contact information for all staff and principal vendors such as banks, insurance companies, utility companies, and the landlord. In short, think about what you would need to know if you were the person coming in to wind down your practice and capture that intellectual capital in a way that will be useful to the designated attorney.
risk management
If you feel that you need assistance in developing a plan for your death or disability, the Oregon State Bar Professional Liability Fund has published a handbook with related forms that can be of real help. This handbook, available to out-of-state lawyers at a reasonable price, will also provide significant help to the designated attorney should his or her services ever be needed. In this book, titled, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death,” you will find items such as a checklist for closing another attorney’s office, a sample notice of designated assisting attorney, sample letters to clients, a sample authorization for the transfer of a client file, and much more. Also be aware that a few useful resources based on the materials in this Oregon guide are available on the websites of a number of state bars. Finally, the ABA has published a similar resource titled, “Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events,” that might be of use as well. n About the Author Mark Bassingthwaighte, Esq., has conducted more than 1,000 law firm risk management assessment visits, presented numerous CLE seminars throughout the United States, and written extensively on risk management and technology. mbass@alpsnet.com
www.ksbar.org | February 2014
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book review
Recommended Reading for Your Next Appeal
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here is no substitute for experience, but the next best thing might be the guidance of someone who has it. Attorneys venturing into any appellate court in the country without the former can benefit from a generous helping of the latter in The Appellate Practice Compendium, a publication of the American Bar Association’s Council of Appellate Lawyers. The Compendium is a practitioner’s guide to the rules and customs of each state and federal appellate court in the country, each chapter authored by an attorney experienced in that jurisdiction. While such a collection would be of interest to, and appears intended for, large firms with nationwide practices, there is enough to like about the Compendium’s discussion of local courts for any Kansas practitioner to consider having this excellent work as a part of the library. The Compendium includes insights from highly experienced appellate attorneys from each jurisdiction. The chapter concerning Kansas ap[T]he [Appellate pellate practice is authored Practice] by a noted Kansas appellate Steve Kerwick, of Compendium attorney, Foulston Siefkin. Kerwick is complements the thoroughly familiar with the Appellate Practice Kansas appellate courts and has presented numerous cases Handbook, and in them. neither publication Like any good resource, Compendium acknowlis a substitute for the edges the existing, principal the other. work in the field – specifically, the Kansas Appellate Practice Handbook. That publication of the Kansas Judicial Council and product of prior work by the Kansas Bar Association, now in its fifth edition, is available without charge in PDF at http://www.kscourts. org/pdf/KAPH.pdf. Whereas the Appellate Practice Handbook is a comprehensive summary of the procedural (and some substantive) issues likely to arise in an appeal in Kansas, the Compendium seeks to go beyond the rules and provide a from-the-trenches view of appellate practice that is less academic and more hands-on. The Compendium lays out various norms and common practices, some that are grounded in the rules but bear emphasis, others that cannot be gleaned from the rules. For example, the Compendium advises that Kansas appellate practice rarely involves aggressive motion practice. And any lawyer about to orally argue an appellate case in Kansas will be well-advised to know that the Court will be “hot,” will know the case, and will participate with active inquiries. In short, the Compendium complements the Appellate Practice Handbook, and neither publication is a substitute for the other.
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The Journal of the Kansas Bar Association
The Appellate Practice Compendium Edited by Dana C. Livingston Pages: 1,458 Regular Price: $199.95 Order online at http://apps.americanbar.org/abastore/ The Compendium also serves as a handy topical reorganization of the relevant Supreme Court Rules, Internal Operating Procedures, and other materials cited. Each chapter follows a largely uniform, standard outline of topics of interest. Because not every jurisdiction has something noteworthy on every topic, this structure sometimes produces isolated sections that appear vestigial or out of place. Despite this, the overall result is a convenient grouping of the related rules and statutes by topic. This format spotlights the key rules on particular topics and could well save a reader time looking for answers to a given procedural question, for example. Kansas attorneys will also appreciate the Compendium’s chapter on Tenth Circuit federal practice, authored by Gregory J. Kerwin and K. Casey Lewis, of Gibson Dunn’s Denver office. Like the Kansas chapter, it joins a concise description of the procedural aspects of an appeal with some helpful and practical information about the court’s practices and preferences. The Compendium aims to be much more than a guide to Kansas appeals – it stands out as a collection of pointers from practically every appellate court in the country. For the Kansas content alone, however, this book is worth your attention. The Kansas chapter is representative of the remaining material in terms of its quality, and it is an excellent guide. Who knows what jurisdiction you’ll be in when the Compendium comes in handy? n About the Authors Gene Balloun is a partner at Shook, Hardy & Bacon LLP and has extensive experience in the Kansas Supreme Court and Court of Appeals.
Zach Chaffee-McClure is an associate at Shook, Hardy & Bacon LLP. He is a member of the firm’s Class Action and Appellate Practice groups, and he has argued cases in the Kansas Supreme Court and Court of Appeals.
www.ksbar.org | February 2014
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kba news
Members in the News Changing Positions Chane C. Carpenter has joined Spirit AeroSystems, Wichita, as director of contracts. Ashley E. Dillon has joined Stinson Leonard Street LLP, Kansas City. Mo., as a litigation associate. Timothy L. Dupree has been named a district court judge for Wyandotte County, Kansas City, Kan. Andrew T. Geren has joined DeVaughn James, Wichita. Megan L. McCann has joined Tamara L. Davis P.A., Dodge City, as partner. The firm has changed its name to Davis and McCann P.A. Brian L. Main, Angela M. Pate, and Katy J. Tyndell have joined Kutak Rock LLP, Wichita.
Jill Ann Renae Mitchell has joined the Office of the District Attorney, 18th Judicial District, Wichita, as an assistant district attorney. Megan S. Monsour and Richard C. Stevens have joined Martin, Pringle, Oliver, Wallace & Bauer LLP, Wichita, as partners. Hon. Richard B. Walker has been reappointed as chief judge of the 9th Judicial District, Newton. Scott E. Wasserman has been named president/CEO of the Christian Foundation for Children and Aging, Lenexa. Jennifer L. Wickersham has joined Swenson, Brewer& Long Chtd., Concordia, as partner.
Obituaries Jack E. Dalton Jack E. Dalton, 85, of Dodge City, died December 12, at Presbyterian Manor of the Plains in Dodge City. He was born on March 18, 1928, in Sedan, the son of John W. and Frances (Ewalt) Dalton. He was raised in Sedan, graduating from Sedan High School. Dalton began his college education at Baker University before transferring to the University of Kansas, where he received his bachelor’s degree in 1950. He then attended the University of Kansas School of Law, graduating in 1953. Dalton was a member of the Kansas Bar Association from 1953 until his death, and served as president from 1976-77. He was also a member of the Dodge City Chamber of Commerce and St. Bernard Lodge of Kansas Free Masons. He also served in the U.S. Army during the Korean War. Dalton is survived by his wife, Janet Lee Dalton, of the home; daughter, Mary Schultz, of Lawrence; sons, John Shane Dalton, of Thornton, Colo., and Ross Dalton, of Atlanta; sister, Helen Call, of Emporia; six grandchildren; and two greatgrandchildren. He was preceded in death by his parents. Lee J. Hollis Lee J. Hollis, 54, of Leawood, an attorney in Kansas City, died December 23. He was born on March 8, 1959, in Cape Girardeau, Mo., to Barbara and Jerrold Lee Hollis. He attended Cape Central High School, was named an Eagle Scout, and received his undergraduate and law degrees from the University of Missouri-Columbia, where he was a member of Sigma Chi and served on the Law Review. Before law school, Hollis was a reporter and announcer for KFVS-TV in Cape Girardeau, where his father worked for 40 years. Hollis began practicing law in 1984 as an associate with Watson, Ess, Marshall & Enggas in Kansas City. He later joined Sprint Corp. as a corporate attorney before starting his 22
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Miscellaneous Polsinelli P.C. has opened an office in Atlanta Eleven attorneys from Atlanta-based law firm, Rafuse Hill & Hodges LLP, have joined the firm. F. James Robinson, Wichita, received a Distinguished Service Award by the Kansas Association for Justice. Editor’s note: It is the policy of The Journal of the Kansas Bar Association to include only persons who are members of the Kansas Bar Association in its Members in the News section.
trial law practice, The Hollis Law Firm, in 1996. He was licensed to practice in Missouri, Kansas, Minnesota, Nebraska, and Iowa. Hollis was a member of the American Association for Justice. He is survived by his wife, Gina, of the home; sons, Bruce, Mark, and Jeff, all of the home; mother and stepfather, Barbara and Wendell Weathers, of Sikeston, Mo.; sister, Lynne Rhodes, of Old Saybrook, Conn.; and five nieces and nephews. He was preceded in death by his father, Jerrold Hollis. Charles G. Stewart Charles G. Stewart, 81, of Oakley, died November 18, at his home. He was born September 18, 1932, in Quinter to Ora and Anna (Cooper) Stewart. He graduated from the University of Kansas School of Law in 1956 and practiced law in Grainfield, Quinter, and Oakley. Stewart is survived by his son Kevin, of Topeka; daughter, Jana Selley, of Topeka; and grandchildren, Bryan Stewart, Bo Selley, and Jeremy Selley, all of Topeka, and Ashley Stewart, of Springfield, Mo. He was preceded in death by his parents. n
KBA CLE has Gone Green In moving forward with an initiative to go green, KBA CLE will start providing registrants their CLE materials in electronic format effective January 1. Materials will be sent to the email address on file with the Bar. Please make sure your email is updated on your profile page to ensure receipt of materials. If you wish to still receive a hard copy, you must mark that on your registration, as hard copies will only be available at the door for walk-in registrants and those who made a request.
2014 KBA Awards
T
he KBA Awards Committee is seeking nominations for award recipients for the 2014 KBA Awards. These awards will be presented at the KBA Annual Meeting, September 19-20, in Topeka. Below is an explanation of each award, and a nomination form can be found on the next page. The Awards Committee, chaired by Sara Beezley, of Girard, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is Friday, April 4. Distinguished Service Award: This award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. • The recipient must be a lawyer and must have made a significant contribution to the altruistic goals of the legal profession or the public. • Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient. Phil Lewis Medal of Distinction: The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. • The recipient need not be a member of the legal profession or related to it, but the recipient’s service may include responsibility and honor within the legal profession. • The award is only given in those years when it is determined that there is a worthy recipient. Professionalism Award: This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession. Outstanding Young Lawyer: This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA. Outstanding Service Awards: These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA. • A total of six Outstanding Service Awards may be given in any one year. • Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations. • Outstanding Service Awards may be given to recog nize: Law-related projects involving significant contri butions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; • Work by a public offi cial that significantly advances the goals of the legal pro fession or the KBA; and/or • Service to the legal profes sion and the KBA over an extended period of time. 24
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Pro Bono Award: This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor. In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria: • Lawyers who are not employed full time by an organiza tion that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons. Distinguished Government Service Award: This award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service. The award shall be given only in those years when it is determined that there is a recipient worthy of such award. Courageous Attorney Award: This award recognizes a lawyer who has displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include a small town lawyer who defended a politically unpopular defendant and lost most of his livelihood for the next 20 years, an African-American criminal defense attorney who defended two members of the white supremacist movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a worthy recipient. Diversity Award: This award recognizes a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct, as well as by the development and implementation of diversity policies and strategic plans, which include the following criteria:
• A consistent pattern of the recruitment and hiring of diverse attorneys; • The promotion of diverse attorneys; • The existence of overall diversity in the workplace; • Cultivating a friendly climate within a law firm or organization toward diverse attorneys and others; • Involvement of diverse members in the planning and setting of policy for diversity;
• Commitment to mentoring diverse attorneys, and; • Consideration and adoption of plans to continue to improve diversity within the law firm or organization, whereas; • Diversity shall be defined as differences of gender, skin color, religion, human perspective, as well as disablement. The award will be given only in those years when it is determined there is a worthy recipient. n
KBA Awards Nomination Form Nominee’s Name Please provide a detailed explanation below of why you have nominated this individual for a KBA Award. Attach additional information as needed. q Phil Lewis Medal of Distinction
q Diversity Award
q Outstanding Service Award
q Professionalism Award
q Outstanding Young Lawyer Award
q Pro Bono Award/Certificates
q Distinguished Government Service Award
q Courageous Attorney Award
q Distinguished Service Award
Nominator’s Name Address Phone
Return Nomination Form by Friday, April 4, 2014, to: KBA Awards Committee 1200 SW Harrison St. Topeka, KS 66612-1806
www.ksbar.org | February 2014
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State of the Judiciary
2014 Annual Report of the Chief Justice of the Kansas Supreme Court Delivered by Chief Justice Lawton R. Nuss on Wednesday, January 22, 2014
Good afternoon. Distinguished members of the House and Senate, judges and justices, honored guests, and my fellow Kansans. Many years ago I was receiving cold weather training in the snows at Camp Fuji in Japan. While I was there, a visiting Marine Corps lawyer learned that I was thinking about attending law school. So he gave me – a combat engineer – a book about an American lawyer. Now there is not a lot of free time in the Marines. So I put that book in the side pocket of my camouflage uniform. And I carried it with me for weeks, reading a few pages here and there. I still have that book. It has been snowed on in Japan, frozen shut in Korea, and soaked in the jungles of the Philippines. Although its pages are falling out, I would like to read something from it that made a lasting impression on me so long ago. As background, you should know this American lawyer had a case in France: “When we landed in Paris, we were met by a French avocat, a man I had asked to join the case because he knew his way around the Paris courts: ‘We can’t lose,’ he told me proudly after we had gotten into his car. ‘I have given the judge one hundred thousand francs.’ “That gave me some pause. It wasn’t quite the way we did legal business in California. ‘Uhh,’ I said, ‘what about the other side? What did the other side give him?’ “My colleague was shocked. ‘Mr. Belli,’ he cooed, ‘we are dealing with a respectable judge. He is a man of honor. He would not think of taking from both sides.’” We chuckle, and perhaps even laugh. Because that is certainly not the way judges decide cases in Kansas. We do not take any money from either side. Nor do we decide cases based on money’s distant cousins: threats and other pressures. Instead, we carry on the tradition established by the judges who served this area in the 1850’s when it was simply the territory of Kansas. Instead of deciding cases by money or pressure, what we do? We fairly and impartially apply the law to the facts. Because we all believe in the words inscribed on the U.S. Supreme Court building in Washington D.C.: equal justice under law. Because for more than 150 years Kansans have deserved no less. And we try to keep in mind the pledge of allegiance that virtually everyone in this room took at one time or another – the one that ends with “and liberty and justice for all.” But justice in Kansas is in some jeopardy. Since 2010, the Kansas Judicial Branch has been required to maintain at least 80 vacancies in our authorized workforce of 1600 employees. That computes to roughly a 5% loss of employees. 26
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And operating with less authorized employees is exactly the opposite of what the weighted caseload study told us in late 2011, when, for the first time in state history, we measured the actual workloads of all district courts in our 105 counties. The study said we needed more than those authorized. On top of these reductions in our historically authorized workforce, our employees have been paid below market rates. And they have not had a pay raise since July 2008, but watched while other groups of state employees have received raises. But: I am pleased to report that within the past hour, the House of Representatives passed legislation granting our employees a 2% pay raise. That legislation should be on its way to the Governor. Please join me in thanking the Legislature for passing this legislation. That gives us a big step toward equity with the Executive Branch employees – who two years ago received their own pay increase to progress toward meeting market levels. But our employees are still understaffed. They handled more than 400,000 new cases filed last fiscal year, as well as many older ones. Now, some may say justice is not in any jeopardy because the reduced number of employees have handled the workload the last four years. But let’s take a closer look. The Judicial Branch is blessed with hundreds of dedicated employees and judges. And because of their dedication and professionalism, we have kept the courts running as best we can. But even dedicated employees reach their limit when there is no relief in sight. Some of our longtime employees have left for work in the private sector, many because they did not like the constant stress created by years of understaffing. And some of them have left to work, ironically, for other branches of state government where their duties were comparable but the paycheck more certain. As one such employee put it last October in her letter of resignation, “As you know, my current position offers a strong likelihood of furloughs.” The departure of these experienced and well-trained employees puts additional strain on those who remain because the vacancies are not filled. Or if filled, filled by new employees who are not trained and who cannot have formed the good judgment that comes only from experience. In the military, that would be like having senior sergeants leave the weapons groups they had led for years and then telling new enlistees to fill the mature leadership roles – enlistees who then ask, “What’s a machine gun?” Simply put, units without experienced leaders cannot be efficient – or very effective. Others have compared our situation to eating at a restaurant where you wait 20 minutes for the server to come to your table, then wait 10 more minutes for your water glasses to be filled, then wait one hour for your meal to be served. And when it arrives, it is underseasoned.
State of the Judiciary
You are rightfully upset at the slow service and the meal’s flavor. But what you do not know is that because of staffing shortages, the waiter has the responsibility for 50 tables. And only one cook is preparing all the meals. Yet they are doing their best. You may choose to never go back to that particular restaurant. But you only have one court system in Kansas. And as much as I personally love eating, I think you will agree with me. The service you receive in our courts is more important than the service you receive in a restaurant. So one thing is clear: adequate staffing is required for the Judicial Branch to meet its core functions – maintaining fair and impartial courts, enforcing Kansans’ rights, and serving their needs. Because as I said in my State of the Judiciary speech in 2011, “Kansas children are still being sexually victimized; Kansas citizens are still getting injured or killed; and our business owners’ contracts are still being breached.” I am grateful that we do have many employees who despite these challenging conditions will continue to do everything they can to serve Kansans – as best they can, for as long as they can, regardless of how hard it is on them. But as their chief justice, I ask on their behalf, “Isn’t four years of understaffing enough?” Now during the fiscal year that ends this June 30, the Judicial Branch of government does have enough money from the legislature to operate at these reduced levels. That means we should be able to keep the Kansas courts open. But things get somewhat darker as of July 1. As most of you are aware, the money we are to receive for that fiscal year is below what we requested – $8.25 million below our base budget request and $19 million below what we need to operate as effectively as we should. The $8.25 million amount is not just something we dreamed up. That figure has been verified by the legislature’s financial analyst for the Judicial Branch. He participated in the work of the Court Budget Advisory Council that examined ways to reduce $8.25 million in expenditures in the Judicial Branch. Members of the Council are here today. We are grateful for their hard work. Because their mission was a challenging one. Each county is responsible for funding the operations costs of the district courts, which means approximately 96% of our budget is dedicated to personnel costs. And because the vast majority of Judicial Branch activities are mandated by state or federal law, we lack many of the options available to the other two branches, and to state agencies, for reducing budget costs. Now some may quibble about the Council’s recommendations for reducing the expenditures. And some may quibble about the priorities for the reductions they suggest. But however you slice it, however you dice it, however you shuffle these cards, one unpleasant fact remains: If some additional money is not provided, then employees will be sent home without pay, and Kansas courts will close statewide sometime after July 1. The only question is for how long. And on those days, the almost 3 million people in Kansas will have no place to go for justice. If you find court closings unacceptable, and I hope you do, then let’s adequately fund the courts – the Judicial Branch of government created by the people of Kansas in their constitution more than 150 years ago. I’d like to list a few of the reasons I hope you find court closures unacceptable. I mentioned earlier the pledge of allegiance. In addition to that national pledge, in Kansas every state em
ployee or officer – including most of the people in this room – is required by law to take an oath. And lest you think I only read paperbacks, let me read from the original volume – a statute passed by the Kansas Legislature in 1868 – that sets out this oath: “I do solemnly swear that I will support the constitution of the United States and the constitution of the state of Kansas and faithfully discharge the duties of [my office].” As you know, since 1861, Section 18 of the Kansas Constitution Bill of Rights has provided that Kansans are entitled to “remedy by due course of law, and justice administered without delay.” The Bill of Rights similarly guarantees “a speedy public trial by an impartial jury” to criminal defendants. Obviously, none of us can make good on our solemn oaths of office – to provide or guarantee these constitutional rights – when Kansas courts are closed. Based in part on these constitutional rights, I wrote in last year’s report on the State of the Judiciary “[I]t is clear that administering justice to all Kansans has been an original function of government performed by the Judicial Branch since 1861. Such an original function certainly qualifies as a core function, i.e., an essential service . . . Adequate court funding is critical to providing these essential services – while inadequate funding undermines not only access to justice, but also the people’s belief in the justice system itself.” (Emphasis added.) Chief Justice John Roberts of the U.S. Supreme Court expressed an even greater concern in his report last month on the state of the federal judiciary. Given the roles that the legislative and executive branches play in funding the courts, the chief justice said, “It takes no imagination to see that failing to meet the judiciary’s essential requirements undermines the public’s confidence in all three branches of government.” Underfunding and court closings not only jeopardize the fundamental rights of Kansans and undermine the public’s confidence in all three branches of government, but they also undermine the economic plans for the State established by the heads of two of those branches. Those leaders all have publicly set the course of promoting economic growth in Kansas. So at the outset, it is important to recognize the Kansas Judicial Branch as a vital factor in that formula for success. Among other things, Kansas courts historically have enforced businesses’ rights by ordering monetary damages paid when contracts have been breached, protected valuable business trade secrets from misappropriation by a competitor, and provided a forum for the collection of businesses’ debts. But the importance of the Kansas Judicial Branch as a factor in the formula for private business success is not just my opinion based upon reviewing past cases. That importance has been recognized by the U.S. Chamber of Commerce’s Institute for Legal Reform. You have probably heard by now that according to a 2012 national survey of senior business executives and corporate lawyers conducted by the Chamber, Kansas courts rank fifth among the 50 states in the overall ranking of state liability systems, as perceived by U.S. businesses. What you may not know is that a full 70% of the business leaders surveyed report that a state’s litigation environment is www.ksbar.org | February 2014
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State of the Judiciary
likely to impact their important business decisions, “such as where to locate or do business.” But inadequately funded courts, or otherwise stagnant courts, will cause Kansas to drop both in their effectiveness and in those national rankings. More important, any decrease in those rankings will demonstrate to the business community – whose growth the leaders of Kansas want to promote – that Kansas’ abilities to administer justice have declined in comparison to other states. Particularly those that may be competing with us in attracting new business and creating new jobs. But despite these hardships and challenges, thanks to the Judicial Branch’s actual 1500 employees and 250 judges, not all is negative. So allow me to update you on some of the positives in this branch of government. Like last year’s report, I start with progress made on some of the Blue Ribbon Commission recommendations from Project Pegasus. You recall Project Pegasus – perhaps the largest study undertaken in the history of the Kansas court system. It consisted of two main parts: (1) The State’s first-ever weighted caseload study I mentioned earlier and (2) the Blue Ribbon Commission of 25 Kansans from various backgrounds. The Commission performed the most extensive review of Judicial Branch operations statewide since the 1970’s and made recommendations to the Supreme Court for improvement. I. The Commission Recommended Electronic Filing and Enhanced Use of Computer Capabilities
Electronic filing (or e-filing) allows lawsuits and related legal documents to be filed with the courts electronically – from one’s office or home. But it is not only the capability to electronically submit documents to the courts. It is also to have those submissions integrate with electronic case management and document management systems used now by court personnel in processing cases. It reduces the system’s dependence on paper documents and provides attorneys with immediate, 24-hour access to court systems. First considered by the Supreme Court in 2009, development and implementation of the statewide e-filing system is underway in several locations. They include the appellate courts in Topeka. And for the district courts, they include three original pilot projects (Douglas, Leavenworth, and Sedgwick counties) – and as of Friday, Wyandotte County. By this month’s end, Butler and Reno counties also will be online. And by June 30, e-filing will be present in 11 counties, including Saline, Geary, Finney, Shawnee, and Johnson with its JIMS e-filing system. With these installations, more than half of the non-traffic case filings in the state will be eligible to use e-filing. As for appellate courts, the briefs and thousands of other pages of paper that can accompany an appeal are scheduled to be sent to Topeka electronically from three counties thus far: Sedgwick, Shawnee, and Johnson. The Supreme Court ultimately intends to develop and implement a complete centralized statewide e-courts environment – efiling plus electronic case management systems and document management systems. Upon completion, such a combination of statewide systems could allow court personnel in any location to work “virtually” on court business in any other location. That allows the Supreme Court to more effectively and efficiently manage the state’s court system.
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The funding before this fiscal year has been provided primarily by federal grants. But continuing to receive federal grants is unlikely – so we will still need state funding to reach our goal. II. The Commission Recommended Increased Use of Other Technology
The Court of Appeals continues to develop a pilot project to use video conferencing for certain activities in the appellate courts – instead of requiring attorneys from across the state to spend time and money going to and from Topeka. Likewise, our development of rules and technical standards for video conferencing in the district courts statewide is nearing completion. Providing the equipment for video conferencing in those local courts will continue to be up to the counties. But the expanded use of this technology should result in further savings for law enforcement, attorneys and their clients. In August 2012, the Supreme Court installed in this courtroom cameras and affiliated hardware for transmitting proceedings live over the internet. Since then, our proceedings have been viewable by anyone with an internet connection from anyplace in the world. Last year one person observed our proceedings from Katmandu, Nepal. So in addition to you who are physically present at this moment, many more are watching from other locations. The digitized proceedings are archived for future reference – so you can enjoy us over and over again. Even from Nepal. In addition to the Supreme Court making its proceedings more accessible to the people of Kansas through technology – such as this courtroom’s cameras – it has also taken its proceedings directly to the people’s locations. Since 2011, we have traveled to hear cases argued in Salina, Wichita, Greensburg, Overland Park – and two months ago, on the beautiful campus of Pittsburg State University. Similarly, our colleagues on the Court of Appeals continue their great tradition by hearing cases argued in numerous locations all across the state.
III. The Commission suggested the possibility of increasing Judicial Branch funding through fee revenues.
For a number of years the fees collected for filing lawsuits were distributed among multiple state funds and entities. Last session the legislature altered that distribution so 99% of all this docket fee revenue currently goes to the Judicial Branch. Our State General Fund appropriation was reduced accordingly. This change was intended to be revenue neutral. But it obviously requires the Judicial Branch to rely even more heavily on docket fees. Unfortunately, this is an uncertain source of revenue which has been steadily declining [at roughly 6% each year] for each of the last three years. I understand this year’s legislative proposals may include further increasing all docket fees. Don’t get me wrong. We gladly accept additional funding. But some argue that the last few years’ reductions in court case filings – that in turn generate the revenue through their filing fees – is because of already high filing fees. I am told that in California this is known as “fee fatigue.”
IV. Commission Miscellaneous:
1. The Commission recommended increasing Judicial Branch efforts to collect more of the monies actually ordered by the courts such as fees, fines, and court costs. Last year the National Center for State Courts gave us technical assistance in reviewing our processes. And then in developing best practices and standardization of collection methods.
State of the Judiciary
Implementing a number of their recommendations will assure that court orders are taken seriously and will be enforced. It will also increase the receipts going into our public treasuries. 2. The Commission recommended examining our specialty or problem-solving courts. Approximately 15 of these courts have been established by various trial judges throughout the state. They differ from the usual courts because they coordinate services provided to criminal offenders with direct, sometimes intense, supervision by a judge. Most of these are drug courts, which attempt to address an offender’s underlying substance-abuse problems – problems that often lead to criminal offenses. National research has shown that drug courts can be effective in reducing offender recidivism. That in turn saves considerable judicial and correctional resources. We created the Specialty Courts Commission which examined these courts’ operations. Last month we received its report. Its recommendations include increasing uniformity by establishing statewide specialty court standards for better serving the users of this unique system.
tion. Judge Mary Thrower received an Award from the Specialized Court Judges Division of the American Bar Association. And our employee Denise Kilwein won a national award for her excellence as Director of Judicial Education. 2. Shawnee County District Court received a $50,000 grant for helping to address operational improvements in processing its cases. The court will retain the National Center to assist in this review. 3. And the Judicial Branch is working with the KBI and the Kansas Department of Transportation in the submission of DUI information to the “KBI Report and Police” Impaired Driver portal. As a result, more timely and accurate information about repeat DUI violators is available to prosecutors, judges, and probation officers across the state. As I mentioned, these are but a few of the positives happening in the Judicial Branch.
3. The Commission recommended looking at the nationwide issue of providing language access to the state courts. According to our information, including a recent language access survey, some users of the courts in 69 of our 105 counties do not speak English as their first language. Across the state, that amounts to 31 different languages: from Burmese to German Mennonite. Our recent efforts include reviewing language access programs in similar states such as Nebraska.
Finally, I want to thank you for helping us make history today. To my knowledge, for the first time in the 153-year history of Kansas, the State of the Judiciary address is being presented in the courtroom of the Supreme Court. For the first time in our history, the address is being video streamed live over the internet. These proceedings, like the trials and hearings in the district courts, and oral arguments in the appellate courts, are open for the people of Kansas to see. I began my remarks by reading from a worn out paperback to make a strong point about Kansas judges. I will not return to that old paperback in closing. Instead, I will make an equally strong, and related, point as I adopt the words from a State of the Judiciary Address delivered by Kansas Chief Justice Richard Holmes to a joint session of the legislature in January 1991:
4. The Commission recommended our looking at certain functions and procedures in the district and appellate courts. After review at all levels, the Judicial Branch is continuing to improve on timely disposition of pending cases.
“In closing, I want to extend to you my sincere pledge of our cooperation with both the legislative and executive branches of government, with the overriding goal of better government as a whole for the people of Kansas. The lines of communication . . . are open at all times. Give us a call.”
5. The Commission recommended we look at mediation which is required in some federal appellate courts. The Court of Appeals has developed a pilot project for mediating its cases. At this stage of the pilot, parties have the option of accepting appellate mediation – and at no cost through the use of volunteer mediators. Our first case has already been resolved through this process.
I like to think the passage of the pay raise bill this morning is a fine example of that cooperation. And speaking with my own words, please allow me to express my gratitude today for your careful attention, and to bid you Godspeed. Thank you. In the spirit of cooperation, allow me to invite you to our reception downstairs in the Hall of Justice. And tours of the Judicial Center are available starting here. Just as Chief Justice Holmes invited legislators and guests after his speech in January 1991. BUT, if you would like a rare glimpse into my chief justice’s chambers – something very few people have seen since they were built in 1978 – please move to the side door where a guide will accommodate you. Thank you again. n
We look for more to come. Because when successful, mediation can save resources of Kansans and the appellate courts. Just as important, it can permit the courts to concentrate efforts on the other hundreds of cases that would remain on their dockets every year. As for some of the positives in areas not necessarily addressed by the Blue Ribbon Commission: 1. Several Kansans in the Judicial Branch won national awards in 2013. Judge Patrick McAnany received an Award of Merit from the American Judges’ Associa
www.ksbar.org | February 2014
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Bankruptcy & Divorce: A Marriage of Inconvenience
By The Hon. Robert D. Berger
T
he client for whom you concluded a divorce one year ago returns to your office. She tells you that she has just received a notice from the bankruptcy court that her ex-husband filed a Chapter 7 bankruptcy in Kansas within the last 30 days. Under the marital settlement agreement incorporated into the divorce decree, the ex-husband is to pay child support for their two minor children, including 50 percent of the children’s on-going medical expenses. The debts divided in the divorce were jointly owed and all property was jointly owned. The ex-husband is to pay the following: a second mortgage note on the marital residence that was awarded to your client and in which she lives with their minor children; $30,000 in joint credit card debts; the joint loan on the automobile that was set over to him in the divorce and which he still owns; your attorney’s fees incurred representing her in the divorce; your attorney’s fees related to subsequent child custody proceedings; and guardian ad litem and psychologist’s fees incurred in custody proceedings. Since you recently attended a divorce seminar, one hour of which was devoted to bankruptcy, you know that in bankruptcy, debts for a domestic support obligation (DSO)—i.e., debts arising from divorce proceedings that are in the nature of support—are not dischargeable under 11 U.S.C. § 523(a)(5).1 You also recall that non-DSOs arising from family law proceedings2 are not dischargeable under § 523(a)(15)3 in a Chapter 7 bankruptcy.4 Much of the interaction between family law and bankruptcy law evolves from these definitional launch points. Since it appears that debts that arose in the divorce proceedings are not dischargeable under either of the above sections, you file an adversary proceeding in the bankruptcy case so the court can make such a determination.5 As to discharge, you feel that it makes little difference whether a debt is formally categorized as a DSO, because all categories of debt owed to a former spouse arising from divorce proceedings are, since 2005, no longer dischargeable in a Chapter 7 bankruptcy. The bankruptcy attorney for the ex-husband agrees that his client’s obligations to your client are not dischargeable under these two pro
visions and a journalized settlement is reached wherein the bankruptcy court finds that the child support payments are not discharged under § 523(a)(5), and all other obligations under the divorce decree are not discharged under § 523(a)(15). The matter is quickly, amicably, and efficiently concluded, and you have protected your client from the effects of her ex-husband’s bankruptcy. Or have you? Pitfalls for the Unwary—The Bankruptcy Code’s Treatment of DSOs The scope of this article is limited by necessity. There are volumes devoted to the interplay of bankruptcy and divorce.6 So constrained, this article focuses on the dischargeability of family law debts in bankruptcy proceedings. A few of the important topics not discussed in this article include concurrent jurisdiction of the bankruptcy court and the state court,7 abstention by the bankruptcy court,8 the domestic relations exception to federal jurisdiction,9 and the effect of an ex-spouse’s bankruptcy on his former spouse’s credit history. State family law and federal bankruptcy law frequently involve countervailing policies. When these worlds collide, something has to give. From a financial perspective, aside from custody matters, divorce proceedings in the main are an economic process that allocate financial obligations and assets between the parties. Frequently, this is a negotiated transaction memorialized in a marital settlement agreement, and it is expected that the parties will fulfill their respective financial obligations under the agreement. In contrast, bankruptcy provides relief to the “honest but unfortunate debtor”10 by discharging debts. For a family law lawyer, much of the important work needed to address a possible bankruptcy of a client’s exspouse is performed during the divorce proceedings. There are two facets of particular importance. First, any settlement should be structured to reduce risk to one’s client if her soon to be ex-spouse files bankruptcy. To the extent possible, avoid allocating or creating non-support debt obligations from the ex-spouse to a client. Establish a client’s financial need for the assistance, and do not waive maintenance in an agreement. It is betwww.ksbar.org | February 2014
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ter to allocate property or at least interests in property.11 Second, it is important to instruct one’s client that there is only so much protection from a possible bankruptcy by her ex-spouse that may be accomplished in the divorce proceedings. This educational component prepares a client for a possible worstcase scenario; it may also make her more flexible with regard to settlement by focusing on property rights at the expense of reducing division of debt and creating new debt obligations from the ex-spouse to her. As a practical matter, if the parties’ financial situation is desperate, it may be advisable for both of them to file bankruptcy or to seek other financial relief.12 That alternative may also facilitate a divorce settlement between the parties because elimination of debt as a result of their receipt of a discharge in bankruptcy will obviously diminish allocation of debt as an issue. Of course, whether a husband and wife should file bankruptcy—and the timing of any filing, pre or post divorce—is a significant decision that should be undertaken after a considered evaluation of the alternatives.13 In the end, reality should drive the decision-making. Even the most novel and assertive legal theories will not alter a desperate financial situation in which a client’s ex-spouse simply cannot afford to satisfy his financial obligations. In bankruptcy, debts are subject to discharge, but property rights are not.14 However, property rights may be subject to modification or termination.15 When a debtor receives a discharge in bankruptcy, § 524 of the Bankruptcy Code permanently enjoins the collection (from the debtor) of any debts that were not excepted from discharge. The terms “discharge” and “dischargeability” are often confused but they have distinct meanings:16 The term discharge refers to the operation of the Bankruptcy Code provision (§ 727 in a Chapter 7 case) that effects a general discharge of the debtor’s prepetition debts. The term dischargeability refers to the operation of the Code provision, § 523, that excepts particular debts from the general discharge provision of the Code. Under § 523, certain kinds of debts are delineated as being nondischargeable, meaning that those debts are not operated on by the general discharge and therefore remain collectable outside of bankruptcy.17 Until a debtor receives a bankruptcy discharge, even the collection of nondischargeable debts is stayed,18 although there are family law-related exceptions, such as collection of DSOs that do not involve property of the bankruptcy estate.19 From a bankruptcy discharge perspective, the focus is to determine which family law debts are nondischargeable DSOs under § 523(a)(5) and which debts are non-DSOs that fall within the ambit of § 523(a)(15). From the non-debtor exspouse’s perspective, it is always beneficial for debts to be classified as nondischargeable support obligations under § 523(a) (5) because that exception applies to all chapters of the Bankruptcy Code.20 Whether a debt is a DSO is determined by inquiry into the parties’ shared intent at the time of the marital settlement agreement, the substance of the divorce obligation, whether the purpose and effect of the obligation is to provide support to a spouse, a spouse’s need for support, and what function the obligation is intended to serve.21 The relevant 32
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date for that determination is the date of the divorce, and any change in circumstances of the parties thereafter cannot be considered.22 If the divorce was litigated (as opposed to the court merely adopting the parties’ mutual marital settlement agreement), then it is the intent of the state court judge that is considered. The inquiry is whether the state court judge believed and found that the debt was in fact for support, or whether that debt was established by the court merely as a means of fairly dividing the parties’ assets and liabilities.23 The 2005 Amendments expanded the definition of what is in the nature of support to include debts owed to obligees such as a legal guardian, responsible relative, or a governmental unit. The definition applies whether the liabilities are established before or after the bankruptcy, and it includes an administrative determination by a governmental unit. If the debt is not discharged, then the associated interest, both preand post-bankruptcy, is likewise not discharged.24 Section 523(a) exceptions to discharge usually are strictly construed in favor of the debtor; however, that rule does not apply to DSOs.25 The burden of proof to demonstrate nondischargeability is by a preponderance of the evidence and rests with the objecting creditor.26 The burden for the objecting creditor is both to establish the existence of the underlying debt and to demonstrate that the debt is of a kind contemplated under the exceptions to discharge.27 Section 523(a)(5) excepts DSOs from discharge. Section 523(a)(15) excepts from discharge non-DSOs that arise in family law proceedings, such as the division of debts and property. However, as previously noted, § 523(a)(15) does not apply to Chapter 13 (wage earner) bankruptcies. In the above scenario, the attorney likely committed an error by agreeing to a journal entry that found most of the obligations under the divorce proceedings were not dischargeable under § 523(a) (15).28 That is because if the ex-husband elected to convert his Chapter 7 case to one under Chapter 13,29 his obligations under § 523(a)(15) are subject to discharge. In addition, a debtor becomes eligible to file a Chapter 13 bankruptcy, and to seek discharge of his § 523(a)(15) obligations, only four years after the debtor files his Chapter 7 bankruptcy.30 The analysis is difficult when the ex-spouse’s obligation is to pay joint debt that is not associated with the parties’ former joint residence, such as their joint credit card debt. Whether the requirement that a debtor pay these debts and hold his ex-spouse harmless therefrom and indemnify her qualifies as a DSO or as division of debts is problematic.31 That tension is pronounced: “No type of obligation is more difficult for the bankruptcy courts to analyze in determining dischargeability under section 523(a)(5) than a spouse’s undertaking to pay joint marital debts or to hold the other spouse harmless from such debts.”32 The waters are muddy when attempting to determine the intent of the parties and the actual function of the hold-harmless language. If the debtor does not pay debts jointly owed by the parties, then the creditors may pursue the non-debtor ex-spouse, creating a potential financial hardship for her. The problem is that negative financial impact, alone, is insufficient to render the hold-harmless agreement in the nature of support. Also, if the hold-harmless obligation is not discharged and the debtor must thereafter pay these otherwise discharge-
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able joint debts post-discharge, the intended benefits of a bankruptcy discharge can be significantly diminished. This is an area in which the imbalance of income between the parties and the earning capacities of each party at the time of the divorce are relevant. Considerations include whether the financial needs of the debtor’s children and his ex-wife are otherwise provided for in other portions of the divorce agreement, whether it is clear that the division of the debts was attendant to the division of property and debts, and the effect of non-payment on the non-debtor ex-spouse’s standard of living.33 Even if the hold-harmless obligation does not meet the definition of a nondischargeable DSO, it is nevertheless excepted from discharge in a Chapter 7 bankruptcy under § 523(a)(15). Despite how complex it may be to determine whether a debt is a DSO, the analysis still focuses on the intent of the parties and whether the debtor’s obligation to pay marital debts is in the nature of support.34 If the debtor’s obligation to pay marital debts is not actually in the nature of support, then it is not excepted from discharge as a DSO under § 523(a)(5).35 And it does not matter what label the parties place on this obligation in the divorce proceedings, since the classification of the obligation with respect to dischargeability is determined under federal law.36 The bankruptcy court is free to disregard labels allocated to family law obligations because state courts typically do not “label obligations in a divorce settlement or judgment with the [Bankruptcy] Code provisions and definitions in mind.”37 Similarly, a prepetition waiver of the benefits of a bankruptcy discharge is not enforceable.38 The determination of dischargeability under § 523(a)(5) is made based on the facts as they existed at the time of the divorce and not at a later date, such as when the bankruptcy is filed or the dischargeability adversary case is litigated.39 Family lawyers are wise to be preoccupied with establishing whether the obligations of the debtor to an ex-spouse are DSOs subject to § 523(a)(5) versus a non-DSO obligation subject to § 523(a)(15) exceptions to discharge. The benefit to the non-debtor ex-spouse to establish that the debtor’s obligations to her are DSOs is considerable. With respect to dischargeability, DSOs are not discharged in any of the bankruptcy chapters, whereas the § 523(a)(15) exception to discharge for non-DSOs does not apply to a Chapter 13 full payment discharge under § 1328(a). Additionally, DSOs are categorized as first priority claims,40 entitling those claims to
be paid first from funds received by a Chapter 7 Trustee after satisfaction of administrative expense claims. Also, a Chapter 13 plan, in order to be confirmed, must generally provide for payment in full of DSOs.41 Plan of Action In the event a client’s ex-spouse files bankruptcy, the first act of a divorce attorney should be to consult with competent bankruptcy counsel. Bankruptcy practice is deadline driven: deadlines are set relatively early in the case and are unforgiving.42 Even if the client does not receive official notification from the bankruptcy court but otherwise receives actual knowledge of the bankruptcy case (e.g., her ex-husband orally mentions it to her during a child visitation exchange), she may be bound by those deadlines.43 In a consumer case, many of the deadlines are triggered by the first date set for the first meeting of creditors (called the § 341 meeting, after its governing statute in the Bankruptcy Code). For instance, the deadline to file a complaint to determine dischargeability under §§ 523(a)(2), (4) and (6) is 60 days from the first date set for the § 341 meeting, whether that meeting is concluded or is not concluded.44 The deadline to object to a Chapter 7 debtor’s discharge generally has the same deadline, although there are some objections or revocation proceedings that do not fall within the ambit of this rule.45 The deadline to object to the debtor’s claimed exemptions is 30 days from the date that the § 341 meeting is concluded, not the date on which it was initially scheduled.46 Frequently the § 341 meeting is concluded on the date initially set, but that is not always the case. The deadline to object to a Chapter 13 debtor’s proposed plan is typically set out in the notice of commencement or in a subsequent notice that should provide at least 28 days within which to object to confirmation of the plan.47 Variations of this situation are, for example, if your client receives notice after the expiration of certain deadlines and whether her ex-spouse’s bankruptcy case is a no asset or an asset case. Most Chapter 7 cases do not have a proof of claim deadline and are noticed as no asset cases. It is thus arguable that § 523(a)(3), which excepts from discharge unscheduled debts, does not apply to those cases.48 If an ex-spouse receives notice of the bankruptcy prior to the expiration of certain deadlines, then she is bound by those deadlines.49 If a client does not receive notice of a bankruptcy case in time to timely
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file a complaint under § 523(c) to determine the dischargeability of the obligations, then she would not be bound by that deadline.50 In Hathorn v. Petty (In re Petty),51 neither the creditor nor the creditor’s attorney was scheduled in the debtor’s Chapter 7 bankruptcy, but the creditor obtained actual knowledge of the bankruptcy filing six days prior to expiration of the § 523(c) deadline. That deadline applies to the discharge exceptions under § 523(a)(2), (4) and (6), but the creditor did not then timely file a complaint to determine dischargeability. The court in Petty found that the creditor did not receive actual notice of the bankruptcy case in time to timely file a complaint to determine dischargeability; as a result, the creditor was not bound by the 60-day deadline under Rule 4007(c).52 The creditor’s adversary action to determine dischargeability under § 523(a)(6) was allowed to proceed.53 The notice considerations for a Chapter 13 bankruptcy are different because the debtor seeks confirmation of a plan that is binding on the debtor and all creditors; absent timely notice, it is arguable that a creditor is not bound by the plan.54 But with proper notice, a Chapter 13 plan is binding on all creditors.55 Even plan provisions that contradict the Bankruptcy Code may be binding.56 “[F]ailure to timely object to or appeal confirmation is fatal to all procedural and legal challenges to the content of the Chapter 13 plan.”57 This is the “snooze, you lose” rule.58 The only way a client can hope to escape that result is to file a complaint for revocation of the confirmation order within 180 days of entry, alleging that the confirmation order was procured by fraud59—a decidedly steep evidentiary standard. As a result of bankruptcy deadlines, representing an exspouse who is a creditor in a bankruptcy requires prompt action on your part and your client’s part. For instance, the ex-spouse should procure a copy of all of the paperwork filed with the bankruptcy court to insure that it accurately reflects the debtor’s financial information. No one knows a debtor’s business and financial status better than an ex-spouse, and since the ex-spouse is now a creditor of the debtor in a bankruptcy proceeding, this review is advisable.60 Although it is the two exceptions to discharge discussed earlier that specifically pertain to family law and divorce obligations,61 the ex-spouse’s analysis should not end with those subsections. There are occasions when the fraud exceptions—the breach of fiduciary duty and the willful and malicious injury exceptions—may apply to the ex-spouse’s claims.62 For instance, if
Bruce Nystrom, PhD Licensed Psychologist
River Park Psychology Consultants, LLC www.riverparkpsych.com 727 N. Waco, Suite 320 Wichita, KS 67203 telephone: (316) 616-0260 • fax: (316) 616-0264 34
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property were allocated to the ex-spouse and instead of delivering it, the debtor converted the property, then that conversion may give rise to a nondischargeability claim under § 523(a)(6).63 Think outside the box. Under our facts, because the bankruptcy was filed one year after the divorce was concluded, it is possible that the debtor already had the intent to file bankruptcy when the divorce agreement was entered into, did not intend to fully comply with his obligations, or may have fraudulently induced your client to enter into the agreement. If those facts can be established, it is possible that your client may successfully assert that the debtor’s obligations to her are not dischargeable under the fraud exception.64 Contempt judgments may also be excepted from discharge under § 523(a)(6).65 Once again, those other exceptions to discharge are particularly relevant to a Chapter 13 case because § 523(a) (15) does not apply to a full payment discharge. Since bankruptcy law is deadline driven, by logical extension it is also procedure heavy. A bankruptcy case is initiated by the filing of a petition, which also serves as the order for relief.66 Within the main case, motions, applications, and objections are filed, and they are contested matters under the Bankruptcy Rules.67 Adversary proceedings are essentially individual lawsuits that are attached to the main bankruptcy case. Various actions, such as the determination of dischargeability and a complaint objecting to discharge, must be brought by complaint filed as an adversary proceeding. A party who seeks the extension of a deadline that is set in the main case does so by motion. If the parties agree with the relief sought, such as an extension of a deadline, then an agreed order may be submitted. Addressing our facts, it is axiomatic that any child support owed by the debtor on behalf of his minor children is in the nature of support and not dischargeable.68 Other expenses related to a debtor’s minor children are considered DSOs. For example, the debtor’s obligation to pay fees and costs for a guardian ad litem,69 a psychologist,70 and an attorney retained for a custody proceeding71 are frequently considered in the nature of support and not dischargeable under § 523(a)(5). There is also an argument to be made that the debtor’s obligation to pay the mortgage note on the home that is allocated to the wife who has residential custody of the parties’ minor children is in the nature of support.72 Again, the bankruptcy court is not bound by the labels placed on debtor’s obligations in the divorce proceedings and may look beyond those labels to ascertain their true nature because the determination as to dischargeability is made pursuant to federal law.73 The analysis rests upon the shared intent of the parties at the time of the divorce and the function of the obligation,74 which is why testimony is oftentimes required in § 523(a)(5) discharge proceedings. As discussed above, it may be that the ultimate function of the debtor’s obligation to pay the second mortgage on the home is to provide shelter to the debtor’s children and former spouse; if so, courts generally will consider that obligation in the nature of support since the provision of shelter to one’s family is considered a fundamental obligation to provide support to one’s family.75 Whether the debtor’s obligation to pay attorney’s fees not related to custody of the children and incurred in the divorce proceeding by the ex-spouse is in the nature of support is not
Bankruptcy & Divorce
as clear.76 For example, there is no consensus whether attorney’s fees incurred by the ex-spouse to adjudicate the dischargeability of obligations in the bankruptcy proceeding may be awarded by the bankruptcy court or whether the ex-spouse must return to state court to request that award of attorney’s fees.77 Conclusion Although it should go without saying that you should not handle a divorce proceeding in the first instance without knowing the basics of bankruptcy law, it is also true that if your client is an ex-spouse of a debtor who has filed bankruptcy, time is critical. Run—do not walk—to experienced bankruptcy counsel who is well-versed with the interplay of bankruptcy and divorce proceedings. The failure to act promptly may result in significant adverse financial consequences to your client. The deadlines in a bankruptcy proceeding expire Endnotes 1. This and all future statutory references are to the Bankruptcy Code, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or “the 2005 Amendments”), 11 U.S.C. §§ 101-1532, unless otherwise specifically noted. These DSOs are defined by the Bankruptcy Code in § 101(14A) as: The term “domestic support obligation” means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is— (A) owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt. 2. In bankruptcy parlance, DSOs are commonly referred to as “support obligations” or as obligations “in the nature of support.” The terms “domestic law” and “family law” are used interchangeably. Sections 523(a) (5) and (a)(15) are likewise referred to as the family law or domestic law exceptions to discharge. 3. § 523. Exceptions to discharge. (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— .... (15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the
early in the case and there are myriad considerations. When the worlds of bankruptcy and family law collide, tread carefully but quickly into the newly disrupted terrain. n About the Author Hon. Robert D. Berger was appointed to the U.S. Bankruptcy Court for the District of Kansas in 2003. He received his B.A. in history and political science from the University of Kansas in 1983 and his J.D. from Washburn University School of Law in 1986. After graduation, Berger entered private practice where he practiced as a bankruptcy and insolvency specialist. Berger has written numerous articles on bankruptcy issues and is a contributing author for the KBA’s Bankruptcy Handbook.
course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit; . . . . 4. Importantly, this exception does not apply to a Chapter 13 “full payment” discharge under § 1328(a). Full payment does not mean full payment of all of the debtor’s debts; it only requires the debtor to satisfy the terms of the confirmed plan by making all the payments required by that plan. Frequently, general unsecured creditors receive few, if any, payments. In contrast, DSOs are priority unsecured claims. § 507(a)(1). 5. The dischargeability of debts in bankruptcy is ordinarily determined by an adversary action filed with the bankruptcy court. Fed. R. Bankr. P. 4007 and 7001. An adversary action is an individual lawsuit filed and litigated within the main bankruptcy case. 6. See Henry J. Sommer & Margaret Dee McGarity, Collier Family Law and the Bankruptcy Code (2013). Extensive learned articles are also available. See, e.g., Daniel A. Austin, For Debtor or Worse: Discharge of Marital Debt Obligations Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 51 Wayne L. Rev. 1369 (2005); J. Scott Pohl and C.J. Wahrman, Bankruptcy and Divorce in Kansas, 29 Washburn L.J. 551 (1990). 7. See In re Marriage of Sailsbury, 13 Kan. App. 2d 740, 745 (1989) (holding that the state court holds concurrent jurisdiction to determine the dischargeability of a debt under § 523(a)(5) of the Bankruptcy Code, even though the matter gives rise to a federal question); 4 Collier on Bankruptcy ¶ 523.03, at 523-17 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2013) (noting that with the exception of dischargeability determinations to which § 523(c) applies, jurisdiction may be exercised either by the bankruptcy courts or the state courts). 8. Sommer & McGarity, supra note 6, ¶ 5.01[2][d] and [e], at 5-14 to 5-21. 9. See Barber v. Barber, 62 U.S. 582, 584 (1858) (“We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony . . . .”) In Ankenbrandt v. Richards, 504 U.S. 689, 701 (1992), the Court observed that the exception applies only to “a narrow range of domestic relations issues,” such as “divorce, alimony, and child custody decrees . . . .” Id. at 703, 704. For instance, federal courts are at liberty to enforce support obligations. Id. at 702. 10. Grogan v. Garner, 498 U.S. 279, 286 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)). 11. For example, the division of a pension may create a separate property interest, and perfection of a security interest to secure debts is advisable. Sommer & McGarity, supra note 6, ¶ 6.05[6]; Long v. Donahue (In re Long), 148 B.R. 904, 907 (Bankr. W.D. Mo. 1992). 12. Sommer & McGarity, supra note 6, ¶ 7.02[1], at 7-3. 13. Brenda J. Bell, et al., The Effect of Bankruptcy on Divorce Planning, 70 J. Kan. B. Ass’n 30 (2001). 14. Sommer & McGarity, supra note 6, ¶ 6.02[3], at 6-8. www.ksbar.org | February 2014
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Bankruptcy & Divorce 15. Liens may be crammed down, stripped off or avoided. See, e.g., Farrey v. Sanderfoot, 500 U.S. 291, 299-301 (1991) (applying § 522(f ) lien avoidance power on real estate to a post-divorce bankruptcy). For a fresh and insightful analysis, see Laura B. Bartell, Extinguishment and Creation of Property Interests Encumbered by Liens—The Strange Legacy of Farrey v. Sanderfoot, 87 The American Bankruptcy Law Journal 375 (2013). 16. Beardslee v. Beardslee (In re Beardslee), 209 B.R. 1004, 1007 (Bankr. D. Kan. 1997). 17. Id. at 1007-08. 18. See § 362(a) (automatic stay). The automatic stay goes into effect upon the filing of the bankruptcy petition, regardless of a creditor’s notice. The automatic stay is a broad injunction that enjoins almost all actions to collect upon prepetition claims against the debtor or any act to obtain possession of, or to control property of, the bankruptcy estate to collect upon a debt. See 3 Collier on Bankruptcy ¶ 362.01, at 362-20 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2013) (describing Bankruptcy Code’s automatic stay). 19. See § 362(b)(2) (listing exceptions to the automatic stay of § 362(a)). Even under the 2005 Amendments that expanded the family law exceptions, the § 362(a) automatic stay still applies to a property division that affects property of the estate. Sommer & McGarity, supra note 6, ¶ 5.03[2][a], at 5-30. 20. Although this article does not discuss at length DSOs within the Chapter 13 context, the difference between a nondischargeable support obligation and a debt that arose from the property settlement agreement is critical in the Chapter 13 context. The latter exception does not apply to a full payment Chapter 13 discharge. § 1328(a). In addition, nondischargeable support obligations are entitled to priority claim status under § 507(a) (1), whereas non-DSOs are not. In a Chapter 13 bankruptcy, a proof of claim must be filed by the deadline set out in Federal Rule of Bankruptcy Procedure 3002(c) in order for an ex-spouse to receive distribution on her claims from the Chapter 13 Trustee. 21. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 723, 726 (10th Cir. 1993); Yeates v. Yeates (In re Yeates), 807 F.2d 874, 879 (10th Cir. 1986); Williams v. Williams (In re Williams), 703 F.2d 1055, 1057 (8th Cir. 1983); see also Taylor v. Taylor (In re Taylor), 737 F.3d 670, 676 (10th Cir. 2013) (“When determining whether an obligation is in the nature of alimony, maintenance, or support, this court conducts a ‘dual inquiry’ looking first to the intent of the parties at the time they entered into their agreement, and then to the substance of the obligation.”). 22. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir. 1989); Austin, supra note 6, at 1403. 23. Good v. Good (In re Good), 187 B.R. 337, 338-40 (Bankr. D. Kan. 1995). 24. See Tuttle v. United States (In re Tuttle), 291 F.3d 1238, 1241 (10th Cir. 2002), for an example case in which the court found that the postbankruptcy interest associated with a nondischargeable tax debt is not discharged. 25. 4 Collier on Bankruptcy ¶ 523.05, at 523-1; Mantooth v. Jones (In re Jones), 9 F.3d 878, 880 (10th Cir. 1993). 26. Grogan v. Garner, 498 U.S. 279, 286–87 (1991). 27. Sommer & McGarity, supra note 6, ¶¶ 6.07[4] and 6.07A[3][b], at 6-97 and 6-106, respectively. 28. A § 523(a)(5) complaint ordinarily should include a § 523(a)(15) claim in a Chapter 7 bankruptcy. See Woodward v. Ehrler-Nugent (In re Nugent), 484 B.R. 671, 684 (Bankr. S.D. Tex. 2012), wherein the ex-spouse only pleaded for a finding of nondischargeability under § 523(a)(5), and the court found that the divorce obligations were not DSOs, but instead fell under § 523(a)(15). The court did not allow the ex-spouse to later pursue a § 523(a)(15) action. 29. See § 706, which allows conversion of a Chapter 7 case to one under Chapter 13 at any time, as long as there has been no prior conversion. That right is not unlimited because if the debtor seeks conversion in bad faith, the court may deny the debtor’s conversion request. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 373-74 (2007). 30. § 1328(f ). 31. Henry J. Sommer, et al., Consumer Bankruptcy Law and Practice ¶ 15.4.3.5.3, at 489 (10th ed. 2013). 32. Sommer & McGarity, supra note 6, ¶ 6.05[5], at 6-66. 33. Id. at 6-66 and 6-67. 36
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34. Id. at 6-67. 35. Of course, in a Chapter 7 bankruptcy, § 523(a)(15) would except the obligation from discharge. As noted, § 523(a)(15) does not apply to a full payment Chapter 13 discharge. 36. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722 (10th Cir. 1993). 37. Woodward v. Ehrler-Nugent (In re Nugent), 484 B.R. 671, 679 n.6 (Bankr. S.D. Tex. 2012) (giving as an example that while under Texas state law, alimony does not exist, a debt could be characterized by a bankruptcy court as alimony under the Bankruptcy Code). 38. Hayhoe v. Cole (In re Cole), 226 B.R. 647, 652–53 (B.A.P. 9th Cir. 1998); Airlines Reporting Corp. v. Mascoll (In re Mascoll), 246 B.R. 697, 706 (Bankr. D.D.C. 2000). 39. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir. 1989). 40. See § 507(a)(1) (describing first priority expenses and claims). 41. However, if the claimant agrees to other treatment or if the debtor commits his projected disposable income for five years, and that is insufficient to pay the DSO that has been assigned to a governmental entity in full, then the plan need not provide for payment in full of that DSO during the plan (§§ 1322(a)(4) and 507(a)(1)(B)), but any remaining DSO remains non-discharged at the completion of the bankruptcy. In re Penaran, 424 B.R. 868, 876-77, 876 n.30 (Bankr. D. Kan. 2010). That allows a Chapter 13 debtor to discharge his dischargeable debt, which will theoretically make it easier for him to repay the remaining DSO post-discharge, although it may be unwise not to pay the debt in full during the Chapter 13 because the accumulated interest also remains non-dischargeable. 42. See, e.g., Fed. R. Bankr. P. 4004 and 4007 (establishing deadlines to object to discharge under § 727(a) and to file a dischargeability complaint under § 523(c)); Fed. R. Bankr. P. 3002(c) (setting deadlines to file a proof of claim in a bankruptcy). 43. 9 Collier on Bankruptcy ¶ 4004.03, at 4004-12 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2013). 44. Fed. R. Bankr. P. 4007. In the aggregate, these are also referred to as the § 523(c) exceptions. 45. See § 727(d) and (e) (governing revocation of discharge). 46. Fed. R. Bankr. P. 4003(b). Even if there is not a colorable statutory predicate for the claimed exemption, upon expiration of the 30-day time limit, sans an extension of time to object, the exemption is allowed. Taylor v. Freeland & Kronz, 503 U.S. 638, 643 (1992). That result was mitigated somewhat as to the trustee with a 2008 amendment to Rule 4003(b) that allows the trustee to file an objection within one year of the closing of the debtor’s case if the debtor fraudulently claimed an exemption. 47. Fed. R. Bankr. P. 2002(b). 48. Sommer, et al., supra note 31, ¶ 15.4.3.3; see In re Mendiola, 99 B.R. 864, 867 (N.D. Ill. 1989) (concluding that § 523(a)(3) was “not applicable in a no-asset case”). 49. Sommer, et al., supra note 31, ¶ 15.4.3.3; 9 Collier on Bankruptcy ¶ 4007.04[2], at 4007-11 to 4007-13. 50. 4 Collier on Bankruptcy ¶ 523.09[4][a], at 523-67 to 523-69. Some exceptions to discharge, such as those associated with fraud, breach of fiduciary duty, and willful and malicious injury, have a 60-day deadline from the original setting of the meeting of creditors that applies to both Chapter 7 and Chapter 13 bankruptcies. See Fed. R. Bankr. P. 4007. These are referred to as the § 523(c) exceptions, although the specific exceptions are set out in § 523(a)(2), (4), and (6). Other exceptions, such as § 523(a)(5) and § 523(a)(15), do not have such a deadline. 51. 491 B.R. 554 (B.A.P. 8th Cir. 2013). 52. Id. at 560. 53. Id. at 561. 54. Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 229.1, at ¶ 349.1 Sec. Rev. Oct. 8, 2010 (also available at http://www.Ch13online.com). 55. See § 1327(a) (“The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.”). 56. See United Student Aid Funds Inc. v. Espinosa, 559 U.S. 260, 275 (2010) (concluding that a provision in the debtor’s confirmed Chapter 13 plan that discharged student loan interest in contravention of § 523(a) (8) was binding on the student loan creditor even though the debtor did
Bankruptcy & Divorce not comply with the procedural requisites to determine that not discharging the student loan interest was an undue hardship on him); Lundin & Brown, supra note 54, § 229.1, at ¶ 77. 57. Lundin & Brown, supra note 54, § 229.1, at ¶ 103. 58. Id. § 229.1, at ¶ 77. 59. § 1330; In re Lane, Case No. 12-23111, 2013 WL 3102600, at *3 (Bankr. D. Kan. June 20, 2013). 60. If the debtor’s bankruptcy paperwork contains material inaccuracies, that should be brought to the attention of the assigned Chapter 7 trustee and it may be advisable for the ex-spouse to file a complaint under § 727 to deny the ex-spouse’s general discharge. The downside to the latter approach is that it may be in your client’s best interest simply to have only her claims determined nondischargeable and for the debtor to receive a general discharge. That would enhance the debtor’s ability to pay your client’s claims because it relieves the debtor of other debts, the holders of which may make claim on his income and assets. 61. §§ 523(a)(5) and 523(a)(15). 62. See Sommer & McGarity, supra note 6, ¶ 6.08, for a review of the exceptions to discharge and their possible application to family law debts. 63. Courts have also on occasion imposed a constructive trust on property of the debtor in favor of the ex-spouse. Long v. Donahue (In re Long), 148 B.R. 904, 909 (Bankr. W.D. Mo. 1992); Sommer & McGarity, supra note 6, ¶ 6.05[8], at 6-76. But see Steele v. Heard, 487 B.R. 302 (S.D. Ala. 2013), wherein the court found that the debtor’s obligation to make periodic payments to his ex-wife as a settlement of the debtor’s pension was not a DSO, and thus declined to impose a constructive trust on the property. 64. See § 523(a)(2)(A) (excepting from discharge debts “for money, property, services, or an extension, renewal, or refinancing of credit” when obtained by “false pretenses, a false representation, or actual fraud”); Sommer, et al., supra note 31, ¶ 15.4.3.5.3, at 488 n.391. 65. Lowry v. Nicodemus (In re Nicodemus), 497 B.R. 852 (B.A.P. 6th Cir. 2013). In a Chapter 13 context, a similar, but not identical, exception applies to a willful or malicious injury “by the debtor that caused personal injury to an individual or the death of an individual.” § 1328(a)(4). 66. This is referred to as the “main case.” 67. Contested matters include such requests as motions for relief from the automatic stay, motions requesting that the bankruptcy court abstain from hearing a particular matter, objections to claimed property exemp-
tions by the debtor, and objections to confirmation of a bankruptcy plan. Fed. R. Bankr. P. 9014. 68. Most obligations pertinent to a debtor’s minor children are not dischargeable under §523(a)(5), including a parent’s continuing obligation to pay college and educational expenses, medical expenses and health insurance. Sommer & McGarity, supra note 6, ¶ 6.05[3], at 6-64 to 6-65. 69. Miller v. Gentry (In re Miller), 55 F.3d 1487, 1489-90 (10th Cir. 1995). 70. Id. 71. Jones v. Jones (In re Jones), 9 F.3d 878, 881–82 (10th Cir. 1993). The court in Jones found the attorney’s fees obligation nondischargeable support under § 523(a)(5) even though the attorney’s fees were owed to a third party by the debtor. The court focused on the nature of the debt and not the identity of the payee. Id. 72. Robinson v. Robinson (In re Robinson), 921 F.2d 252, 253 (10th Cir. 1990); Busch v. Hancock (In re Busch), 369 B.R. 614, 621-23 (B.A.P. 10th Cir. 2007); Lewis v. Trump (In re Trump), 309 B.R. 585, 593-95 (Bankr. D. Kan. 2004). 73. In re Trump, 309 B.R. at 591-93. 74. Taylor v. Taylor (In re Taylor), 737 F.3d 670, 676 (10th Cir. 2013); Sampson v. Sampson (In re Sampson), 997 F. 2d 717, 723 (10th Cir. 1993). 75. Sommer & McGarity, supra note 6, ¶ 6.05[2]; see also supra note 68 (discussing nondischargeability of obligations pertinent to a debtor’s minor children). See also Robinson v. Robinson (In re Robinson), 921 F.2d 252, 253 (10th Cir. 1990) (holding that a debtor’s obligation to pay second mortgage debt on former marital residence is in the nature of support and not discharged under § 523(a)(5)); Busch v. Hancock (In re Busch), 369 B.R. 614, 623 (B.A.P. 10th Cir. 2007) (same). 76. As discussed above, the debtor’s obligation to indemnify and hold harmless the ex-spouse from obligations such as attorney’s fees that are assigned to the debtor in the divorce is only one factor to determine whether that obligation is in the nature of support. 77. Compare Sommer & McGarity, supra note 6, ¶ 6.07[3], at 6-93 n.51 (citing In re Busch, 369 B.R. at 623-27), id., ¶ 6.05[1], at 6-60 n.49 (citing In re Trump, 309 B.R. at 596). If there is a fee shifting provision in the marital settlement agreement, however, the bankruptcy court may have authority to grant attorney’s fees. In re Taylor, 737 F.3d at 682.
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Appellate Decisions
Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions.
Supreme Court Civil CONTRACTS AND OPERATING AGREEMENT IRON MOUND LLC V. NUETERRA HEALTHCARE MANAGEMENT LLC ET AL. RILEY DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 101,647 – DECEMBER 6, 2013 FACTS: Iron Mound and ASC Group LLC entered into an operating agreement on March 26, 1999, for the formation and governance of ASC Midwest LLC. The parties created the company “to develop, own, and operate ambulatory surgical facilities and other healthcare facilities.” Nueterra is the successor-in-interest to the ASC Group LLC. Iron Mound alleged that under the operating agreement of ASC, a limited liability company formed by Nueterra and Iron Mound and later dissolved, Iron Mound was entitled to receive a percentage of the gross fees earned by Nueterra under a management agreement entered into after the operating agreement had expired. The district court granted Nueterra’s second motion for summary judgment, denied Iron Mound’s cross-motion, and dismissed the action. The district court determined that while the parties to the operating agreement could have reserved or extended rights beyond termination of the operating agreement, their intent to do so must have been explicitly stated. But the court found the operating agreement silent regarding future management agreements or the survival of rights upon termination or expiration of the operating agreement. The Court of Appeals reversed and found the operating agreement to be ambiguous and unresolved issues of fact remained regarding Iron Mound’s entitlement to a percentage of fees under the management agreement. ISSUES: (1) Contracts and (2) operating agreement HELD: Court reinstated the district court’s summary judgment ruling in favor of Nueterra. Court concluded the unambiguous terms of the operating agreement rendered it inapplicable to the fees received by Nueterra under the management agreement. STATUTES: K.S.A. 20-3018; and K.S.A. 60-2101 HABEAS CORPUS STATE V. HOLT GEARY DISTRICT COURT – AFFIRMED NO. 105,854 – DECEMBER 6, 2013 FACTS: Holt convicted in 1994 of offenses, including firstdegree murder. Convictions and sentence affirmed in direct appeal. Numerous post-conviction proceedings filed thereafter in state and federal court. In 2010 Holt filed a motion for a new trial, which district court dismissed as successive and untimely. Holt appealed on abuse of discretion claim, arguing the time-limiting language in K.S.A. 2012 Supp. 22-3501(1) is directory rather than mandatory, and the district court should have treated motion as seeking habeas relief under K.S.A. 60-1507. He also claimed ineffective assistance of counsel in Holt’s first 60-1507 hearing. 38
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ISSUES: (1) Time limit on filing motion for new trial, (2) motion for habeas relief under K.S.A. 60-1507, and (3) ineffective assistance of 60-1507 counsel HELD: Time limit set in K.S.A. 2012 Supp. 22-3501(1) for motions for new trial based on grounds other than newly discovered evidence is examined under State v. Bradley, 246 Kan. 316 (1990), and the four-factor analysis in State v. Raschke, 289 Kan. 911 (2009). All support a reading that the language “shall be made” should be read as mandatory. No abuse of trial court’s discretion in dismissing Holt’s motion as untimely. Even if motion is treated as a 60-1507 claim, it was filed well beyond the time limit in K.S.A. 60-1507(f )(1)(i), and Holt failed to demonstrate that an extension was necessary to prevent manifest injustice. Holt’s claim of ineffective assistance of counsel at his first 60-1507 hearing in 1997, raised for first time on appeal, was not considered. STATUTES: K.S.A. 2012 Supp. 22-3210, -3501, -3501(1), -3502, -3608(c); K.S.A. 2010 Supp. 22-3501; K.S.A. 2009 Supp. 22-3210(e); K.S.A. 22-3501, -3504, -3601(b), 60-1507, 1507(f ), -1507(f )(1)(i), -1507(f )(2); K.S.A. 22-3502 (Furse); and K.S.A. 223501(1) (Ensley 1988) HABEAS CORPUS MAKTHEPHARAK V. STATE SEDGWICK DISTRICT COURT – AFFIRMED NO. 105,932 – DECEMBER 27, 2013 FACTS: Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state’s motion for adult prosecution. Makthepharak’s convictions and sentences for firstdegree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010 Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming that the district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that the district court improperly construed his pro se motion. He also claimed that the district court’s summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court’s initial examination of the motion. ISSUES: (1) Procedural claims – motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, and (3) construing the pro se motion HELD: Makthepharak made no persuasive argument for revisiting or abandoning the longstanding interpretation of K.S.A. 223504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that the statute’s protections do not apply when a court summarily denies a motion to correct an illegal sentence.
Appellate Decisions The district court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, the district court had jurisdiction over the criminal trial. Makthepharak’s sentence was therefore lawful. Although the district court erred in part by construing Makthepharak’s motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits. STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2012 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); and K.S.A. 60-1507 SERVICE AND SUBSTANTIAL COMPLIANCE FISHER V. DECARVALHO ELLIS DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 104,644 – DECEMBER 13, 2013 FACTS: Fisher attempted to commence a medical malpractice action against DeCarvalho, M.D., by mailing the summons and petition via unrestricted certified mail, sent to the doctor’s business address. The doctor actually received the petition and filed an answer that asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a statute of limitations bar. After participating in the discovery process for a time, the doctor filed a motion to dismiss, alleging an absence of personal jurisdiction because Fisher’s attempted certified mailing did not comply with the requirements of K.S.A. 60-304(a) to effect a valid service of process. The district court dismissed the lawsuit with prejudice, finding that Fisher had failed to substantially comply with the statu-
tory requirements for service of process by return receipt mail delivery, that the defendant’s actual notice of the lawsuit did not confer personal jurisdiction on the district court absent a proper service of process, and that Fisher was not entitled to the additional time to effect service after the adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at service did not appear to be valid. The Court of Appeals affirmed the district court’s dismissal. ISSUES: (1) Service and (2) substantial compliance HELD: The Court agreed with the results reached on the issues of substantial compliance and actual notice, but it held that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court’s adjudication of invalidity. The Court reversed and remanded with directions for the district court to afford the plaintiff that opportunity. STATUTES: K.S.A. 12-105b; K.S.A. 20-3018; and K.S.A. 60102, -103, -203(b), -204, -303(e), -304(a), -513(a)(7), -2101(b) NOISE ORDINANCE CITY OF LINCOLN CENTER V. FARMWAY CO-OP INC. ET AL. LINCOLN DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED COURT OF APPEALS – AFFIRMED IN PART AND REVERSED IN PART NO. 105,962 – APRIL 12, 2012 FACTS: The City of Lincoln Center cited Farmway Co-Op Inc. and Farmway Storage #1 LLC (together “Farmway”) for violating municipal noise and nuisance ordinances. The violations arose out of Farmway’s operation of a grain elevator facility inside the city
Appellate Practice Reminders . . .
From the Appellate Court Clerk’s Office
The “Expedited” Designation There is a common misconception that the appellate courts exercise discretion when deciding which cases should be assigned to expedited briefing and hearing schedules. With rare exceptions, the appellate courts only expedite cases that are required to be expedited by statute. During research, attorneys should review statutes which authorize the appeal for their particular issues and be alert to language which mentions priority. Common statutory language requires that “appeals under this section shall have priority over all others.” An illustrative, but not comprehensive, list of appeals which are expedited includes: K.S.A. 2013 Supp. 38-2273 [appeals from orders of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights]; K.S.A. 2013 Supp. 38-2380 [orders appealable after juvenile adjudications]; and K.S.A. 2013 Supp. 59-2401a(b)(1)-(5) [appeals under the Kansas Adoption and Relinquishment Act, Care and Treatment Act for Mentally Ill Persons, Sexually Violent Predator Act, Care and Treatment Act for Persons with an Alcohol or Substance Abuse Problem, Act for Obtaining a Guardian or Conservator]. Appointment of Counsel or Change of Appointment After Docketing When a docketing statement is filed with the appellate courts, the district court judge loses jurisdiction to make an appointment of counsel or to change an existing appointment unless there is a remand order issued from the appellate court in which the case is docketed. If appellate counsel discovers a conflict of interest or other issue which necessitates withdrawal from the case, a motion to withdraw should be filed in the appellate court along with a request for remand to the district court for appointment of new counsel. Briefing Schedule When a Jurisdictional Show Cause is Issued If an appellate court issues an order to show cause questioning appellate jurisdiction, an existing briefing schedule is not suspended. If the attorney does not want to proceed with briefing during the court’s consideration of the show cause order, a motion for extension of time to complete the brief should be filed. If you have questions these practices or appellate procedure generally, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.
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Appellate Decisions limits. After the municipal court convicted Farmway under both ordinances, the district court reversed the convictions, holding the ordinances are unconstitutionally vague. The Court of Appeals affirmed the district court. ISSUE: Noise ordinance HELD: Based upon the standards established in Kansas case law, the Court concluded that the noise ordinance is unconstitutionally vague as applied to Farmway. More particularly, it failed the second prong of the vagueness inquiry by failing to convey sufficient clarity to those who apply the ordinance standards to protect against arbitrary and discriminatory enforcement. Consider the uncertainty facing the ordinance’s enforcing agents when they determined, for example, whether Farmway’s noise was “excessive,” “unnecessary,” or “unusually loud,” which “disrupts” or “annoys” others in the City. The ordinance's lack of objective standards for making those determinations readily promotes varying and somewhat unpredictable bases for enforcement. The Supreme Court agreed with the district court and Court of Appeals that the City’s noise ordinance is unconstitutionally vague. As applied to Farmway, it fails to protect against arbitrary enforcement. However, the Court held the noise ordinance was constitutional as applied to Farmway. Farmway clearly was on notice that its facility was injuring or endangering the public’s health, safety, or welfare. It is undisputed that Farmway knew the effect its facility’s dust and noise had on the surrounding residential neighborhood—aggravating residents’ health and disrupting many aspects of their lives—and that it took multiple steps to try to curtail the injurious effects. Simply put, the ordinance conveyed to Farmway “sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice.” STATUTES: K.S.A. 2-2472(b); K.S.A. 21-3608, -4106, -4107, -6204; K.S.A. 60-2101(b); K.S.A. 65-5007; and K.S.A. 77-706(a) (1)
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The Journal of the Kansas Bar Association
STATUTORY LIENS – CONSUMER PROTECTION VIA CHRISTI REGIONAL MEDICAL CENTER INC. V. REED RENO DISTRICT COURT – REVERSED WITH DIRECTIONS KANSAS COURT OF APPEALS – REVERSED NO. 101,690 – DECEMBER 20, 2013 FACTS: Reed treated at Via Christi Regional Medical Center after his car collided with a Union Pacific train. Reed settled with Union Pacific for $450,000. Via Christi filed a hospital lien to collect on a bill for services provided to Reed. When Via Christi filed an action to enforce lien, Reed claimed the lien was invalid because a modified treatment consent form signed by his sister did not establish a debt. Reed also counterclaimed on Kansas Consumer Protection Act (KCPA) claims that Via Christi engaged in deceptive and unconscionable acts and practices in efforts to enforce lien. On motions for partial summary judgment, district court ruled in favor of Via Christi on lien, against Reed on KCPA counterclaims, and entered journal to enforce full amount of lien. The Court of Appeals (1) affirmed enforceability of lien because Via Christi substantially complied with statutory notice requirement, and no underlying debt was necessary to support it; (2) remanded for hearing on what portion of lien constituted an equitable distribution of settlement proceeds; (3) held as matter of law that hospital cannot violate KCPA by seeking enforcement of lien to recover for services rendered; and (4) Reed was not an “aggrieved” consumer under KCPA. 45 Kan. App. 2d 365 (2011). Reed’s petition for review was granted. ISSUES: (1) Necessity of underlying debt for hospital lien, (2) effectiveness of lien, (3) viability of KCPA claims, (4) deceptive acts and practices, (5) unconscionability, and (6) number of KCPA claims HELD: Giving ordinary words their ordinary meaning and following established precedent, a hospital lien requires an underlying debt for lien to secure. Without such a debt, the lien is invalid. Court of Appeals holding to the contrary is rejected. Via Christi did not strictly comply with notice requirements in K.S.A. 65-407, thus its lien was ineffective and unenforceable against Union Pacific and Reed. Via Christi’s filing and attempt to enforce lien that exceeded the reasonable and necessary charges for Reed’s care negatively affected Reeds’ interest in timely availability of entire settlement amount, thus Reed qualified as “aggrieved” consumer under KCPA. Via Christi was not entitled to summary judgment on Reed’s KCPA claims. KCPA deceptive acts and practices claims were remanded for further proceedings. Reed came forward with enough evidence to defeat summary judgment in favor of Via Christi. The bill supporting the hospital’s lien contained inaccuracies, and auditor’s report demonstrates existence of genuine issue of material fact on any theory that Via Christi engaged in billing practices so confusing as to be intentionally misleading. A hospital may engage in unconscionable conduct prohibited by KCPA when it files and pursues enforcement of lien based on bill that was inaccurate because of overcharges or duplicate charges, and hospital enjoyed superior bargaining power compared to patient. Remanded to district court for review of evidence under correct legal standard. On remand there will be one claim for deceptive acts and practices, and one claim for unconscionable acts and practices. Filing of lien and its ensuing enforcement is one transaction between hospital supplier and its consumer patient, not hundreds of discrete transactions as Reed alleged. STATUTES: K.S.A. 12-105b, 50-623, -624, -624(b), -624(c), -624(j), -626(a), -626(b), -626(b)(1), -626(b)(1)(A), -626(b)(1)(C), -626(b)(1)(D), -626(b)(2), -626(b)(3), -627(a), -627(b), -627(b) (2), -634, -634(a), -634(b); and K.S.A. 65-406 et seq., -406(a), -406(b), -406(c), -407
Appellate Decisions TAXATION, PUBLIC UTILITY, GAS COMPANY, COMMERCE CLAUSE, AND DUE PROCESS CLAUSE IN RE TAX APPEAL OF VARIOUS APPLICANTS COURT OF TAX APPEALS – AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND REMANDED WITH DIRECTIONS NO. 105,785 – DECEMBER 6, 2013 FACTS: This is a consolidated tax appeal disputing whether natural gas stored in facilities located in Kansas under contract with interstate companies is subject to ad valorem taxation. The Kansas Constitution, Article 11, § 1 (2012 Supp.) exempts merchants’ inventory from such taxation, but that exemption does not include tangible personal property owned by a public utility. The taxpayers claim they are entitled to the exemption. They are 40 business entities that fall into three general categories: out-of-state natural gas marketing companies, out-of-state local distribution companies certified as public utilities in their states, and out-of-state municipalities. Each buys natural gas from producers or other marketers and then delivers it to the pipelines under contracts with the pipeline companies allowing the taxpayer to withdraw equivalent amounts of gas at a later time from out-of-state distribution points. The Kansas Court of Tax Appeals (COTA) determined that the natural gas is not exempt because of a statute broadly defining what constitutes a “public utility” for these purposes. The taxpayers challenge COTA’s decision arguing, in part, that it violates the Commerce Clause of the U.S. Constitution and the Due Process Clause of the 14th Amendment to the U.S. Constitution, as well as Article 11, § 1(b) of the Kansas Constitution (2012 Supp.), which provides for the ad valorem tax exemption for merchants’ inventory. ISSUES: (1) Taxation, (2) public utility, (3) gas company, (4) Commerce Clause, and (5) Due Process Clause HELD: Court held that this taxation does not violate the Commerce Clause or Due Process Clause, and held further that K.S.A. 2012 Supp. 79-5a01 is constitutional as applied to the out-of-state local distribution companies. Court also held that K.S.A. 2012 Supp. 79-5a01 is unconstitutional as applied to the out-of-state natural gas marketing companies and those taxpayers that are out-of-state municipalities. Those entities are not public utilities as that term was commonly understood when Kansas voters excluded public utility personal property from the merchants’ and manufacturers’ inventory exemption. Court affirmed in part and reversed and vacated in part. Court remanded to COTA for further proceedings to decide where each taxpayer falls within the three described categories. STATUTES: K.S.A. 20-3017; K.S.A. 77-601, -621; and K.S.A. 79-101, -5a01, -5a25, -201a Second, -201f, -201m
Criminal STATE V. HENSLEY SALINE DISTRICT COURT – AFFIRMED IN PART AND REVERSED IN PART COURT OF APPEALS – AFFIRMED IN PART AND REVERSED IN PART NO. 102,055 – DECEMBER 6, 2013 FACTS: Hensley convicted of possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia. On appeal he claimed that the district court erred in denying motion to suppress evidence discovered with search warrant that was unsupported by probable cause because affidavit’s information was stale and of limited value and recent tips lacked credibility. He next claimed that the district court’s failure to issue pick-up order for a witness (Post) denied Hensley his right to compulsory process. Third, he claimed that his convictions of possession of marijuana and possession of marijuana with no tax stamp were
multiplicitous and violated the Double Jeopardy Clauses of the state and federal constitutions. Court of Appeals affirmed in unpublished opinion. Hensley’s petition for review granted. ISSUES: (1) Probable cause affidavit, (2) compulsory process, and (3) multiplicitous convictions HELD: Affidavit provided probable cause to support the warrant. The six pieces of information in the affidavit were examined. Of the four challenged as stale, two were unquestionably stale, but two arguably had probative value. Tip from unidentified informant was entitled to no weight under totality of circumstances analysis in Illinois v. Gates, 462 U.S. 213 (1983), but there were sufficient indicia of reliability to rely on the tip by Post. Although Court of Appeals concluded Hensley failed to demonstrate that Post’s testimony would have been material, it was unnecessary to address materiality. District court initially assisted Hensley’s effort to contact Post. Because Hensley never renewed his request for additional compulsory process, district court never ruled on whether Hensley was entitled to a pick-up order. Court’s earlier holding in State v. Berberich, 248 Kan. 854 (1991), was revisited in light of multiplicity analysis set forth in State v. Schoonover, 281 Kan. (2006). Under K.S.A. 21-3107(2)(b), possession of marijuana is a lesser included crime of possession of marijuana with no tax stamp. Hensley’s convictions of possession of marijuana and possession of marijuana with no tax stamp were multiplicitous. Conviction and sentence for possession of marijuana were reversed. STATUTES: K.S.A. 2012 21-5109(b)(2); K.S.A. 20-3018(b), 213107, -3107(2), -3107(2)(b); K.S.A. 22-3214; K.S.A. 65-4162(3); and K.S.A. 79-5201(c), -5208 STATE V. HOLT BOURBON DISTRICT COURT – REVERSED AND REMANDED NO. 103,532 – DECEMBER 20, 2013 FACTS: Holt appealed his conviction for aggravated indecent liberties with a child. Appeal disclosed significant problems with transcript of pretrial hearing that included Holt’s request for independent psychological examination of victim. No written order was filed, and attempts to reconstruct the record resulted only in agreement on general nature of arguments. ISSUE: Due process – adequacy of appellate record HELD: Due process requires a reasonably accurate and complete record of trial proceeding in order to allow meaningful and effective appellate review. Findings below must be preserved in such a way that adequate appellate review is possible. While a defendant does not have a constitutionally protected right to a totally accurate transcript of the criminal proceeding, when legitimate claims having a substantial foundation based on the available record are not susceptible to appellate review because the transcript is manifestly incomplete or inaccurate, the proper remedy is to reverse and remand for a new trial. Here, Holt’s request for independent psychological evaluation of victim was potentially critical to his defense, and record is insufficient to ascertain whether trial court abused its discretion in denying that motion. Reversed and remanded for new trial at discretion of state. STATUTE: K.S.A. 21-3502(a)(2), -3502(a)(3)(A) STATE V. HURD SEWARD DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – REVERSED NO. 104,198 – DECEMBER 27, 2013 FACTS: Hurd convicted in trial that consolidated a case with assault, battery, and criminal threat charges, and a case charging two counts of failure to register as sex offender. Hurd appealed on nine www.ksbar.org | February 2014
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Appellate Decisions issues, in part challenging the district courts decision to consolidate the cases, the trial judge’s refusal to recuse, and the district court’s refusal to find the complaint charging him with failing to register was jurisdictionally defective. In an unpublished opinion, the Court of Appeals rejected each issue and affirmed convictions and sentences. Hurd’s petition for review granted. ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) sufficiency of evidence of criminal threat, (4) recusal of trial judge, and (5) authority to disqualify prosecutor HELD: District court erred in consolidating the two cases. District court’s calendar considerations do not provide a basis for joinder, and Supreme Court rejected Court of Appeals’ finding that crimes were connected. State v. Anthony, 257 Kan. 1003 (1995) was distinguished. State’s case as to battery, assault, and criminal threat charges was not strong, and jury might well have been influenced by Hurd’s prior convictions. Under the circumstances there was a reasonable probability that the improper consolidation affected the outcome of Hurd’s trial. Reversed and remanded for two separate trials. Complaint charging Hurd with two counts of failing to register was jurisdictionally defective. Complaint’s language did not sub-
stantially follow language of K.S.A. 22-4904(a)(1), nor charge the offense in equivalent words to fully inform Hurd of particular offense charged. Final charging document also was confusing because it blended language from two different statutory provisions. Because the conviction was void as a result of the district court’s error in denying motion for arrest of judgment, state not prevented from recharging Hurd. Under the facts of case viewed in the light most favorable to prosecution, sufficient evidence supported Hurd’s conviction for criminal threat. Remand for a new trial on that charge did not violate the Double Jeopardy Clause. Because Hurd essentially alleged the prosecutor violated Kansas Rules of Professional Conduct, trial court had discretion to disqualify that attorney from the case. If issue arises on remand, district court should consider whether prosecutor’s alleged conduct warrants disqualification. STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b)
Court of Appeals Civil ADOPTION IN RE N.A.C. SEDGWICK DISTRICT COURT – REVERSED IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS NO. 109,208 – DECEMBER 6, 2013 FACTS: Mother gave birth to N.A.C. on the sidewalk in front of a sandwich shop in Wichita. N.A.C. was born six weeks premature, weighed less than 5 pounds, and tested positive for cocaine. N.A.C. was placed into police protective custody that same day. H.G. and D.G. (maternal cousins from Idaho) appeal from the district court’s order (1) finding that the Department of Social and Rehabilitation Services (SRS) failed to make reasonable efforts or progress toward finding an adoptive placement for N.A.C., (2) removing N.A.C. from the custody of SRS for adoptive placement, and (3) granting custody directly to S.D. and D.D. (foster parents) with court approval to adopt. ISSUE: Adoption HELD: Court concluded that the district court’s finding regarding the lack of reasonable efforts by SRS toward finding an adoptive placement was not supported by substantial competent evidence, which in turn divested the court of its legal authority to remove N.A.C. from SRS custody for adoptive placement or grant legal custody directly to foster parents for adoption. The court reversed the district court’s finding regarding reasonable efforts, vacated the court’s orders regarding custody, and remanded the cause while the Department for Children and Families proceeds with and finalizes adoption placement. DISSENT: Chief Judge Malone dissented for two reasons. First, consistent with prior published decisions of the Court of Appeals, C.J. Malone would find that the Court of Appeals lacked jurisdiction to consider an appeal by H.G. and D.G. from the district court’s ruling that SRS failed to make reasonable efforts or prog42
The Journal of the Kansas Bar Association
ress toward finding an adoptive placement for N.A.C. Second, even if the court had jurisdiction to consider the appeal, C.J. Malone would conclude on the merits that the district court's decision was supported by substantial competent evidence. STATUTE: K.S.A. 38-1202, -2201, -2202(d), (h), (z), -2243, -2250, -2251, -2253(b), -2254, -2255, -2256, -2264, -2269, -2270(a), -2273(a), -2274(b) AT-WILL EMPLOYMENT SMITH V. KANSAS ORTHOPAEDIC CENTER P.A. SEDGWICK DISTRICT COURT – AFFIRMED NO. 109,084 – DECEMBER 27, 2013 FACTS: In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice’s business manager promised her a minimum $10,000 per year bonus before she began work. But Smith’s employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. Smith sued for her benefits, and the district court held that by staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court granted summary judgment against Smith’s claim for additional bonuses from 2009 until she ended her employment in 2011. ISSUE: At-will employment HELD: Court held that in an at-will employment, the employer can change the terms under which the employee is compensated for wages not yet earned by providing notice to the employee. If the employee continues to work after the new compensation terms have been announced, the employee impliedly accepts those terms. STATUTES: No statutes cited.
Appellate Decisions HABEAS CORPUS STANLEY V. SULLIVAN PAWNEE DISTRICT COURT – AFFIRMED NO. 109,388 – DECEMBER 6, 2013 FACTS: Stanley was civilly committed as a sexually violent predator pursuant to Sexually Violent Predator Act (SVPA). He filed three separate habeas corpus petitions under K.S.A. 60-1501, which the district court dismissed for failure to exhaust administrative remedies prior to seeking court intervention. In consolidated appeal, Stanley argued that K.S.A. 2012 Supp. 59-29a24 excuses him from having to exhaust administrative remedies prior to seeking habeas relief. ISSUE: Exhaustion of administrative remedies – K.S.A. 2012 Supp. 59-29a-24 and K.S.A. 2012 Supp. 60-1501 HELD: District court’s dismissal of Stanley’s petitions was affirmed. Based on language of statutes in question and legislative history, a civilly committed sexually violent predator is still required to exhaust any applicable administrative remedies prior to seeking extraordinary remedy of habeas corpus under K.S.A. 2012 Supp. 60-1501. Court found the legislative intent for language in K.S.A. 2012 Supp. 59-29a24(d) to apply only to filing restrictions set forth in K.S.A. 2012 Supp. K.S.A. 2012 Supp. 59-29a24(c). Whether appropriate administrative remedies were unavailable to Stanley, or whether administrative remedies afforded him due process, were issues neither argued nor addressed. The court also expressed no opinion on merits of Stanley’s underlying claims, and did not determine what administrative remedies may be appropriate. STATUTES: K.S.A. 2012 Supp. 59-29a24, -29123(a), -29a24(c), -29a24(d); K.S.A. 59-29a01 et seq., 60-1501 et seq., -1507; and K.S.A. 75-52,138
RATE HEARING AND JURISDICTION BLUESTEM TELEPHONE CO. ET AL. V. KCC ET AL. WASHINGTON DISTRICT COURT – REMANDED TO DISTRICT COURT FOR FURTHER PROCEEDINGS NO. 110,791 – DECEMBER 12, 2013 FACTS: Bluestem Telephone Co. and numerous other Kansas Rural Local Exchange Carriers (RLECs) appeal from orders of the Kansas Corporation Commission issued during two general investigation dockets. The commission opened those dockets to explore the impact of proposed new federal regulations (Kansas Universal Service Fund) relating to the provision of and payment for universal service in the telecommunications industry. The RLECs filed their petition for judicial review in the Washington County District Court. The commission filed a motion seeking to transfer the case to the Court of Appeals under K.S.A. 66-118a(b), claiming that the challenged orders arose from a “rate hearing.” The district court agreed and found that the Court of Appeals had exclusive jurisdiction to hear the case. ISSUES: (1) Rate hearing and (2) jurisdiction HELD: Court held that the case did not arise from a “rate hearing,” nor was it sufficiently like a rate hearing to grant the court exclusive jurisdiction under K.S.A. 66-118a(b). The commission orders being challenged by the Petitioners address the effect of new federal regulations on KUSF payments and establish an industrywide cost methodology for distributing those payments to RLECs. The orders do not determine the amount of KUSF payments that will be available to individual RLECs, and the orders do not set the rates for services that any individual RLEC can charge to its customers. Court stated K.S.A. 66-118a(b) does not grant the Court of Appeals exclusive jurisdiction to review a commission order from a general investigation docket simply because the order ultimately may impact rates that a public utility charges to consumers. Court concluded that the commission orders being challenged by the Pe-
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Appellate Decisions titioners do not arise from a rate hearing within the meaning of K.S.A. 66-118a(b), and remanded to the district court for further proceedings. STATUTES: K.S.A. 66-117, -118a(b), -2001, -2005, -2008; and K.S.A. 77-601, -609 WATER RIGHTS, MONITORING PLAN, AND JURISDICTION CLAWSON ET AL. V. STATE OF KANSAS ET AL. MEADE DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS NO. 108,426 – DECEMBER 20, 2013 FACTS: Clawson and the Clawson Land Partnership (Clawson) obtained 10 approvals and permits from the chief engineer of the Division of Water Resources (DWR) to appropriate water. Under the terms and conditions of the water appropriation permits, the chief engineer imposed a specific monitoring plan and retained jurisdiction to reduce the approved rates of diversion and the quantities of the water rights authorized to be perfected as may be deemed in the public interest. After exhausting administrative remedies, Clawson challenged those terms and conditions in the district court of Meade County. The district court upheld the requirements of the specified monitoring plan but found that the chief engineer could not retain jurisdiction to reduce the rates of diversion and the quantities of the water rights authorized to be perfected after the issuance of the permits. The DWR appealed the district court’s finding that the chief engineer cannot retain jurisdiction to make reductions in the approved rates of diversion and the quantities of the water rights authorized to be perfected. Clawson cross-appealed, contending the monitoring plan, which requires Clawson to install electronic rate loggers, is unduly burdensome and oppressive. ISSUES: (1) Water rights, (2) monitoring plan, and (3) jurisdiction HELD: Court held the Kansas Water Appropriation Act (KWAA) does not authorize the chief engineer to reevaluate and reconsider an approval once a permit has been issued. Clawson would have to invest significant amounts of money to reperfect the existing water rights. If the chief engineer could reduce the rate of diversion and the quantity of the water rights authorized to be perfected, the permit would be meaningless. Court affirmed the district court’s rejection of the chief engineer’s retention of jurisdiction. Court agreed with the district court that the chief engineer acted within his statutory authority by imposing a monitoring plan, which included electronic rate loggers, on Clawson’s permits. However, Court held that since Clawson had the burden to show that the chief engineer's monitoring plan was unreasonable, Clawson should be given the opportunity to present evidence on that point. Court stated that because that has not happened, Court remanded that sole question back to the district court with instructions that it remand the matter to the DWR for an evidentiary hearing to determine the reasonableness of the chief engineer’s monitoring plan in light of the opinion. STATUTES: K.S.A. 77-501, -529, -601, -621(c); and K.S.A. 82a-701, -705, -706, -706b, -706c, -707(a), -708a, -708b, -709, -711, -712, -713, -714, -718, -724, -770, -1901(b) WORKERS COMPENSATION LAKE V. JESSEE TRUCKING AND CONTINENTAL WESTERN GROUP WORKERS COMPENSATION BOARD – REVERSED AND REMANDED WITH DIRECTIONS NO. 109,519 – DECEMBER 27, 2013 FACTS: Lake appealed the denial of his workers compensation claim. Lake had an accident at work and then experienced increas44
The Journal of the Kansas Bar Association
ing symptoms of back pain and arm and leg numbness. Lake’s treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake’s employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake’s symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compensation Board (Board) rejected Lake’s testimony and held that he had failed to prove that the work accident had caused his neurological injuries. ISSUE: Workers compensation HELD: Court held that under the facts of this workers compensation case, having considered all of the evidence—including the credibility determinations made by the ALJ regarding the claimant and the reasons given by the board for disagreeing with those credibility determinations, the board's findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence when viewed in light of the record as a whole. Court stated that because the question was not the existence of a work accident, which the board found, or even of injury to Lake, which the board found in the form of a pulled groin, but only of a link between the work accident and Lake’s neurological injuries, the causation opinions of the doctors did not seem improbable, unreasonable, or untrustworthy. Court concluded that the weight of the medical evidence, coupled with the lack of substantial evidence to uphold the board’s findings that Lake was not credible (contrary to the ALJ’s determination) and the evidence corroborating Lake’s testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the board’s ruling. Court held the board’s findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence viewed in light of the record as a whole. Court reversed the board's order and remanded with directions to reinstate the ALJ’s award of compensation. STATUTES: K.S.A. 44-501, -556; and K.S.A. 77-601, -621
Criminal STATE V. PHILLIPS JOHNSON DISTRICT COURT – REVERSED AND REMANDED NO. 108949 – DECEMBER 13, 2013 FACTS: Phillips convicted of possession of methamphetamine and possession of drug paraphernalia, based on evidence found in warrantless search of motel room he shared with Doughtery. Phillips claimed his and Dougherty’s encounter with law enforcement officers in motel parking lot prior to the search constituted illegal detention because officers had seized him without reasonable suspicion, thus consent to search the motel room was granted involuntarily and evidence should be suppressed. District court denied the motion, finding that Phillips’ and Doughtery’s entire encounter with officers was consensual and the two men voluntarily consented to search of motel room. Phillips appealed. ISSUE: Unlawful detention without reasonable suspicion HELD: Reversed and remanded. Under totality of circumstances, first officer’s approach was voluntary encounter, but after five minutes it should have been reasonably clear the two men were not engaged in any criminal activity in the parking lot. But additional officers arrived at the scene, one continued to hold Daugherty’s pocket knife, the encounter was investigatory in nature and lasted 18 minutes, no officer told the men they were free to leave, and the
Appellate Decisions state concedes the officers had no reasonable suspicion of criminal activity until drugs and paraphernalia were found inside the motel room. Phillips was unlawfully detained when he allowed officers to search his motel room, thus his consent to search was rendered involuntary. Evidence found in the motel room was unlawfully seized, and Phillips’ later statements at the detention center were inadmissible as “fruit of the poisonous tree.” STATUTE: K.S.A. 22-2401, -3216(2) STATE V. SRACK SALINE DISTRICT COURT – AFFIRMED NO. 107660 – DECEMBER 13, 2013 FACTS: Srack was convicted of distribution of a controlled substance analog, based upon undercover investigator’s purchase of herbal potpourri containing synthetic cannabinoid JWH-081, an analog of schedule I hallucinogenic drug JWH-018. On appeal Srack claimed (1) the statutory definition in K.S.A. 2010 Supp. 21-36a01(b) of a controlled substance analog is unconstitutionally vague, (2) insufficient evidence supported the conviction, and (3) district court erred in excluding letter written by county attorney to State Board of Pharmacy indicating he was contemplating dismissal of the criminal charges if JWH-081 was not named a scheduled controlled substance by that board. ISSUES: (1) Constitutional challenge to Kansas Controlled Substance Analog Statute, (2) sufficiency of the evidence, and (3) exclusion of evidence
HELD: The “substantially similar” language in K.S.A. 21010 Supp. 21-36101(b) is not unconstitutionally vague. Court examined K.S.A. 2010 Supp. 21-36101(b) and agreed with district court’s reading sections (A) and (B) in the conjunctive, requiring state to prove beyond a reasonable doubt that chemical structure of JWH-081 is substantially similar to structure of JWH-018, and hallucinogenic effect of JWH-081 on central nervous system is substantially similar to hallucinogenic effect of JWH-018. Lack of controlling Kansas precedent construing the analog statute was noted. Federal court decisions rejecting void for vagueness challenges to identical federal definition of a controlled substance analog were cited. All experts at trial agreed that structures of JWH-081 and JWH018 are identical but for a single methoxy group in JWH-081. Whether hallucinogenic effects were substantially similar was a jury question to resolve. Here, credible evidence supported jury’s findings that substances and their effects were substantially similar based on the instructions given. Proffered evidence was not material because any change in listing of scheduled controlled substances after Srack was arrested and charged would have no legitimate bearing on Srack’s case. Even if relevance is assumed, any error in excluding that evidence would have been harmless under facts of case. STATUTES: K.S.A. 2010 Supp. 21-36a01(b), -36a01(b)(1), -36a05(a)(4); K.S.A. 2010 Supp. 60-261; K.S.A. 2010 Supp. 654105(d)(33); K.S.A. 60-401(b), -407(f ); and K.S.A. 65-4105(d)
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Attorney Services Contract Brief Writing. Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 20 cases in the Kansas Court of Appeals and 10 briefs to the 10th Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or email to learn more. Jennifer Hill, (316) 263-5851 or email jhill@mtsqh.com. Contract Brief Writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions. Attorney has briefed numerous appeals in both the Kansas and federal appellate courts. Contact me if you need a quality brief. Michael Jilka, (785) 218-2999 or email mjilka@ jilkalaw.com. Former Probate Judge and Experienced Litigator. Available to assist you in probate and trust litigation in courts throughout Kansas. Please visit us at www.nicholsjilka. com or call Mike Nichols at (316) 3039616 or Mike Jilka at (785) 218-2999. No Time to Prepare a Critical Appeal Brief or Dispositive Motion? Let an attorney and writer with over 15 years of full-time experience at such tasks in the courts of Kansas, Missouri, the 8th Circuit, and the 10th Circuit prepare it for you, likely for considerably less than you would charge your client. Contact James L. “Jay” MowBray at (816) 805-1376 or by email at lawofficeofjaymowbray@gmail.com. I have authored dozens of successful dispositive motions. See lawofficeofjaymowbray.com for a list of successful appeals. Medical Litigation Support. I am an attorney practicing in Kansas, with a Bachelor of Science degree in nursing and substantial experience in critical care, burns, trauma, and nursing home care. I have consulted with attorneys in the following types of cases: health care provider malpractice,
The Journal of the Kansas Bar Association
personal injury, nursing home negligence, and criminal cases involving injury or death. I offer comprehensive litigation and pre-litigation support services that include document review, causation/mechanism of injury analysis, witness interviews, and preparation for deposition or trial, and accurate, timely medical research. $35 per hour for most services. Contact David Leffingwell, JD (Washburn, 1995), BSN (Wichita State University, 1982) at (785) 484-2103 or ddl. legalmed@live.com. QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 856-1628 or email cgb@barnhillatlaw.com. Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services an attorney can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228. We have the Space You Need at the Price You Want! We have offices available in all sizes from 200 sq. ft. to 8,000, or no office at all under our virtual program. We offer a cost-effective solution for small- to medium-sized companies and branch offices with very little upfront cost and flexible lease terms. You can typically move into your office in a day and have access to a professional environment and services without all the overhead. Please visit us at www. officetechcenter.us.
For Sale For Sale. Awesome power boat. 2004 Baja 40 Outlaw. T-575 SC Mercruisers. Four bolsters plus back bench. Fully equipped and ready for summer. Approximately 110 hours. Someone will be very happy. For info and photos, contact Charley German at (816) 471-7700 or charleyg@rhgm.com.
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Office Space Available Downtown Overland Park Office Space for Rent. Free parking, reception area, kitchen, and conference room available for tenant use. The offices are in walking distance of coffee shops, restaurants and retail stores. 2,970 sf of space available. Easy access to Metcalf, I-35, I-635. Contact Tim Gates at Agnes Gates Realty (913) 6455900 or timothygates@yahoo.com. Leawood, Kansas. Perfect for solo practitioner, 196 square foot corner office in office building at 112th and Nall. Walking distance to Town Center, Sprint campus, etc. Office has hardwood floors, large windows, and includes use of conference room, reception etc. External signage (visible from Nall) is available with long-term lease, or purchase. Lease for $1,100/month, or will sell my 20 percent interest in the 2,400 sf building unit (the other 80 percent of the building is used by a small accounting firm). Contact Daniel Langin at (913) 661-2430 or dlangin@langinlaw.com. Office Sharing/Office for Lease— Country Club Plaza, Kansas City. Office sharing or office lease opportunity on the Country Club Plaza in a Class A high profile corner building with ample free public parking for clients. 200 to 11,000 square feet available. Window offices available, high-speed DSL, printer, copier, facsimile, scanning, telephone, kitchen facilities, reception area, and multiple conference rooms. Offices are state-of-the-art with award-winning interior finish and design. Dedicated area available for your assistant
if needed. Reasonable rent. No long-term lease required. Some possibility of business referrals depending on your area of practice. We are an AV-rated litigation firm with full management, accounting, research, and other support services. We would consider cost sharing these services with a compatible transactional, tax, and/or real estate practice. Professional, collegial, friendly atmosphere with other attorneys. Confidential inquiries can be made to Michael Grier at mgrier@ wardengrier.com. Office Space Available. Great space for attorney, businessperson, or CPA. Up to 3,000 feet available, conference room, security system, easy access to downtown Topeka or interstate. Call Bob Evenson at (785) 231-7987. Office Space Available. One office (approximately 14” x 12”) is available in AVrated firm located at College and Roe in Leawood Corporate Manor. Available immediately. Excellent location and recently redecorated. Furniture not included. Competitive price including all the amenities of a full service law firm (phone, Internet access, copier, fax, etc.). Please contact Kent Perry at (913) 498-1700 or kperry@ktplaw.com. Office Space Available. One office (approximately 14” x 15”) is available in AVrated firm located at Metcalf and 110th Street in the Commerce Plaza Building in Overland Park. Available immediately. Excellent location and a class A building. Recently redecorated. Furniture not included. Competitive price including all the amenities of a full service law firm (phone, Inter-
net access, copier, fax, coffee galley, etc.). Staff support available if needed. Please contact Tara Davis at (913) 498-1700 or tdavis@ktplaw.com. Office Space for Lease. Located at 921 SW Topeka Blvd., which offers quick and easy access to downtown Topeka including the County, Municipal, and Federal Courthouses; State Capitol Building; Docking State Office Building; Curtis Building; and more. There is available space on the first or second floor of the building, which includes individual offices and/or office suites. The building also includes a beautiful glass atrium sitting room used as an art display. Provided services include private parking and receptionist services. Please call Swinnen & Associates LLC at (785) 272-4878 for more information and to schedule an appointment to view the space. Professional Offices, West of Plaza. Two corner offices and reception area/3rd office, plus kitchenette and bathroom. Windows, hardwood floors, new paint throughout. $1,150/month. Eleven-year tenant just vacated. Contact (816) 753-2823 for more information. Professional Office Space for Lease or Sale. Newly vacated space at 79th and Quivira, Lenexa, KS. Great rates and will consider valuable upfront lease concessions for high quality, long term lease. Office is located in a commercial center that is for sale. Excellent income-producing investment opportunity for an owner-occupant. Attractive owner financing available for qualified buyer. Call (816) 805-6415.
Give a Hand Up to Those in Need
• Help is needed to provide pro bono legal services to low-income Kansans; ALL areas of practice are needed.
• KLS may be able to help with extraordinary litigation expenses when the interests of justice require it.
• No potential clients will be given your name without approval and all will be screened for financial eligibility through Kansas Legal Services.
• For more information or to volunteer, contact the Kansas Bar Association at (785) 234-5696 or at info@ksbar.org. www.ksbar.org | February 2014
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