April 2014 Journal

24 | P ardon Me, May I . . . ?

Consent Searches in Kansas

By Colin D. Wood

Cover layout & design by Ryan Purcell, rpurcell@ksbar.org

10 | T he KBA and KBF: Working Together

By Kathy Kirk

10 | M ock Trial Provides a Unique Learning Opportunity for Kansas Students 12 | A Stigma Within Our Profession

20 | The Svobodas of Lawrence One Family’s Convergence of Fate, History, and Heroism

By Matthew D. Keenan 23 | 2014 Outstanding Speaker Recognition

Regular Features 6 | KBA President

By Dennis D. Depew

18 | L aw Students’ Corner

By Jake McMillian

8 | YLS President

By Jeffrey W. Gettler

19 | Members in the News

9|T he Diversity Corner

By Jacqlene Nance 15 | L aw Practice Management Tips & Tricks

By Larry N. Zimmerman 16 | S ubstance & Style

By Chelsi Hayden

19 | Obituaries 31 | Appellate Decisions 32 | Appellate Practice Reminders 38 | C lassified 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.

4

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 Brian L. Williams, bwilliams@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.

KBA Solo and Small Firm Conference

May 9-10, 2014 • Hilton Garden Inn Conference Center • Manhattan, Kan.

REGISTER ONLINE http://www.ksbar.org/event/2014SoloandSmall

JOIN US FOR . . .

• Conference Programs and Plenaries Sessions will cover topics, such as The Future of Law Practice, The Secrets of Client Satisfaction, Document Assembly, 50 tips in 50 minutes, Tips and Tools for Research on Casemaker, and Storyboarding at Trial. Breakout sessions will include substantive law updates on areas, such as Family Law, Criminal Law, and Immigration Law, just to name a few! (Earn up to 12 hours of CLE) • Taste of Manhattan Pre-Conference Dinner For those who arrive at the conference on Thursday and want to relax and enjoy dinner with their colleagues. (Not included in registration fee) • Welcome Reception Meet and greet our special guest presenter Jim Calloway and enjoy a social hour with your colleagues and vendors.

• Networking Lunch Grab a bite to eat before heading off to your next CLE program.

• Tech Solutions Room Have questions about how to create an electronic email signature? Or maybe you want to know how to do something on your new tech device. Stop by the tech solutions room and we can provide answers.

Jim Calloway is the Director of the Oklahoma Bar Association Management Assistance Program. He received his Juris Doctorate from the University of Oklahoma, where he was named to the Oklahoma Law Review. He publishes the award-winning law blog Jim Calloway’s Law Practice Tips at http://jimcalloway.typepad.com and has served as co-author of three American Bar Association books on law practice management, How Good Lawyers Survive Bad Times (with Ross Kodner and Sharon Nelson) and Winning Alternatives to the Billable Hour: Strategies That Work, Second and Third Editions (with Mark Robertson).

Calloway is a member of the American Bar Association. He is an active member of the ABA Law Practice Management Section, has served on numerous section committees and previously served for six years on the ABA LPM Section Council. He is a member of the LPM Section’s Law Practice Magazine editorial board. He is also an active member of the ABA’s General Practice, Solo and Small Firm Division, where he serves on the Technology Committee and Technology & Practice Guide Editorial Board.

Calloway has made hundreds of presentations on law office management, legal technology, ethics and legal business operations and has been inducted as a Fellow of the College of Law Practice Management. Before taking his present position with the OBA, he was in private practice for approximately 16 years in south Oklahoma City and Norman, Okla. He is a former president of the Cleveland County (Oklahoma) Bar Association.

A Special Thanks to Our Platinum Sponsor

kba president

In Defense of Court Reporters

A

s I write this column, there is a move afoot in the Kansas House to begin the process of eliminating court reporters in the courtrooms of Kansas. In times when there constantly seem to be more needs than money, proposals like this, which a few years ago would have been unthinkable, now seem to be gaining traction. The Kansas Supreme Court’s own Blue Ribbon Commission and its more recent Court Budget Advisory Council have both broached this topic as well in recent years as a potential cost savings idea.

I remember as a child going to court with my dad from time to time during the summer months when school was not in session. It was always fun and, at times, very entertaining. I got to meet all sorts of interesting people, including other lawyers, judges, law enforcement officers, court clerks, and a number of court reporters. I can remember Dad telling me how important it was to maintain a good relationship with all of those people, regardless of whether your case turned out like you and your client wanted it to, because it was those people that made the legal system work. Over the years, Dad and then my brother and I have continued those efforts to be friendly and to have not only a good relationship with but also to show the proper respect to everyone who is a part of the court system in both state and federal courts in which we appear.

I remember being especially enthralled with the court reporters. It was amazing to me how they could punch the buttons on that little machine and produce that long white paper tape that only they could read. Even more amazing was how they could translate that paper tape into a full blown transcript of everything that was said in court in just a matter of days if a transcript was needed for any reason. I was in awe of the magic powers of the court reporters.

Today, the equipment used by court reporters has gone high tech and paperless. While some reporters still use equipment that generates the paper tape, most have gone to the electronic paperless models that can be connected to a computer for transcription. Many reporters also use digital recorders to simultaneously voice record while they still push those buttons on their machines. Many courts have added electronic recording equipment as a backup for when real court reporters are not available. Some of that equipment is the latest digital type, but there are probably still some courtrooms around that use a magnetic tape system. For all court recording systems, everyone who speaks has to make sure they are near a microphone at all times.

Those who support the elimination of court reporters tout how much less expensive the electronic recording systems are and how good they are with modern digital technology. While the technology has certainly improved, it cannot and never will be able to fully replace the court reporter as far as I am concerned. Let me give a few examples: 1. I am in a hotly contested domestic trial. The witnesses are hostile toward each other and the examination is tough. Spouse A is on the stand and engaged in a combative cross examination by spouse B’s attorney.

There is a question, an objection, a witness response,

6

The Journal of the Kansas Bar Association

and a ruling from the judge on the objection. Four people are talking at once. How is an electronic recording system possibly going to sort out who is saying what? With a court reporter present, he or she can bring the proceedings to a halt and take the time to clarify what each of the four people speaking at the same time said.

2. A hearing begins and continues until the morning break. As the court breaks, the judge notices that the high tech digital recording system didn’t get turned on, didn’t have sufficient disc space to record everything, or didn’t work for some other reason. Both opening statements and the first several witnesses have not been recorded. Does the judge go back and restart the proceeding or just move on without the record? With a court reporter present, any electronic malfunction would have been noticed immediately and the proceedings stopped until the malfunction was corrected.

3. During a hearing, there is a question by counsel that has embedded in it about 3 or 4 different questions or is so long that by the end of the question the witness cannot remember what the question really is.

The witness asks for the question to be repeated and it was so long and convoluted that the attorney who asked cannot remember exactly what he or she asked.

How does that work with a digital recording system?

With a court reporter present, all the court has to do is simply ask that the question be read back. The same scenario can apply to an especially long and convoluted answer by a witness.

4. The court takes under advisement a ruling on a case that took two days to try. There are lots of conflicting numbers and testimony. Several weeks later, as the judge is working on the opinion, he or she decides that a partial transcript would be helpful. Someone has to find the recorded hearing on the hard drive, figure out what part the judge needs, then make arrangements for someone to come in and type that part of the hearing up for him or her. What a hassle!

When the court’s regular reporter has transcribed the hearing, all the judge has to do is ask the reporter to type up the testimony of John Doe and that written information can be in hand within a short period of time. With that written record before the court, the resulting opinion can be accurate and based on exactly what took place.

5. A multiple-day trial takes place, and after a ruling an appeal is filed. When the request for transcript comes in, the digital recording is found and it is discovered that the defense counsel’s microphone was inoperable for some reason. How is an appellate court supposed to determine what took place if it has no record of

kba president

what was said by defense counsel? There was recently a decision by the Kansas Supreme Court to order a new trial in a criminal case for the primary reason that a complete record was not made at the trial level.

The court was not able to decide the case because there was not a sufficient record to do so.

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

All of the examples I have set out above have happened in Kansas. Some of these events occur on a daily basis in the courts of Kansas. We need court reporters to ensure the accurate and cost effective delivery of justice in Kansas. While I love modern technology and the ability to control my home theater from my iPad, I still have to decide what I want to hear or see and in what order. In court, modern technology can be a wonderful aid to the court and its participants. It will not, however, until there is significantly more advancement made, replace a real, live court reporter and the incredibly valuable service to justice that only a court reporter can provide. n

www.ksbar.org | April 2014

7

yls president

Decisions, Decisions and Opinions, Opinions

T

he past couple of months have been permeated by reflections on my part. However, as I have been reflective in my writings, my partners and I have been making changes and moving toward the future in the expansion and remodeling of our office space. I believe we have handled it fairly well, but we are just now completing phase one of a three-phase process!

Last fall we anticipated a project that would be completed toward the first part of the year. It is now three months into the new year and, as I said, we’re just about done with phase one.

Enough said on the speed of the project.

While exciting, this process has brought some unforeseen challenges. I now understand the many comments married couples have made when discussing the stresses on marriages while in the midst of a major remodeling and/or building project.

While a marriage involves a couple, our firm involves four partners, four styles, four opinions. And who would have thought that one of the partners also happens to be an aspiring interior decorator. Yes, I’m talking about you, Dan. We have made a lot of decisions. There was the flooring.

Wood-look, laminate, carpet, tile, entryway tile pattern, etc. Of course, in order to put down the new flooring, the old flooring had to be removed. Imagine trying to speak on the phone or entertain clients in your office while workmen are using a hammer and chisel to remove tile from a cement floor that had been in place for the last 35+ years! The tile did not want to removed.

It was loud! It took two full days. Lots of aspirin were consumed by all employees. Best part of the day was when the workers took their lunch break.

Other decisions involve colors. Paint colors, wood colors, chair colors, counter top colors, fixture colors, etc. Those are not small decisions. Based on the fact that most of the colors in our current office space have been in place for at least the past 10 to 15 years, the idea that what is being put into place will be there for the next 10 to 15 years makes the decisions even more daunting.

Some of the hardest decisions are what to keep and what to replace. Do we keep the mismatched filing cabinets or purchase new ones so they all match? Do we build shelving for office supplies or use the old gray metal shelves from the back room? Do we keep the brick walls or cover them with sheetrock to help with utility costs and assist with sound issues? Decisions, decisions. Opinions, opinions.

* By the time this issue reaches your desk, the 2014 NCAA Tournament Champions will be known. I hope I don’t alienate too many readers by hoping it is KU. Rock chalk, Jayhawk!

8

The Journal of the Kansas Bar Association

There are some areas in which very little discussion was needed. The new conference room would, of course, need to have a flat screen television mounted on the wall. After all, it is a new era of video conferencing and Skyping. There is also the small matter of March Madness, which starts on a weekday during regular business hours. The conference room would also need to have small area in which to prepare coffee and beverages for clients and visiting attorneys while taking all day depositions and/or after-hours partnership meetings. The first things purchased for the conference room were the mini-fridge and cabinetry to hold the glasses and other incidentals required for just such meetings. We are still awaiting the arrival of the table and chairs that took two months to agree upon.

With the completion of phase one closing in, we will have to begin looking at wall decor and the other small nuances that pull a project together. We will then move employees into that phase while work continues hard core in phases two and three.

More decisions, more opinions.

The result of this project is yet to be seen, but to date I have made some astute observations. Throughout the process, alliances have been formed. Alliances between partners to get a majority vote on their preferred choice of wall treatment, crown molding, window trim, etc. Groveling has been exhibited a time or two. Whining has ensued from time to time. Anger has risen its ugly head, thankfully, very infrequently. It is almost like “Survivor” at times, only there is no million dollars at the end and no one is getting voted out, I hope!

In all seriousness, thankfully, we are attorneys. Thankfully, we are very good mediators and have all learned valuable lessons in knowing which battles to fight and which battles to concede. I predict the finished project will be fabulous and we will all cohabit these offices for many years to come until some new, fresh, young blood will move in and say, “You last remodeled this office WHEN???” When that time comes, I will know what to expect and will form my alliances early. I’m willing to concede on paint colors and fixtures, but the flat screen for March Madness,* I mean video conferencing, stays. The tribe has spoken. 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

the diversity corner

Career Crossroads: An Upcoming Event for Transitioning Attorneys

O

n April 10, 2014, the KBA Diversity Committee will host a speed networking event named Career Crossroads. This is a speed networking event where seasoned attorneys are paired with attorneys who have two to five years of legal experience. Each pair will be given 10 minutes to network on a one-on-one basis.

Last year I had the good fortune to attend this event. During the event I was able to have personal conversations with eight experienced attorneys who represented a wide variety of practice areas. I found that the one on one format allowed me to have meaningful conversations with experienced attorneys without vying for space and attention.

The event ended with an open networking period in which the newer attorneys could mingle with non-assigned seasoned attorneys, continue their previous conversations with assigned seasoned attorneys, or network with the other participants and create connections for the future.

I truly appreciated the materials provided to me prior to the event. I was given information about the experienced attorneys I would meet, which allowed me time to prepare questions tailored to their interests, career paths, and practice areas. I feel that my time at this event was very well spent. Each of the experienced attorneys received my resume in advance, allowing both of us to have focused conversations on my career path and possibly transitioning into the next phase rather

than spending time getting over the awkwardness that can be present at non structured networking events.

Last year the experienced attorneys were: Tama Aga, Katherine Bailes, Mary Beth Blake, Kelly Connor Wilson,1 Marilyn Harp, Stan Hazlett, Janet Jackson, Amber Jeffers, Rico Kolster, Judge Patrick McAnany, Mira Mdivani, Chief Justice Lawton Nuss, Joyce Rosenberg, Rand Simmons, Judge Linda Trigg, Amy Walters, and Lisa Westergaard. The KBA Diversity Committee is grateful for the support and encouragement that all of those attorneys provided. Their willingness and commitment to volunteerism is a true reflection of their dedication to the profession.

We are looking for both experienced and new attorneys to participate! The event will be held on April 10 from 5:30 p.m. – 7:30 p.m. at the Wichita Bar Association, 225 N. Market, Wichita, KS. n About the Author Jacqlene Nance is an immigration services officer for the USCIS. Previously, she was the director of admissions and scholarships for the University of Kansas School of Law and the associate director of admissions for the University of Connecticut School of Law. Nance is a member of the KBA Diversity Committee. jacqlene.nance@gmail.com

Footnote 1. Kelly Connor Wilson passed away on February 12, 2014. She spent her career dedicated to assisting young attorneys in the profession, representing clients who may not have otherwise had access to the legal justice system and taking on leadership roles in various bar associations at both the local and national level, including being past president of the Jackson County Bar Association and current Region VIII director of the National Bar Association. She leaves behind a husband, young son, and a host of family, friends, and colleagues. Kelly was a true inspiration to everyone she came in contact and will be deeply missed.

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

www.ksbar.org | April 2014

9

kansas bar foundation

The KBA and KBF: Working Together • Advance the profession and enhance the role of lawyers in society • Promote the interests of the legal profession • Provide services to members • Encourage public understanding of the law • Promote administration of our justice system • Fund charitable and educational projects which foster the welfare, honor, and integrity of the legal system

F

ounded in 1957, a little more than 70 years after the bar association was founded, the Kansas Bar Foundation was established in order to support the KBA’s physical presence as well as the members’ desire to have a charitable and philanthropic arm. In addition to owning the building and managing a variety of scholarship funds, the KBF administers the Kansas IOLTA program which supports programs that provide access to the legal system for low-income Kansans and advocacy for the abused. The KBF is our public address system. Moot court, mock trials, educational materials for teachers, training for advocates, public information pam-

phlets, scholarships, and stipends are all managed by the KBF with the goal of enhancing our image as lawyers, educating the public, and giving through pooled resources.

Belonging to the KBA does not automatically make you a member of the KBF. Being a member is easy. A quick click on the KBA website will lead you to the link for KBF. A few more clicks and you are where you need to be to become a vital part of the giving effort. Please consider joining the foundation in order to strengthen our outreach.

Your Support Can Make a Difference! n About the KBF President Kathy Kirk has been involved in bar and foundation activities for many years. Prior to being in small firm practice with the Law Offices of Jerry K. Levy P.A., she served as the first ADR coordinator for the Kansas Supreme Court. Kirk is currently president of the Kansas Bar Foundation and treasurer of the Kansas Association for Justice. kathykirk@earthlink.net

Mock Trial Provides a Unique Learning Opportunity for Kansas Students

T

he Kansas Mock Trial program is part of the National Mock Trial program that was designed to provide students with an insider’s look at the legal process and firsthand knowledge of courtroom procedures. Students develop useful questioning, critical thinking, and oral advocacy sills as they prepare for competition. The Kansas Mock Trial regional competition took place in Wichita and Olathe on March 1.

A total of 26 teams and 190 students participated. This year’s case is a criminal case that was originally prepared by the Hon. Earl Ray Neal, of the 25th District Court in Kentucky, for use in Kentucky’s 2012 mock trial competition. It was adapted for use in Kansas by Shawn Yancy, mock trial coordinator.

“Picking a case, as it turned out, was not as simple as I’d hoped, nor was attempting to adapt it to be gender neutral and Kansas relevant. This one was adapted to have taken place in Topeka using real locations and real addresses that you could, for example, find on Google Maps,” explained Yancy. “The case involves a couple who met and then split up, including a restraining order. The couple is the defendant, a retired police officer, and the victim, the defendant’s significant other, and includes witnesses who are family, friends, and coworkers of the parties. It is relatively straight forward, but includes some unique elements that have gotten positive feedback from the teams.”

The Mock Trial Competition receives funding from the Kansas Bar Foundation, American Bar Foundation, and Shook, Hardy & Bacon LLP. 10

The Journal of the Kansas Bar Association

Coaches and students worked with a new set of Kansas Mock Trial Rules. Over the years the rules had been adapted but it was clear that a new set of rules specific to the Kansas program were needed. In 2013, KBA Young Lawyers Section members Shawn Yancy, Brooks Severson, Jennifer Michaels, and Scott Gordon worked together to create the new rules.

History of Mock Trial and the KBA This year marks the 18th year of the KBA Mock Trial program. In 1996, the KBA’s Public Committee, in cooperation with the Kansas Supreme Court, formed the Law and Citizenship Project to sponsor the first two Kansas mock trial competitions in 1996 and 1997. To encourage the development of the program, the Public Committee sought and received the assistance of the KBA YLS in 1997. Currently, the YLS

kansas bar foundation

... 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 D. Skelton 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 Hon. 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

Congratulations for the following schools for advancing to the State competition: • • • • • •

Blue Valley Northwest High School Shawnee Mission East High School Washburn Rural High School Sunrise Christian Academy The Independent School Northeast Magnet High School

fered me. It’s a unique experience that provides a courtroom atmosphere and highly respected judges to give people a great idea of whether or not law should be a part of their future career exploration. I left Mock Trial with an in depth knowledge of how a court case operates and skills that transferred to my debate career and my everyday life. I would highly recommend the Kansas Mock Trial program to every high school.”

Recognition After the final rounds of competition at each of the regional tournaments, an awards ceremo­ ny was held to recognize outstanding students and teams, and to announce which teams that will go on to compete at the state tournament.

Rec­ ognition for outstanding mock attorneys and outstanding student witnesses are awarded; in addition, team rankings are also announced.

All teams are encouraged to attend the awards cer­emony to support the competitors. This year, six teams advanced to the state tournament on March 28-29. The winner will advance to Nationals, which is being held in Madison, Wis., this May. n

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.

Topeka

MANAGER, PUBLIC SERVICES Anne Woods Topeka awoods@ksbar.org

is the primary organizer of the competition. The competition relies primarily on the support of numerous volunteers. This year, more than 40 volunteers gave a combined total of approximately 320 hours to serve as judges.

Teachers/coaches work throughout the year to prepare their students for competition. Each fall, high schools create teams of at least six students and are provided with the case materials. In the spring, all teams participate in one of two regional competitions in at least two rounds of competition, both prosecuting and defending the case. Each team consists of three student attorneys and three student witnesses. The top teams at each of the two regional tournaments compete at the state tournament.

The top Kansas team then travels to the national competition.

The popularity of this program was described well by 2012 and 2013 participant, Zach Hills, of Blue Valley West High School. He is now a member of the University of Kansas debate team.

“Mock Trial is one of the most important and worthwhile events that my high school of-

www.ksbar.org | April 2014

11

kansas lawyers assistance program

A Stigma Within Our Profession

By Anonymous

E

very generation has its causes. Through public discourse, we as a society attempt to challenge long held biases and ignorance. Lawyers have proudly played significant roles in the fight for the rights of the oppressed. As noble as that role may be, no one is without bias – including lawyers.

When you think about people with mental illness, do you conjure images in your mind of senseless mass shootings in Arizona, Colorado, Connecticut, and Virginia? Or do you think of those homeless individuals, unwashed and living under the bridges downtown? While these images are one face of mental illness, in fact the vast majority of violent crimes are committed by people who do not have any mental illness.

And only 4 percent of the mentally ill are homeless at any given time. Thus, 96 percent of those with mental illness are living among us – mostly unidentified.

We as lawyers are not immune from mental illness. I am a trial attorney who has practiced law for more than 25 years. I stand in front of judges and juries and plead my clients’ cases.

I work long hours in high pressure situations. I am a partner in my firm and an active volunteer in the city. I am married with children. And I have a mental illness.

I am not alone. In fact, lawyers as a profession may be more prone to mental illness. The ABA estimates that the rate of mental illness and alcohol or drug addiction among lawyers is more than double the rate found in the general population. According to a Johns Hopkins University study of more than 100 occupations, lawyers lead the nation with the highest incidence of depression. Significantly, lawyers also have the highest rate of suicide among all professions.

So if our preconceived beliefs about mental illness are wrong, then what is the truth? Mental health is quite simply the health of your brain, just as cardiac health is the health of your heart. Mental illness is often caused by an imbalance of chemicals in the brain which impact thoughts and therefore behavior. Just as a diabetic needs daily medications to control their blood sugars, those with mental illness often need daily medications to balance those brain chemicals. Environmental stressors often complicate the efforts to find that balance.

Sometimes treatment means medications alone, sometimes it’s talking with a professional, exercise, diet and/or a combination of the above. For some people, mental illness is a short term condition that can be resolved with appropriate treatment. For others, like myself, it is a lifetime condition.

The higher incidence of mental illness among lawyers can in part be attributed to the stress of our jobs. It is also attributable to the fact that the personalities who are drawn to the rigors of the law are by those same characteristics more susceptible to mental health issues. But the overriding aggravating factor is that the stigma of having a mental illness which exists in our society generally is exponentially worse in the legal profession.

We as lawyers don’t admit weakness and we don’t admit we need help. We fear that if it became known that we had a condition which is so misunderstood and stigmatized, our clients and partners would question whether they could rely upon us 12

The Journal of the Kansas Bar Association

in the heat of the battle. So we deny we have a problem. We refuse to seek treatment. And as with any medical condition, the longer it is left untreated the worse it becomes.

Looking back, I exhibited early symptoms as a teenager. It wasn’t until college that the symptoms became bad enough that I recognized something was wrong. I would slip into depressions which lasted for weeks. Barely able to get out of bed, I struggled to keep up with classes. Those down phases were followed by hyper-vigilant, productive periods when I excelled, needed no sleep and could produce mass volumes of high quality work in very short periods of time. Most of the time I tried to control the swing of my emotions by shutting down all emotions altogether. I simply tried to stop feeling – no happy, no sad. It was only when my brain swept me to one of my two extremes that everything I had been repressing broke free. This roller coaster lasted for years, through law school and into the beginning of my career. It impacted me as an attorney, wife and mother. It became harder and harder to hide the debilitating depressions. I was missing work and struggling when I was there. When I reached the point I was suicidal (the first of what was to be several visits to that edge), I finally sought treatment.

The practice of medicine is often trial and error and that is never as true as it is in the treatment of mental illness. I was originally diagnosed with depression. I saw various doctors and tried a multitude of medications for years. Every time my depression seemed to be under control, I felt the roller coaster begin to slip again. I was 40 years old before I was properly diagnosed with Bipolar II. That diagnosis scared the hell out of me. I was only familiar with Bipolar I, which used to be known as manic-depressive disorder. While both Bipolar I and II are roller coasters, the rides are different. Generally, the highs are higher with Bipolar I but the lows are lower with Bipolar II. On the high side, Bipolar II has hypo-manias, instead of the extreme manic phases of Bipolar I. My hypo-manias were my hyper-vigilant, productive periods. I had long held onto the belief that if I could just find the right medications to control my depressions, I could be that hyper-productive person all the time. The perfect lawyer, right? Now I had to accept that in order to stabilize the roller coaster and eliminate the depressions I was going to have to also give up those highs.

That was crushing in itself.

I am happy to say that in the years since my “correct” diagnosis and the change to appropriate medications, my symptoms have remained relatively stable. I take pills each morning, every evening, and in response to certain symptoms in between. I see my psychiatrist at least every three months and more often if needed. I also see a counselor regularly. My medicine cabinet looks like a pharmacy, but I generally feel good.

I am even able to allow myself to feel emotions – I genuinely feel joy for the first time in my life.

And through it all, no one I worked with knew a thing. Even now, I remain in the closet. I have great friends in this profession, friends who know almost everything about me. But very

kansas lawyers assistance program

few know about this struggle. I would like to think it wouldn’t make any more difference to them than if I told them I had high cholesterol. But like those of different religions or different sexual orientations, I am afraid it will make a difference. I am ashamed that I am afraid. I am ashamed I am that writing this anonymously. I could dismiss social friends who wouldn't accept my medical condition due to their own ignorance or bias. But when you’re talking about your career and your livelihood, it’s harder to be brave, step out of that closet and lay down your truth. The potential repercussions are too great.

Why does this matter? Why should we as a profession talk about the issue of mental health? Remember the statistics – 20 percent of attorneys have or will have a serious mental illness.

Because of our propensity to refuse help and because of the stigma of mental disease – more attorneys than any other profession will commit suicide. It took me almost dying before I broke down and got help. If this many attorneys were dying from any other medical condition, wouldn’t we as a group demand education and help? Wouldn’t we be willing to offer compassion?

So for now I volunteer with the Kansas Lawyers Assistance Program and work with other lawyers who are struggling on a journey similar to mine. I wait for the day that the stigma of being a lawyer with a mental illness is viewed no differently than a lawyer with any other type of medical condition. And I wait for the courage to step out of my closet. n

www.ksbar.org | April 2014

13

law practice management tips & tricks

Technology Bites Technology bites. Hardly a month has passed in the last year that this has not been displayed in the news, underlined in red ink, for all to see. Just a few of the best worries: • Edward Snowden released copies of National Security Administration documents in May, 2013. Those documents reveal cooperation between the NSA and private companies to purposefully hobble software and hardware trusted by lawyers for protecting confidences.

• National retailer, Target, exposed at least 110 million customers’ credit and debit card records in December, 2013 when its system was breached through stolen passwords of a mechanical contractor. Software authored by a 17-year-old Russian offshored stolen data in real time.

• In January, 2014 Apple discovered a bug in its OSX and iOS security software. A simple cut-and-paste error in code from 2012 creates a bug which allows eavesdropping on supposedly secure connections. (Point Safari on your Apple device to gotofail.com to confirm that your OS is patched.)

• The U.S. federal court system saw most federal court sites, including the electronic filing system, knocked offline in a denial-of-service attack in January 2014.

Ethics Rules Change If those sorts of concerns were not worrisome enough as citizens and consumers, the threats are now magnified for to us lawyers by changes to the Kansas Rules of Professional Conduct effective March 1, 2014. The rule amendments arise out of efforts of the ABA Commission on Ethics 20/20 and the corresponding Kansas Ethics 20/20 Commission. The purpose of the Commissions is stated at americanbar.org: “The ABA Commission on Ethics 20/20 was created … to perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology . . . .”

Amended KRPC 226, 1.6 adds a new subsection c: (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

New comments to 1.6 clarify the duty. Excerpted: [26] The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.

[27] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.

KRPC 226, 1.1 was not amended but a new comment outlines new duties: [8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Moving Target That is a sobering obligation. Computer security and technological sophistication have always been good business and sound practice. Now computer security and technological sophistication are foundational principals of legal competence. Many lawyers never saw that coming and a goodly bunch of the rest are not sure where that idea is headed.

Consider the ethics rules related to accounting. That is a wellgrounded, historically settled universe for most day-to-day financial issues encountered by a lawyer. Double entry bookkeeping goes back to Leonardo da Vinci’s contemporaries in the 13th century and the generally accepted accounting principles hearken back to the 1930s. Managing a trust account is well-mapped territory and there is robust standardization in certifying specialists to whom a lawyer can outsource. Incorporating accounting issues into the ethics rules rather than leaving the matter to civil and criminal regulation is reasonable.

Technology is largely uncharted with huge empty spots on the map and “Here be dragons” warning labels. Navigating is an adventure where the most trusted hardware vendor could turn out to be purposefully weakening security of its products. Newly discovered errors in code can open all iPhone and Macbook lawyers to confidentiality issues. Your best efforts with your own passwords can be thwarted by another’s carelessness. Unlike accounting issues, there is still robust, good faith debate over what constitutes reasonable care in technology (e.g., outsourcing IT resources to the “cloud” versus retaining IT expertise in house).

This fluidity will make enforcement virtually impossible for all but the most egregious of cases – cases which would have already have been dealt with by existing data privacy laws (as acknowledged in new 1.6, comment 27).

Outreach Having undertaken to regulate computer security and technological savvy, the burden will be heaviest on the judiciary to do so fairly, in a thoroughly informed manner, and with a keen sense of the complexity of risk analysis in this area. An outreach from the judiciary to the bar about its intent and objectives in regulating this area of practice will go far toward outlining where lawyers might tread to avoid technology’s bite. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and an adjunct professor 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 | April 2014

15

substance & style

Lawyer Speak: Plain English If you can’t explain it simply, you don’t understand it well enough.

– Albert Einstein

I

was in my weight-lifting class the other day when someone asked me what I did for a living. When I said that I teach legal analysis and communication, the entire group moaned. Someone said, “Oh, you teach people to use twice as many words as necessary and write so that no one can understand.” The conversation quickly digressed to how lawyers make life more complicated and confusing than necessary.

As I was vehemently defending my profession and explaining that I teach my students to use plain English and avoid legalese, a fellow attorney said that he always uses legalese and wondered why I teach my law students to avoid it. I was genuinely surprised and began to wonder if perhaps we were defining legalese differently. So I looked it up:

le·gal·ese noun \, lē-g -'lēz, -'ēs\ : the language used by lawyers that is difficult for most people to understand : legal jargon1 Legalese has been described as language “characterized by archaic usage, prolixity, redundancy and extreme thoroughness.”2 It is known for its “verbosity, Latin expressions, nominalizations, embedded clauses, passive verbs, and lengthy sentences.”3 In other words, legalese is simply bad writing.

Lawyers hang on to legalese under a variety of misconceptions.4 Many think the law is too complicated and precise to be stated simply. Some think legalese is necessary to make the legal profession sophisticated. Others fail to see how legalese clouds their communication. These misconceptions lead to unclear legal communication, frustrate clients, and give us a bad rap.

These problems are easy to avoid—use plain English. Plain English is clear, concise writing designed to ensure the reader understands as quickly and completely as possible. Plain English is described as “easily understood by the target audience: clear and straightforward, appropriate to their reading skills and knowledge, free of wordiness, cliché and needless jargon.”5 Plain English is not Dick-and-Jane style writing that dumbs down the material; it is quite the opposite. Plain English requires the writer to learn the material very well and allows the reader to do the same.

The reasons I teach plain English are simple: (1) it is the only way to determine if my students are processing and learning Footnotes 1. Legalese Definition, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/legalese (last visited Feb. 25, 2014).

2. Legalese Definition, TheFreeDictionary.com, http://www.thefree dictionary.com/legalese (last visited Feb. 25, 2014).

3. Legalese Definition, About.com, http://grammar.about.com/od/il/g/ Legalese.htm (last visited Feb. 25, 2014).

4. Robert Eagleson, Ensnaring Perceptions on Communication: Underlying Obstacles to Lawyers’ Writing Plainly, 89 Mich. B. J. 54 (June 2010) (discussing perceptions that turn lawyers away from plain English).

16

The Journal of the Kansas Bar Association

to use complex legal concepts and (2) it is the most efficient and persuasive way for them to explain complex concepts to others. You should use plain English if you want the reader to know how well you understand the material and you want the reader to understand what you are saying.

Plain English increases your understanding of the material.

Drafting legal concepts in plain English is not easy—you cannot rely on the reader to do the work. To explain complicated matters in a way that your reader can easily understand them, you have to know and understand the material very well. Plain English forces you to process information at a higher level to gain a deeper understanding of the material. Only when you understand something well, can you explain it clearly and concisely to the reader.

Plain English is efficient.6 Explaining what you mean so the reader can understand it the first time he reads it saves the reader time. It also reduces the time you have to spend explaining the material. Taking time to learn to write in plain English now will save you and your reader time in the long run.

Plain English breaks down unnecessary barriers. Using plain English does not mean forgoing legal terms of art. I think “terms of art” is what my fellow attorney meant when he said he always uses legalese. Terms of art—words or phrases that have a precise meaning within a discipline—are necessary, but their use does not have to create a barrier between the lawyer and her audience. You can even use the occasional Latin term, as long as you explain the term to your reader. But cut out the legal jargon that has an everyday English equivalent. For example, replace “said” with “the,” “this,” or “that” and “pursuant to” with “under.”

Plain English facilitates the precision required in legal writing. Plain English is important for the legal profession because of the types of communicating that we do. In our profession, precision is vital. Your clients need to know what they are agreeing to do; opposing counsel needs to know what arguments they are responding to; and judges7 need to know why your argument should prevail. Hiding this information in legalese does a disservice to the writer’s purpose and the reader’s need for the information.

Plain English—not legalese—makes lawyers sound sophisticated.8 Legalese is out of fashion (if it was ever in fashion9).

If you write clearly, your reader will believe you are a clear thinker. Readers are impressed when lawyers make the law understandable, not when we use big, old words that sound lofty 5. Plain English Definition, Wikipedia.org, http://en.wikipedia.org/ wiki/Plain_English (last visited Feb. 25, 2014).

6. Robert Eagleson, Plain Language: Changing the Lawyer’s Image and Goals, 7 Scribes J. Legal Writing 119, 137 (2000).

7. For a review of empirical data showing that judges prefer documents written in plain English over those written in legalese, see Pamela Keller, ‘Comes Now’ Must Go Now, 83 J. Kan. B. Ass’n 14 (Jan. 2014).

8. Eagleson, supra note 6, at 138-39 (discussing studies where readers inferred that writers of plain English versions came from more prestigious firms).

9. Jefferson, Cardozo, and Holmes used plain English.

substance & style

and make no sense to the reader. We have ethical and professional responsibilities to take complicated material, digest it, and communicate it clearly to our audience. Legal work is sophisticated by its very nature. Plain English emphasizes its sophistication.10 Plain English isn’t something you’re born with. It’s a skill you can learn—at any stage of your practice. But you have to put your pen to paper. Learning to write in plain English requires thought and practice. There are many resources to help lawyers write in plain English: books,11 websites,12 even software.13 Here are a few basic rules to get you started: • Know your audience and write for it • Use commonplace words; explain terms of art if you use them • Use short sentences (fewer than 20 words) and paragraphs (fewer than 5 sentences) • Get to the point • Cut what you wrote in half—yes, half.

Learning to write in a way that allows the reader to easily understand complex material is a fun challenge, but then again, I am a legal writing professor. n

About the Author Chelsi Hayden is a Lawyering Skills professor at the University of Kansas School of Law. Prior to joining KU, she served as chambers counsel to the Hon. Carlos Murguia, U.S. District Court for the District of Kansas, and practiced business litigation at Shook, Hardy & Bacon LLP. Hayden graduated from KU Law in 2001, Order of the Coif, and was a member of the Kansas Law Review.

10. Eagleson, supra note 6, at 146.

11. Richard C. Wydick, Plain English for Lawyers 55 (5th ed.

2005); Alan L. Dworsky, The Little Book on Legal Writing 3 (2d ed. 1992). Brian Garner’s Legal Writing in Plain English: A Text with Exercises (Univ. Chi. Press 2001) is a great resource for practice exercises—yes, people actually practice this stuff!

12. See generally PlainLanguage.gov, http://www.plainlanguage. gov (last visited Feb. 25, 2014); Plain English Campaign, http://www. plainenglish.co.uk/free-guides.html (last visited Feb. 25, 2014).

13. WordRake, http://www.wordrake.com (last visited Feb. 25, 2014).

www.ksbar.org | April 2014

17

law students’ corner

Believing in the Magic

“T

here is some magic to it,” Thurgood Marshall said, perhaps with a bit more idealism than is normally expected in an opening statement.

“Those same kids in Virginia and South Carolina—and I have seen them do it—they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, then they come out of school and play ball together again . . . There is some magic to it.”

It was December 1953 and Thurgood Marshall, then-chief counsel for the NAACP, was making his opening statement in Brown v. Board of Education, the most famous case that he would ever argue as a lawyer (and among the most famous cases ever argued in American history). With the Civil Rights Movement still a decade from its peak, it’s hard to guess whether Marshall could sense his imminent success before Chief Justice Earl Warren read the opinion, or if Marshall could feel the societal burdens that he helped eliminate slowly start melting away like the thawing December snow outside the U.S. Supreme Court building. Sound constitutional reasoning aside, what is most often remembered from the historic case is Marshall’s appeal to humanity—the affirmation that the law, when functioning properly, is intended to privilege and protect all citizens equally.

Unanimous. “Separate educational facilities are inherently unequal.” Magic.

Fairness, equal opportunity, compassion for our neighbors, and the other tenets represented by Brown are values that Kansans claim as our own and exhibit every day. So in a strange kind of way, Kansans take special honor in the outcome of Brown v. Board of Education. To be sure, we aren’t proud of the fact that a Topeka school district was the named defendant in the lawsuit; in retrospect, nearly all Americans wish cases like Brown had been unnecessary in the first place.

Instead, Kansans are honored that integration—an integral first-step toward racial (or, more accurately, human) equality—is forever tied to us. While outsiders might mistake our core values as simple Midwestern charm, Kansans know that those principles run much deeper.

Kansas’ commitment to equality and fair treatment for all citizens didn’t start with Brown. Instead, it is rooted in the very history of our state, deeply embedded in every Kansan’s DNA: our earth stained red during the Bleeding Kansas revolts; the abolitionist victory and our introduction to the Union as a free state; the local suffragist movement that made KU and K-State among the first state-run universities in the world to allow women; women’s right to vote in local elections beginning at statehood; the Dockum Drug Store protest in Wichita—among the first lunch-counter sit-ins in the Civil Rights Movement. Indeed, since our state’s inception, the warm light of equality has shone kindly upon us.

18

The Journal of the Kansas Bar Association

But that doesn’t mean that we don’t miss the mark sometimes. Like all places, sometimes Kansas gets covered in clouds. Sometimes Kansans forget about (or, more distressingly, misinterpret and sharpen as weapons) our state’s values.

Sometimes we simply fail to believe in the magic. It could be fairly argued that Kansas’ recent attempt to pass anti-gay legislation (under the guise of “religious liberties”) is a prime example of such failure. It could also be fairly argued that the legislation’s death in a Senate committee is a truer reflection of our state’s values.

It is moments like these—moments when we are shadowed by intolerance and misunderstanding—when the core responsibilities of the legal profession become abundantly clear: to advocate for fair and equitable interpretations of the law for all people; to vigilantly pursue justice; to truly believe in the magic that happens when all members of society receive dignity and validation.

History has shown us that the fires of injustice test and ultimately strengthen our desire for equality. By resisting systemic unfairness, “We the People” become stronger and more inclusive. It is through the triumphs—both big and small—that the sun breaks the darkness and real freedom becomes cognizable. And perhaps more often than not, these victories are championed in the courtroom and at the bench. For members of the legal profession, this is truly where the magic happens.

For law students in Kansas, in particular, our responsibilities to the legal profession could not be clearer. Our bar could not be higher. Our state’s history is a proud one, permeated with struggles and successes, built upon values that have withstood the test of time, always coalescing into a tradition that, many years down the line, is the envy of all our neighbors. We must become lawyers, judges, and leaders who protect and advance this tradition.

Because in Kansas, we still have a reputation to uphold. We still have a trail to blaze. And as the case has always been, there remains some magic to it. n About the Author Jake McMillian is a second-year law student at the University of Kansas School of Law and a proud fourth generation Kansan. He is currently president of KU Law Outlaws and Allies, is diversity and outreach coordinator for KU Law Student Ambassadors, and is an intern at Hodges Law Group, the only law firm in Kansas City that focuses specificaly on LGBT legal issues.

kba news

Members in the News Changing Positions Jess W. Arbuckle has become general counsel of Viega LLC, Wichita.

Emmanuel N. Ayuk, James J. Cronin, Thomas R. Dowling, and Scott P. Smalley have been named partners at Stinson Leonard Street LLP, Kansas City, Mo. Brian J. Christensen and David M. Kight joined Jackson Lewis P.C., Kansas City, Mo. Tyler A. Darnell was named partner at Arthur-Green, Manhattan.

Bradley R. Gardner has joined Posinelli P.C., Kansas City, Mo., as an associate.

Joel I. Krieger and Frederick K. Starrett have joined Douthit, Frets, Rouse, Gentile & Rhodes LLC, Leawood.

Jacqueline K. Levings joined Freddy’s Frozen Custard & Steakburgers, Wichita, as general counsel.

Jonathan R. Myers has joined the Kansas Corporation Commission, Wichita.

Matthew N. Sparks has joined Bryan Cave LLP, Kansas City, Mo. Curtis R. Summers has been named as a partner at Husch Blackwell LLP, Kansas City, Mo.

Edward H. Tully has joined Lathrop & Gage LLP, Overland Park.

Bryan L. Walker has joined MacDonald, Illig, Jones & Britton LLP, Erie, Penn., as an associate patent attorney.

Changing Locations Leslie Beims has started her own practice located at 1616 Main St., PO Box 96, Goodland, KS 67735.

Frieden, Unrein & Forbes LLP has moved to 1414 SW Ashworth Place, Ste. 201, Topeka, KS 66604.

Kutak Rock LLP has moved its Kansas City, Mo., office to Two Pershing Square, 2300 Main St., Kansas City, MO 64106.

Tamara J. (Pistotnik) Collins has moved to 200 W. Douglas, Ste. 619, PO Box 4713, Wichita, KS 67201.

Miscellaneous Hon. Ed Bouker, Hays, Hon. Kim W. Cudney, Washington, Hon. Patricia Macke Dick, Hutchinson, Hon. R. Wayne Lampson, Kansas City, Kan., Hon. David A. Ricke, El Dorado, Hon. Nicolas M. St. Peter, Winfield, and Hon.

Wendel W. Wurst, Garden City, have been appointed to the State Judge’s Council by Chief Justice Lawton Nuss.

Glenda L. Cafer and Terri J. Pemberton have started a firm, changing the original name, Cafer Law Office LLC, to Cafer Pemberton LLC, Topeka.

Bruce B. Waugh, Overland Park, has started Bruce Waugh Mediations, focusing on construction, business, banking, employment, real estate, and contract disputes.

Correction: In the February issue of the Journal, it was announced that Timothy L. Dupree, of Kansas City, Kan., was named a district judge for Wyandotte County when in fact he only announced his candidacy for judge. We sincerely apologize for this error and any confusion it may have caused.

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.

Obituaries K.I. (Ike) Loy

Laurence Allen Taylor

K.I. (Ike) Loy, 88, of Pittsburg, died February 27 at the Heritage Nursing Home in Girard. He was born August 24, 1925, in Pittsburg to Wallace J. and Nora (McElfish) Loy. Loy graduated from Pittsburg High School in 1943 and joined the U.S. Navy, serving in the Pacific Theater until the conclusion of World War II. Loy earned an accounting degree from the University of Kansas in 1950 and graduated from Washburn University School of Law in 1953. He opened his Pittsburg practice in 1953, where he actively practiced until ill health forced his retirement in 2005.

He was a member of the Musicians Union, Pittsburg American Legion, Masonic Lodge, York Rite, Scottish Rite, Mirza Shrine, and the Royal Order of Jesters. Loy was also a member of the Kansas Bar Association, a Fellow in the Kansas Bar Foundation, and the Crawford County Bar Association. In addition, he served as judge of the city court of Pittsburg.

Loy is survived by his daughter, Kimberley Loy Shipman, of Bartlesville, Okla.; his son, Kurtis I. Loy, of Pittsburg; and his eight grandchildren. He was preceded in death by his wife, Christine; his daughter, Debra Dian Loy; his parents; his twin brother, Mike Loy, and other brother, Warren Loy; and his sister, Donna Hammick.

Laurence Allen Taylor, 64, of Colby, died February 25 at his home. He was born in Colby on February 2, 1950, to parents William and Edith Taylor. He attended Colby public schools, Kansas State University, where he received his Bachelor of Science degree, and Washburn University School of Law, where he graduated in 1977 with a juris doctorate. After graduation he had a 37-year career as a practicing attorney in Oakley and Colby, serving as Thomas County attorney from 1988 to 2004.

Taylor was active in the community, serving on the ADAC board, Max Pickerill Lecture Series Committee, and the Northwest and Kansas bar associations.

Taylor is survived by his wife, Sue, of the home; son, Austin, of Denver; mother, Edith, of Colby; sister, Lois Francis, of Wilson; brothers, Tom, of Minden, Neb., Bill and Robert, both of Colby, and Harry, of Salina; and many nieces and nephews. He was preceded in death by his father, William, and sister, LeeAnn. n

www.ksbar.org | April 2014

19

The Svobodas of Lawrence, Kan. One Family’s Convergence of Fate, History, and Heroism

By Matthew D. Keenan

A

ccording to the Department of Veterans Affairs, 415 World War II veterans died every day last year. But if you think this is an obituary for the passing of another member of our greatest generation, prepare to be enlightened.

Because Kansas lawyer Chuck Svoboda is very much alive.

And if his name is familiar to you, it may be because I first profiled him here back in 2011. And now, without a word limit, I have the rest of his story.

And so whatever time you were going to bill today, push pause. Because when you are finished reading this story, that deposition you have tomorrow will seem much less important.

Where It All Began

If the History Channel ever wanted to set a ratings record, it should dedicate a miniseries to the life and times of Joe and Florence Svoboda and their six children. That tale would include heroism in the most violent battle of World War II, a father who was a veteran of the two world wars, and would also involve a football game between a high school player and an iconic figure of college football and the NFL. And it would start with Joe Sr. Joe Svoboda stood 6 foot 4 inches and was a native of Ellsworth. His parents, Alois and Anna Stejskal Svoboda, were immigrants from Praha, Czechoslovakia. Joe met Florence Saindon in Damar, Kan., Florence and Joe Svoboda Sr. which is northwest of Hays, and were married for 38 years. They spent most of their adult years in Lawrence and had six children – Joe Jr., Lloyd, Floyd, Betty, Norma, and Charles.

Joe Jr. contracted polio as a youth but that was barely a speed bump. He got a degree in chemical engineering at the University of Kansas and taught at the University’s War College, and then, later obtained master’s and doctorate degrees at Carnegie Tech. Next came Floyd and Lloyd, who were identical twins. Betty stayed in Lawrence, married and raised a family (Elizabeth Josephine Brune). Norma became a nurse (Norma Jean Hamrick) and assisted with the war effort. And six years later, came Chuck.

20

The Journal of the Kansas Bar Association

The Twins, Floyd and Lloyd Floyd and Lloyd enlisted in the Army on May 1, 1942.

They were assigned to the 76th Infantry Division, which was attached to Patton’s Third Army. Lloyd was a graduate of Officers Candidate School in June 1944 and promptly traveled to the European Theater with his brother. Historians tell us the Battle of the Bulge was the bloodiest battle for American troops in all of the war. Casu- Floyd and Lloyd Svoboda alties – depending on the source – ranged somewhere between 80,000 and 100,000. And in the middle of it all were two brothers from Lawrence.

“The Germans had constructed a pillbox which was harboring a number of high powered guns that were doing significant damage to the positions of the American forces,” Lloyd’s son, Tom, told me. “Dad was the second lieutenant and was leading his brigade to take out those guns.” A bullet struck him in the face, entering through his left eye. The Lawrence Daily Journal-World, in a front-page story on May 19, 1945, had this headline: “Directed his men after being hit. Lt. Lloyd J. Svoboda awarded Silver Star for action.” It offered additional details: “Ignoring the terrific rain of lead directed at him from the besieged Germans, Lieutenant Svoboda rushed to the head of the squad and skillfully maneuvered them to a spot about 30 yards from the pillbox. While placing the men in position, a hidden Nazi machine gun opened fire and Lt. Svoboda was struck and seriously injured.

“Crawling back to a covered position, he called his squad leader and instructed him to hold the ground gained, and to send back word to the company commander informing them of their plight and of the fact that only four men remained in the squad.

“The word went back, reserves came forward, and the pillbox was captured.” Lloyd received the Silver Star, the Bronze Star, and Purple Heart. You can look it up.

A Nostalgic Touch

“Though he lost his left eye, it never bothered him nor stopped him from getting his engineering degree and working at Black and Veatch for 40 years” Tom told me. “When we were growing up, my friends and I would put tape over our eye and try to play baseball and basketball to be like Dad. We gained an appreciation for what he lived with. But he never talked about his actions on that day in February, 1945.”

Lloyd had an appointment with history once again when he and Rosemary were both at the Kansas City Hyatt Regency on July 17, 1981. Rosemary was one of the witnesses the Kansas City Star quoted for the 30th anniversary of the accident, and she told the paper that two of the husbands from their party had “gone to the main floor and were at a bar when they were pinned under the debris until around 3:30 a.m. and were rushed to the hospital. They both remained in the hospital for two and a half months. I will never forget the cries for help from people pinned under the debris.” The Svoboda’s escaped without injury.

And what about Floyd? He got his degree in petroleum engineering and worked in the oil and gas business. He never married.

Joe, Sr. Joe Sr. served in World War I as a lieutenant. In WWII he served as a major. Between the wars, he worked as a banker but was still in the Reserves on December 7, 1941.

While the twins were engaged with Hitler, Joe was directed to engage the Japanese on United States soil – in one of the forgotten battles in WWII in Adak, Alaska.

Six months after Pearl Harbor, on June 6, 1942, 500 Japanese soldiers landed in Alaska and claimed U.S. soil as Japan’s. Brian Garfield, in his book “The Thousand Mile War – World War II in Alaska and the AleuJoe Svoboda Sr., World War I tians” said this about the fight to retake U.S. territory back from the Japanese: “It is about a thousand miles from Dutch Harbor, near the Alaskan Peninsula to Attu at the far western tip of the Aleutian Island Chain. They are the most brutal thousand miles in the Pacific Ocean. Here, for fifteen months in 1942-1943, was fought one of the toughest campaigns of World War II.” And in the mix was one Joe Svoboda. His position was staff officer, 17th Naval District and Commander, Marine Corps base at Adak, Alaska.

In 1943 he wrote this letter: “Sometime in the early part of June we sailed on board to the Aleutians. The life here is very rugged but we don’t mind. We have no newspapers, no radios, no music or dances, no trees or shrubs, no women, no comforts of life, but we have plenty of fog, rain, clouds, mud, wind, mountains, snow, lakes, fish, tundra and other things we read about in the states.”

Garfield’s work quotes one soldier on the dense fog: “When you could see a hundred feet that was a clear day.”

American forces reclaimed both Attu and Kiska, with the latter island resulting in a 19-day battle that left 549 Japanese dead.

Football, War, and the Youngest Svoboda Which brings us to football. Trivia buffs of both KU and MU know that Don Fambrough and Don Faurot have histories deeply rooted in the intersection of war and football.

Fambrough played at Texas in 1941 and 1942, and then entered the military in the Army Air Corps, where he met a man named Ray Evans. The rest of that story is hardly trivial.

Don Faurot coached military teams at the Naval Air Station at Jacksonville in 1944, where he met a man named Bud Wilkinson. Faurot taught Wilkinson offensive strategies that helped lead Oklahoma to three National Championships in the 1950s. Other college coaches inextricably connected with the war effort included Paul Brown and Bear Bryant.

Wilbur D. Jones Jr. penned a book, “Football! Navy!

War! How military ‘lend-lease’ players saved the college game and helped win WWII.” It’s a largely forgotten yet fascinating era of our most popular sport intersecting with military history.

Beano Cook wrote the foreword: “Pearl Harbor had left the nation battered, humiliated and uncertain of the future. The Rose Bowl Game, after all, had to be moved from Pasadena and played in a misty rain in Durham, North Carolina. There were losing battles abroad and on the home front: the manpower drain and travel restrictions would force hundreds of colleges to drop football for anywhere from one season to the duration of the war. A game plan for the nation’s survival, as well as the survival of the game, had to be devised. There was never a time, and probably never will be, when war and football were more closely coupled than World War II. That’s because football, in so many ways, saved America. And the war, in turn, saved football.”

So many NFL players were commissioned in the war that some teams, like the Pittsburgh Steelers, had only six players on their roster, and combined their team with the Philadelphia Eagles. In an interview with the New York Times, the Steelers co-owner Bert Bell stated, Chuck Svoboda “Pittsburgh had no backs left and Philadelphia had no linemen.” With a roster full of 4-Fs — men ineligible for the draft — Phil-Pitt was born. Newspaper columnists dubbed the team the Steagles.

Nineteen active or former NFL players died in the War. Collegiate stars were lost as well. The University of Iowa’s Nile Kinnick, for instance, for whom their football stadium is named, won the Heisman, was drafted in the second round of the NFL draft, but spurned the league to attend law school.

When the war started he joined the Navy. He died when his plane crashed in June 1943. www.ksbar.org | April 2014

21

A Nostalgic Touch

Still, football flourished. Which leads us back to the youngest Svoboda.

“After December 7, 1941, Dad was ordered to report to San Diego. The following summer of 1942 I drove mom out there. She stayed there, I returned to Lawrence alone. I lived with the Penny family for most of my high school years – they treated me like one of their own.” Chuck lettered in football as a sophomore and started his junior and senior years, and helped win state titles, which for Lawrence High is about as newsworthy as saying grass is green.

Upon high school graduation, at the mature age of 17, Chuck was headed to the Navy Air Corps. “I was fascinated with air planes. Everyone was. I wanted to be a pilot. So I called my dad, who at that time was the commander at a Marine base in Seattle. I needed his permission, which I received. Six months later I was at the Naval air station in Dallas. When I arrived one of the first things I noticed was that they were practicing football. I asked the coach if they would let an aviation cadet play – ‘yes, if you are good enough to start’ he told me.” Three weeks later another cadet arrived, equally skilled at handling the pigskin. His name was George E.R. (Gus) Kinnear. His football pedigree? Florida State University.

After the Japanese surrendered in September 1945, Chuck learned what the Navy had had in mind for him and his fellow pilots: “The bomb was a secret and the Navy was proceeding with its own plan for attacking Japan. The aviation cadets in Dallas were going to be the advance strike force for the invasion of Japan.

They estimated 80 percent casualties.”

The world was a dangerous place but there was still time for football. Svoboda created the holes that Kinnear, a fullback, ran through. On November 23, 1946, in Beaumont, Texas, his team, the Dallas Naval Air Station (NAS), played an Army team whose star player was Doak Walker. Walker was not only a Heisman trophy winner, but also a three-time All American, and later, a four-time All-Pro. He is a member of the Pro Football Hall of Fame.

And in that game, there was one play where Gus was sprinting up the sideline, jumped up to take a pass, and the only person between Gus and the goal line was that kid named Doak.

Starting lineup for the Dallas NAS football team with Chuck Svoboda at left tackle.

“Doak cracked him pretty good” Chuck recounted. “Back then you played both ways. I saw Gus get hit. There was a steel drainage cover and Gus landed right on top of it hitting his head. The crowd went dead quiet. Gus laid there for a second and then jumped up. He looked at Doak and said ‘good hit buddy.’ The crowd went wild.”

“Later we played against Wee Willie Wilkin,” a player, worth noting, who was most certainly not Wee. A tackle at 6 foot 4 inches and 261 pounds, who went on to be a three-time Pro Bowler and two-time first team All-Pro. You can look that up too.

All in all, a pretty impressive football pedigree for a Lawrence High kid.

Chuck graduated in engineering in 1949 then law school and practiced defense work in the metro for 50 years. He was an AV-rated attorney for most of those years. And Kinnear?

“Gus stayed in the Reserve and made his own mark.” He was recalled during the Korean conflict with combat tours on the USS Princeton and USS Lake Champlain, and during Vietnam on the USS Kitty Hawk and USS Ranger. Later he was the Naval Air Corps commanding officer for the Pacific Fleet.

When he retired he was the only four-star admiral from the Navy Air Corps. And you know where to find that fact as well.

And last year Kinnear, now retired at York Harbor, Maine, called his former teammate. “We need to get together at least one more time before the sand runs out.” And in November, Svoboda obliged by flying to Maine to see his fellow teammate, friend, and naval comrade.

Like most of the Greatest Generation, they probably didn’t dwell on their military accolades. But those football games against future NFL Hall of Fame players?

No doubt. n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com

Gus Kinnear (No. 13) and Chuck Svoboda (No. 46) of the Dallas NAS football team.

22

The Journal of the Kansas Bar Association

2014 Outstanding Speakers Recognition The Kansas Bar Association would like to extend a special thank you to and recognition of the following individuals who gave so generously of their time and expertise in speaking at our Continuing Legal Education seminars from January through March 2014.

Your commitment and invaluable contribution is truly appreciated.

Matthew D. All, Blue Cross & Blue Shield of Kansas Inc., Topeka Zachary J. Anshutz, Kansas Insurance Department, Topeka Janet L. Arndt, Office of Kansas Attorney General Derek Schmidt, Topeka Hon. Karen Arnold-Burger, Kansas Court of Appeals, Topeka Justice Dan Biles, Kansas Supreme Court, Topeka Coleen Boxberger, 20th Judicial District, Great Bend Hon. David E. Bruns, Kansas Court of Appeals, Topeka Sharon Cahill, Wyandotte County District Court, Kansas City, Kan. Lori M. Church, Kansas Association of School Boards, Topeka Prof. James M. Concannon III, Washburn University School of Law, Topeka Steve Crawford, WHISPER, New York, N.Y. Patricia M. Dengler, Brown Dengler & O’Brien LLC, Wichita Patrick H. Donahue, Disability Professionals, Lawrence Steve R. Fabert, Office of Kansas Attorney General Derek Schmidt, Topeka Hon. Mark G. Farrell, Amherst Criminal and Civil Court, Amherst, N.Y. Sarah E. Fertig, Office of Kansas Attorney General Derek Schmidt, Topeka Carol L. Foreman, Judicial Council Administrative Procedure Advisory Committee, Topeka Hon. Henry W. Green Jr., Kansas Court of Appeals, Topeka Danielle M. Hall, Kansas Bar Association, Topeka

Stanton A. Hazlett, Office of the Disciplinary Administrator, Topeka Jason Heffner, Principal Financial Group, Overland Park Bernard J. (B.J.) Hickert, Newbery Ungerer & Hickert LLP, Topeka Hon. Stephen D. Hill, Kansas Court of Appeals, Topeka Ryan A. Hoffman, Kansas Corporation Commission, Wichita Ross A. Hollander, Joseph Hollander & Craft LLC, Wichita Bruce Hopkins, Polsinelli P.C., Kansas City, Mo. Mary Kay Howe, Douglas County District Court, Lawrence Robert M. (Bob) Hughes, Bever Dye L.C., Wichita Joseph W. Jeter, The Jeter Law Firm LLP, Hays Justice Lee A. Johnson, Kansas Supreme Court, Topeka Casey L. Jones, Hinkle Law Firm LLC, Wichita Hon. Phillip B. Journey, Sedgwick County, Wichita Charles W. (C.W.) Klebe, Office of Kansas Attorney General Derek Schmidt, Topeka Eric Kraft, The Katz Law Firm P.A., Overland Park Lydia H. Krebs, Appellate Defenders Office, Topeka Chelsey G. Langland, Kansas Court of Appeals, Topeka Hon. Steve Leben, Kansas Court of Appeals, Topeka Erna K. Loomis, Loomis Law Offices LLC, Olathe Justice Marla J. Luckert, Kansas Supreme Court, Topeka Hon. Thomas E. Malone, Kansas Court of Appeals, Topeka

Dr. Stana Martin, Mrs LTC Inc., Liberty, Mo. Anne McDonald, Kansas Lawyers Assistance Program, Topeka Amy M. Memmer, Supreme Court Central Staff, Topeka Joseph N. Molina III, Kansas Bar Association, Topeka Ronald W. (Ron) Nelson, Ronald W Nelson P.A., Shawnee Mission Timothy P. (Tim) O’Sullivan, Foulston Siefkin LLP, Wichita Steven J. Obermeier, Johnson County District Court, Olathe Jennifer Olsen, Shawnee County District Court, Topeka Ryan M. Peck, Morris Laing Evans Brock & Kennedy Chtd., Wichita Prof. David E. Pierce, Washburn University School of Law, Topeka Michael K. Ramsey, Hope Mills Bolin Collins & Ramsey, Garden City Randall K. Rathbun, Depew Gillen Rathbun & McInteer L.C.,Wichita Hon. Kim R. Schroeder, Kansas Court of Appeals, Topeka Eric Smith, League of Kansas Municipalities, Topeka Dennis Stanchik, Dennis J. Stanchik P.A., Olathe Dillon L. Stum, Deines & Deines, Wakeeney Burton Taylor, Proventus Consulting LLC, Mission David R. Tripp, Stinson Leonard Street LLP, Kansas City, Mo. Tyler K. Turner, The Jeter Law Firm LLP, Hays Trevor C. Wohlford, Kansas Court of Tax Appeals, Topeka Molly M. Wood, Stevens & Brand, Lawrence Ashlyn L. Yarnell, Ronald W Nelson P.A., Shawnee Mission

www.ksbar.org | April 2014

23

Pardon Me, May I . . . ?

Consent Searches in Kansas

By Colin D. Wood

24

The Journal of the Kansas Bar Association

“In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.”1 A police officer, in full uniform with her holstered handgun in plain view standing with others at the coffee counter of a corner convenience store, turns to one of the other customers and in a pleasant, conversational voice, but without any suspicion of criminal activity, asks permission to search the customer’s pockets. The other customer agrees. A search reveals evidence of a crime. The evidence is later admitted against the customer and newly-minted defendant.

Surely a search cannot be valid simply by a verbal agreement between the two of them. This is America. Where was the government agent’s probable cause? . . . the warrant? . . . and especially where was the disinterested magistrate to review the constable’s suspicions? If that can happen, what’s next? . . . my mother showing state agents into my rent-free bedroom based simply upon my illadvised failure to move out 20 years ago, and my continuing to allow her to put away my laundry and clean up my messy room? Oh, the humanity.

The scholarly answer to those questions is “volenti non fit iniuria,” Latin for “[t]o a person who consents, no injustice is done.”2 The less scholarly advice is to simply say more often, “no” and “stay out.” It has long been the rule of law in both federal and state courts that a person may consent to a search or to a seizure.3 The Fourth Amendment proscribes unreasonable searches and seizures, but it does not proscribe a person’s voluntary cooperation.4 A law enforcement officer needs no level of criminal suspicion to approach anyone in a public place, without formalities, and to seek their consent to do just about anything.5 And, though maybe a good idea, prior to requesting consent the officer need not inform the person of their right to refuse the officer’s re

quest.6 In fact, even if the officer possesses probable cause and has time to secure a warrant, the officer need not go to the trouble.7 This article is intended as a practical review of the most-litigated areas of consent search law. By design the article breaks no new ground, it certainly does not get into the weeds about any particular issue, nor does it pretend to raise every facet of consent. However, for having invested a few minutes a reader should be able to become generally familiar with how consent matters are handled in our Kansas courts. The author candidly admits his professional support for the idea of a legally-obtained consent to search.

Under the Fourth Amendment, a law enforcement search conducted without a warrant is per se unreasonable unless it meets one of the several recognized exceptions to the warrant requirement.

One of those exceptions is consent.8 Surprisingly, consent searches are a recent legal phenomenon. Most scholars trace the first consent-related case to 1921,9 with a second following 25 years later.10 It was not until 1973 that the United States Supreme Court set the relatively low standard for a valid consent search. In the 21st century, consent searches remain the source of interesting legal debate.11 Judges and scholars are divided into three camps when it comes to explaining why consent searches are valid under the Constitution. First, and the majority view of the U.S. Supreme Court, is that a consent search is an exception to the warrant and probable cause requirements of the Fourth Amendment because it is essential to proper law enforcement.

A second view, for example held by Justice Marshall, is that under consent there is no “search” for Fourth Amendment purposes because the consenting person is able to choose whether or not to exercise their constitutional rights.

The third view, adopted by Justice Scalia, asserts that the validity of a consent search depends upon whether the police conduct surrounding the seeking of consent was reasonable, because reasonableness is the touchstone of the Fourth Amendment.12 The questions raised in a routine consent case tend to be: Was there a request by law enforcement for consent to www.ksbar.org | April 2014

25

Consent Searches

search? If there was a request, to whom was it directed? Did that person have the capacity and the authority to give consent? Assuming sufficient authority, did that person give consent? Was the consent given expressly or impliedly? Was such express or implied consent voluntary? If voluntary, what was the scope of the search to have been? Did the officer stay within that scope?

If not, why not? Did the consenter ever broaden, narrow, or withdraw the consent? Was the consenter in a position to have modified the scope of the search? If not, why not? During the consent request, was the consenter being detained in some manner? And, finally, if the officers have blundered along the way, should the Exclusionary Rule suppress the evidence?

I. Voluntariness “[T]his Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation . . .13 Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.”14 As a practical matter, permission to conduct a consent search will pass muster if it was freely and voluntarily given.15 But consent that was the product of official intimidation or harassment is not consent at all because citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.16 Nor is mere submission to apparent police authority true consent.17 Although detention is a factor in weighing whether a particular consent was voluntary, and even though in Kansas a particular type of detention may render a particular consent to search legally void, the test for detention is separate from the test for voluntariness of the consent to search.18 The prosecutor has the burden of proving by a preponderance of the evidence that consent was given, and that it was voluntary.19 The question of whether a person’s consent to an officer’s request to search was in fact voluntary or was the product of duress or coercion is a question of fact to be determined from the totality of all the circumstances.20 But, as the starting point of analysis, courts recognize that simply by asking for consent an officer has implied that the person may object and would therefore indicate to a reasonable person that he or she is free to refuse.21 In other words, the review of a consent search is to begin on a level playing field.

26

The Journal of the Kansas Bar Association

Although recognizing that it is obligated to follow the U.S. Supreme Court’s interpretation and application of the Fourth Amendment,22 Kansas courts sometimes frame it a little differently: “[f ]or a consent to search to be valid, two conditions must be met: (1) there must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied;23 “voluntarily, intelligently and knowingly”;24 and “unequivocal and specific.”25 It follows that even though phrased differently, our state courts have not raised the prosecution’s burden beyond that required by the U.S. Supreme Court.26 When seeking consent to search, a law enforcement officer is not required to advise the potential consenter of the right to refuse, and actual knowledge of the right is not a prerequisite of a voluntary consent.27 However, advising or failure to advise one of the right to refuse is a factor a court may take into account when weighing voluntariness.28 It is also unnecessary to have advised a consenter, not then in arrest custody, of his or her Miranda rights.29 The subjective thoughts or underlying intentions of an officer seeking consent are irrelevant to the analysis, as long as the substance of the officer’s thoughts and intentions are not made known to a consenter prior to their consent.30 The use of deception or trickery is a factor to be weighed, but its use does not automatically render consent involuntary.31 A threat to obtain a warrant may invalidate a suspect’s eventual consent if the officers truly lacked the probable cause necessary for the search warrant.32 Further, a suspect’s consent may be tainted by a threat of detention, which essentially amounts to an arrest, if consent is refused.33 When analyzing whether duress was present or coercion had occurred during the granting of consent, no one factor is dispositive, and the factors are much the same as those used to determine if an encounter with police was consensual.34 A non-exhaustive, non-exclusive list of the objective factors used by our courts in the determination of voluntariness of consent to search are: telling the consenter that he or she can refuse, the presence of more than one officer, the actual brandishing of a weapon (because it is well known in our society that most officers are armed, the presence of a holstered firearm is unlikely to be coercive35), touching or application of force, a commanding tone of voice or use of aggressive language indicating that compliance is required (although some officer safety commands are acceptable36), retention of the person’s personal property, a request to accompany the officer to another location, interaction in a nonpublic place, the absence of other members of the public, and, within the actual view of the consenter, the display of a police vehicle’s emergency lights.37 Federal courts in Kansas add to that list of factors: physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, and, though more subjective, the physical and mental condition and capacity of the defendant.38 Though consistent with a consideration of the totality of the circumstances, no one factor can be legally dispositive. Courts are not expected to simply count the number of factors weighing for and against voluntariness. A particular factor may be more indicative of a coercive atmosphere in one case than another.39 Although a signed consent form is helpful to the issue

Consent Searches

of voluntariness and is indicative of voluntary consent, the law does not require police to obtain them.40 A voluntary consent following a refusal is possible but the prior refusal(s) is a factor in the weighing of voluntariness.41 Although courts differ elsewhere, in Kansas a refusal of consent cannot be used as a basis for reasonable suspicion.42 Consent need not be express or verbal. Gestures or other nonverbal conduct can be found to constitute sufficient consent.43 Consent may be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer, at least in federal courts.44 In our state courts consent by implication, at least when it involves homes and DUI blood testing, is not voluntary consent.45 Kansas state courts want something more.

So long as a suspect understands English well enough to respond to an officer’s request, or has demonstrated an overall working knowledge of English, the suspect can voluntarily consent to a search despite a general difficulty in speaking English.46 II. Scope of the Consent and Search “In short, a search pursuant to consent may result in considerably less inconvenience for a subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.”47 A consent search is limited to the terms of its authorization.48 When a search is based upon consent, law enforcement officers have no more authority than they have apparently been given by the consent. Consent to search a garage would not implicitly authorize a search of an adjoining house; and, authorization to search a home for a stolen refrigerator would not authorize the opening of the home’s desk drawers.49 Important matters in the analysis of the scope of a search would include the expressed intention of the search, its duration and the area to be searched. But those questions are not to be determined on the basis of the subjective intentions of the consenter or the subjective interpretation of the searching officer.50 Instead, the standard for measuring the scope of a person’s consent is that of objective reasonableness – what would the typical reasonable person have understood from the exchange between the officer and the consenter?51 The scope of a search is generally defined by its expressed object.52 A general grant of permission to search an automobile typically extends to the entire car, absent an objection or an explicit limitation by the consenter. When consent is predicated explicitly on an understanding that the search will be brief, an extended duration may well exceed the scope of the consent.53 For example, in a search for illegal drugs that can be found in the smallest container or confinement of a car, a consent to “search the car” would include all unlocked containers. However, it would be unreasonable to search a locked container found during the same consent search, and thus an officer would need to seek new consent to open the locked container.54 The rule is that when a consenter does not limit the scope of a search, and does not object when the search exceeds what the consenter later claims was a more limited consent, the indication is that the search was within the scope of the consent.55 A

request “to look in the car” would give an officer authorization to conduct a thorough search of the car.56 A. Consent During Detention

There are four types of police-citizen encounters recognized in Kansas: 1) voluntary or consensual encounters, which are not considered Fourth Amendment seizures; 2) investigatory detentions, also known as temporary detentions or Terry stops, requiring reasonable suspicion of a crime having been, being, or about to be committed, and allowing a brief detention while an officer confirms or dispels the officer’s suspicions.

Car stops are legally akin to those types of Terry stops; 3) public safety stops, which are not grounded in the investigation of a crime, but instead are based upon the law enforcement’s community caretaking function and requiring an immediate response, intervention or detention by police for public health and safety purposes; and, 4) arrests, requiring probable cause that a crime has been committed, and probable cause that a particular person has committed the crime.57 The general rule under the Fourth Amendment is that the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.58 The law recognizes an inevitable level of pressure inherent in being the subject of law enforcement scrutiny and assumes that an ordinary person can still exercise a free choice. Any individual being subjected to an investigative detention will feel some degree of compulsion to acquiesce to an officer’s request.59 During events that amount to no more than a permissible police encounter in a public place, or during a justifiable Terrytype detention, officers may seek and obtain valid, voluntary consent to search,60 at least for cases in federal court. In our Kansas courts, it is a little different.

Except in those states that have found extra protection under their state constitutions, most courts now recognize that the U.S. Supreme Court has all but discarded the “scope” prong of Terry v. Ohio while retaining the “duration of the event” prong of that case.61 Investigating officers may ask questions having nothing to do with the reason for detention as long as those “unrelated” questions do not measurably extend the duration of the detention.62 However, the Kansas Supreme Court has declined to go along, and has retained its “long standing” prohibition of officers seeking consent to search during a normal car stop. Although officers may seek voluntary consent to search during a consensual encounter63 and following a custodial arrest,64 absent reasonable suspicion of a crime secondary to the original

www.ksbar.org | April 2014

27

Consent Searches

traffic violation, a request to search during a typical car stop automatically renders any consent to search involuntary.65 Therefore, in car stop situations destined for state courts and where reasonable suspicion of a more serious crime does not exist, officers are required first to end the temporary detention before seeking consent to search. That is best done by returning to the driver any personal property in the officer’s possession and telling the driver in no uncertain terms that they are free to go.66 Then, and only then, may an officer request a driver’s consent to stay, consent to answer additional questions, and possibly consent to a search.

When a defendant’s consent to search is preceded by a Fourth Amendment violation, the state must also prove that there was a break in the causal connection between the illegality and the evidence obtained as a result of it, known as the doctrine of attenuation. Voluntariness of consent is measured by the proximity in time of the Fourth Amendment violation to the consent, the intervening circumstances, and the purpose and flagrancy of the officers’ misconduct. Whether or not evidence found during a violation should be suppressed through the exclusionary rule is a fact-driven issue and is therefore open to analysis and debate.67 Courts tend to agree that the prosecution’s burden of showing a sufficient break in the causal connection between a defendant’s illegal seizure and a granting of consent to search is “a heavy one.”68 III. Third-Party Consent “The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . but rests rather on mu-

28

The Journal of the Kansas Bar Association

tual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any co-inhabitant has the right to permit inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”69 The Fourth Amendment recognizes a valid warrantless entry and search of premises when the police obtain the voluntary consent of an occupant or other person who shares, or is reasonably believed to share, common authority with another over the area to be searched. However, should a co-occupant be physically present and he or she objects to the search, then no evidence found during the consent search can later be used against the objecting co-occupant.70 But, such an objection is not irrevocable or permanent.71 Should the objector then leave the premises, either by choice or by lawful arrest, the objection to the search leaves, too.72 Though ownership may be a factor in consent authority, title to property is not necessarily conclusive.73 The prosecution must only show that 1) the third party had actual or apparent authority to consent to the search; and, 2) that such consent was freely and voluntarily given.74 As a general rule, Fourth Amendment protection also applies to hotel and motel rooms.75 But, when the rental period of a hotel guest’s occupancy of a room terminates, the guest loses the exclusive right to privacy in the room. Assuming the hotel has not acquiesced or given permission for the guest to stay past the original rental period, a hotel employee may enter the room, or give consent to the police to enter the room.76

Consent Searches

The authority of law enforcement officers to constitutionally enter a residence under exigent circumstances and the emergency assistance doctrine if they reasonably believe someone is in imminent peril, particularly in a domestic abuse event, is in no way restricted by the consent rules.77 A. Common Authority

Common authority rests upon the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-users or co-occupants has the right to permit a search in their own right. Occupants have assumed the legal risk that another co-occupant might permit the police to search the common areas. Courts focus on whether the facts available to the officer would warrant a person of reasonable caution (sometimes referred to as “an officer of reasonable caution”)79 to believe that the consenting party had authority over the premises to be searched.80 B. Apparent Authority

When an officer is presented with ambiguous facts related to consent authority, the officer has a duty to inquire better whether a person has sufficient authority over common areas that the person can consent to a search.81 Should, after a reasonable inquiry, the facts available to the officer would lead a reasonable person to believe that the third party had common authority over the area to be searched, then the consent would be valid. An officer can even have been reasonably wrong about the facts, and the consent remains valid. But, should the officer have made a mistake of law, then an invalid consent cannot be saved.82

Endnotes 1. United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002).

2. Latin, a legal maxim; Bartlett’s Familiar Quotations 120:4 (Little Brown & Co., 16th ed. 1992).

3. State v. Boyle, 207 Kan. 833 (1971); Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), rev. for other reasons, 330 U.S. 800 (1947); Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991).

4. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).

5. Terry v. Ohio, 392 U.S. 1, 34, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984); United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012); State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997).

6. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

7. Fernandez v. California, 571 S. Ct. __, 2014 WL 700100 (Feb. 25, 2014).

8. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015, 1024 (2007); State v. Sanchez-Loredo, 294 Kan. 50, 272 P.3d 34 (2012).

9. Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27 (2008); Amos v. United States, 255 U.S. 313 (1921) [hereinafter Maclin].

10. Davis v. United States, 328 U.S. 582 (1946).

11. Wayne LaFave, Search and Seizure: A Treatise On The Fourth Amendment, 4 Search & Seizure § 8.1 (5th ed); Brian Gallini, Schneckloth v.

Bustamonte: History’s Unspoken Fourth Amendment Anomaly, 79 Tenn. L. Rev. 233 (2012) [hereinafter LaFave]; Nancy Leong and Kira Suyeishi,

IV. Summary In Kansas, consent searches can legally occur by verbal agreement between an officer and an individual. A voluntary consent search is not a waiver of a constitutional right, but instead is a reasonable search under the Fourth Amendment because it is voluntary. And, consent is voluntary if by a preponderance of the evidence the facts indicate that there was no force or intimidation by the government.83 Courts, attorneys and law enforcement officers should remain vigilant in their respective constitutional duties to protect our communities from the overzealous and unlawful use of consent searches. But at the same time, we should recognize that, “[i]n short, a search pursuant to consent . . . is a constitutionally permissible and wholly legitimate aspect of effective police activity.”84 Or, as only weeks ago Justice Alito phrased it, “. . . the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent.”85 The law is finally settled: it is as much a constitutional right to say yes as it is to say no. n About the Author Colin D. Wood is a retired KBI senior special agent and assistant attorney general, having started his career as a street police officer in 1973. He is currently a contract attorney in the U.S. Attorney’s Office Asset Forfeiture Unit in Wichita and since 2002, has been cross-designated as a special assistant U.S. attorney. Wood is a graduate of Wichita State University and Washburn University School of Law.

Consent Forms and Consent Formalism, 2013 Wis. L. Rev. 751 (2013) [hereinafter Leong and Suyeishi]; see list of articles cited by the Kansas Supreme Court in Thompson, supra notes, at 777-78.

12. Maclin, supra note 9, at 36; LaFave, supra note 11, 8.1(a).

13. Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).

14. Schneckloth, supra note 6, at 227; United States v. Mendenhall, 446 U.S. 544, 557, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).

15. Royer, supra note 4, at 497.

16. Bostick, supra note 13, at 438.

17. Royer, supra note 4, at 497.

18. State v. Spagnola, 295 Kan. 1098, 289 P.3d 68 (2012); Thompson, supra note 8, at 811-13.

19. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968).

20. Schneckloth, supra note 6, at 231-32 .

21. Drayton, supra note 1, at 196.

22. Thompson, supra note 8, at 779, citing Mapp v. Ohio, 367 U.S. 643, 655-57, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).

23. Id., at 776; State v. Spagnola at 1098.

24. State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997).

25. State v. Blair, 31 Kan. App. 2d 202, 209, 62 P.3d 661 (2002).

26. For more than 50 years, the Kansas Supreme Court has held that § 15 of the Kansas Constitution provides the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal constitution. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010); see Ohio v. Robinette, 519 U.S. 40, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) ([t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary; and, voluntariness is a question of fact to be determined from all of the circumstances). www.ksbar.org | April 2014

29

Consent Searches 27. Schneckloth, supra note 6, at 248-49; Thompson, supra note 8, at 763.

28. Schneckloth, at 231.

29. State v. Ulriksen, 210 Kan. 795, 798, 504 P.2d 232 (1972).

30. Thompson, supra note 8, at 804-07.

31. United States v. Jones, 701 F.3d 1300, 1319-20 (10th Cir. 2012); State v. Tatum, 40 Kan. App. 2d 846, 196 P.3d 441 (2008); State v. Wakefield, 267 Kan. 166, 127, 977 P.2d 941 (1999).

32. Eidson v. Owens, 515 F.3d 1139, 1146 (10th Cir. 2008).

33. Id. (officer’s threat to hold suspect up to 3 days while a warrant was obtained suggests an arrest).

34. Thompson, supra note 8, at 813.

35. Drayton, supra note 1, at 195.

36. State v. Lee, 283 Kan. 771, 777-78, 156 P.3d 1284 (2007).

37. Thompson, supra note 8, at 811-13.

38. Eidson, at 1146 (citing United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006).

39. Thompson, at 812.

40. Eidson, at 1147; Leong and Suyeishi at 769 asserting a greater use of consent forms would be easy and a win for all parties involved.

41. LaFave, supra note 11, § 8.1(f ), citing United States v. Welch, 683 F.3d 1304, 1309, (11th Cir. 2012); see also State v. Hogan, 45 Kan. App. 2d 715, 723 (2012) (citing State v. Thomas, 291 Kan. 676, 246 P.3d 678 (2011) (repeated questions which persist despite repeated denials of culpability is a voluntariness factor).

42. State v. Clemmons, 2004 WL 720223 at *6, 86 P.3d 1026 (Kan. App. 2004) (unpublished); United States v. Santos, 403 P.3d 1120, 1126 (10th Cir. 2005) (however suspicious the tailoring of consent may be as a matter of common sense, it cannot be a basis for reasonable suspicion lest the very idea of voluntary consent be rendered fictional); State v. White, 2006 WL 2264986 at *4-5, 139 P.3d 152 (Kan. App. 2006).

43. United States v. Guerrero, 379 F. Supp. 2d 1138, 1146 (D. Kan. 2005) (citing United States v. Benitez, 899 F.2d 995 (10th Cir. 1990).

44. United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007).

45. State v. Poulton, 37 Kan. App. 2d 299, 307-08, 152 P.3d 678 (2008) (reversed on unrelated point of law).

46. United States v. Guerrero, 379 F. Supp. 2d 1138, 1146 (D. Kan. 2005).

47. Schneckloth, supra note 6, at 228.

48. Walter v. United States, 447 U.S. 649, 656-57, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980).

49. Id. 50. LaFave, supra note 11, at 8.1(c).

51. Jimeno, supra note 3, at 250-51.

52. Id. at 251; also see United States v. Vasquez, 2013 WL 3895283 (D. Kan) citing 1st, 2nd and 5th Circuit law.

53. United States v. Rosborough, 366 F.3d 1145, 1150-51 (10th Cir. 2004).

54. Jimeno, supra note 3, at 251-52; United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000).

55. United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000); United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999).

56. United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (citing other 10th Circuit cases of McRae and Espinosa).

57. Thompson, supra note 8, at 772; State v. Parker, 282 Kan. 584, 588, 147 P.3d 115 (2006).

58. United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); Royer, supra note 4, at 503.

30

The Journal of the Kansas Bar Association

59. United States v. Hernandez-Lizardi, 2013 WL 3802135 *5 (10th Cir. 2013) (unpublished).

60. Royer, supra note 4, at 501-02; United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012).

61. Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005); Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009); State v. Jenkins, 3 A.3d 806 (Conn. 2010) (gathering the cases in the wake of Muehler); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006).

62. Muehler; Johnson, generally.

63. See Watson, supra note 58, and Thompson, supra note 8,; United States v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997); see also 26 Am. Jur. Proof of Facts 2d 465 § 4 .

64. Watson, at 424; United States v. Silva-Arzeta, 602 F.3d 1208, 1215 (10th Cir. 2010).

65. State v. Smith, 286 Kan. 402, 419, 184 P.3d 890 (2008); State v.

White, 44 Kan. App. 2d 960, 968-69, 241 P.3d 591 (2010).

66. Thompson, supra note 8,, generally.

67. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998); State v.

Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006); State v. Wendler, 47 Kan. App. 2d 182, 200-03, 274 P.3d 30 (2012); State v. Williams, 297 Kan. 370, 381-87, 300 P.3d 1072 (2013); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 441 (1963); United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994).

68. United States v. Fox, 600 F.3d 1253, 1259 (10th Cir. 2010).

69. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).

70. Georgia v. Randolph, 547 U.S. 103, 122-23, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006); the Court decided the issue of Randolph’s being “physically present” in the 2013-14 term in the case of Fernandez v. California, 571 U.S. __, 2014 WL 700100 (Feb. 25, 2014).

71. State v. Martinez, 2013 WL 5925903, *5, 311 P.3d 1168 (Kan. App.) (unpublished).

72. Fernandez, supra note 70, at *7 (an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason).

73. Martinez, supra note 71, at *7 (dicta, but citing Randolph, supra note 70).

74. United States v. Sanchez, 608 F.3d 685, 689 (10th Cir. 2010).

75. State v. Gonzales, 32 Kan. App. 2d 590, 593-94, 85 P.3d 711 (2004).

76. State v. Tush, 2012 WL 6061557 at *8, 289 P.3d 1185 (unpublished), rev. denied.

77. Martinez, supra note 71, at 7 (citing Randolph, supra note 70).

78. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); State v. Kerestessy, 44 Kan. App. 2d 127, 134, 233 P.3d 305 (2010).

79. State v. Haug, 2013 WL 195522, *3, 291 P.3d 1073 (Kan. Ct. App. Jan. 11, 2013) (citing State v. Porting, infra, note 80).

80. State v. Porting, 281 Kan. 320, 328, 130 P.3d 1173 (2006).

81. Kerestessy, supra note 78, at 134.

82. Porting, supra note 80, at 328.

83. Schneckloth, supra note 6, at 228.

84. Id. 85. Fernandez v. California, 571 U.S. __, 2014 WL 700100 at *10 (Feb. 25, 2014).

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 Attorney Discipline DISBARMENT IN RE DANIEL R. BECK ORIGINAL PROCEEDING IN DISCIPLINE NO. 109,886 – FEBRUARY 7, 2014 FACTS: This is a contested original proceeding in discipline filed by the office of the disciplinary administrator against respondent, Daniel R. Beck, of Andover, an attorney admitted to the practice of law in Kansas in 1988. Beck’s disciplinary matters involve his representation of clients in estate planning matters. Also, during the time period when his license was suspended due to failure to satisfy the annual CLE requirements to maintain his law license, Beck actively engaged in the practice of law.

DISCIPLINARY ADMINISTRATOR: On January 5, 2012, the office of the disciplinary administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On February 21, 2012, respondent filed an answer to the formal complaint. The disciplinary administrator filed a second formal complaint on November 14, 2012, which respondent answered on December 4, 2012. Respondent filed a proposed plan of probation on January 25, 2013. The deputy disciplinary administrator recommended that no less than indefinite suspension be imposed.

HEARING PANEL: The Kansas Board for Discipline of Attorneys conducted a hearing on the formal complaints on April 9, 2013, when the respondent was present and represented by counsel.

Respondent stipulated that he violated KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication with clients); KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (dishonest conduct); and KRPC 5.5 (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law). The panel accepted those stipulations and further determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competent representation); Kansas Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349) (properly registered attorneys may practice law); and Kansas Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (giving notice following suspension). The Hearing Panel unanimously recommended that the respondent’s license be suspended for a period of two years.

HELD: Court held that the Hearing Panel’s conclusions were supported by the evidence of respondent's lack of communication, encouraging others to falsify documents, and to falsifying documents himself. Court found respondent practiced law without a license for nearly three years for failure to satisfy the annual CLE requirements. Court held respondent’s grave misconduct violated some of the most basic tenets of the profession and merited his disbarment.

INDEFINITE SUSPENSION IN RE ROBERT A. MINTZ ORIGINAL PROCEEDING IN DISCIPLINE NO. 110,111 – FEBRUARY 7, 2014 FACTS: In this contested original proceeding in attorney discipline, a panel of the Kansas Board for Discipline of Attorneys made findings of fact and concluded that Robert A. Mintz did not violate the Kansas Rules of Professional Conduct (KRPC). This disciplinary matter concerned Mintz’ involvement in the death of a prior law colleague with whom he was having a romantic relationship and her battle with chronic alcoholism.

DISCIPLINARY ADMINISTRATOR: The office of the disciplinary administrator filed a formal complaint against the respondent, alleging violations of KRPC 8.4(b), KRPC 8.4(c), and KRPC 8.4(d), namely committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaging in conduct that is prejudicial to the administration of justice.

HEARING PANEL: The Hearing Panel conducted a hearing and concluded that respondent did not violate the KRPC. HELD: Court agreed with the disciplinary administrator that some of the panel’s findings of fact are not supported by clear and convincing evidence and the panel’s conclusions of law are not supported. Court concluded Mintz violated two rules—KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and KRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Having found violations of the KRPC, Court rejected the recommendation of the disciplinary administrator that Mintz should be disbarred. Court concluded that indefinite suspension was appropriate.

Civil HABEAS CORPUS MILLER V. STATE DOUGLAS DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – AFFIRMED NO. 103,915 – FEBRUARY 14, 2014 FACTS: Miller’s conviction for premeditated murder of his wife was affirmed in direct appeal. State v. Miller, 284 Kan. 682 (2007).

In that appeal, appellate counsel failed to challenge erroneous written jury instruction that read: “If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” Miller sought post-conviction relief in 60-1507 motion alleging in part ineffective assistance of counsel at trial and appeal in failing to challenge the written reasonwww.ksbar.org | April 2014

31

Appellate Decisions able doubt instruction. Alternatively he claimed the written instruction constituted structural error. District court denied the motion.

In unpublished opinion, Court of Appeals reversed and remanded.

Focusing on appellate counsel’s performance, the panel found that the written reasonable doubt instruction misinformed the jury, was structural error standing alone, and that appellate counsel rendered ineffective assistance by failing to find and assert the issue on direct appeal. Supreme Court granted state’s petition for review.

ISSUE: Ineffective assistance of appellate counsel HELD: State concedes district court error in giving jury a written instruction that effectively told jury that it may acquit the defendant only if it had reasonable doubt as to all of the elements the State is required to prove – rather than acquitting if it has reasonable doubt as to any single element. State’s arguments that appellate counsel’s performance was nonetheless satisfactory were considered and rejected. Although Court of Appeals’ disapproval of the oral reasonable doubt instruction given to the jury was contrary to Kansas case law, it correctly found that the written instruction error in this case was “structural” under Sullivan v. Louisiana, 508 U.S. 275 (1993). Judgment of Court of Appeals reversing and remanding Miller’s case was affirmed. Judgment of district court was reversed and remanded.

STATUTES: K.S.A. 2013 Supp. 21-5108(a); K.S.A. 20-3018(b); K.S.A. 21-3109, -3401(a); K.S.A. 22-3414(3); and K.S.A. 60-1507, -1507(a), -2101(b) INSURANCE AND NONRENEWAL NATIONWIDE MUTUAL INSURANCE CO. V. BRIGGS ET AL. CERTIFIED QUESTION U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT – QUESTION IS DETERMINED NO. 109,015 – FEBRUARY 7, 2014 CERTIFIED QUESTION: Is notice to nonrenew an insurance policy that complies with the procedure set out in K.S.A. 2012

Supp. 40-3118(b) and the policy sufficient to force a lapse of coverage, regardless of whether a proper substantive basis for nonrenewal exists under K.S.A. 2012 Supp. 40-276a(a) and the policy?

FACTS: Nationwide Mutual Insurance Co. sued the children of Melvin L. Briggs in the U.S. District Court for the District of Kansas, seeking declaratory judgment that it had effectively nonrenewed Melvin’s insurance policy before the automobile accident that led to his death. Because Nationwide had complied with statutory and policy requirements for notice of nonrenewal, it was granted summary judgment. The Briggses appealed to the U.S. Court of Appeals for the Tenth Circuit, arguing that Nationwide also had to comply with K.S.A. 2012 Supp. 40-276a(a), which sets out permissible reasons for coverage termination. The Tenth Circuit certified the question to the Court.

ISSUES: (1) Insurance and (2) nonrenewal HELD: Court held that neither Kansas statutes nor the language in Melvin’s policy required a statement of a permissible substantive reason for nonrenewal in the notice to make the notice procedurally effective. Nationwide strictly complied with the statutory and policy procedural notice requirements, and coverage lapsed on September 3, 2008.

This does not mean that the Briggses are necessarily without a remedy. If Nationwide lacked a permissible substantive reason to refuse to renew Melvin’s policy, then it violated K.S.A. 2012 Supp. 40276a(a) and breached the contract of insurance. The violation and breach occurred at the moment of the wrongful nonrenewal—i.e., while the policy was still in force. Nationwide would be liable for any damages caused by its breach. In addition, if Nationwide violated the substantive provisions of K.S.A. 2012 Supp. 40-276a(a), it may be subject to administrative penalties under the Unfair Trade Practices Act, K.S.A. 40-2401 et seq.

STATUTE: K.S.A. 40-276a(a), -2401, -3118(b), -3201

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office

Updated Appellate Forms Available for Reference Chapter 12 in the Kansas Appellate Practice Handbook, 5th edition, contains revised and streamlined suggested appellate practice forms. If it has been a while since your office has reviewed forms, this would be a good opportunity to excise extraneous language (for example, “Comes Now” and “Wherefore”). Subdivisions and headings are suggested in many instances to improve clarity. A helpful briefing checklist has been included in subsection 12.35, as well as a sample brief at 12.36.

Appendix C contains a citation guide for reference in preparing appellate briefs. The handbook is available online, free of charge, at www.kscourts.org or www.kansasjudicialcouncil.org.

Proofread Appellate Filings Many motions arrive in the appellate clerk’s office with the wrong court or the wrong case number designated. The clerk will make those corrections in the interest of moving the filing along, but that kind of error creates a poor first impression as judges begin to read the document. Proofread carefully.

The Extent of Appellate Counsel’s Responsibility When an attorney undertakes appellate representation, whether retained or appointed, the attorney’s responsibility to the client does not end when the opinion is filed. The attorney must determine whether rehearing or modification should be sought and whether the client desires to file a petition for review of a Court of Appeals opinion. Rehearing or modification must be sought in the Court of Appeals not later than 14 days after the opinion is filed and in the Supreme Court not later than 21 days after the opinion is filed. A petition for review must be filed not later than 30 days after the Court of Appeals opinion is filed. The attorney must be prepared to continue briefing and present oral argument in the Supreme Court if the petition for review is granted.

If you have questions about 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.

32

The Journal of the Kansas Bar Association

Appellate Decisions MUNICIPALITY, NOTICE, AND SUBSTANTIAL COMPLIANCE SLEETH ET AL. V. SEDAN CITY HOSPITAL ET AL. CHAUTAUQUA DISTRICT COURT – AFFIRMED COURT OF APPEALS – ISSUE SUBJECT TO REVIEW IS REVERSED NO. 105,876 – FEBRUARY 7, 2014 FACTS: This was a wrongful death claim arising out of the death of Christopher J. Johnson, a patient at Sedan City Hospital. His parents, Scott and Linda Sleeth, alleged that Short, a hospital employee, punctured Johnson’s bowel while inserting a feeding tube, causing his death on August 7, 2008. The Sleeths sued the hospital and Short.

The district court found that Sedan City Hospital was a municipality as defined by K.S.A. 2012 Supp. 12-105a(a) because it was owned by the city of Sedan. That meant the wrongful death claim was subject to the notice requirements of K.S.A. 2012 Supp. 12-105b(d) (not amended since 2004; claim arose in 2008). See K.S.A. 75-6115(a)(2) (the Kansas Tort Claims Act is applicable to claims against a hospital owned by a municipality and the employees thereof alleging a health care provider’s failure to perform professional services). The district court dismissed the action early in the proceedings, concluding the Sleeths failed to comply with the K.S.A. 2012 Supp. 12-105b(d) notice requirements. The Sleeths contend they actually or substantially complied with K.S.A. 2012 Supp. 12-105b(d) through a letter to the hospital administrator or a series of letters sent to the hospital administrator and an insurance carrier representative. In a fractured opinion, all three panel members of the Court of Appeals issued individual opinions, but reinstated the claim under substantial compliance.

ISSUES: (1) Municipality, (2) notice, and (3) substantial compliance HELD: Court held that one or more letters to the hospital’s administrator and an insurance carrier representative substantially

complied with the statute as to content and manner of delivery.

However, Court held that substantial compliance with K.S.A. 2012 Supp. 12-105b(d) is not achieved when a claimant’s notice fails to provide any statement of monetary damages. Court also held that the provision in K.S.A. 2012 Supp. 12-105b(d) giving a municipality 120 days to investigate and review a claim is a statutory condition precedent to filing a lawsuit, and that a claimant’s premature filing of a lawsuit leaves a court without subject matter jurisdiction.

Court stated that even if it assumed plaintiffs substantially complied with K.S.A. 2012 Supp. 12-105b(d) by May 2, 2010, which was the earliest date they provided the hospital with any statement of damages, the district court properly dismissed their case because they prematurely filed it.

STATUTES: K.S.A. 12-105a, -105b(d); K.S.A. 20-3018; K.S.A. 60-212, -513(a), -518, -1903, -2101(b); and K.S.A. 75-6101, -6115(a)(2)

Criminal STATE V. CLARK SHAWNEE DISTRICT COURT – CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED NO. 105,613 – FEBRUARY 7, 2014 FACTS: Clark was convicted of two counts of aggravated indecent liberties with a child under 14 years of age. District court imposed two concurrent hard 25-year life sentences and ordered lifetime postrelease supervision. Lifetime electronic monitoring was included in the sentencing journal entry. On appeal, Clark claimed there was insufficient evidence of his intent to arouse sexual desires of himself and/or the children. He also challenged the post-release supervision and lifetime electronic monitoring provisions in his sentence.

www.ksbar.org | April 2014

33

Appellate Decisions ISSUES: (1) Sufficiency of the evidence and (2) post-release supervision and electronic monitoring HELD: Under facts and circumstances in this case, sufficient evidence supported the convictions.

State conceded that the sentencing court erred in imposing lifetime post-release supervision. That portion of Clark’s sentences was vacated. State also conceded sentencing court erred in ordering lifetime electronic monitoring. Case was remanded for nunc pro tunc order to correct that portion of the journal entry.

STATUTES: K.S.A. 2013 Supp. 22-3717(u); K.S.A. 2008 Supp.

22-3717(u); K.S.A. 21-3504(a)(3)(A), -4643; and K.S.A. 223601(b)(1) STATE V. DULL SEDGWICK DISTRICT COURT – AFFIRMED NO. 105,115 – JANUARY 31, 2014 FACTS: Dull, age 20, was convicted of aggravated criminal sodomy, rape, and aggravated indecent liberties involving a 13-yearold victim. The victim’s mother reported the sexual activity. Dull claimed that he did not have sex with the victim and also that the other testimony in the case demonstrated that it was consensual.

The district court sentenced Dull to 3 concurrent hard 25 to life sentences under Jessica’s Law. He was also convicted of burglary and theft in a separate case tried to the bench on stipulated facts, and the sentence was ordered to run concurrently with the sentences for the sex crimes.

ISSUES: (1) Prosecutorial misconduct, (2) admission of evidence, (3) ineffective assistance of counsel, (4) sufficiency of the evidence, and (5) departure motion HELD: Court held a prosecutor’s assertion during opening statement that a sex victim’s story to her mother was “the truth” is outside the wide latitude allowed to attorneys for the state and therefore error. It is not reversible error, however, because it was not repeated or emphasized and did not appear calculated or deliberate; it thus was not gross and flagrant and was not a product of ill will. In addition, given the strength of the evidence, Court stated it was satisfied beyond a reasonable doubt that the prosecutor’s early and isolated reference to “the truth” did not affect the outcome of the trial in light of the entire record. Court held that there was no objection to the admission of the evidence that Dull’s younger brother was having sex with the victim’s friend in the next bedroom during the alleged crimes, and Court did not reach the merits of the issue. Court found that Dull’s ineffective assistance of counsel claims were raised for the first time on appeal, and Court did not order a remand because it was not requested by appellate counsel. Court found sufficient evidence to support all the convictions. Court stated there is no requirement for stating findings on the record when the district court denies a departure motion and there was no error in this case.

34

The Journal of the Kansas Bar Association

STATUTES: K.S.A. 21-4701, -4718; K.S.A. 21-4643; and K.S.A. 60-1507 STATE V. HUDDLESTON SEDGWICK DISTRICT COURT – AFFIRMED NO. 106,273 – FEBRUARY 14, 2014 FACTS: Huddleston’s conviction for premeditated first-degree murder arose from the death of Stover in 2000. No charges were brought in the case for more than 10 years. Huddleston, Edwards and Pischel were involved in Stover’s death when he was injected with high doses of insulin. Edwards later confessed in 2010 to her involvement in the crime and implicated Huddleston as injecting Stover with the insulin.

ISSUES: (1) Prosecutorial misconduct, (2) premeditation, (3) jailhouse letters, and (4) admission of evidence HELD: Court found that the prosecutors made improper arguments to the jury misstating the law by suggesting that premeditation could occur after a homicidal act. Court concluded it is not reasonably probable that those misstatements affected the outcome of the trial given the strong evidence of premeditation, the jury instructions, and the prosecutors’ correct statements of the law regarding premeditation. Court also held that the trial judge did not err when he admitted into evidence two jailhouse letters written about the crimes by Huddleston because the letters were relevant and reasonable people could agree with the trial judge’s determination that the probative value of the defendant’s letters providing circumstantial evidence of his or her intent when committing an act that caused death outweighed any prejudice caused by vague references in the letters to the defendant’s incarceration.

STATUTES: K.S.A. 21-3401; K.S.A. 22-3601; and K.S.A. 60261, -401, -407, -455, -460 STATE V. KELLY JOHNSON DISTRICT COURT – AFFIRMED NO. 105,934 – FEBRUARY 21, 2014 FACTS: Kelly, prosecuted as an adult for robbing liquor store and killing a clerk, was convicted on guilty pleas to felony murder and aggravated robbery. A hard 15-year life sentence and concurrent 172-month sentence was imposed. Twelve years later Kelly moved to withdraw pleas, arguing ineffective assistance of counsel, and also claimed his sentences constituted cruel and unusual punishment.

District court considered motion as filed under K.S.A. 60-1507, and denied it as time barred. Kansas Supreme Court reversed, remanding for district court’s consideration of motion under K.S.A. 22-3210(d) as a post-sentence motion to withdraw pleas. State v.

Kelly, 291 Kan. 563 (2010). District court subsequently denied the motion without conducting an evidentiary hearing. Kelly appealed claiming that ineffective assistance of counsel constituted manifest

Appellate Decisions injustice and district court erred in summarily denying his motion.

Kelly also claimed his aggravated robbery sentence was illegal because his prior juvenile adjudications were used both to certify him for trial as an adult, and in computing Kelly’s criminal history score in sentencing.

ISSUES: (1) Denial of motion to withdraw plea and (2) illegal sentence HELD: District court did not err in denying ineffective assistance of counsel claims without conducting an evidentiary hearing. Kelly’s claim that attorneys failed to advise him of the mandatory minimum sentence for felony murder is contrary to the record. His claim that attorneys failed to advise him of possible juvenile sentencing was raised for first time on appeal, but even if properly raised, there was no reasonable basis to believe a lesser included offense instruc-

tion might have been given in his case His claim that attorneys failed to advise him that he would waive right to challenge admissibility of statements to police if he entered guilty pleas has no factual or legal basis in the record. And Kelly established no prejudice on any of those claims. Nor did Kelly’s conclusory allegation of cruel and unusual punishment preclude summary denial of his plea withdrawal motion.

Kelly’s claim that dual use of his prior juvenile adjudications rendered his sentence illegal is defeated by State v. Lanning, 260 Kan. 815 (1996), which remains controlling.

STATUTES: K.S.A. 2013 Supp. 22-3210(e); K.S.A. 22-3210, -3210(d), -3504, -3504(1), -3601(b)(1); K.S.A. 60-1507; K.S.A. 1994 Supp. 21-4710, -4710(a), -4710(d)(11); and K.S.A. 381636(a), -1636(i) (Furse 1993)

Court of Appeals Civil CHILD SUPPORT AND ADOPTION SUBSIDY IN RE MARRIAGE OF THOMAS JOHNSON DISTRICT COURT – AFFIRMED NO. 109,771 – FEBRUARY 14, 2014 FACTS: Donald Thomas appeals from the trial court’s decree of divorce. As part of the divorce decree, Donald was ordered to pay his former spouse, Lisa Thomas, $315 per month in child support.

Donald argues the trial court erred in calculating child support because it failed to reduce or eliminate his support obligation based on a monthly adoption subsidy that Lisa received from the state of Kansas.

ISSUES: (1) Child support and (2) adoption subsidy HELD: Court held that because an adoption subsidy is meant to supplement an adoptive parent’s income for the benefit of a special needs child, the adoption subsidy is in no sense attributable to the adoptive parent. An adoption subsidy is income attributable to the adopted child. Because an adoption subsidy is not income attributable to the parent, but, rather, income of the child, the adoption subsidy could not be considered in the income attributable to the custodial parent for the purpose of calculating child support.

STATUTE: K.S.A. 38-319, -324 INSURANCE AND DUTY TO DEFEND CENTRAL POWER SYSTEMS & SERVICES INC. V. UNIVERSAL UNDERWRITERS INSURANCE ET. AL. JOHNSON DISTRICT COURT – AFFIRMED NO. 108,875 – FEBRUARY 21, 2014 FACTS: Universal Underwriters Insurance Co. and Zurich American Insurance Co., collectively “the insurers,” appeal the district court's determination that the insurers had the duty to defend an insured against claims made against the insured in a lawsuit. The district court held that the insurers were obligated to defend Central Power Systems & Services Inc. in litigation instigated by a customer of Central Power. That customer had alleged that Central Power had been negligent and had made negligent misrepresentations regarding the way products Central Power provided would operate.

Applying Missouri law, the district court found that the claims asserted against Central Power for negligence and negligent misrepresentation triggered the insurers’ duty to defend under the insurance coverage provided to Central Power.

ISSUES: (1) Insurance and (2) duty to defend

HELD: The insurers contended that the district court erred in three ways: (1) by applying Missouri law; (2) by finding the policy covered negligence and negligent misrepresentation litigation; and (3) by finding no exclusion in the policy that extinguished the insurers’ duty to defend Central Power on those claims. Court found no error: (1) Missouri law applies because the insurance contract was made in Missouri when the last act needed for creation of the insurance contract—delivery of the insurance policy—took place at Central Power’s Missouri business location; (2) Under Missouri law, claims for negligence and negligent misrepresentation have been held covered under similar insurance policies; (3) Under Missouri law, exclusions apply only when their language clearly and unambiguously precludes coverage, and no exclusion cited here by the insurers did so. Because the court below appropriately applied Missouri law, and because the plain language of the policy covers and does not exclude coverage for negligence and negligent misrepresentation. The court affirmed.

STATUTES: No statutes cited.

Criminal STATE V. DECLERCK SHAWNEE DISTRICT COURT – AFFIRMED NO. 109,759 – FEBRUARY 7-2014 FACTS: Declerck was the driver in single vehicle accident that killed a passenger. While at the hospital for treatment of injuries Declerck refused consent for blood sample, but custodial blood draw was taken pursuant to K.S.A. 2011 Supp. 8-1001(b)(2) because there was a fatality and Declerck could have been cited for traffic offense. That testing disclosed marijuana chemicals in Declerck’s blood. Declerck filed motions to suppress that evidence, claiming no exigent circumstances excused warrant requirement, and law enforcement lacked probable cause to believe Declerck was under influence of drugs. District court granted the motions. State filed interlocutory appeal to challenge suppression of blood test.

ISSUES: (1) Constitutionality of K.S.A. 2011 Supp. 8-1001(b)(2), (2) Kansas implied consent statute, and (3) good-faith exception to exclusionary rule HELD: The warrantless blood draw violated the Fourth Amendment. Although blood was drawn in accord with K.S.A. 2011 Supp.

8-1001, there was no probable cause that Declerck had been operating motor vehicle while under influence of drugs or alcohol. K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to extent it requires a search www.ksbar.org | April 2014

35

Appellate Decisions and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol.

State’s argument for implied consent, raised for first time on appeal, was considered, finding that Declerck’s implied consent under Kansas implied consent statute did not constitute consent for purposes of a valid exception to the warrant requirement under Fourth Amendment. State v. Johnson, 297 Kan. 210 (2013), is distinguished.

State’s argument for good faith exception to the exclusionary rule, also raised for first time on appeal, was not considered because adequate record was not provided and disputed facts prevented appellate review.

STATUTES: K.S.A. 2012 Supp. 8-1001(b); K.S.A. 2011 Supp.

8-1001, -1001(a), -1001(b)(2), -1001(d)(3); K.S.A. 2011 Supp.

21-5405(a)(3); K.S.A. 2007 Supp. 8-1001, -1001(a); and K.S.A. 8-1001 STATE V. FRANCO FINNEY DISTRICT COURT – AFFIRMED NO. 107,814 – FEBRUARY 14, 2014 FACTS: Franco was convicted of aggravated criminal sodomy.

The adult male victim told the jury the sex was forced and continued over his objections. Franco testified that the sexual encounter was consensual, and that he stopped as soon as victim asked. On appeal Franco claimed: (1) the jury should have been instructed under State v. Bunyard, 281 Kan. 392 (2006), that no crime is committed when a willing participant in a sex act withdraws consent and the other participant stops within a reasonable time; (2) the jury should have been instructed on criminal sodomy as a lesser included offense; (3) questions about victim’s version of the sexual encounter should have caused jury to have reasonable doubt about Franco’s guilt; (4) prosecutor’s rebuttal during closing argument misstated the law and diluted state’s burden of proof; and (5) the use of Franco’s criminal history in sentencing violated Apprendi v. New Jersey, 530 U.S. 466 (2000).

36

The Journal of the Kansas Bar Association

ISSUES: (1) Bunyard jury instruction, (2) lesser included offense instruction, (3) sufficiency of the evidence, (4) prosecutorial misconduct, and (5) sentencing HELD: While a Bunyard instruction would be legally appropriate in a prosecution for aggravated criminal sodomy, in this case Franco claimed the victim initially consented and that they stopped as soon as the victim indicted he no longer wished to participate. Thus a Bunyard instruction was factually inapposite and unnecessary when jury was not asked to determine legal culpability of a defendant who chose to continue engaging in a sex act after the other participant had withdrawn consent.

Under Lawrence v. Texas, 539 U.S. 558 (2003), the Kansas criminal sodomy statute, K.S.A. 21-3501(a)(1), and its recodification at K.S.A. 2013 Supp. 21-5501(b), are unconstitutional and unenforceable with respect to anal intercourse between consenting adults of the same sex conducted in private. Because prosecution of Franco for criminal sodomy would have been constitutionally impermissible under Lawrence, it could not have been a lesser included offense of aggravated criminal sodomy.

Sufficient evidence supports Franco’s conviction. Appellate court does not reweigh evidence or determine credibility of witnesses.

Prosecutor’s argument was fair comment on how jurors should examine the evidence in assessing credibility of Franco and the victim.

Controlling Kansas Supreme Court precedent defeats Franco’s sentencing claim.

STATUTES: K.S.A. 2013 Supp. 21-5501(b), -5504(a), -5504(a) (1); and K.S.A. 21-3107, -3412, -3501(2), -3502(a)(1), -3505, -3505(a)(1), -3506, -3506(a)(3) STATE V. HANKINS JOHNSON DISTRICT COURT – AFFIRMED NO. 109,123 – FEBRUARY 21, 2014 FACTS: Hankins pled guilty to aggravated robbery, burglary and two counts of aggravated assault. His PSI report listed three

Appellate Decisions prior convictions and the trial court sentenced him using a criminal history category G. The district court denied Hankins’ motion for departure and sentenced him to a controlling term of 68 months’ prison. The district court denied Hankin’s motion to correct illegal sentence, finding that he waived his right to challenge his criminal history by stipulating to it in open court and that even if challenged, Hankins failed to prove it was incorrect because deferred sentences from other states, here Oklahoma, can be included in a defendant’s criminal history.

ISSUES: (1) Illegal sentence and (2) criminal history HELD: Court stated that depending on the facts of the case, the doctrine of invited error can bar a defendant who forgoes his or her statutory opportunity to challenge his or her criminal history from subsequently complaining that his or her sentence was based on that unchallenged criminal history. Court held that a prior Oklahoma deferred adjudication after a plea of guilty is counted as a prior conviction for calculating criminal history under the Kansas Sentencing Guidelines.

STATUTES: K.S.A. 21-3107, -3110, -4710, -4711, -4714, -4715, -4716, -5111, -6810, -6811, -6814; K.S.A. 22-3414, -3504, -3601; K.S.A. 60-1501, -1507 STATE V. SHELLY BROWN DISTRICT COURT – APPEAL DISMISSED NO. 109,292 – FEBRUARY 14, 2014 FACTS: Shelly was convicted on one count of unlawful distribution of drug precursor, and one count of unlawful possession of drug precursor. District judge advised Shelly of right to appeal sentence within 14 days of April 2012 sentencing, but no direct appeal was filed. In July 2012 Shelly filed a 60-1507 motion seeking resentencing on both convictions pursuant to State v. Snellings, 294 Kan. 149 (2012), a case decided the same date Shelly was sentenced. District court found Snellings applied to Shelly’s conviction for unlawful possession of drug precursor but not to the distribution offense, and modified Shelly’s sentence on the possession charge. Shelly timely appealed from the resentencing, and asked for hearing under State v. Ortiz, 230 Kan. 733 (1982), to allow appeal from original sentencing. District court conducted a hearing and found that none of the Ortiz exceptions applied to permit an untimely appeal from the April 2012 sentencing. On appeal, Shelly argued the first exception applied because he was never advised of the severity level of the sentence as required by State v. Patton, 287 Kan. 200 (2008). Shelly also claimed that the third exception applied because his retained trial counsel advised Shelly there was no basis for an appeal.

ISSUE: First and third Ortiz exceptions HELD Shelly was entitled to seek further relief under Snellings only if untimely appeal from April 2012 sentencing is allowed. No error in district court’s finding that the first and third Ortiz exceptions did not apply. The Kansas Supreme Court in Patton never intended to broaden the plain language of the controlling statutes by requiring a sentencing judge to specifically advise the defendant of right to appeal the severity level of the sentence. Here, record showed the sentencing judge satisfied the statutory requirements by informing Shelly of his right to appeal. The record further showed that Shelly never directed retained counsel to file an appeal from the April 2012 sentencing order. Because no Ortiz exception allowed Shelly to pursue untimely appeal of his original sentence, the appeal was dismissed with no opinion on whether Snellings would apply to Shelly’s conviction of unlawful distribution of drug precursor.

STATUTES: K.S.A. 21-4721(e)(3); K.S.A. 22-3424(f ), -4159(a); K.S.A. 60-1507; and K.S.A. 65-4159(a), -4161(a)

www.ksbar.org | April 2014

37

classified advertisements

Positions Available Administrative Law Judge. The Director of Workers Compensation for the State of Kansas is accepting applications for an Administrative Law Judge position in Wichita. The selected judge will hear and decide litigated workers compensation claims. Some travel may be required. The successful applicant will be appointed to a four (4) year term with a salary of approximately $102,031.45 per year. In order to be certified for consideration by the Nominating Committee, applicants are required to be an attorney regularly admitted to practice law in Kansas for a period of at least five (5) years and must have at least one year of experience practicing law in the area of workers compensation. To apply, please send your resume with a cover letter addressed to: Larry G. Karns, Director, Division of Workers Compensation, 401 SW Topeka Blvd., Suite 2, Topeka, KS 66603-3105. To be considered, application must be received by May 1, 2014.

Do you feel undervalued by your end of year compensation? Now that we have your attention, would you like to forget the firm politics, stop wasting time in useless committee meetings and focus on practicing law? Do you have your own stable client base which is portable? Do you have an entrepreneurial spirit and are you ready to try something new? Tired of paying for large firm overhead and want to try a smaller firm format? Do you have an established clientele that is resistant to billing rate increases required to keep up with national firm norms or competition in other cities? Are you looking for a way to maintain a first-class law practice with a reputable law firm with easy access to I-435, I-69, and I-35? If so, please consider joining our small south Kansas City law firm. This long-standing firm may be the right place for you.

We are looking for hard working lawyers who can bolster our multi-specialty practice in Kansas and Missouri. Open to plaintiff and defense business, with proven track record. Don’t pay a head hunter or recruiter. Send a resume and cover letter to Blind Box A, c/o Kansas Bar Association, 1200 SW Harrison St., 38

Topeka, KS 66612-1806. Replies will be kept confidential.

Notice of Availability of Competitive Grant Funds. The Legal Services Corporation announces the availability of competitive grant funds to provide civil legal services to eligible clients during calendar year 2015. A Request for Proposal and other information pertaining to the LSC grants competition will be available from www.grants.lsc. gov during the week of April 7, 2014.

In accordance with LSC’s multiyear funding policy, grants are available for only specified service areas. To review the service areas for which competitive grants are available, go to www.grants. lsc.gov/about-grants/where-we-fund and click on the name of the state. A full list of all service areas in competition will also be posted on that page.

Applicants must file a Notice of Intent to Compete through the online application system in order to participate in the competitive grant process. Information about LSC Grants funding, the application process, eligibility to apply for grants, and how to file a NIC is available at www.grants.lsc.gov/ about-grants. Complete instructions will be available in the Request for Proposals Narrative Instruction. Please refer to www.grants.lsc.gov for filing dates and submission requirements.

Please email inquiries pertaining to the LSC competitive grants process to Competition@lsc.gov.

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) 2635851 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

The Journal of the Kansas Bar Association

me if you need a quality brief. Michael Jilka, (785) 218-2999 or email mjilka@ jilkalaw.com.

Family Law Services. Family mediation and guardian ad litem services.

Based in northwest Kansas; will travel statewide. Call Alwin Legal Services at (785) 269-7603.

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) 303-9616 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, personal injury, nursing home negligence, and criminal cases involving injury or death. I offer comprehensive litigation and prelitigation 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

classified advertisements

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.

Beta Testers Needed Beta Testers Needed for Law Office Software. If you, or any of your staff, would like to beta test Juris DOC Pro, free of charge, for 60 days in exchange for feedback. Download it at: http:// www.jurisdocpro.com. Once installed, contact me and I’ll send you a 60-day license key, which removes the watermark from the forms and allows unlimited use of the application for 60 days. In addition to an invoicing component that

makes client billing easy, it contains several thousand law forms and alternate clauses, all connected to a database, to handle most cases, from start to finish, in the areas of law reflected on the website. Contains child support worksheets for both Kansas and Missouri. Contact Tom Harris at (620) 725-3344 or email at gtharris@sbcglobal.net.

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) 645-5900 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 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 incomeproducing investment opportunity for an owner-occupant. Attractive owner financing available for qualified buyer.

Call (816) 805-6415.

www.ksbar.org | April 2014

39