May 2008 Journal

Kansas Bar Association May 2008 • Volume 77• No. 5

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O TI a on IA G ek at i A OC l SS 8 KBR A 0 a EgTIN Top r m BA 0 u o S2 n SA inE 8 ~ in f N M KA an eAeLt 200 tion a U m N 1, tr N - 2 gi s A e 19 o r r ne f Ju ide in s

of the

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THE JOURNAL KBA Celebrating 125 Years of Service

Albert H. Horton Our 1st President

What Constitutes Excusable Neglect?

A Guide for the Kansas Federal and State Practitioner

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THE OURNAL of the Kansas Bar Association May 2008 • Volume 77 • No. 5

. John Clie

Mr. & Mrs

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What Constitutes Excusable Neglect?

A Guide for the Federal & State Practitioner

By Steven W. Allton & John W. Broomes

ITEMS OF INTEREST 5

Additional KBA Board of Governors Seat Now Available

5

KBA Board of Governors Seeking Attorney Comment Regarding Proposed Paralegals Certification Program

13

Get the Kinks Out With “Kinky” in Topeka

14

Your Next Step With the Kansas Bar Foundation

15

2008 Outstanding Speakers Recognition

20

Thinking Ethics Attorney Withdrawals: The Need for a Clean Break

37

The Judicial Council PIK Civil Advisory Committee Seeks Comments

REGULAR FEATURES 4 President’s Message 11 Young Lawyers Section News 16 A Nostalgic Touch of Humor 17 Law Students’ Corner 18 Members in the News 18 Dan’s Cartoon 19 Obituaries 21 LPM Tips & Tricks 34 Appellate Decisions 38 Appellate Practice Reminders 45 Classifieds 46 CLE Docket Cover photo and design by Ryan Purcell

Come Join the Celebration!

KANSAS BAR ASSOCIATION 10

Q-and-A with Linda Parks, 2007-2008 KBA President

By Scott M. Hill

annual meeting

Celebrating Our Past, Present, and Future

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.

The Journal of the Kansas Bar Association 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 (ISSN 0022-8486) is published by the Kansas Bar Association, 1200 S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037; 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. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037.

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.

For advertising information contact Suzanne Green at (800) 211-1344 or e-mail sgreen@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

COPYRIGHT 2008 Kansas Bar Association, Topeka, Kan.

The Journal Board of Editors Director of Bar Services: Susan McKaskle Terri Savely Bezek, Chair Topeka Anne L. Baker Topeka Hon. Monti L. Belot Wichita Boyd Byers Wichita Hon. Jerry Elliott Topeka J. Lyn Entrikin Goering Topeka Connie Hamilton Topeka Mark D. Hinderks Overland Park Evan Ice Lawrence Katharine J. Jackson Manhattan Michael T. Jilka Overland Park Casey Law McPherson

Michelle Reinert Mahieu Dodge City Hon. Tom Malone Topeka Julene Miller Topeka Hon. Lawton R. Nuss Topeka Prof. John Peck Lake Quivira Richard D. Ralls Kansas City, Mo. Richard H. Seaton Manhattan Richard D. Smith Topeka Marty M. Snyder Topeka Catherine A. Walter Topeka Diane S. Worth Wichita Martha Coffman, board liaison Topeka

Terri Bezek, Board of Editors chairperson, bezekt@kscourts.org Susan McKaskle, director of bar services, smckaskle@ksbar.org

From the President Linda S. Parks

It’s a Celebration M

ark your calendars for a grand, glorious, giant celebration. Save the dates: June 19, 20, and 21, 2008.

We are going to have a party. It should be a doozy.

I hope you all will make it. This gala celebration will include incredibly fun folks and feats.

Every lawyer will want to be at this party. But if you or your firm donated to the Raise the Bar Campaign, you will definitely want to be there. Because, at least in part, it is a celebration of you. Here are the highlights: Kinky Friedman. Yes, that’s right. The former Texas gubernatorial candidate, musician, poet laureate, political satirist, and downright fascinating author and speaker will be at this party. One of his goals when he ran for governor was the “dewussification” of Texas. No matter what your political persuasion you will enjoy getting to know Kinky. He has been featured on “60 Minutes,” appeared as a guest on “The Tonight Show with Jay Leno,” and has performed for “Saturday Night Live.” He is also the founder of the Utopia Animal Rescue Ranch, which cares for stray, abused, and aging animals. And he will be at our party.

We will also have the GRAND — yes it will be GRAND — reopening of the Kansas Bar Association (KBA) Headquarters Building. We will acknowledge those of you and yours who have made this reopening possible. Many firms also gave to the endowment campaign by the Kansas Bar Foundation. Our celebration will include special recognition and acknowledgment of all of you, and it will be your opportunity to see your name in lights. Or in bricks.

You will also have the opportunity to attend a terrifically entertaining and riotous musical satire. You will see and hear performers from out state’s capitol city and will have the opportunity to enjoy their witty and whimsical numbers, and, well, it may even be a bit “kinky.” Get it?

And there will be cocktails — and dancing. I’m not sure there will be a band — but you can dance without a band if you have enough cocktails.

Our celebration also includes sporting events. There will be golf — on a primo golf course with some pretty terrific prizes. There will be a 5K run. There will also be a sporting clays shooting event.

If your idea of real fun is to study the law, our celebration will also include some timely and titillating continuing legal education (CLE). There will be topics with appeal to all. For the litigators: cross-examination tactics. For the estate planners: creditor protection trusts and special needs planning. For the family lawyer: child support issues. For the business lawyer: family business planning. For folks like me: ethics. And the list goes on.

I suppose the mention of the CLE kind of gave it away. But the party of which I speak is the KBA Annual Meeting. Our theme is “Celebrating Our Past, Present, and Future.” And we will celebrate and toast the Association and the lawyers who support it at the reception and dedication of our newly refurbished KBA Headquarters. That is perfect timing since the Annual Meeting is in Topeka.

Kinky Friedman is actually going to be our keynote speaker.

He will appear on Friday, June 20, at 9 a.m. He undoubtedly will be one of our more provocative and memorable speakers.

The musical satire is, of course, the Topeka Bar Show. I have been told that some folks do not attend the bar shows. At first I did not believe it. I suppose that is because Dick Honeyman told me it was not true. But if you have missed the bar shows in the past, don’t miss this one. The Topeka Bar Association has been working very hard on their show, and they promise it will be one to remember.

There are so many more things that will be going on as well.

To name just a few, there will be a silent auction, spouse outing at a chocolate store and other fun places, and law school luncheons — did I mention cocktails?

And there will be networking. You will see your old pals from law school. You can meet and greet district court and appellate court judges. You can get to know the lawyer “on the other side” from some distant location. And you can make new friends — you know — the kind who may send you a case or two. We will close the celebration with the Installation and Awards Dinner, which I hope you will make a special effort to attend to honor the award recipients who work so hard for the profession.

Wow! All that packed into three short days. But you need to register. The time is now. If you miss this celebration, you really will be missing out. So sign up early — and have a great time. I know I will. n

Linda S. Parks can be reached by e-mail at parks@hitefanning.com or by phone at (316) 265-7741.

4 – MAY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

D

Additional KBA Board of Governors Seat Now Available for District 1

ue to an increase in membership in KBA District 1 (Johnson County), the District is entitled to an additional Governor Representative. The Board of Governors has authorized a special election to fill this new position.

Per Section 4.2 of the KBA Bylaws, any additional district Governor shall be elected by members from the respective geographic district. Presently, there are three District 1 Governors. This would be the fourth seat.

The Board of Governors (BOG) is the governing body of the Association and is vested with overseeing all business and management activities of the organization. Board members are asked to attend five meetings per year at their own expense. Meetings are held at various locations across the state and are usually held on a Friday during the months of February, April, June, September, and December. BOG members are also asked to attend several related dinners and other functions as necessary. All dinners are paid for by the KBA.

A

This seat would be for a three-year term commencing in June 2008 and ending in June 2011. The successful candidate shall be eligible to serve an additional three-year term.

Candidates seeking this position must have been a member in good standing as of March 1, 2008, and need to file a nominating petition signed by at least 25 KBA members from District 1.

All completed petitions must be returned by Friday, May 30, 2008, in order to be eligible for consideration.

If two (2) or more candidates file valid petitions, there will be a contested election held in June.

Petitions can be obtained by contacting Kelsey Hendricks via e-mail at khendricks@ksbar.org or by telephone at (785) 234-5696.

Should you have any questions, please contact KBA Executive Director Jeffrey Alderman via e-mail at jalderman@ksbar.org or by telephone at (785) 234-5696.

KBA Board of Governors Seeking Attorney Comment Regarding Proposed Paralegals Certification Program

t a Board of Governors meeting in September 2006, representatives from the KBA Paralegals Committee requested approval to form a task force to study voluntary state certification of paralegals. The Board approved the formation of task force, which consists of practicing attorneys, paralegals, and paralegal educators from across the state, having different backgrounds, qualifications, and interests, all of whom are members of the committee.

The Task Force has developed a proposed plan for KBA Voluntary Certification of Paralegals. Under the plan, an individual would have to meet educational and training requirements in order to apply for certification. After successfully completing the screening process, the applicant would have to pass a written examination to be developed and administered by a Paralegal Certification subcommittee. Upon successfully passing the examination, the applicant shall be awarded paralegal certification by KBA. To be certified, a paralegal would have to maintain associate membership in the KBA. In addition, any certified paralegal would have to fulfill annual continuing paralegal education requirements to maintain certification.

It is envisioned that this program can be self-funded through the collection of fees and administered by the Office of the KBA Executive Director. A Paralegal Certification Board would oversee the certification process and it is contemplated that the Board would be established and appointed by the Kansas Supreme Court.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Certification under this program would be totally voluntary. It would not differentiate between services performed by certified paralegals, noncertified paralegals or nonlawyer employees. There is concern in the profession that anyone can call himself or herself a paralegal or legal assistant without formal education or training. Application of this terminology to certain persons may be misleading.

As such, state certification in Kansas would serve to: (1) develop and maintain professionalism among paralegals, and promote the delivery of high quality legal services in Kansas; (2) promote education, training, and high ethical standards among paralegals; and (3) distinguish certified paralegals from other legal staff and provide employers with an objective measure of experience and accomplishment.

In February 2008, members of the Task Force presented the proposed plan to the Board of Governors. The Board approved the plan in principle.

Accordingly, the Board of Governors is now seeking public comment from attorneys regarding a paralegals certification program as described above.

All comments should be directed to KBA Executive Director Jeffrey Alderman at jalderman@ksbar.org or mailed to P.O. Box 1037, Topeka, KS 66601-1037 The deadline to receive comments is Friday, June 20, 2008.

MAY 2008 – 5

WHAT CONSTITUTES EXCUSABLE NEGLECT? A Guide for the Kansas Federal & State Practitioner

By Steven W. Allton & John W. Broomes

I. Introduction At 8:30 on Monday morning, after a successful weeklong trial, you turn your attention to other files. However, upon opening your calendar, your stomach sinks — the deadline for filing a summary judgment motion in another important case passed during the previous week.

No matter how conscientious, many attorneys have found themselves in a similar predicament on at least one occasion.

Where necessary, statutes such as K.S.A. 60-206(b) — allowing an enlargement of time to act — can operate as a safety net. These statutes often allow relief where, among other things, the failure to act was the result of “excusable neglect.” As both federal and Kansas case law suggests, however, confusion surrounds the term. Thus, the purpose of this article is to provide Kansas practitioners with a comprehensive review of the term “excusable neglect,” and the conduct to which it might apply.

Endnotes begin on Page 29.

A. Background The term “excusable neglect” is used in a number of federal statutes and procedural rules that may affect practitioners in Kansas. Litigants who find themselves missing deadlines for filing papers or taking other timely actions in the trial court may rely on excusable neglect as a basis for relief under Federal Rule of Civil Procedure 6, Federal Rule of Criminal Procedure 45, Federal Rules of Bankruptcy Procedure 9006 and 9033, and/or District of Kansas Local Rules 6.1 and 7.4.

Similarly, parties who fail to file a timely notice of appeal may be able to obtain an extension of time to do so on a showing of excusable neglect under 21 U.S.C. § 2107,1 Federal Rule of Appellate Procedure 4, or Federal Rule of Bankruptcy Procedure 8002. Excusable neglect also forms a basis for relief from judgment under Federal Rule of Civil Procedure 60(b)(1), and it appears in a handful of other less commonly encountered rules and statutes.2 B. Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership The leading federal case on excusable neglect is Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership.3 In Pioneer, the U.S. Supreme Court considered the meaning of excusable neglect under Federal Rule of Bankruptcy Procedure 9006.4 There, the debtor filed a petition for relief under Chapter 11 of the Bankruptcy Code.5 Immediately thereafter, the bankruptcy court mailed a notice regarding a creditors meeting to the debtor’s creditors.6 In that notice, the bankruptcy court also established a deadline, or bar date, for filing proofs of claim.7 One group of creditors was represented by the same corporate officer and the same counsel.8 The officer read the notice, and was aware of the bar date.9 He then provided the notice, along with other relevant documents to the creditors’ attorney.10 Unfortunately, the attorney failed to file the required proofs of claim by the bar date.11 Instead, approximately three weeks after the bar date, the creditors filed their proofs of claim, along with a motion for extension of the bar date under Rule 9006(b)(1).12 The creditors’ attorney based his motion on the fact that he was withdrawing from his former law firm around the time that proofs of claim were due, and he did not have access to his files until sometime thereafter.13 The bankruptcy court initially denied the motion, but that decision was reversed by the district court. Following remand, the bankruptcy court concluded that the creditors’ corporate THE JOURNAL OF THE KANSAS BAR ASSOCIATION

officer and their counsel had actual notice of the bar date, and that counsel’s failure to file timely proofs of claim was based, at least in part, on counsel’s indifference to the deadline.14 Both the district court and the U.S. Court of Appeals for the Sixth Circuit agreed with the bankruptcy court’s factual findings of actual notice and indifference.15 The district court affirmed the ruling, but the Sixth Circuit reversed, finding that it was unfair to punish the creditors for their counsel’s error.16 The Supreme Court rejected the notion that a party should not bear responsibility for its counsel’s error.17 Nevertheless, the Court found that the creditors had established excusable neglect, and were therefore entitled to an extension of the bar date so that they would be permitted to file their proofs of claim.18 Purporting to interpret the plain meaning of the term “excusable neglect,” the Court commenced a two-step analysis beginning with the word “neglect.”

The ordinary meaning of “neglect” is “to give little attention or respect” to a matter or, closer to the point for our purposes, “to leave undone or unattended to esp[ecially] through carelessness.” Webster’s Ninth New Collegiate Dictionary 791 (1983) (emphasis added).

The word therefore encompasses both simple, faultless omissions to act, and, more commonly, omissions caused by carelessness ... [B]y empowering the courts to accept late filings “where the failure to act was the result of excusable neglect,” Rule 9006(b)(1), Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.19 The emphasized phrase, “where appropriate,” provides a segue into the second part of the inquiry — whether the neglect is excusable. This “determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”20 Factors to be considered in determining whether neglect is excusable include, but are not limited to: (1) “the danger of prejudice to the debtor”; (2) “the length of the delay and its potential impact on judicial proceedings;” (3) “the reason for the delay, including whether it was within the reasonable control of the movant”; and (4) “whether the movant acted in good faith.”21 Ignoring the findings of the three lower courts that counsel’s tardiness was due to indifference,22 the Supreme Court concluded that one of the primary causes of counsel’s untimely filing was the manner in which the bankruptcy court (Continued on Page 9)

MAY 2008 – 7

Client rs. John Mr. & M

II. Excusable Neglect in the Federal System

Excusable Neglect ...

(Continued from Page 7)

announced the bar date.23 Rather than announcing that date in a prominent fashion, it was simply appended to the end of a notice of creditors’ meeting.24 The Court implicitly found that, despite the creditors’ and their counsel’s actual knowledge of the bar date, establishing such an important deadline in such an unorthodox manner created sufficient confusion to at least consider excusing the late filing.25 Since this was an isolated instance, rather than a pattern of misbehavior, and since neither the debtor nor the court’s schedule suffered any significant, negative impact by the three-week delay in receiving the proofs of claim, equity demanded that the court excuse counsel’s neglect in meeting the filing deadline.26 C. Application of Pioneer to other statutes and rules Pioneer paved the way for application of its holding regarding the meaning of “excusable neglect” to other federal rules and statutes. Pioneer explicitly noted that Rule 9006(b)(1) was patterned after Federal Rule of Civil Procedure 6(b), which provides the courts with general authority to enlarge the time periods to perform any act required or permitted by court order or the Federal Rules of Civil Procedure, excepting a handful of specific provisions within the latter.27 Pioneer also observed the use of the term “excusable neglect” in Federal Rule of Civil Procedure 60(b)(1), which allows a court to relieve a party from a judgment or other order upon a finding of “mistake, inadvertence, surprise, or excusable neglect,” so long as the motion is filed within one year of when the judgHazel Hill Chocolate Traditions

ment or order was entered.28 However, the Court noted that its prior case law had limited the scope of excusable neglect under Rule 60(b)(1) to situations in which the movant bore some fault for failing to act in a timely manner.29 This distinction was based on the fact that a separate provision under Rule 60, subparagraph (b)(6), allows a court to relieve a party for “any other reason justifying relief from the operation of the judgment,” and that portion of the rule omits the one-year limitation prescribed under Rule 60(b)(1).30 In Klapprott v.

United States,31 the Supreme Court interpreted this language to mean that faultless omissions should be considered under Rule 60(b)(6), while excusable neglect under Rule 60(b)(1) contemplated only situations where the movant bore some culpability.32 The U.S. Court of Appeals for the Tenth Circuit and the federal district courts in Kansas have readily applied Pioneer’s definition of excusable neglect to other procedural rules. As Pioneer urged, the court of appeals saw no distinction between Bankruptcy Rule 9006(b)(1) and Federal Rule of Civil Procedure 6(b)(2); thus, the Tenth Circuit applied Pioneer to the latter, almost without discussion.33 On separate occasions, the court of appeals also applied Pioneer to excusable neglect cases arising under Federal Rules of Appellate Procedure 4(a)(5) and 4(b)(4).34 Additionally, the Kansas federal district courts have adopted the Pioneer test for measuring excusable neglect under Local Rules 6.1 and 7.4.35 Then, in Jennings v. Rivers,36 the court of appeals followed the Supreme Court’s implicit urging that at least some part of the Pioneer analysis applied to the evaluation of excusable (Continued on Page 22)

Kansas Lavender Ingwerson Farms

Marion Lane Candles

KANSAS BAR ASSOCIATION’S

Annual Meeting 2008 Spouse Outing Presenting a cornucopia of Topeka’s sites, smells, and simple delights for spouses and singles alike.

Friday, June 20, 2008 8:30 a.m. $20 per person (Lunch and transportation provided.)

The Great Overland Station

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

MAY 2008 – 9

Q-and-A with Linda Parks, 2007-2008 KBA President

By Scott M. Hill, Hite, Fanning & Honeyman LLP, Wichita, KBA Young Lawyers Section president-elect

I

recently had an opportunity to sit down with current Kansas Bar Association (KBA) President Linda Parks, Hite, Fanning & Honeyman LLP, Wichita, and pick her brain on an issue that seems very important to her: young lawyer involvement.

Hill: How did you get started in the KBA? Parks: When I started as a new Linda Parks associate, the firm — and more imKBA President portantly, the leaders at the firm, Dick Hite, Bud Fanning, and Darrell Kellogg, in particular — made it known to me that the KBA was important. Yeah, they preached about professional development and service to the bar. But more importantly, they showed me what the KBA was all about. They included me in KBA activities. They invited me along to KBA meetings. They encouraged me to become involved.

Hill: It sounds like your firm initially brought the KBA to you, but what kept you attached to the KBA? Parks: First, the firm really encouraged attendance at the KBA’s Annual Meeting. And I always have had a great time.

There you see old pals from law school and meet new people.

You look forward to seeing those people again. So you start coming back for that. Then I got involved with various committees and even at the American Bar Association (ABA) level as the KBA’s delegate to the ABA’s House of Delegates. Before long it just becomes part of practicing law. And it should be.

Hill: How can young lawyers today become more involved?

Parks: Start with the fun stuff. Of course, you must become a KBA member; that should be a no-brainer. But then — just start showing up. Attend the Annual Meeting. Get a golf team. Don’t worry about winning. Show up at the other social events, such as the mixers and the installation dinner.

For the younger attorneys, show up for a KBA Young Lawyers reception. Show up to a CLE presented by a section focusing on your practice area. Meet with your colleagues, both in your practice area and in others. You and your spouse will have a great time and your practice will ultimately benefit as a result.

Hill: You recently said in one of your KBA president’s columns that “ ... lawyers need the KBA ... [and] those of us who do recognize the importance of this association [need] to do one thing, pass it on. It seems so simple. But that does seem to be where we are failing. We need more lawyers to reach out to other lawyers — young and old, male and female, and pass it on.” If no one has “reached out” to us, how would you suggest a young lawyer get started?

Parks: Call me. The KBA has a mentoring program for new attorneys and for law students. Or better yet — they should 10 – MAY 2008

call you! The KBA is reaching out and is certainly open to those members who want to reach out to us as well. Get involved with the KBA Young Lawyers and — of course — attend the Annual Meeting. There are plenty of folks who are ready to “pass it on” if they just know you are interested. And once you do become involved, don’t forget to “pass it on.”

Hill: You said further, “Certainly some firms ‘pay’ for membership. But that is not enough. We need to teach and encourage.” How can young lawyers who are just becoming (or will soon become) involved in firm management help “teach and encourage”?

Parks: Actually, if young lawyers are not getting support from their firms to be active, they should communicate with firm leaders. I’d wager that most of those folks are successful in part because they have been active in our bar association.

Let them know that you want to follow the same path. And then you should also be sure to reach out to your peers. When attending the YLS meeting or event, be sure to look around for the new folks and to include them in the fun.

Hill: What do you see as the major issues facing the bar with the next generation of Kansas lawyers?

Parks: Two things. We need the senior lawyers to make it easier for the younger lawyers to be involved. Billable hours are important but they are not the end of it. Young lawyers need to be involved in the bar association to build their own contacts and careers. And we need to stay relevant. I have said before that the role of the voluntary bar is changing. At one time, you joined the bar because it was the right thing to do.

I still believe in that, but some people also want to hear about what they get back. And they are looking for some kind of list of tangible items. Today the KBA offers new benefits, such as Casemaker. We have to keep repackaging ourselves to serve the changing needs. We have to do this while remaining affordable. And we are.

Hill: Who is your favorite young lawyer in all of Kansas?

Parks: You know it is hard to pick just one, but if I had to choose I would say Scott Hill. He is hard working, dedicated, good looking, and funny. And he is with a great firm. [Disclaimer: So I didn’t really ask, and she really didn’t answer, but I am sure the response is still accurate.] n About the Author Scott M. Hill is an associate attorney with Hite, Fanning & Honeyman LLP in Wichita. Hill graduated from Pittsburg State University (BBA), Washburn University (MBA), and Washburn University School of Law (J.D.). He practices in the areas of business litigation, civil litigation, and transactions.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Young Lawyers Section News

Come Join the Fun!

By Amy Fellows Cline, Triplett, Woolf & Garretson LLC, Wichita, KBA Young Lawyers Section president

A

s many of you may know, the Kansas Bar Association (KBA) holds its annual meeting in June. The meeting location rotates each year between Wichita, Topeka, and Kansas City. This year, the meeting will be held on June 19-21 in Topeka. I encourage you to attend. The networking and legal education you will receive will benefit you both professionally and personally. You will also have a lot of fun — something that may seem pretty elusive as you slave away racking up your billable hours!

The KBA Annual Meeting Task Force has done an outstanding job planning a variety of continuing education (CLE) seminars, sporting events, networking opportunities, and social gatherings (i.e., fun parties!) for your enjoyment.

The meeting kicks off Thursday, June 19 with a few sporting events — a golf tournament and sporting clays opportunity — and welcome and hospitality receptions. These events provide excellent opportunities to network with your colleagues — either over a round of golf, shooting clays, or drinks back at the hotel. Those attending will meet attorneys from across the state, both experienced and new, who can offer unique perspectives on the practice of law and balancing your personal interests and new career challenges. You just might make some new friends as well.

To make sure new attendees at the Annual Meeting know they are welcome, the KBA is working on a program to introduce them to KBA members who are veterans of the meeting and know their way around. This welcoming program will give the new attendees contact persons who can introduce them to other KBA members at the meeting and answer questions the attendees might have (about the meeting, other KBA opportunities, or whatever else they might wish to discuss).

We hope this program will make new attendees — especially those who may not know many people at the meeting — feel more comfortable attending the social events, since mingling alone can be quite intimidating. The program is still in development, so watch for updates.

The meeting’s CLE programming occurs throughout Friday and Saturday. Many sections of the KBA are offering seminars that will appeal to a wide variety of practice areas. The specific topics that will be offered can be found on the KBA Web site.

Attendees can sign up for one or both days of programming.

Young lawyers can register at a reduced rate, and first-time attendees will receive a $100 discount off registration. In addition to CLE seminars, registrants can also attend breakfast and lunch presentations on both Friday and Saturday, as well as the presentation by this year’s keynote speaker, Kinky Friedman. Friedman is a well-known political satirist and musician who is sure to provide a rousing and thought-provoking good time.

On Friday evening, attendees can enjoy the Topeka Bar Show, a song-and-dance presentation by Topeka lawyers and judges. You will be amazed at the participants’ ability to en-

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

tertain outside of the courtroom.

Prior to the Bar Show, a reception will be held at the newly remodeled KBA building, the Kansas Law Center. I encourage you to stop by to see where those hardworking Amy Fellows Cline KBA employees spend their day as they endeavor to improve our professional lives.

If you don’t imbibe too much alcohol at the post-Bar Show reception, perhaps you will want to participate in Saturday morning’s run — the 5K Legal Run-around. This can get you revved up for Saturday’s programming, which will be followed by the KBA President’s Reception and the Installation and Awards Dinner. At this dinner, which caps off the meeting, the new KBA officers will take the reins, and the KBA will present a number of awards to its members who have provided outstanding service to our communities or the legal profession.

For those of you who wish to bring your families along, the meeting planners have included social opportunities for them as well. On Friday, a spouses’ outing is planned, which will include lunch and tours of interesting places in Topeka and the surrounding area. You and/or your families can also check out the local attractions while you are in town, such as: • The Topeka Zoo, which houses three Sumatran tigers (a species sorely missed by us Wichitans, who are awaiting the construction of a new tiger exhibit at our own zoo), along with many other exotic and interesting animals. It also appears the zoo is having a special barbecue event on Saturday June 21, which might interest your nonlegal-minded relatives and guests.

• The Kansas Museum of History, which includes a steam locomotive, a Southern Cheyenne teepee, one of the largest collections of prairie memorabilia in the United States and a hands-on children’s area; • The Brown v. Board of Education National Historic Site, which includes interesting and interactive exhibits to entertain the children as well as information for adults who want to learn about this pivotal event in our history; and • Ward Meade Park, a six-acre park, featuring an early 20thcentury town, an elegant Southern-style mansion, botanical gardens, and original log cabins.

I encourage you to take advantage of the networking, social and educational opportunities provided by the KBA Annual Meeting and to check out our state capitol while you are there. We aren’t presented with many opportunities to have so much fun while furthering our careers, so don’t let this one pass you by! n Amy Fellows Cline may be reached at (316) 630-8100 or at amycline@twgfirm.com.

MAY 2008 – 11

&

The Kansas Bar Association

Celebrating Our

invites you to join us at the 2008 Annual Meeting in Topeka. Come to revisit old memories while making new ones.

We are offering CLEs throughout Friday and Saturday and plenty of activities and entertainment over the three days.*

Past ...

sentt ...

FUT UTURE

We look forward to seeing you there!

Golf Tournament ‘04

The Topeka Bar Show ‘04

5K Legal Runaround ‘04

KANSAS BAR ASSOCIATION

Annual Meeting

Celebrating Our Past, Present, and Future

50+ Ye

ars of

Service

‘04

*For complete listing of CLEs and activities schedule, please look to the insert included in this issue of The Journal.

Get the Kinks Out With “Kinky” in Topeka

By Beth Warrington, KBA publications administrator

H

umorist and satirical songwriter Kinky Friedman, who has appeared on such news programs as “The O’Reilly Factor,” “60 Minutes,” and “Lou Dobbs Tonight,” will be delivering the keynote address at the Kansas Bar Association Annual Meeting being held June 19-21 at the Capitol Plaza Hotel in Topeka. Don’t miss him as his address will include politics, social issues, and the lessons he learned while running for Texas governor.

Friedman, born Richard, outrageous and irreverent but always thought-provoking, has created a larger-than-life persona and has been hailed as the Frank Zappa of country music. He has become a bestselling crime fiction author, entrepreneur, and even an independent candidate for governor of Texas in 2006 with the campaign slogan, “Kinky Friedman for Governor: How Hard Can It Be?” His campaign garnered him 12.6 percent of the vote and fourth in the fiveperson race.

He grew up in Medina, Texas, the son of a University of Texas professor who raised his children on the family ranch.

Friedman studied psychology at the University of Texas at Austin (Texas) and acquired his nickname (for his hair) during his freshman year. While at Texas, he founded his first band – King Arthur and the Carrots. The group poked fun at surf music, but only released one single. After graduating in 1966, he served three years in the Peace Corps and was stationed in Borneo, where he was an agricultural extension worker.

Kinky Friedman and the Texas Jewboys was founded in 1971, and to keep up with the group’s satirical songs, each member had a deliberately politically incorrect name. He got his break in 1973 thanks to Commander Cody who contacted Vanguard Music on behalf of the young performer. That same year, the band released their debut album, “Sold American.”

The title track, which barely made it onto the charts, was a bitter tale of a forgotten country singer dying an alcoholic death. It was, however, enough attention for Friedman to be invited to the Grand Ole Opry.

He recorded a self-titled album in 1974 that would dissolve whatever pure country listenership he may have had. His hardcore fans were delighted with satirical pieces, such as his response to anti-Semitism, “They Ain’t Making Jews like Jesus Anymore,” as well as quieter sketches of American hard luck, such as “Rapid City, South Dakota.”

Friedman toured with Bob Dylan on the Rolling Thunder Revue tour in the mid-1970s and released his third album, “Lasso from El Paso,” featuring Dylan and Eric Clapton.

Three years later, the Texas Jewboys disbanded and Friedman moved to New York City, where he would often appear at the Lone Star Cafe. He released his fourth album, “Under the Double Ego,” in 1983. Many of his songs from the 1970s and 1980s were collected and released on two compilation albums – “Old Testaments and New Revelations” and “From One Good American to Another.” In 1999, the likes of Willie Nel-

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son, Tom Waits, and Lyle Lovett covered Friedman’s songs and released a tribute album, “Pearls in the Snow: The Songs of Kinky Friedman.” A second tribute album is planned.

After his music career, Friedman turned his attention toward writing, though he continued to make the occasional nightclub appearance. He has written for Rolling Stone and Texas Monthly magazines and has written unique and outrageous crime fiction novels. His novels include “Greenwich Killing Time,” “A Case of the Lone Star,” and “The Mile High Club.”

The novels feature a Jewish country singer turned Greenwich Village private investigator named Kinky Friedman, who sometimes returns to his native Texas. Other characters are drawn from his friends in New York and Texas.

With his own firebrand wit and wisdom, Friedman will be speaking Friday, June 20, at 9 a.m. His truly unique viewpoint on the folks and issues of our nation and political spectrum will be something to remember. n MAY 2008 – 13

Your Next Step With the Kansas Bar Foundation

I ... 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.

Kansas Law Center 1200 S.W. Harrison St. P.O. Box 1037 Topeka, Kansas 66601-1037 Telephone: (785) 234-5696 Fax: (785) 234-3813 Web site: www.ksbar.org OFFICERS Bruce W. Kent, Manhattan President Sarah B. Shattuck, Ashland President-elect John David Jurcyk, Roeland Park Secretary-Treasurer Sally D. Pokorny, Lawrence Immediate Past President BOARD OF TRUSTEES Robert M. Collins, Wichita Daniel H. Diepenbrock, Liberal James C. Dodge, Sublette Kenneth J. Eland, Hoxie Joni J. Franklin, Wichita Terence E. Leibold, Lawrence David K. Markham, Parsons Teresa M. Meagher, Leawood James D. Oliver, Overland Park Randall J. Pankratz, Newton H. Douglas Pfalzgraf, Wellington Hon. Ronnie L. Svaty, Ellsworth J. Ronald Vignery, Goodland James C. Wright, Topeka Eric G. Kraft, Young Lawyers Representative Katherine L. Kirk, Lawrence Kansas Trial Lawyers Association Representative Susan G. Saidian, Wichita Kansas Women Attorneys Association Representative

n 1957, a special committee of the Kansas Bar Association (KBA) recommended the establishment of the Kansas Bar Foundation (KBF) to the KBA Board of Governors. They foresaw an organization whose supporters would generously give time, talent, and contributions throughout the years to provide legal services for the disadvantaged, educate the public about the law, and foster the well-being of the profession.

Over the past 50 years, the Foundation has grown to become an organization of more than 600 members with numerous programs that serve the public.

Since 1986, the Foundation has provided more than $3 million for public services. Through the years the Foundation has been instrumental in the following projects: • Developing law-related education programs for youth, including the statewide mock trial competition for junior and high school students; conflict resolution programs to reduce in-school violence; legal rights and responsibilities booklets for teens; Law Wise, a school year publication sent to civics’ educators statewide complete with lesson plans and technol ogy information; and a clearinghouse of law-related educational resources for educators.

• Administering the KBA’s reduced fee and pro bono programs.

• Providing legal advice and representation for senior citizens, the poor, and victims of domestic violence.

To become a KBF Fellow, you make a $1,000 commitment over 10 years. $100 per year, that’s just little more than 27 cents per day to make a huge difference. Once you reach your pledge amount of $1,000 you are part of a prestigious philanthropy that does great work statewide.

The Fellow level is just the first level of our Foundation giving. Once you’ve achieved the Fellow level any gift after that up to $4,999 makes you a Fellow Silver; $5,000 – $9,999 is Fellow Gold; $10,000 – $14,999 Fellow Diamond; $15,000 – $49,999 Pillar of Foundation; and $50,000 and above Pillar of Profession. As you ascend to each new level you will receive recognition at the annual Fellows Dinner. You will be recognized in print in the KBA Journal and Cornerstone, the KBF publication, as well as given a special pin to mark your level of giving. Your contribution allows us to make Kansas a better place by ensuring the access to justice by all.

The Fellows recruitment season is upon us, and we want to grow. If you are interested in becoming a Fellow or increasing your level of giving, please contact Meg Wickham, manager of public services, at (785) 234-5696 or e-mail at mwickham@ksbar.org. n

3RD ANNUAL KBF SILENT AUCTION The 3rd Annual KBF Silent Auction, benefiting the Justice Robert L. Gernon Loan Repayment Assistance Program, will be at the 2008 KBA Annual Meeting in Topeka. We are requesting donations for this year’s auction, and we need your help. Maybe you’re a season ticket holder to a major sporting event, concert series, theater, or other exciting events; maybe you’ll be out of town for one or more games/performances ... please consider donating those unused tickets to the KBF’s Silent Auction. We will also gladly accept donations of other items. If you have friends that own businesses who may be in the position to make a donation to the auction, please have them contact Meg Wickham at (785) 234-5696 or at mwickham@ksbar.org. We appreciate everything you do, and we know with your help this year’s silent auction will be the best yet. n

Vaughn L. Burkholder, Overland Park Kansas Association of Defense Counsel Representative Sara S. Beezley, Girard Kansas Bar Association Representative Michael P. Crow, Leavenworth Kansas Bar Association Representative Edward J. Nazar, Wichita Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman, Topeka

The 2008 Fellows Dinner is scheduled for Thursday, June 19, 2008, at the KBA’s Annual Meeting in Topeka. Those added to the published roll of Fellows and those who have reached a new contribution level will be honored at the dinner. This black-tie gala event of the year provides a wonderful opportunity to salute the new fellows, introduce new officers, and reminisce with colleagues. Invitations will be mailed. If you would like more information about the dinner, please contact Meg Wickham at (785)234-5696 or e-mail mwickham@ksbar.org.

MANAGER, PUBLIC SERVICES Meg Wickham, Topeka

14 – MAY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

2008 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 for January through March 2008. Your commitment and invaluable contribution is truly appreciated.

Stephen T. Adams, Husch Blackwell Sanders LLP, Kansas City, Mo. Dean Gail Agrawal, University of Kansas School of Law, Lawrence Robert K. Anderson, Morris, Laing, Evans, Brock & Kennedy Chtd., Wichita Christopher E. Biggs, Kansas Securities Commissioner, Topeka Mary Beth Blake, Polsinelli Shalton Flanigan Suelthaus P.C., Kansas City, Mo. Kimberly K. Bonifas, Morris, Laing, Evans, Brock & Kennedy Chtd., Wichita Jeffrey S. Bottenberg, Polsinelli Shalton Flanigan Suelthaus P.C., Topeka Emilie I. Burdette Rush, Kansas Attorney General’s Office, Topeka Hon. Benjamin L. Burgess, 18th Judicial District Court, Wichita Jeffrey A. Chubb, Scovel, Emert, Heasty, Chubb & Gettler, Independence Randall E. Fisher, Law Office of Randall E. Fisher, Newton Frankie Forbes, Holbrook & Osborn P.A., Overland Park Kellie A. Garrett, Spencer, Fane, Britt & Browne LLP, Kansas City, Mo. Dennis Gillen, Depew, Gillen, Rathbun & McInteer L.C., Wichita Daniel B. Giroux, Prochaska, Giroux & Howell, Wichita Stephanie E. Goodenow, Law Office of Stephanie Goodenow LLC, Olathe Peter Graham Ph.D., Acumen Assessments, Lawrence Charles “Charlie” Griffin, Kansas State University, Manhattan David N. Harger, Bremyer & Wise LLC, McPherson

Stanton A. Hazlett, Office of the Disciplinary Administrator, Topeka Scott W. Hildebrand, League of Kansas Municipalities, Topeka Robert R. Hiller Jr., Kansas Health Policy Authority, Topeka Bruce R. Hopkins, Polsinelli Shalton, Flanigan Suelthaus P.C., Kansas City, Mo. James R. Howell, Prochaska Giroux & Howell, Wichita Professor Janet Thompson Jackson, Washburn University School of Law, Topeka Lynn R. Johnson, Shamberg, Johnson and Bergman, Kansas City, Mo. Cynthia L. Kelly, Kansas Association of School Boards, Topeka Mark Knackendoffel, The Trust Company of Manhattan, Manhattan Paul M. Kritz, Hall, Levy, DeVore, Bell, Ott & Kritz, Coffeyville Hon. Steve Leben, Kansas Court of Appeals, Topeka Professor Richard E. Levy, University of Kansas School of Law, Lawrence Terry L. Mann, Martin, Pringle, Oliver, Wallace & Bauer LLP, Wichita Theresa “Terry” Marcel Bush, Kansas Board of Regents, Topeka Carrie A. McAtee, Shook, Hardy & Bacon LLP, Kansas City, Mo. Professor Roger A. McEowen, Iowa State University, Ames, Iowa John R. “Randy” Mettner, Kansas Adjutant General’s Department, Topeka Valerie L. Moore, Law Offices of Valerie L. Moore LLC, Lenexa Gregory L. Musil, Shughart, Thomson & Kilroy P.C., Overland Park Robert D. Myers, City of Newton, Newton

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Nancy Ogle, Ogle Law Office LLC, Wichita C. William “Bill” Ossman, Kansas Department of Social and Rehabilitation Services, Topeka Paula A. Phillips, Kansas Adjutant General’s Department, Topeka Bradley J. Prochaska, Prochaska, Giroux & Howell, Wichita Martha A. “Martie” Ross, Lathrop & Gage L.C., Overland Park William R. Sampson, Shook, Hardy & Bacon LLP, Kansas City, Mo. Steve A. Schwarm, Polsinelli Shalton Flanigan Suelthaus P.C., Topeka Cynthia J. Sheppeard, Weathers, Riley & Sheppeard LLP, Topeka Wesley F. “Wes” Smith, Stumbo Hanson LLP, Topeka Lee M. Smithyman, Smithyman & Zakoura, Overland Park Marty M. Snyder, Kansas Attorney General’s Office, Topeka Sandra Soerries, Medical Revenue Solutions LLC, Napoleon Dean Ellen Suni, University of Missouri-Kansas City School of Law, Kansas City, Mo. Hon. Thomas M. Sutherland, Johnson County District Court, Olathe John R. Whipple M.D., Mental Health Collective, Lawrence Donna L. Whiteman, Kansas Association of School Boards, Topeka Marilyn M. Wilder, Adrian & Pankratz P.A., Newton Molly M. Wood, Stevens & Brand LLP, Lawrence Thomas E. Wright, Kansas Corporation Commission, Topeka Angel R. Zimmerman, Valentine & Zimmerman P.A., Topeka

MAY 2008 – 15

A Nostalgic Touch of Humor

Memo to File: When in Court, Avoid Weapons and Cell Phones

By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo.

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veryone knows there are some things you should never, ever, take inside a courtroom. The obvious list includes knives, guns, and explosives. To be safe, one might also include a face mask, ransom note, handcuffs, and tasers. But you may not think this no-no list should include something that’s not considered a weapon. A cell phone. This month’s column describes the approach of four judges — two state court and two federal court, who most certainly hold the view that cell phones have no place in a court of law. At least one that rings at the wrong time.

1. Get fined. Diane Boswell, a judge in the Lake County, Ind., Circuit Court, endorsed fines.

A legal Web site, “Lowering the Bar,” reported it this way: Judge Boswell “held three people in contempt of court on Wednesday after someone’s cell phone rang during the morning court call. It was apparently the third ringing incident that morning, and Judge Boswell was able to determine that the ring had come from a particular row of spectators, but could not identify the actual ringer. When she asked them whose phone it was, they all refused to say.

That show of solidarity got them all prime seats for the rest of the morning court call, in the chairs normally reserved for inmates who have been brought to court. They had to sit there for more than an hour until the court call ended, and then they were questioned by the judge about the ringing. Since three of the five were found in contempt, I assume Judge Boswell went down the line until somebody finally cracked and the judge learned who the culprit was.

One of the three admitted her phone was one of those that rang, but that she had not volunteered that information. The judge fined her $100. That was in lieu of the 40 hours of community service assigned to the other two, one actually said he had two phones, one the judge had heard powering down.

“The next time you come to court,” Judge Boswell told them, “don’t bring your cell phone. And when the court asks a question, answer the question.”

2. Lose your phone. In July 2006, when U.S. District Court Judge William Shubb, sitting in Sacramento, Calif., heard a cell phone ring, he swept down off his bench in search of the phone. Finding the phone in the hands of a older woman, Judge Shubb took the phone, opened the courtroom door, and threw the cell phone into the hallway. He then ordered his marshals to confiscate every cell phone in the courtroom.

3. Lose your phone, part II. Lawrence F. Clark, a Dauphin County, Pa., judge, ordered a bailiff to drop a ringing cell phone out of a five-story window onto a roof below. [Here’s hoping it was an iPhone.]

16 – MAY 2008

4. Go to jail. And then you have Judge Robert Restaino, sitting in Niagara Falls, N.Y., City Court. If you were in his court on March 29, 2005, you made news in a very unfortunate way.

This case stands for the proposition that being phone free isn’t sufficient. You also must avoid sitting near a ringing phone as well. You see, on that day Judge Restaino was in court hearing a large docket of domestic violence cases. He was clearly in a bad mood when a mobile phone rang at the back of the courtroom.

The judge declared: “Every single person is going to jail in this courtroom unless I get that instrument now.” Security staff attempted, unsuccessfully, to find the phone.

The judge then asked the defendant whose case was being heard if he could identify the culprit, perhaps by the ringtone. He replied “No, I was up here,” underscoring that the call was in the back, not front, of the court. Nevertheless, as punishment, the judge ordered him into custody.

The judge then proceeded to ask all the defendants in court if they knew whose mobile phone had rung. After getting blank stares, the judge ordered each of them — that would be all 46 — to be placed in custody. As reported in one of the local papers, when one defendant told the judge, “I know this ain’t right,” Judge Restaino responded, “You’re right, it ain’t right.

Ain’t right at all.” Of the 46 detained defendants, 14 were unable immediately to post bail. They were taken to the county jail, with handcuffs and shackles, and tossed in the slammer.

By 5 p.m. that day, the remaining defendants were allowed to leave the jail.

Shockingly, Restaino’s conduct got the attention of the New York Commission on Judicial Conduct. Using terms like “egregious and unprecedented abuse of judicial power,” “bizarre,” “shocking,” and “arbitrary” course of conduct “without any semblance of a lawful basis” they recommended removing Restaino from the bench, a determination currently on appeal. One assumes Restaino got the bad news via landline. n About the Author Matthew Keenan grew up in Great Bend and attended the University of Kansas, where he received his B.A. in 1981 and his J.D. in 1984. For the last 21 years, Keenan has practiced with Shook, Hardy & Bacon. He may be reached at mkeenan@shb.com.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Law Students’ Corner

Military Ethics: Uncle Sam Needs the JAG Corps

By Alex Cuellar, Washburn University School of Law

“J

ustice is blind.” In the eyes of the court, any person, whether a soldier or a civilian, is innocent until proven guilty. This immortal maxim embodies our American judicial system. Equal justice belongs to everyone, regardless of caste, creed, or color. Rarely is the law that simple; however, we will always have great attorneys who are willing to stand up for those ideals.

Great attorneys are those that are humble and dedicated to service, including upholding the Constitution and ensuring equal access to justice. They are not driven by a quest for personal wealth or affirmation. Instead, they are those confident people who strive for success in every task appointed to them, without asking for acknowledgment or glory. They are those who want to be a part of something bigger than themselves.

One of the very best examples of such attorneys are the men and women of the Judge Advocate General’s Corps (JAG) of the armed services.

Military training can help law students acquire the skills they need to become great attorneys, but entering the JAG Corps offers even more. For example, the Air Force Reserve Officer Training Corps (ROTC) helped me to become a better law student. The devout level of discipline I implement into every reading and writing assignment comes from my ROTC training. Despite the value of that training, in the fall semester of my first year of law school, I realized something was still missing and that the military still had more to offer me.

I have decided to pursue a career in the JAG Corps because I want to use those same core military principles that were instilled in me during college and as a young boy to maintain the highest ethical standards. The balance between zealously advocating for one’s client, while maintaining a high level of ethical standards, is the cornerstone of the legal profession.

Yet an attorney’s responsibilities are so great that without discipline, it would be easy to slip into the category of “bad lawyer jokes.” I will practice law utilizing the military values of honor, courage, and commitment as my guide.

As a JAG officer, I will also have the opportunity to work for justice on a greater scale. When I began law school, my goal was to become a criminal defense attorney. But now I realize that before I specialize, I need the broader experience that the JAG Corps can provide me. Growing up in El Paso, Texas, which borders Juarez, Mexico, I witnessed the kind of day-to-day injustice that would make any person sick to their stomach. I saw rampant corruption, ranging from police officers taking bribes to higher-ranking officials with their “hands out,” all the while scapegoating unsuspecting peers. I wanted nothing more than to defend the innocent, but I also wanted to see that justice was done toward the guilty. For me, criminal defense is a noble profession, but the JAG Corps will allow me to serve justice in an even broader sense, whether I later

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choose to stay in the military or to enter the private sector.

Not only can I practice in diverse areas like medical, family, and environmental law, but I can also do something that I have wanted to do my entire life — even before deciding to be an attorney — to serve my country.

This is a dangerous time to join the military, but the risks are worthwhile. Every generation needs a group of attorneys willing to take those risks needed to uphold the Constitution. My father was an air-borne firefighter with the Air Force during the Vietnam War, and even when I was very young, he tried to discourage me from military service. He worried about my welfare. After all, what father would knowingly encourage his son to put his life in danger? But the choice to join the military is all my own. When I speak with my friends about this decision, their responses run the gamut from acceptance to disapproval. My wife was an “army brat,” moving from place to place every three to four years, so she understands the complexities of trying to raise a family while following the dream and ideals of a military career.

I have dedicated my entire life to assisting others, serving as a voice for their opinions and contentions. As a JAG officer, I will defend my fellow service members with the same intensity and dedication, just as they have shown while defending this wonderful country during its trials and tribulations. On the same merit, it is my duty to enforce the Uniform Code of Military Justice and the U.S. Constitution. The Constitution is more than just stale sheets of parchment paper. It is a living, breathing document that has stood the test of time. It is the foundation of our democratic society and the essence of our American way of life, and I am fully prepared to give my life in its defense. As a JAG officer and defender of the Constitution, I will be an officer first and an attorney second.

I would be honored to have the opportunity to defend this great nation and to walk in the steps of those that have gone before me. n About the Author Alex Cuellar is currently a second-year law student at Washburn University School of Law. He is a policy assistant with the Kansas Hispanic & Latino American Affairs Commission under the Office of the Governor for the State of Kansas. Cuellar also serves as president for the Hispanic American Law Students’ Association and is a student ambassador for Washburn Law School. After graduation, he will join the Air Force JAG Corps.

MAY 2008 – 17

Members in the News CHANGING POSITIONS Tiffany E. Barmann has joined Arnold Bloch Leibler, Docklands, Victoria, Australia.

Gregory T. Benefiel has joined the Douglas County District Attorney’s Office, Lawrence.

Sara E. Bodenheimer has joined Baker Sterchi Cowden & Rice LLC, Kansas City, Mo. Paula L. Brown and Christopher J. Stucky have joined Douthit Frets Rouse Gentile & Rhodes LLC, Kansas City, Mo., as members.

Michael Callahan and Susan McGreevy have joined Stinson Morrison Hecker LLP, Kansas City, Mo., as partners, and Heath Hawk has joined the firm as an associate.

Tiffany M. Cornejo has joined Russell C. Simon, Chapter 13 Trustee Southern District of Illinois, Belleville, Ill. Jeremy J. Crist has joined the Riley County Attorney’s Office, Manhattan, as an assistant county attorney.

Steven P. Deiter was appointed by Gov. Kathleen Sebelius as district magistrate judge of the 22nd Judicial District.

Gary T. Eastman of Aleritas Capital Corp., Overland Park, has been promoted as general counsel.

Jason J. Fletes has been named a partner with Hill, Beam-Ward, Kruse, Wilson & Wright LLC, Overland Park.

Frankie J. Forbes has joined Holbrook & Osborn P.A., Overland Park, as a shareholder, and Blane R. Markley has joined as an associate.

Jayson A. Ford has been elected as partner with Shaffer Lombardo Shurin, Kansas City, Mo., and James D. Myers has joined as an associate.

Ryan C. Fowler has joined Logan Logan & Watson L.C., Prairie Village.

Brooke L. Grant has joined McDowell Rice Smith & Buchanan, Kansas City, Mo. Thomas G. Kokoruda has been named as the new chairman of Shughart Thomson & Kilroy P.C., Kansas City, Mo. Craig T. Limbocker has joined Lathrop & Gage L.C., Kansas City, Mo.

18 – MAY 2008

Rebecca Mann has joined Young, Bogle, McCausland, Wells & Blanchard, Wichita, as an associate.

Timothy M. O’Brien, Kansas City, Kan., has been selected as the new Clerk of Court for the U.S. District Court for the District of Kansas.

Greg J. Skoch has joined Hovey Williams LLP, Overland Park, as a partner.

Clayton E. Soule has joined Taylor Krusor & Passiglia LLP, Winfield, as an associate.

Dina A. Tantra has joined Beacon Hill Fund Services Inc. as vice president of legal services and general counsel, Dublin, Ohio.

CHANGING PLACES The Barnes Law Firm has moved to 1100 Main, Ste. 2300, Kansas City, MO 64105.

Mark W. Haefner has started his own firm, Haefner Law Office LLC, 8889 Bourgade, Lenexa, KS 66219.

Jeremiah J. Kidwell has moved to 1111 Main St., 7th Fl., Kansas City, MO 64105.

Jane A. Landrum has started her own firm, Landrum Law LLC, 1001 E. 101st Terr., Ste. 170, Kansas City, MO 64114.

Ross R. McIlvan has started his own firm, McIlvan Law Office, 300 W. Main, Madison, KS 66860.

John B. Sullivan has started his own firm, The Law Office of John B. Sullivan, Allied Building, 355 N. Waco, Ste. 150, Wichita, KS 67202.

D. Suzan Tucker has moved to 201 N.E. Park Plaza Dr., Ste. 268, Vancouver, WA 98684.

MISCELLANEOUS Alison K. Brookins, Wichita, has been selected as an administrative law judge for the Social Security Administration’s Office of Disability Adjudication and Review.

John L. Carmichael, Wichita, has been named chair of the Kansas Human Rights Commission.

Jeff Kennedy was re-elected as managing partner at Martin, Pringle, Oliver Wallace & Bauer LLP, Wichita.

McAnany, Van Cleave & Phillips new board of directors consists of Eric T. Lanham, president; Carl A. Gallagher, vice president; Charles A. Getto, secretary; and Clifford K. Stubbs.

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.

Dan’s Cartoon by Dan Rosandich

“You think that’s bad news? I’ve decided NOT to get a divorce!”

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Obituaries John Edward Lancelot John Edward Lancelot, 88, Wichita, died Feb. 9. He was born June 26, 1919, in Oil Hill, the son of Mary Lou Henson and Henry Bailey Lancelot and grew up in Pawhuska, Okla., and Wichita. He was a World War II veteran, serving with the 15th Army Air Corp. After the war he returned to Wichita, where he attended and graduated Wichita State University in 1950 followed by the University of Kansas School of Law in 1953. Lancelot practiced law in Wichita before moving to Denver in 1961. He retired as an attorney for the federal government in 1990 after more than 20 years of service. He was a lifetime member of the Kansas Bar Association, joining in 1953.

He is survived by his wife of 63 years, Leona; two sons, Trent, Phoenix, and Scott, Denver; brother, Harry, Wichita; two sisters, JoAn Daniel, Houston, and Sarah Brown, Bryan, Texas; and four grandchildren. He was preceded in death by his sister, Marjorie.

Jack A. Quinlan Jack A. Quinlan, 85, Topeka, died March 1. He was born, Oct. 22, 1922, in Marceline, Mo., the son of Harry and Helen Womack Quinlan. While serving his country as a World War II fighter pilot, he was awarded the Bronze Star, the Distinguished Flying Cross, the Air Medal, the Purple Heart, the Philippine Liberation Medal, and several ribbons for service in the South Pacific as a member of the 340th Fighter Squadron.

After the war, he returned to Kansas and graduated from Washburn University School of Law. He practiced law for 57 years and was a state senator from 1964 to 1968. In the community he served on the Washburn Board of Regents, was president of its Alumni Association, and a member of the Endowment Association. He was a lifetime member of the Kansas Bar Association, joining in 1951; a member of the Masonic Lodge as a 33rd degree Scottish Rite; the York Rite Chapter No. 5; Arab Shrine, where he served as past potentate; Capitol Post No. 1 of the American Legion and Philip Billard Post No. 1650; Veterans of Foreign War; and many other civic organizations.

Quinlan is survived by his wife, Imogene Ransdell, Topeka.

Other survivors include his children, Sherri Heath, Sandy Hill, and Sally Canady; six grandchildren; and six greatgrandchildren. He was preceded in death by his brother, Bob.

After an honorable discharge he returned to Manhattan, Kan., to finish his studies. He graduated with his bachelor’s degree in 1949 from Kansas State University. He earned his law degree from the University of Kansas School of Law in 1951. That same year he joined the Wichita firm of Foulston and Siefkin and would practice law for 35 years. Siefkin was a member of the Kansas, American, and Sedgwick County bar associations; Kappa Sigma and Phi Delta Phi fraternities; Kansas State Foundation; Kansas State Alumni Association; past president of the Kansas Sunflower Boys State and Kansas Association of Defense Counsels; and a fellow of the American College of Trial Lawyers. His community service included both the Wichita and Tucson rotary clubs and the Tucson public schools reading program.

He is survived by his wife of 58 years, Yvonne Swenson, of the home; four children, Ruth Swenson, Helena, Mont., George Siefkin, Kona, Hawaii, Jim Siefkin, Moraga, Calif., and Robin Siefkin, Augusta; a sister, Shirley Siefkin Apt, Wichita; six grandchildren; and three great-grandchildren. n

Robert Mills Siefkin Robert Mills Siefkin, 82, Wichita, died March 5. He was born Nov. 19, 1925, the son of Dora and George Siefkin. After high school, he enlisted in the Army and joined the 594th Engineering Boat and Shore Regiment as a radio operator.

He served in the Asiatic-Pacific Theater in the South Pacific during World War II and was awarded the American Theater of Operations Ribbon, the Philippine Liberation Service Ribbon, the Good Conduct Medal, the Victory Medal, and the Japanese Occupation Medal.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

MAY 2008 – 19

Thinking Ethics

Attorney Withdrawals: The Need for a Clean Break

By Hon. Steve Leben, Kansas Court of Appeals

A

fiduciary duty is not to be trifled with — few concepts in the law are more powerful. But lawyers tend to forget this when the fiduciary is the lawyer and the fiduciary duty has come solely through the attorney-client relationship.

Assume for the moment that a client comes to see you. The client presently owes a fiduciary duty to someone and the client wants to end that relationship so that he or she no longer has the weighty responsibility of that duty. As an attorney, you would advise your client how to wrap up matters so that all existing fiduciary duties were clearly fulfilled and no further duties remained. You should do no less when you seek to end your own fiduciary relationship with a client.

If you are representing a client in litigation, you aren’t out until the court says you’re out. Under Model Rule 1.16(b), you usually can’t withdraw when the withdrawal would cause some material adverse impact on the client. For example, when trial is scheduled for the coming week, your client’s interests cannot be served absent your participation in the trial. You might ask for a continuance, but if the opposing party or your client would be prejudiced by a continuance, you may not be able to withdraw. And even though you may have cause for terminating the representation, Model Rule 1.16(c) requires that you continue the representation when ordered to do so by the court.

Sometimes lawyers just assume that their request for withdrawal will be routinely approved. But the judge may consider whether the client would be harmed, and the judge is required to follow the applicable rules. So let’s look at the rules you must comply with to withdraw in state or federal court.

If you’re in litigation in Kansas state district court, Supreme Court Rule 117 requires that you serve a motion for withdrawal on the client and on opposing counsel. Because a motion is required, presumably the court should wait at least the minimum time for a response before ruling. Supreme Court Rule 133(c) gives a party five days to request a hearing; once you add on the three extra days for a mailed notice under K.S.A. 60-206, you need to know that your motion to withdraw had better be filed more than a week before you need to be out of the case. A court order approving the withdrawal is required under Rule 117 unless another Kansas-licensed attorney is already appearing on the client’s behalf.

If you’re in the Kansas federal court, Local Rule 83.5.5 again requires that you serve a motion for withdrawal on the client and on opposing counsel. But the copy to the client must be served personally or by certified mail, return-receipt requested. And unless substitute counsel has already appeared, the notice to the client must advise of upcoming court dates and the client’s responsibility for complying with court orders and rules. Once again, withdrawal is not effective until a court order is entered, except when substitute counsel enters an 20 – MAY 2008

appearance on a court-approved form at the same time as the withdrawal. Some Kansas state judicial districts have a similar procedure for substituting one attorney for another.

If you’re in the Kansas state appellate courts, there are no shortcuts authorized by the rules. Supreme Court Rule 1.09(b) requires a written motion for leave to withdraw served on the client and on opposing counsel. Supreme Court Rule 5.01(a) provides for responses within five days. Rule 1.09(b) requires a court order approving the withdrawal.

And if you’re in the U.S. Court of Appeals for the Tenth Circuit, a special rule applies if you are handling a criminal appeal or a post-conviction-relief proceeding. In that case, under Tenth Circuit Rule 46.4, you must affirmatively show several things, including (1) that you’ve advised the client to get new counsel promptly or the client wants to proceed pro se; (2) that you’ve served the motion on the client and all parties; and (3) if the client is proceeding pro se, that you’ve advised the client of the right to counsel and all upcoming requirements. You also must provide a valid reason for withdrawal.

Presumably, strict compliance with these rules might not be required with written consent of the client. And in some cases, of course, such as upon dismissal by the client, you’re required to withdraw, though you must stay on the case if ordered to do so by the court.

When you withdraw, you must make reasonable efforts to protect the client’s interests. Thus, you must return the file to the client or forward it at the client’s direction. In re Sechtem, 274 Kan. 387, 392, 394, 49 P.3d 541, 545, 547 (2002). If you have any doubt about your duties, give the benefit of the doubt to the client and act in the client’s interest. When you think about it, no less could be expected from a fiduciary.

You’ve already decided that you want — or need — to end the relationship. There can be no benefit from having it simply move on to another forum for dispute resolution. n About the Author Hon. Steve Leben has been a judge on the Kansas Court of Appeals since June 2007. From 1993 to 2007, he was a district court judge in Johnson County. He has been a co-presenter of the Ethics for Good lecture series, which has been presented each June in the Kansas City area since 2000.

Leben served as president of the American Judges Association in 2007. In addition, he has been the editor of Court Review, a national journal for judges, since 1998.

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Law Practice Management Tips & Tricks Handling Risk, Whether Online or Off, Get Started — Now!

By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka

Practice Matters Lawyers train hard to assist clients in assessing and responding to risk but do not train as often at handling risk in our own practices. Kansas has been slow to take up the banner of practice management in the law schools or in accredited CLE seminars. Just as often, our valuable time slips away. We occupy our profitable time helping our clients’ manage risk and leave our own unaddressed.

The climate is shifting fast. Competition, sophisticated clients, and even regulatory pressures creep into our practice and put management issues on the front burner. Several new American Bar Association (ABA) publications are driving the point home with resources addressing current law practice management issues. These resources also address the legal and ethical consequences of ignoring self-analysis.

Risk Management: Survival Tools for Law Firms “The practice of law is increasingly risky. Suits against lawyers by clients and nonclients are commonplace, as are multimillion dollar settlements and verdicts. So are criminal and disciplinary proceedings. And no one — not solo practitioners, not small firms with a single office, and not mega firms with many offices — can claim immunity.”

That sobering thought introduces “Risk Management: Survival Tools for Law Firms,” Second Edition by Anthony E. Davis and Peter R. Jarvis. Fortunately, the dire warning is followed by practical, professional advice on how to evaluate office procedures, establish policies, and reduce risk in any size or type of law firm. As the pace of practice and pressures of competition grow, such practical advice is critical to ensure all in a practice are pointed toward the same ethical standards and practices.

The format of the book and the CD tools included lay out a process that is simple to follow step-by-step. The beginning outlines the process of auditing your firm or practice. Questionnaires are provided to assist in actually conducting the audit of the principal components of a practice: client/matter intake, client relations, calendaring, firm and staff management issues, trust accounts, and disaster recovery planning.

Considerable value is added to the questionnaires by the Answer and Analysis section that explains the purpose of each question. That analysis assists with the final step of reporting and response to risks exposed in the process. Read the book through in its entirety over a weekend and then dig into implementation bright and early Monday morning. It really is written with the purpose of getting you started that quickly.

“Risk Management” is available at the ABA Web store for $89.95.

Information Security for Lawyers and Law Firms Another ABA publication, “Information Security for Lawyers and Law Firms,” addresses the issue of risk management and practice policies and procedures as they relate to technology use in a firm. The potentials for malpractice and ethics violations in this area should be of particular concern to THE JOURNAL OF THE KANSAS BAR ASSOCIATION

lawyers right now. The social impact of the Internet, cheap computers, and portable devices (i.e., mobile phones, music players, and digital cameras) bring unique challenges.

Security experts, many of them lawyers, tackle a broad range of security matters, including e-mail security and management, basic hardware and security configuration, wireless networks, and data protection for traveling lawyers. Each article assumes basic familiarity with computers but requires no specialized technical knowledge.

Lawyers who work through the chapters will be able to significantly improve the risk tolerance of their systems — roughly equivalent to installing dead bolts and motion-sensing lights at home. Perhaps the greatest value of the book is as a primer on basic topics to cover with your current or prospective technology contractors.

“Information Security” is available at the ABA Web store for $79.95.

Online Resources Attorneys eager to interact with others fascinated with practice management issues have a wealth of online resources that help enhance the lessons learned in “Risk Management” and “Information Security.” Two favorites are Jeff Beard’s blog at www.lawtechguru.com and the Oklahoma Bar Association’s Law Practice Section at www.okbar.org/php/lawPractice.php.

Each site features regularly updated content from practicing attorneys, which address virtually every facet of practice from the impact of the iPod to trends in legal outsourcing.

Go and Do Whether online or off, get started — now! If selfinterest cannot motivate you, invest in practice management to preserve your clients’ investment in you. The world can do without another lost file, missed deadline, or compromised database. n About the Author Larry N. Zimmerman, Topeka, is a partner at Valentine & Zimmerman P.A. and an adjunct professor teaching law and technology at Washburn University School of Law. He has spoken on legal technology issues at national and state seminars and is a member of the Kansas Collection Attorneys Association and the American, Kansas, and Topeka bar associations.

He is one of the founding members of the KBA Law Practice Management Section, where he serves as editor.

To join the LPM Section or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696.

MAY 2008 – 21

Excusable Neglect ...

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neglect under Rule 60(b)(1).37 However, the distinction between faultless and culpable omissions observed in Klapprott and noted in Pioneer appears to have been lost in Jennings.

After quoting Pioneer’s statement that excusable neglect under Rule 60(b) encompasses negligence, Jennings ignored the very next sentence in Pioneer, which explicitly warned that faultless omissions were beyond the scope of “excusable neglect” as used in Rule 60.38 Instead, Jennings went on to quote Pioneer’s dictionary definition of excusable neglect and, directly contrary to the Supreme Court’s observation in Pioneer, stated that excusable neglect under Rule 60 “therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.”39 This confusion is understandable inasmuch as Pioneer claimed to interpret excusable neglect according to its plain meaning.40 If the plain meaning of “excusable neglect” encompasses both faultless omissions and negligent omissions under most statutes, then one might wonder how it could be limited to only negligent omissions under a different statute, such as in Rule 60(b)(1). Indeed, the term “neglect” itself generally connotes some measure of fault. Conversely, it seems somewhat unnatural to suggest, for example, that an attorney who misses a filing deadline because his office was destroyed by fire or flood, through no fault of his own, is somehow guilty of neglect — excusable or otherwise.41 The answer appears to be that Pioneer’s statements regard-

22 – MAY 2008

ing plain meaning are much less important than its conclusion that excusable neglect is an equitable matter.42 If a statute or rule authorizes relief based on excusable neglect, then the courts will be empowered to grant that relief for either faultless omissions or failures based on carelessness. The distinction between the rules in which excusable neglect covers only careless errors and those in which the term is expanded to encompass faultless omissions is one of form over substance. Where the rule does not otherwise provide for relief based on faultless omissions, excusable neglect will be interpreted broadly to encompass failures where the movant bears no fault.43 By contrast, if the rule contains a separate provision that permits relief for faultless omissions, as does Rule 60(b)(6), then excusable neglect will be interpreted more narrowly to include only those omissions based on negligence.44 In addition to extending the Pioneer balancing test to similar rules, the Tenth Circuit has further refined the test and its supporting guidelines. Perhaps most importantly, the court of appeals has held that the Pioneer factors are not entitled to equal weight: “[F]ault in the delay [is] a very important factor — perhaps the most important single factor — in determining whether neglect is excusable.”45 Additionally, a court evaluating a claim of excusable neglect should consider whether the underlying cause of action is meritorious.46 Other factors that may be relevant include whether the error was an isolated instance or a pattern of misconduct, and the promptness with which the movant acted to correct the mistakes.47 A trial court’s decision on the issue of excusable neglect is generally reviewed for abuse of discretion.48

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D. Excusable neglect: What it is and what it isn’t For practitioners supporting or opposing a claim of excusable neglect, defining the term may be only a small part of the battle. The real challenge is recognizing what conduct and what factual scenarios will support a finding of excusable neglect. Given the broad discretion afforded the lower courts by Pioneer’s equitable balancing test, the best approach may be to catalogue the case law regarding excusable neglect, analogizing your own case with similar authority supporting your desired conclusion.

First, some general principles have emerged that attempt to categorize conduct that will not support a finding of excusable neglect.49 For instance, an attorney’s failure to understand an unambiguous rule or statute does not amount to excusable neglect,50 even when the rule is a local rule or an ethical rule.51 Likewise, busy schedules, heavy caseloads, and the burdens of operating a law practice generally will not support a finding of excusable neglect.52 Nor will scheduling or clerical errors by an attorney’s office staff ordinarily provide a basis for relief.53 And, as might be expected, the mere fact that a refusal to find excusable neglect may terminate the litigation does not amount to the sort of prejudice that will tip the scales in the movant’s favor when the underlying error is one of these otherwise inexcusable types.54 Aside from these general rules, the question of whether any particular circumstance will support a finding of excusable neglect is necessarily fact-driven. For the most part, in cases where the courts have found excusable neglect the delay has been short, the reason for the delay has shown little or no culpability on the part of the movant, and the other three Pioneer factors have weighed in favor of relief. For example, in United States v. Vogl, the Tenth Circuit found excusable neglect for failing to file a timely notice of appeal when the weather was so inclement as to interfere with court operations and preclude the movant’s attorney from physically filing the documents.55 The notice was filed the next business day following the deadline.56 The courts have also shown a willingness to forgive errors caused by careless oversight when the mistake is understandable and the movant’s culpability is low. For instance, in at least two cases, the court of appeals found excusable neglect when party names were improperly omitted from the case caption.

When counsel promptly detected this error and made efforts to correct it57 or when the unnamed parties were represented by the same counsel as a named party and were clearly participating in the case,58 the court concluded that the movants had satisfied their burden to establish excusable neglect, and they were permitted to amend their filings with the proper captions. Similarly, in a complex products liability case, where the volume of documents produced in discovery was enormous, the district court excused a movant’s failure to identify an important witness until after the deadline for submitting final witness lists.59 The court found it understandable that, given the huge volume of documents assembled in discovery, the movant had not previously noted the handful of documents that identified the witness and the potential significance of his testimony.60 Finally, in at least one case, the district court found excusable neglect for failing to respond to a motion to compel when the parties worked diligently to resolve the THE JOURNAL OF THE KANSAS BAR ASSOCIATION

discovery dispute, and, at some point during the pendency of the motion, held a good faith belief that the discovery request had been satisfied.61 Despite the general rule that “law office upheaval” and the rigors of running a law practice will not ordinarily support a finding of excusable neglect,62 some cases have shown a willingness to excuse similar errors when the movant otherwise acted in good faith. In George v. City of Wichita, Kan., the failure to file a timely notice of appeal was excused when counsel mistakenly sent a copy of the district court’s order of dismissal to the movant’s former address, the movant did not receive notice of the order for several weeks, and she was unable to meet with her attorney to discuss an appeal until after the deadline for filing the notice of appeal had already passed.63 One district court also found that a movant’s failure to file a responsive brief was excusable where counsel asserted that he had prepared the brief and directed that it be filed, but could otherwise provide no explanation for why filing never occurred.64 And in another case, the court found excusable neglect for failing to file a timely answer based in large part on the enormous growth experienced by the corporate defendant at the time the case was filed.65 The defendant was represented by in-house counsel, offered to reimburse the opposing party’s expenses for preparing a motion for default judgment, and all other factors weighed in favor of relief.66 This last example is somewhat surprising in that it appears to run counter to the general rule that the burdens of litigation and running a law practice will not ordinarily support a finding of excusable neglect.67 However, noting that this case involved a corporate defendant with in-house counsel may help highlight the intensely fact-driven nature of the excusable neglect inquiry.

Another category of errors that is usually insufficient to qualify as excusable neglect, but nevertheless achieves some occasional success, is misunderstanding the rules. In United States v. Gonzales,68 a defendant missed the deadline for filing a notice of appeal. The Tenth Circuit found excusable neglect because entry of an amended judgment created some confusion regarding whether the deadline for filing a notice of appeal had been affected.69 Although the cause for this error was, at bottom, a failure to understand the effect of an amended judgment on Federal Rule of Appellate Procedure 4(b), and thus a misunderstanding of the rules, the court found the application of Rule 4(b) to this situation sufficiently challenging that the movant’s confusion was understandable, and therefore excusable.70 Similarly, at least one District of Kansas case found excusable neglect where the movant failed to file a response to the opposing party’s motion to reconsider an order, which in turn had denied a motion to dismiss.71 The court found that this error was based, in part, on counsel’s unfamiliarity with the local rules.72 Turning to examples of conduct that was not excused, in In re Corke, an attorney directed his client to call the clerk’s office to determine whether a hearing had been delayed. The client incorrectly concluded that the hearing had been rescheduled, and so informed the attorney.73 Neither movant nor her attorney were present when the hearing was conducted at the originally scheduled time.74 As a result of their absence, the court entered an unfavorable ruling, from which the movant sought relief based on excusable neglect.75 With an understandable MAY 2008 – 23

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air of incredulity, the court noted the irony of the attorney having the client call the clerk’s office to inquire about the hearing, and that the attorney had done nothing to verify the accuracy of the client’s information.76 Not surprisingly, relief was denied.

Other situations in which the courts have declined to find excusable neglect include those where a “sophisticated client” failed to establish mail-handling procedures so as to ensure that notices and other legal correspondence were routed to the proper authorities within the company.77 Likewise, relief was denied when a movant failed to attach supporting documentation to a brief opposing summary judgment.78 The court found that counsel should have been familiar with the electronic case filing system, that the system properly informed counsel that the brief contained no attachments, and that the opposing party’s reply brief likewise pointed out the deficiency in the movant’s response.79 And finally, the courts have declined to find excusable neglect where indeci-

sion regarding whether to take an appeal caused the movant to miss the deadline for filing an appeal under Federal Rule of Appellate Procedure 4(a).80 Surprisingly, one basis for finding excusable neglect that is still in question after Pioneer is that of carelessness.

In Pelican Production Corp. v. Marino, a case that predates Pioneer, the Tenth Circuit concluded that “[c]arelessness by a litigant or his counsel does not afford a basis for relief under Rule 60(b)(1).”81 It would appear that this proposition was soundly laid to rest in Pioneer, where the Supreme Court concluded that the term “excusable neglect” always encompasses carelessness, and often takes in faultless omissions as well.82 Indeed, Pioneer noted that the only basis for a finding of excusable neglect under Rule 60(b)(1) was carelessness, inasmuch as faultless omissions were covered under Rule 60(b)(6).83 This is not to say that carelessness automatically requires a finding of excusable neglect. Rather, under the right circumstances, some carelessness may be excusable.84 Nevertheless, both the court of appeals and the district courts in Kansas have continued to cite Pelican Production for its categorical rejection of carelessness as a basis for finding excusable neglect under Rule 60(b).85

III. Excusable Neglect in the State System A. Background Like the federal system, several different Kansas statutes employ the term “excusable neglect.” For example, K.S.A. 44-709(b) allows an employer an extension of time to reply to an employee’s claim for benefits if excusable neglect is demonstrated.86 K.S.A. 79-1422(c) permits the board of tax appeals to abate a penalty imposed on a property owner for failing to file appropriate documents on time if the failure was due to excusable neglect.87 More broadly applicable, the Kansas code of civil procedure allows practitioners to assert excusable neglect as the basis for an extension of time to file a pleading or motion,88 an extension of time to file a counterclaim,89 relief from a final judgment, order, or proceeding,90 or an extension of time to file an appeal.91 Excusable neglect is also utilized in several other administrative regulations and local rules.92 24 – MAY 2008

The party asserting excusable neglect has the burden to prove it.93 This can be a difficult task, however, because although the term is frequently used, confusion remains regarding what conduct — or lack thereof — is encompassed by the term. Indeed, as the Kansas Supreme Court aptly noted in 1975, excusable neglect is a “nebulous” term, for which “there are few if any clear tangible signposts or guidelines.”94 B. Judicial guidance Although there is no clear test to utilize, the term’s historical context provides a starting point. For example, as early as 1924, the Kansas Supreme Court defined the term in McPherson v.

Martinson: It is said that “equity may relieve a party from a judgment taken against him through his excusable neglect.” [Citation omitted.] ... [T]his language clearly means, not that a judgment may be enjoined because the defendant through neglect for which there was a reasonable excuse failed to appear and resist it, but that where a sufficient ground exists for an injunction, such as the fraud of the other party, relief will not be denied to the applicant merely because he has not himself exercised full diligence.95 In its discussion, the Court appeared to reject a plain language definition,96 instead stating that relief is allowed only where otherwise available on other legal grounds. Such a definition places a difficult burden on the party raising the defense.

Notably, however, this language has not been employed by the Court in any subsequent decision. Indeed, years later, in Wilson v. Miller,97 the Court focused not on the specific facts surrounding the alleged neglect as it had in McPherson, but rather examined the tightrope of countervailing policy issues a court must walk in determining whether such an excuse should provide relief to the litigant: “We concur in that policy of the law which favors the hearing of a litigant’s claim on the merits. However, laudable as is the policy, courts are required to make a determination between such a goal and the necessity of (Continued on Page 25)

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achieving finality in litigation.”98 The Court also determined that it could not substitute its own judgment for the district court’s, absent a showing that defendant’s behavior was not neglectful or reckless “indifference.”99 Wilson’s equitable rationale helped to lay the foundation for several important cases. In Boyce v. Boyce,100 more than 20 years before Pioneer was decided, the Kansas Supreme Court articulated guidelines for litigants pleading excusable neglect in the context of K.S.A. 60-206(b)101 — an enlargement of time statute. The Boyce Court noted that the purpose of an enlargement statute is simply to “prevent a miscarriage of justice[.]”

Although the Court acknowledged the lack of Kansas authority discussing the term as used in K.S.A. 60-206(b), it nevertheless rejected a test from other jurisdictions defining excusable neglect in terms of the reasonably prudent man.

Instead, arguably building on the equitable policy considerations discussed in Wilson v. Miller, the Court stated that any request for relief due to excusable neglect pursuant to K.S.A. 60-206(b) should include: (1) evidence of good faith, (2) a reasonable excuse for the failure to act, and (3) a showing that the interests of justice will be served if relief is granted.102 Notably, these factors nearly parallel the second Pioneer inquiry.

Four years later, in Montez v. Tonkawa Village Apartments,103 the Court again examined excusable neglect, this time in the context of K.S.A. 60-260(b). Noting that K.S.A. 60-260(b) is patterned after the federal rule, the Court examined federal cases and concluded that:

meritorious defense.105 From a practical standpoint, these additional factors merely sharpened Boyce’s third inquiry: whether the interests of justice would be served.

Despite the apparent overlap, Montez did not cite Boyce, ostensibly because Montez dealt with K.S.A. 60-260(b) instead of K.S.A. 60-206. As the previous discussion of Pioneer’s application to both Rule 6 and 60 suggests,106 however, the two cases are certainly not discordant. Rather, only a year after Montez was decided, the Court in examining a K.S.A. 60-260(b) claim of excusable neglect quoted extensively from both cases.107 Both Boyce’s three-part test and Montez’s discussion of “reckless indifference” necessarily focused on equitable considerations.

Both Boyce and Montez remain good law. Because an excusable neglect inquiry focuses on preventing a miscarriage of justice, a litigant should likely frame any request for relief through the Boyce Court’s enunciated guidelines, regardless of the statute utilized.108

“[D]espite the wording of the rule the federal courts will refuse relief only where the neglect can be branded as ‘inexcusable.’ Such terminology is closely akin to our own phrase ‘reckless indifference.’

[Citations omitted.] It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. [Citations omitted.]”104

C. What is a reasonable excuse?

Providing evidence of good faith and showing that the interests of justice will be served are relatively straightforward concepts; however, what constitutes a reasonable excuse remains vague. In Tyler v. Cowen Construction Inc.,109 the Kansas Supreme Court attempted to clarify some of the confusion by examining whether inadvertence may constitute a reasonable excuse: “Inadvertent neglect[] ... is not to be equated with excusable neglect. As we understand these terms, from a look at Webster’s Third International Dictionary, inadvertently means inattentively, carelessly, heedlessly, while excusable means justifiable, pardonable, allowable, defensible.”110 Despite reasoning that inadvertence is not akin to excusable neglect, the Court nevertheless concluded that simple inadvertence may constitute excusable neglect in certain situations. In denying relief, however, the Court opined that no equitable factors supported the party’s claim for relief.

In conformance with federal case law construing Rule 60, Montez additionally focused on whether (1) the nondefaulting party would suffer prejudice and (2) whether the defaulting party had a

How long may one be inadvertent, anyway, and still be excusable? It would depend on the circumstances of course. But, without any explanation at all may neglect from

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Dec. 10 to Jan. 8 be said to be excusable because of the Christmas season? Is carelessness to be justified — or excused — by a 29-day holiday? And what office personnel were gone for 29 days? Did the list include anyone whose duty it was to attend to matters in litigation[] ... There is no explanation!

It appears to us there is little distinction between the inadvertence referred to [here] ... and the (continued on next page)

Kansas Bar Foundation Memorials

A

fitting and lasting tribute to a deceased lawyer can be made through a memorial contribution to The Kansas Bar Foundation. This highly appropriate and meaningful gesture on the part of friends and associates will be felt and appreciated by the family of the deceased.

Contributions may be made to the Kansas Bar Foundation, 1200 S.W. Harrison, Topeka, KS 66612, stating in whose memory it is made. An officer of the Foundation will notify the family that a contribution has been made and by whom, although the amount of the contribution will not be specified.

For bequests or contributions in the sum of $1,000 or more, you can have a name, law firm, or message engraved on a paving brick that will be permanently displayed at the entrance and garden of the Kansas Law Center.

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neglectful indifference of which we spoke in Wilson v. Miller, supra.111 Under the Court’s rationale, a “29-day holiday” was simply not excusable without additional equitable factors.

The Court’s discussion clarifies that a bright line rule does not — and cannot — exist for determining whether certain facts provide a “reasonable excuse”; rather, whether relief will be granted is a question that usually falls on a sliding scale based on several considerations.

D. Who was ultimately responsible?

Although what constitutes excusable neglect “must be determined by the trial court on a case by case basis under the facts presented[,]”112 a central factor to subsequent cases reveals a pattern based on who was ultimately responsible for the problem.

1. Employee or agent of the client Kansas cases suggest that when a lower level employee or agent is responsible for the neglect, it is more likely to be deemed excusable. For example, in Montez, the neglect of an apartment complex’s resident manager was deemed excusable.113 There, plaintiff — an apartment complex tenant — fell on the premises.114 Plaintiff sued the complex, and a copy of the summons and petition was served on the resident manager whose job was to manage day-to-day operations. When the resident manager received the papers, he placed them on his desk. He incorrectly assumed that his employers had also received copies. Thus, no answer was filed and plaintiff took default judgment.115 More than two months later, one of the apartment complex owners learned of the default judgment. Thereafter, the corporation filed a motion to set aside the default judgment under K.S.A. 60-260(b).116 Although the apartment complex argued that it had a meritorious defense, the district court nevertheless denied the motion.117 On appeal, the Supreme Court reversed the district court, holding that the inaction of the resident manager was excusable neglect because: (1) the manager’s conduct was not willful; (2) no principal, other than the resident manager, had any knowledge of the suit; (3) once the corporation had knowledge of the action, it moved quickly; (4) the motion was filed within a reasonable time of the entry of the default judgment; and (5) the plaintiff could show no prejudice except that she would be required to prove her case.118 The Montez Court noted that it was following similar federal court cases holding that a litigant usually should not be punished for the “simple neglect” of his or her agent.119 Kennedy v. Meyerco Inc.120 involved an analogous situation.

There, a tree limb fell against an electric power line, causing a fire that damaged plaintiff’s home.121 Plaintiff brought suit against the Arkansas corporation whose employees were trimming the tree limb. Instead of serving the registered process agent, plaintiff served the foreman in charge of the defendant’s work at the job site. Two days after the service of the summons, the foreman left his employment with defendant.122 The foreman failed to forward the summons and petition to his employer, and no further action was taken. Default judgment was entered. When the corporation learned of the judgment from a garnishment order, it moved to set aside the judgment.123 The district court, however, refused to do so.

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On appeal, the Kansas Supreme Court reversed and set aside the default judgment. Citing Montez, the Court noted that the foreman was responsible for mechanical operations, not general business management.124 Further, the foreman’s job was not permanent. Indeed, he left two days after receiving the summons and petition. Based on these facts, the Court concluded that defendant’s failure to respond was excusable neglect.125 Boyce is also demonstrative. There, after plaintiff Betty and defendant Earnest Boyce were divorced, defendant was ordered to make child support payments. Judgments were subsequently entered against defendant after he failed to make several payments. In an effort to enforce the judgments, defendant’s bank was served with an order of garnishment requiring the bank as garnishee to answer by stating the extent of its indebtedness to defendant.126 When the bank failed to answer within the prescribed time period, plaintiff filed a motion for judgment for the full amount owed by the defendant. On the same day that the motion was filed, the bank filed a motion for permission to answer out of time, alleging certain facts excusing its neglect to answer. After a hearing, the district court concluded that it would permit the bank to file an answer out of time because the bank’s failure to respond was a result of excusable neglect.

The district court held that because the bank had no funds or property belonging to the defendant, plaintiff was not entitled to judgment against the bank.127 On appeal, utilizing the three-pronged test discussed previously, the Supreme Court concluded that the bank met its burden of establishing that its conduct was excusable.128 The facts alleged by the bank supported the Court’s equitable ruling. For example, the bank stated that its president personally handled judicial process, including garnishment summons. However, two days before the garnishment summons was served on the bank, the president left unexpectedly in order to receive medical care at the Mayo Clinic.129 While he was gone, the vice president handled the garnishment summons; he initiated a stop order on the account of defendant.

Although the vice president intended to give the summons to the president when he returned, the summons was “inadvertently” filed in the bank’s vault instead. Importantly, the vice president did not usually handle the garnishment proceedings.130 Montez, Kennedy, and Boyce suggest that when a lower level employee or agent is responsible for the neglect, or when an employee mishandles a job duty he does not normally control, a court is more likely to be lenient. Again, the overriding concern is equity.

2. The client When the client or a higher level employee is specifically at fault for missing a deadline, courts are less likely to grant relief.

For instance, in Tyler v. Cowen Construction Inc.,131 a defendant contractor was ultimately responsible for failing to respond to a suit. There, a dispute arose between a drywall subcontractor and the prime contractor over the subcontractor’s work on two separate projects.132 The subcontractor filed a mechanic’s lien on Nov. 5, 1973, for the work performed. Two days later, the defendant prime contractor retained a Tulsa, Okla., lawyer, and sent him a copy of the lien statements. On Nov. 15, the subcontractor filed suit against the defendant to foreclose the THE JOURNAL OF THE KANSAS BAR ASSOCIATION

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lien and recover a personal judgment on one of the projects; on Nov. 27, he also filed the same for the second project.133 Service in both cases was performed on the contractor’s registered agent, who promptly sent copies of the petitions to the contractor on Dec. 10. The defendant contractor, however, did nothing with the papers for 29 days — during which time the answer date had come and gone and default judgment motions were filed.134 In arguing for permission to file pleadings out of time, defense counsel filed an affidavit stating that he did not receive the pleadings from defendant because of defendant’s “reduced office personnel during the holiday season[.]”135 Default judgment was entered against the contractor and an appeal was taken. On appeal, the Supreme Court distinguished Montez and held that the trial court did not abuse its discretion in finding that the defendant contractor failed to demonstrate excusable neglect.136 The Court noted that the client’s behavior demonstrated “indifference.”137 Bazine State Bank v. Pawnee Production Service Inc.138 also provides guidance. Bazine involved a bank’s suit for possession of personal property and judgment on a note against defendant borrowers.139 Although the borrowers filed three pro se requests for additional time, they ultimately failed to file an answer with the court.140 Default judgment was subsequently entered in favor of the bank. On appeal, the Kansas Supreme Court held that the borrowers’ neglect was not excusable; they could not reasonably justify their neglect to answer where they had specifically asked for more time.141 The lesson of Producers Equipment Sales Inc. v. Thomason142 is analogous. There, a panel of the Court of Appeals examined the conduct of a bank president. Plaintiff — the operator of an oil and gas company — petitioned for foreclosure of mechanics’ liens and a money judgment against the Kansas State Bank and Trust Co.143 Plaintiff filed similar petitions in two other counties as well. The bank failed to answer in all three cases and default judgment was entered.144 The trial court denied the bank’s request to set aside the default judgments pursuant to K.S.A. 60-255(b) and 60-260(b).145 In affirming, the panel held the bank’s failure to answer was not excusable neglect.

The panel noted that the president of the bank determined, without the advice of counsel, that the petition sought only to foreclose the liens.146 Finally, in State ex rel. Stovall v. Alivio,147 a physician was “recklessly indifferent” in failing to respond to a lawsuit.148 The physician was sued for prescribing Viagra without the necessary physical examination and counseling.149 Although service was obtained at three different locations — the physician’s home and two different medical offices — a total of four times, the physician was never personally served.150 When the physician failed to respond to the suit, default judgment was entered. More than two months later, the doctor moved to set aside the judgment, arguing that because he did not have personal knowledge of the suit, his failure to respond was excusable.151 In affirming the trial court’s denial of his motion, the Kansas Supreme Court held that unlike in Montez, the physician demonstrated reckless indifference.152 Alivio drives home the point that the party claiming excusable neglect has the burden to prove it. Unlike in the Montez line of cases, the physician here simply could not explain how he did not know of the suit. Thus, he was attributed with the error.153 THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Despite the foregoing authority, a contrary result occurred in the unusual case of Mid Kansas Fed. Sav. & Loan Ass’n of Wichita v. Burke.154 There, a wife entrusted the family’s financial affairs to her alcoholic husband; however, he failed to make mortgage payments, and the mortgage holder foreclosed.155 Although a summons and petition were served on the husband personally, the wife never received her copy. After a writ of assistance was served on the wife, she immediately filed a motion to vacate the sale pursuant to K.S.A. 60-255(b) and K.S.A. 60-260(b).156 The trial court set aside the judgment, but the Court of Appeals reversed, holding that the wife’s conduct was “inexcusable neglect[.]”157 In reversing the Court of Appeals, the Supreme Court held that the wife’s “conduct in entrusting her husband with family financial affairs, absent any indication that she should have known that he was not making payments when due” was not reckless or inexcusable.

Rather, her failure to appear and answer was excusable neglect because she had no actual knowledge of the action, and she acted quickly when she found out her husband was not making payments.158 Notably, Mid Kansas’ facts are not analogous to the previous cases; rather, the unusual family component makes it the exception rather than the norm. Under these specific facts, the contrary result is not surprising.

3. The attorney When the error is caused by an attorney charged with knowledge of rules and deadlines, establishing excusable neglect can be difficult: “If the incompetence of one hired to perform a specific task were considered excusable neglect, the excusable neglect exception would swallow the rule requiring that the task be performed in the first instance.”159 Nevertheless, courts are hesitant to punish the client for the attorney’s conduct.

For example, in the particularly egregious case of Canaan v.

Bartee,160 the attorney’s conduct was ultimately deemed to be excusable neglect. There, public defenders were appointed to assist in plaintiff’s underlying criminal action. Plaintiff was subsequently convicted of premeditated first-degree murder, aggravated robbery, and aggravated battery. After losing on appeal, plaintiff sued numerous people connected with his case, including the attorneys and the investigator that assisted in his defense. An attorney with the Kansas Attorney General’s Office was assigned to represent the state defendants in the suit.

Throughout the duration of the proceedings, however, the attorney failed to do his job in several respects. For example, he did not contact his clients throughout 1998-1999, and he repeatedly failed to respond to discovery requests. Eventually, the trial court granted plaintiff’s motion for default judgment as a discovery sanction.161 After retaining new counsel, defendants filed a motion to set aside the default judgment pursuant to K.S.A. 60-260(b), arguing that “their culpability, if any, was excusable based on the alleged active concealment perpetrated on them” by their previous counsel.162 Plaintiff, on the other hand, argued that defendants knew they had been sued, and were capable of monitoring the lawsuit.163 Although the trial court acknowledged that defendants presented new information concerning the “gross negligence of their counsel[,]” it nevertheless denied the motion.164 MAY 2008 – 27

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In reversing the trial court, the Kansas Supreme Court analyzed whether attorney conduct alone is sufficient to warrant a default judgment as a discovery sanction. The Court quoted from, among others, a Florida case discussing a similar issue: “Appellant should not be made to suffer the loss of viable claims due to her attorney’s malfeasance where there is no evidence in the record to indicate that she personally engaged in misconduct.”165 Ultimately, the Court held that the trial court abused its discretion in failing to set aside the default judgment because the trial court knew of the attorney’s “egregious” conduct.166 Plainly, equitable principles drove the Court’s conclusion.

Like Canaan, the case of Vernon v. Comm. Financial Corp.167 also dealt with attorney neglect. There, in a stock appraisal dispute, an attorney failed — due to oversight — to file his clients’ stock certificates with the district court as required by K.S.A. 17-6712(g)168 until four months after the filing deadline. In denying a motion to dismiss, the district court concluded that the attorney’s neglect was excusable. Affirming the district court, the Court of Appeals held that it was not an abuse of discretion to find that the oversight was excusable because the error was caused by the attorney rather than plaintiffs themselves. The court reasoned that: “[t]he failure of counsel is that type of excusable inadvertence or neglect common to all who share the ordinary frailties of mankind.”169 Interestingly, this statement is almost directly contrary to the “exception would swallow the rule” line of thought discussed above. Because the facts control, however, individual equity fluctuates.

4. Both the attorney and the client are culpable When both the attorney and the client are at fault, convincing a judge that neglect is excusable can be a tough sell.

For example, in Anderson v. Bill Morris Constr. Co. Inc.,170 a workers’ compensation case, both the client and attorney were charged with knowledge of time limitations. There, after the administrative law judge entered an order in favor of the injured worker, defendant employer and its insurer failed to file an application for review with the Workers’ Compensation Board within 10 days as required by statute and regulation.

On appeal, defendant and its insurer argued that because the administrative law judge’s order was not mailed to the last known address of their attorney, the 10-day time limit did not begin to run until their attorney had received actual notice of the order; thus, excusable neglect justified the failure to file a timely application. A divided panel of the Court of Appeals held, however, that there was no excusable neglect because the parties should have known when the administrative law judge’s order was due, thus beginning the 10-day time limit: “parties in litigation are presumed to know the law.”171 Inexplicably, in Bank of Whitewater v. Decker Investments Inc.,172 a contrary result was entered. There, after an underlying mortgage foreclosure action was brought, litigation ensued concerning the priority of liens.173 An amended answer asserted cross-claims against, among others, a former bank employee third-party defendant. The former employee’s attorney was served with the amended answer and cross-claim. However, the former employee failed to answer for five months, and a motion for default judgment was filed. The former employee 28 – MAY 2008

attempted to remedy the situation by filing a motion for enlargement of time pursuant to K.S.A. 60-206(b)(2), in which to answer the cross-claim.174 Although the former employee’s attorney acknowledged that he received a copy of the amended answers, he did not pay a “great deal of attention” to it because the former employee was not originally a party to the case.175 When the former employee’s attorney finally learned of the cross-claim from opposing counsel, he filed a motion to answer out of time.176 Despite the delay, the trial court nevertheless held that the facts showed excusable neglect.177 In affirming the trial court, the Kansas Supreme Court reiterated that whether conduct is excusable neglect must be made on a case-by-case basis by looking at all the facts, and a trial court’s determination will not be overturned unless it is shown that it abused its discretion.178 Based on the guidelines discussed previously, Whitewater’s favorable ruling is surprising. a. Preparing your motion Although a variable pattern exists based on who was ultimately responsible for the error, the facts of your specific case will determine whether relief is granted. Therefore, to the extent possible, litigants should analogize their specific facts with those from the previous cases discussed herein. Because Kansas case law is limited, practitioners in state courts are justified in looking to federal cases where necessary for guidance.

Indeed, our Supreme Court has articulated that because the Kansas rules of civil procedure were patterned after the federal rules, state courts rightfully look to federal cases for interpretation of similar rules.179 An analogous federal case may prove to be a powerful ally when attempting to sway a judge’s broad discretion.

IV. Conclusion: The Best Defense is a Good Offense In sum, the case law seems to suggest that evaluating excusable neglect in both the federal and state systems is often an unpredictable, unprincipled, fact-driven inquiry. Neglect is more likely to be found excusable when it does not amount to neglect at all, but rather when it results from circumstances beyond the movant’s control. While this result seems bizarre, it is nevertheless understandable inasmuch as the concept of excusable neglect is regarded as an equitable matter. It would appear inequitable indeed to empower courts to excuse carelessness, while precluding relief for faultless omissions.

In order to avoid the uncertainty of the uphill battle necessary to prove excusable neglect, practitioners should take the offensive by familiarizing themselves with the kinds of errors that are usually inexcusable, and making every effort to avoid such missteps. While familiarity with the applicable rules is simply a matter of professionalism, most other errors can be avoided by having in place office practices, policies, and procedures to ensure that deadlines are not missed, correspondence is properly routed, and communications are received by the intended recipient. Most of all, practitioners can avoid the excusable neglect trap with a healthy measure of self-discipline — taking the time to ensure that the work is done properly, returning phone calls, noting deadlines, and last but not least, getting help when the volume of work exceeds the time available to get it done. n THE JOURNAL OF THE KANSAS BAR ASSOCIATION

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About the Authors John Broomes is an associate with Hinkle Elkouri Law Firm LLC in Wichita. He is a former submarine officer and petroleum engineer whose primary area of practice is oil and gas law. Broomes co-authors the chapter on oil and gas law in the Kansas Annual Survey of the Law, and he is a frequent speaker on the subject at events sponsored by the Rocky Mountain Mineral Law Foundation, the Kansas Bar Association, and the Energy and Mineral Law Foundation. He previously served as a law clerk to U.S. District Judge Monti Belot and U.S. Magistrate Judge Donald Bostwick. Broomes is an honors graduate from the University ENDNOTES 1. In Bowles v. Russell, 551 U.S. __, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007), the Supreme Court recently reversed a lower court decision to expand the time for filing a notice of appeal under 28 U.S.C. § 2107.

However, the lower court expanded the time beyond the 14-day limit authorized upon a showing of good cause or excusable neglect under section 2107(c). The Supreme Court held that the 14-day limit was jurisdictional and could not be enlarged. Thus, this case did not refine prior jurisprudence regarding the subject of excusable neglect.

2. See 2 U.S.C. § 394; Fed. R. Civ. P. 13(f ); Fed. R. Bkrptcy. P. 7013.

3. 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993).

4. Id. at 383.

5. Id. 6. Id. 7. Id. at 384.

8. See id.

9. See id. at 384, 386 (citing the bankruptcy court’s findings of fact).

10. Id. at 384.

11. Id. 12. Id. Federal Rule of Bankruptcy Procedure 9006(b)(1) provides: Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

(Emphasis added).

13. Id. 14. Id. at 385-86; see also id. Jt. Appx. at 172a, 1992 WL 12012202 at 172a (memorandum and order of the bankruptcy court finding actual notice and indifference).

15. See id. Jt. Appx. at 182a, 1992 WL 12012202 at 182a (memorandum opinion of the district court affirming the bankruptcy court’s refusal to all late filing of the proofs of claim); In re Pioneer Inv. Services Co., 943 F.2d 673, 677-78 (6th Cir. 1991).

16. In re Pioneer Inv. Services Co., 943 F.2d at 677.

17. Pioneer, 507 U.S. at 396.

18. Id. at 383.

19. Id. at 388 (second emphasis added).

20. Id. at 395.

21. Id. 22. See generally id. at 397-99.

23. Id. at 398-99.

24. Id. 25. See id.

26. Id. at 397-99.

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of Texas at Austin with a bachelor’s degree in petroleum engineering, and he earned his J.D. from Washburn University School of Law with certification in natural resource law.

Steve Allton is an assistant attorney general in the civil litigation division of the Kansas Attorney General’s Office. His varied caseload includes quo warranto and mandamus suits, civil rights claims, and defense of agency actions. Prior to joining the AG’s office, Allton clerked for Justice Lawton Nuss of the Kansas Supreme Court. He attended the University of Kansas for both law school and undergraduate studies.

27. Id. at 391. Federal Rule of Civil Procedure 6(b) states: (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.

(Emphasis added).

28. Id. at 393. Federal Rule of Civil Procedure 60(b) provides, in relevant part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.

29. Id. at 393-94 (citing Klapprott v. United States, 335 U.S. 601, 61314, 69 S. Ct. 384, 390, 93 L. Ed. 266 (1949)).

30. Id. 31. Klapprott v. United States, 335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949) 32. Klapprott, 335 U.S. at 613-14 (plurality opinion); id. at 619-20 (Rutledge, J., concurring); id. at 630-31 (Frankfurter, J., dissenting). As this case citation indicates, Klapprott was a fractured decision; however, at least five justices (and arguably more) agreed with the fault/no-fault distinction between Rule 60(b)(1) and (b)(6).

33. Panis v. Mission Hills Bank N.A., 60 F.3d 1486, 1494 (10th Cir. 1995); see also Thomas v. Bd. of Educ. Unified Sch. Dist. No. 501, Topeka, Kan., 177 F.R.D. 488, 489 & n.2 (D. Kan. 1997); Jetcraft Corp. v. Banpais S.A. De C.V., 166 F.R.D. 483, 485 (D. Kan. 1996).

34. City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (applying Pioneer to Fed. R. App. P. 4(a)(5)), United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (applying Pioneer to Fed. R. App. P. 4(b)(4)).

35. See Dodson Int’l Parts Inc. v. Altendorf, 2005 WL 1799247, *1 (D. Kan. June 29, 2005) (D. Kan. R. 6.1); Burdett v. Harrah’s Kansas Casino Corp., 294 F. Supp. 2d 1215, 1222 (D. Kan. 2003).

36. Jennings v. Rivers, 394 F.3d 850 (10th Cir. 2005)

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37. Pioneer mentioned one other rule that was modeled after Rule 6(b) – Federal Rule of Criminal Procedure 45(b). There appears to be no reported case from the federal appellate courts extending Pioneer’s reasoning to Rule 45(b). However, at least one federal district court has done so.

United States v. Stein, 440 F. Supp. 2d 315, 325 (S.D.N.Y. 2006).

38. Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir. 2005) (citing Pioneer, 507 U.S. at 394); see also Torres, 372 F.3d at 1162 (noting the distinction pointed out in Pioneer).

39. Jennings, 394 F.3d at 856.

40. Pioneer, 507 U.S. at 388.

41. This distinction between faultless and careless omissions is highlighted in the advisory committee notes to the 2002 amendments to Federal Rule of Appellate Procedure 4(a)(5), which allows a court to extend the time for filing a notice of appeal in a civil case on a showing of good cause or excusable neglect: The good cause and excusable neglect standards have “different domains.” Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir. 1990). They are not interchangeable, and one is not inclusive of the other. The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.

The position taken in the advisory committee notes is a genuine “plain meaning” approach to the interpretation of both “good cause” and “excusable neglect.” See also Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004).

42. See Pioneer, 507 U.S. at 395.

43. See, e.g., id. at 388 (defining excusable neglect to include faultless omissions where the applicable rule, Bankruptcy Rule 9006, did not explicitly provide relief for situations where the movant was not culpable).

44. See, e.g., Klapprott, 335 U.S. at 613-14; Bishop, 371 F.3d at 1207 (noting that under Fed. R. App. P. 4(a)(5), excusable neglect encompasses carelessness, while faultless omissions are evaluated under the good cause standard).

45. City of Chanute, Kan. v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994).

46. Jennings, 394 F.3d at 857.

47. Id. 48. See, e.g., Pioneer, 507 U.S. at 398 (reviewing an excusable neglect determination under Fed. R. Bkrptcy. P. 9006); United States v. Vogl, 374 F.3d 976, 981 (10th Cir. 2004) (same, under Fed. R. App. P. 4(b)); In re Lang, 414 F.3d 1191, 1194 (10th Cir. 2005) (same, under Fed. R. Bkrptcy. P. 8002); Panis, 60 F.3d at 1494 (same, under Fed. R. Civ. P. 6(b)); City of Chanute, 31 F.3d at 1046 (same, under Fed. R. App. P. 4(a)).

49. For broader coverage of the cases analyzing excusable neglect, refer to 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Civ. 2d § 2858 (2006).

50. Torres, 372 F.3d at 1163; Thomas v. Bd. of Educ., Unified School Dist. No. 501, Topeka, Kan., 177 F.R.D. 488, 490-91 (D. Kan. 1997); see also Anderson v. Blue Cross & Blue Shield of Kansas Inc., 2008 WL 638489 (D. Kan. Mar. 5, 2008).

51. See Butler v. Boeing Co., 175 F. Supp. 2d 1307, 1310 (D. Kan. 2001); but see White v. O’Dell Indus. Inc., 2000 WL 127267, *2 (D. Kan. Jan 14, 2000) (concluding that a failure to understand the local rules supported a finding of excusable neglect).

52. See, e.g., Pioneer, 507 U.S. at 398 (“[W]e give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date.”); United States v. Mitchell, 464 F.3d 1149, 1151-52 & n.2 (10th Cir. 2006); see also In re Lang, 414 F.3d 1191, 1200 & n.27 (10th Cir. 2005) (collecting cases); Brown v. Alma Inc., 2007 WL 4553330 (D. Kan. Dec. 18, 2007).

53. See Pioneer, 507 U.S. at 398; see also Lang, 414 F.3d at 1200 n.27 (collecting cases); but see O’Dell Industries, 2000 WL 127267 at *2 (concluding that a miscommunication in counsel’s law office supported a finding of excusable neglect).

54. See Lang, 414 F.3d at 1201.

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55. 374 F.3d at 981-82.

56. Id. at 981.

57. City of Chanute, 31 F.3d at 1044-47.

58. Panis, 60 F. 3d at 1494.

59. Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 624, 627 (D. Kan. 2001) 60. Id. 61. Schmidt v. Shawnee Mission Sch. Dist., 1999 WL 681483, *2 (D. Kan. Aug. 19, 1999).

62. Pioneer, 507 U.S. at 398.

63. 353 F. Supp. 2d 1131, 1132 (D. Kan. 2005) 64. Bergman v. Sprint/United Mgmt. Co., 171 F.R.D. 308, 309-10 (D. Kan. 1997) 65. Consol. Marketing Corp. v. Frontier Commc’n Int’l Inc., 1996 WL 225198, *2 (D. Kan. Mar. 19, 1996).

66. Id. 67. See Pioneer, 507 U.S. at 398; United States v. Mitchell, 464 F.3d 1149, 1151-52 & n.2 (10th Cir. 2006); see also In re Lang, 414 F.3d 1191, 1200 & n.27 (10th Cir. 2005) (collecting cases).

68. 65 F.3d 814 (10th Cir. 1995), vacated on other grounds 520 U.S. 1, 117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997) 69. Id. at 817 n.1.

70. Id. 71. O’Dell Industries Inc., 2000 WL 127267 at *1-*2.

72. Id. The court based this decision on Pioneer, which the court read as noting that misunderstanding the rules can occasionally support a finding of excusable neglect. Id. at *2 (citing Pioneer, 507 U.S. at 392). A fair reading of the cited portion of Pioneer casts considerable doubt on that conclusion. The only statement from the cited page of the Pioneer case that appears relevant to a misunderstanding of the rules reads as follows: Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute “excusable” neglect, it is clear that “excusable neglect” under Rule 6(b) is a somewhat “elastic concept” and is not limited strictly to omissions caused by circumstances beyond the control of the movant.

Pioneer, 507 U.S. at 392 (footnotes omitted). While the Court’s statement that a misunderstanding of the rules will not “usually constitute ‘excusable’ neglect” may implicitly leave the door open in the exceptional case, the comment that excusable neglect is an “elastic concept” appears to be aimed more at rejecting the notion that the term encompasses only faultless omissions, rather than suggesting that ignorance of the rules might be excusable in anything other than extraordinary circumstances. Id. 73. 179 B.R. 946, 950 (D. Kan. 1995).

74. Id. at 948.

75. Id. 76. Id. at 951.

77. In re Petroleum Prod. Mgmt. Inc., 240 B.R. 407, 416 (Bkrtcy. D. Kan. 1999).

78. Satterlee v. Allen Press Inc., 455 F. Supp. 2d 1236, 1244-45 (D. Kan. 2006) 79. Id. 80. Bishop, 371 F.3d at 1207.

81. 893 F.2d 1143, 1146 (10th Cir. 1990) 82. See Pioneer, 507 U.S. at 388.

83. Id. at 394 (citing Klapprott, 335 U.S. at 613-14).

84. Id. at 388 (“Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness ... .” (Emphasis added)).

85. See, e.g., In re Woods, 173 F.3d 770, 779 (10th Cir. 1999); McMullen v. Washington Nat. Ins. Co., 1994 WL 75867, *1 (10th Cir. Mar. 8, 1994); Satterlee v. Allen Press Inc., 455 F. Supp. 2d 1236, 1243 (D. Kan. 2006) (This case also cited the Pioneer standard, which did recognize carelessness as a basis for excusable neglect); Sprint Spectrum L.P. v. Genesis PCS Corp., 236 F.R.D. 530, 533 (D. Kan. 2006); Butler, 175 F. Supp. 2d at 1309; Nolan v. Underwriters at Lloyd’s, London, 190 F.R.D. 578, 581 (D. Kan. 1999); Farr v. Int’l Fin. and Trading Network, 175 F.R.D. 333, 336 (D. Kan. 1997); cf. Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (parenthetically quoting Pelican Prod. for this point of law); Estate of Sisk v. Manzanares, 270 F. Supp. 2d 1265, 1283 (D. Kan. 2003) (same).

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86. See also K.S.A. 44-710(c)(3).

87. See also K.S.A. 79-332a(d), K.S.A. 79-1422(c), and K.S.A. 791427a(b).

88. K.S.A. 60-206(b).

89. K.S.A. 60-213(f ).

90. K.S.A. 60-260(b).

91. K.S.A. 60-2103(a).

92. See, e.g., K.A.R. 48-4-2; K.A.R. 82-1-217(b); K.A.R. 94-2-4 (c); Third Judicial District Court Rule 3.208(a); and 14th Judicial District Court Rule 21.

93. Canaan v. Bartee, 272 Kan. 720, 733, 35 P.3d 841 (2001).

94. Boyce v. Boyce, 206 Kan. 53, 55-56, 476 P.2d 625 (1970).

95. McPherson v. Martinson, 115 Kan. 828, 830, 224 P. 907 (1924) (emphasis added).

96. The term’s plain language was discussed in Pioneer, supra text accompanying notes 17-21.

97. 198 Kan. 321, 424 P.2d 271 (1967). In Wilson, after an automobile accident, plaintiff brought an action for damages against the defendants.

Although both defendants were personally served, neither filed an answer.

A month later, plaintiff filed for and received a default judgment against defendants. In November, one of the defendants filed a motion to set aside the judgment stating that he had a “meritorious” defense to the claim.

198 Kan. at 322. Defendant also submitted an affidavit explaining the circumstances behind his failure to answer. He stated that while in the process of moving to Missouri, he temporarily misplaced the summons; further, defendant did not realize that he needed to forward the papers to his insurance carrier. Following a hearing on the motion, the district court denied the motion to set aside the default judgment. On appeal, the defendant argued that his failure to answer was the result of inadvertence and excusable neglect. In affirming the district court’s denial of a motion to set aside default judgment, the Court observed that the district court could have properly vacated the judgment in its discretion. However, because the defendant’s behavior did not constitute neglectful or reckless “indifference,” the Court affirmed the district court. Id. 98. 198 Kan. at 322. See also In re Guardianship and Estate of Hargreaves v. Hiatt, 201 Kan. 50, 55439 P.2d 373 (1968) (“The discretion of the court should be guided by equitable principles and the interest of the party who received the judgment, as well as the moving party, must be considered. Needless to say, the court must diligently protect against the protraction of litigation.”).

99. 198 Kan. at 324.

100. 206 Kan. 53, 476 P.2d 625 (1970).

101. K.S.A. 60-206(b) provides in part: When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge’s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]

102. 206 Kan. at 56. Although the Court appeared to build on the Wilson, it did not cite Wilson.

103. 215 Kan. 59, 523 P.2d 351 (1974).

104. Id. at 65 (emphasis added).

105. Id. at Syl. ¶ 4. See also Jennings, 394 F.3d at 857 (evaluating whether the underlying cause of action is meritorious for a claim of excusable neglect).

106. See supra text accompanying notes 27-46.

107. Tyler v. Cowen Constr. Inc., 216 Kan. 401, 532 P.2d 1276 (1975).

108. 206 Kan. at 56. The additional factors discussed in Montez should be analyzed when a 260(b) claim is made. See also In re Am. Rest. Operations et al., 264 Kan. 518, 957 P.2d 473 (1998) (discussing Boyce and Montez in analyzing excusable neglect under K.S.A. 79-1422 and K.S.A. 79-1427a).

109. 216 Kan. 401, 532 P.2d 1276 (1975).

110. Id. at 407.

111. Id. at 407.

112. 206 Kan. at 55-56.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

113. 215 Kan. at 65-66.

114. Id. at 59-60.

115. Id. at 60.

114. Id. at 61.

115. Id. 118. Id. at 65.

119. Citing Tolson v. Hodge, 411 F.2d 123 (4th Cir. 1969); Trueblood v.

Grayson Shops of Tennessee Inc., 32 F.R.D. 190 (E.D. Va. 1963); Ellington v. Milne, 14 F.R.D. 241 (E.D. N.C. 1953); and Henry v. Metropolitan Life Ins. Co., 3 F.R.D. 142 (W.D. Va. 1942).

120. 218 Kan. 387, 543 P.2d 937 (1975).

121. Id. 122. Id. 123. Id. 124. Id. at 388.

125. Id. 126. 206 Kan. at 53-54.

127. Id. at 54.

128. Id. at 56.

129. Id. at 54.

130. Id. 131. 216 Kan. 401, 532 P.2d 1276 (1975).

132. Id. at 401-02.

133. Id. at 402.

134. Id. 135. Id. at 407.

136. Id. at 408-09.

137. Id. at 409.

138. 245 Kan. 490, 781 P.2d 1077 (1989).

139. Id. at 490-91.

140. Id. at 496.

141. Id. 142. 15 Kan. App. 2d 393, 808 P.2d 881 (1991).

143. Id. at 394.

144. Id. at 394-95.

145. Id. at 395.

146. Id. at 397-98.

147. 275 Kan. 169, 61 P.3d 687 (2003).

148. Id. at 174.

149. Id. at 170.

150. Id. at 170-71.

151. Id. at 171-72.

152. Id. at 174.

153. Id. [U]nlike the defendants in Mid Kansas and Montez who met their burden for relief by providing evidence of simple neglect, our defendant fails to provide evidence as to what happened on these numerous occasions that prevented his notice of the suit. He provides no affidavit as to what happened at his medical clinics in Georgia and Illinois, no affidavit as to what happened with his wife at his home in Missouri, and the affidavit he provides from his daughter does not establish why she failed to notify him of the lawsuit.

Moreover, while Jones’ own affidavit establishes his presence in Alaska from August to November 2001, it does not solve the mystery of why he had not received notice of the multiple services of process that had been obtained at least 26 months earlier.

154. 233 Kan. 796, 666 P.2d 203 (1983).

155. Id. at 796-97, 799.

156. Id. at 797.

157. Id. 158. Id. at 799.

159. Beverly California Corp. v. Dep’t of Human Res., 23 Kan. App. 2d 680, 685, 934 P.2d 992 (1997).

160. 272 Kan. 720, 35 P.3d 841 (2001).

161. Id. at 725.

162. Id. at 726.

163. Id. at 733.

164. Id. at 726.

165. Id. at 738 (quoting Walicki v. Waste Mgmt. Inc., 703 So.2d 1095, 1096 (Fla. App. 1997)).

MAY 2008 – 31

LEGAL ARTICLE: WHAT CONSTITUTES EXCUSABLE NEGLECT ...

The petition for review in this case was filed within 10 days of the 166. Id. at 739. Notably, the Court incorrectly distinguished Montez on date the appellants learned of the administrative law judge’s order. the grounds that it “involved discovery sanctions due solely to the defense Id. at 613 (Lewis, J., dissenting). counsel’s conduct.” 272 Kan. 736 (emphasis added).

The Supreme Court later appeared to embrace Lewis’ reasoning in Nguy167. 32 Kan. App. 2d 506, 85 P.3d 211 (2004). en v. IBP Inc., 266 Kan. 580, 972 P.2d 747 (1999) (applying the “unique 168. K.S.A. 2003 Supp. 17-6712(g) provides: circumstances” doctrine where filing delay was a direct result of an error At the time of appointing the appraiser or appraisers, the court shall made by the administrative law judge’s office). But cf. Finley v. Estate of Derequire the stockholders who hold certificated shares and who degrazio, 285 Kan. 202, 207-13, 170 P.3d 407 (2007) (discussing the limited manded payment for their shares to submit their certificates of stock applicability of the “unique circumstances” doctrine). to the clerk of the court, to be held by the clerk pending the appraisal 172. 238 Kan. 308, 710 P.2d 1258 (1985). proceedings. If any stockholder fails to comply with such direction, 173. Id. at 309. the court shall dismiss the proceedings as to such stockholder.

174. Id. at 314-15.

169. 32 Kan. App. 2d at 510.

175. Id. at 315.

170. 25 Kan. App. 2d 603, 966 P.2d 96 (1998).

176. Id. 171. Id. at 607. Notably, in his dissent, Judge Robert J. Lewis Jr. argued 177. Id. that the interests of justice demanded a different outcome: 178. Id. 179. Wood v. Groh, 269 Kan. 420, 430, 7 P.3d 1163 (2000) (“Kansas In this case, the appellants have lost their right to the review of a courts often look to the case law on federal rules as guidance for interpretaworkers compensation decision because they were not notified of tion[.]”). See also Lackey v. Medora Township of Reno County, 194 Kan. 794, that decision by the administrative law judge in a timely manner.

401 P.2d 911 (1965) (courts may look to federal case law for construcThe appellants had every right to rely on the administrative law judge to advise the parties of the decision, which she had reached. tion and application of K.S.A. 60-260 because it is patterned after federal To deprive the appellants of a review of that decision because of a rule 60). mistake made by the writer of that decision is not my idea of justice.

William A. Lybarger, Ph.D.

7304 Foster Wichita, KS 67206 | tlybarge@yahoo.com Phone: (316) 630-9320 | Fax: (316) 630-9332

Extensive Training & Experience in: health & human service management special education quality assurance performance management

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Court Experience:

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provided deposition testimony 19 times trial testimony 3 times spends 20 percent of his professional time in expert witness work retained by the plaintiff 90 percent of the time

Retainer is Required THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Appellate Decisions All opinion digests are available on the KBA members-only Web site at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your e-mail address or other contact information has changed, please contact bar services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ Web site at www. kscourts.org for the full opinions.

Supreme Court Civil AUTOMOBILE INSURANCE, INTENTIONAL ACT EXCLUSION, AND ILLEGAL ACT EXCLUSION THOMAS ET AL. V. BENCHMARK INSURANCE CO. WYANDOTTE DISTRICT COURT – REVERSED COURT OF APPEALS – AFFIRMED NO. 95,202 – MARCH 28, 2008 FACTS: This case concerns a dispute about automobile liability insurance. While fleeing police, Melissa Gutierrez lost control of the car she was driving at a high rate of speed, killing her and passenger, Ramon Sanchez, and injuring passenger Victor Reyes. In a declaratory judgment action, Reyes and Rene Thomas, as parent and natural guardian of minors and heirs at law of Sanchez, sought a ruling that Gutierrez’s Benchmark Insurance Co. policy provided coverage.

The district court entered summary judgment against Benchmark.

The court concluded that the illegal act exclusion did not apply, but did not address the intentional act exclusion. The Court of Appeals reversed holding that Gutierrez’s excessive speeding prohibited recovery under the intentional act exclusion.

ISSUES: (1) Automobile insurance, (2) intentional act exclusion, and (3) illegal act exclusion HELD: Court modified the traditional natural and probable consequences test to read as follows: The insured must have intended both the act and to cause some kind of injury or damage. Intent to cause the injury or damage can be actual or it can be inferred from the nature of the act when the consequences are substantially certain to result from the act. Under this test, the Court concluded Benchmark has met its burden demonstrating application of the intentional act exclusion. Simply put, injury was substantially certain to result under these circumstances: driving the wrong way against traffic, failing to stop at a stop sign, and driving at 100 mph through neighborhoods. As Benchmark points out, Reyes correctly predicted, and warned Gutierrez against, the precise consequence of her act — bottoming out at the approaching intersection — shortly before it happened. Court stated discussion of the illegal act exclusion was moot.

DISSENT: Justice Davis dissented stating that the majority’s newly adopted standard that “It is not essential … that the harm be of the same character and magnitude as that intended” has no basis in Kansas law and is unsupported by decisions in other jurisdictions.

STATUTES: K.S.A. 20-3018(b); K.S.A. 40-3107(i)(6); and K.S.A. 60-514(b)

34 – MAY 2008

CERTIFIED QUESTION, AUTO INSURANCE, AND MULTIPLE CAR ACCIDENT AMERICAN FAMILY MUTUAL INSURANCE CO. V. WILKINS ET AL. CERTIFIED QUESTION FROM THE U.S. DISTRICT COURT FOR THE DISTRICT OF KANSAS NO. 98,181 – MARCH 28, 2008 FACTS: Laverne Roy was insured by American Family. Roy caused a multi-vehicle accident in Wichita and American Family filed an interpleader action to determine the extent of its liability.

CERTIFIED QUESTIONS: (1) When “occurrence” is not defined in an automobile liability policy, what test should be applied under Kansas law in determining whether there are multiple “occurrences” and, if so, the number of “occurrences”? (2) When multiple collisions involving several vehicles and injured persons result from the actions of the insured driver, is each collision an “occurrence”?

(3) If the answer to question number 2 is “yes,” how many occurrences were there under the facts? (4) What is the maximum amount of American Family’s liability under the policy?

HELD: (1) Court stated that because the policy at issue does not define the term “occurrence” and the cases from various courts demonstrate that the term “occurrence” is susceptible to conflicting meanings, the term is ambiguous. Court held the number of occurrences is determined by the cause of the injury and the cause used for determining an occurrence is the most immediate cause rather than an antecedent cause. (2) Court held when multiple vehicles are involved in multiple collisions, the number of occurrences is based on the time-space continuum between the collisions and the insured driver’s level of control over the vehicle. Collisions with multiple vehicles constitute one occurrence when the collisions are nearly simultaneous or separated by a very short period of time and the insured does not maintain or regain control over his or her vehicle between collisions. When collisions between multiple vehicles are separated by a period of time or the insured maintains or regains control of the vehicle before a subsequent collision, there are multiple occurrences. Court also held then multiple collisions involving several vehicles and injured persons occur, each collision may be an occurrence under an automobile liability insurance policy. (3) Court held there were two occurrences. (4) Court held adding together the liability for personal injury for both occurrences, the maximum amount of American Family’s liability for bodily injury only under its policy with Roy is $400,000.

STATUTE: K.S.A. 60-3201 THE JOURNAL OF THE KANSAS BAR ASSOCIATION

CONSTITUTIONAL LAW STATE EX REL. MORRISON V. SEBELIUS ORIGINAL ACTION IN QUO WARRANTO JUDGMENT FOR PETITIONER GRANTED IN PART AND DENIED IN PART NO. 98,691 – MARCH 11, 2008 FACTS: Kansas Legislature repealed the Kansas Funeral Picketing Act and enacted the Kansas Funeral Privacy Act (Act), which included a judicial trigger provision that the new act would not become operative until a state or federal court determined the funeral protest provisions were constitutional. A judicial review provision in the Act further directed the attorney general to file a lawsuit to challenge the constitutionality of the funeral protest provisions. Instead, the attorney general filed action to challenge the constitutionality of the judicial trigger provision, arguing the Legislature violated separation of powers doctrine by directing him to file the lawsuit contemplated in that provision. Attorney general also requested an order severing the judicial trigger provision from the Act. ISSUES: (1) Constitutionality of K.S.A. 21-4105(i) and (2) severance HELD: Comprehensive discussion of the Act’s statutory provisions and examination of separation of powers doctrine. Attorney general’s petition to find the judicial trigger provision unconstitutional is granted. The separation of powers doctrine prohibits the Legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies.

Attorney general’s request for severance of the judicial trigger provision from the Act is denied. Severance would broaden the effect of the Act in a manner contrary to the express directions of the Legislature.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees that judicial trigger provision is invalid, but would sever that provision from the Act based on expressed legislative intent in the Act’s severance provision.

STATUTES: K.S.A. 2007 Supp. 60-1803, -2102a(b)(2), 75702, -702a; K.S.A. 21-4105 subsections (e), (h), and (i), 54-106, 60-211(b)(2), -801, -1202(1), 75-704; and K.S.A. 21-415 (Furse 1995) KPERS, POLICE AND FIREMAN’S RETIREMENT, AND CONSTITUTIONALITY OF STATUTE DENNING V. KPERS SHAWNEE DISTRICT COURT – AFFIRMED NO. 98,111 – MARCH 28, 2008 FACTS: In 1978, Denning began working for the Johnson County Sheriff’s Department and participated in the Kansas Police and Fireman’s Retirement System (KP&F). Between 1996 and 2002, Denning worked as the chief of police of Roeland Park. In 2001, Roeland Park switched from the Kansas Public Employees Retirement System (KPERS) to KP&F, and Denning’s participation switched as well. In 2002, Denning became the undersheriff for Johnson County, where he continued to participate in the KP&F system. When he retired from that position on May 1, 2003, Denning began drawing his KP&F retirement benefits. Denning was later elected sheriff of Johnson County and was sworn in on Jan. 10, 2005. Because of 74-4957(5)’s annual earnings cap, administrators of KPERS, which oversees KP&F, suspended his retirement payments. Denning reached the earnings cap in February 2005. That decision was eventually upheld by the KPERS board and the district court.

ISSUES: (1) KPERS, (2) police and fireman’s retirement, and (3) constitutionality of statute THE JOURNAL OF THE KANSAS BAR ASSOCIATION

HELD: Court stated that a KP&F retirant who returns to work for any employer that paid his or her wages at any point in the two years preceding retirement is subject to the earnings cap set forth in K.S.A. 2007 Supp. 74-4957(5). Court held that K.S.A. 2007 Supp.

74-4957(5) is not unconstitutionally vague. Court concluded that state retirement systems create contracts between the state and its employees. A unilateral, retroactive, substantial change in retirement benefits by a governmental employer to the disadvantage or detriment of employees violates the Contract Clause of Article 1, § 10 of the U.S. Constitution. Court held the Legislature’s decision to remove a Kansas Police and Firemen’s Retirement System retirant’s option to revoke retirement and participate in the system on return to work does not violate the federal Contract Clause. Court also held that the treatment of elected officials under K.S.A. 2007 Supp. 74-4957(5) does not violate equal protection when compared with the treatment of elected officials under K.S.A. 2007 Supp. 744914(5).

STATUTE: K.S.A. 74-4914(5), -4957(5) REVENUE BONDS, CONTRACTS, AND ECONOMIC DEVELOPMENT GENESIS HEALTH CLUB INC. V. CITY OF WICHITA SEDGWICK DISTRICT COURT – AFFIRMED NO. 97,486 – MARCH 28, 2008 FACTS: In 2004, Genesis Health Club Management LLC requested approval by the governing body of the city of Wichita of a “Letter of Intent” to issue Taxable Industrial Revenue Bonds (IRBs) in an amount not to exceed $11.85 million, to finance the cost of acquiring, constructing, and equipping three health club facilities to be leased to Genesis. Genesis sued the city for failure to issue IRBs and for failure to grant ad valorem property tax abatements pursuant to an alleged contract between these parties. The district court granted summary judgment to the city finding the city lacked power to issue IRBs without complying with the Economic Development Revenue Bonds Act and without compliance, the city lacked the power to enter into a contract to do so.

ISSUES: (1) Revenue bonds, (2) contract, and (3) economic development HELD: Court held under the facts of this case, a city’s approval of a letter of intent to issue industrial revenue bonds and to grant ad valorem property tax abatements to an applicant is void because of the city’s failure to comply with the requirement in K.S.A. 12-1749c of providing prior notice to the affected unified school district. Court stated that the fact that the other party to the contract has fully performed its part of the agreement, or has expended money in reliance of its validity, does not estop a city from asserting ultra vires, nor is a municipality estopped to aver its incapacity to make a contract because it received benefits under it. That is, a city or municipality cannot be made liable either on the theory of estoppel or implied contract, where it had no capacity to make the contract or where it was made in express violation of law. Court held under the facts of this case, the plaintiffs could not maintain promissory estoppel as a cause of action against a city.

STATUTES: K.S.A. 12-519, -741, -1740 et seq., -1741a, -1744a, -1744b, -1749c, -1749d; K.S.A. 20-3017; K.S.A. 68-580, -584; and K.S.A. 72-6431

MAY 2008 – 35

Criminal STATE V. BELT MCPHERSON DISTRICT COURT – AFFIRMED NO. 95,575 – MARCH 28, 2008 FACTS: These cases test the sufficiency of the DNA descriptions in John Doe warrants arising out of a series of seven sexual assaults committed from 1989 through 1994 in McPherson, Saline, and Reno counties. Belt sought to dismiss amended complaints once the error in DNA cataloging was discovered. He argued the original warrants were too vague and could not toll the statute of limitations.

Judges in the various counties granted Belt’s motions to dismiss ruling that the KBI lab’s mislabeling constituted an “act of official negligence” resulting in an “impermissibly excessive” delay that violated Belt’s Sixth Amendment right to speedy trial or that the John Doe warrants had failed to describe Belt with reasonable certainty and the autoradiographs were insufficient to cure the warrant’s defects.

ISSUES: (1) DNA evidence and (2) sufficiency of warrant HELD: Court held that an arrest warrant’s or a supporting affidavit’s inclusion of a unique DNA profile can qualify as a description by which a defendant can be identified with reasonable certainty; mere listing of DNA loci in the warrant or in a supporting affidavit cannot.

STATUTES: K.S.A. 21-3106, -3421, -3502(a)(1)(A), -3506, -3701, -3716; and K.S.A. 22-2304, -2511 STATE V. BREEDLOVE SEDGWICK DISTRICT COURT – CONVICTIONS REVERSED AND SENTENCES VACATED NO. 96,608 – MARCH 28, 2008 FACTS: Breedlove committed crimes in 1995 when he was a minor. He agreed to be prosecuted as an adult on one set of crimes.

After he turned 18, he pled guilty to the one set of crimes, and he was sentenced as an adult. He was charged in the first set of crimes, prosecuted as an adult without any consideration of his juvenile status at the time of commission, and sentenced as an adult. His convictions in the first set of crimes were affirmed in 1999. In 2006, Breedlove filed a motion to correct illegal sentence for the first set of crimes because he was not initially charged in juvenile court. The district court denied the motion.

ISSUES: (1) Illegal sentence and (2) juvenile prosecution HELD: Court held under the facts of this case, where an individual was convicted as an adult for crimes, that occurred when he was only 17, the state’s total failure to commence juvenile proceedings before seeking adult criminal prosecution resulted in a lack of district court jurisdiction to try the case.

STATUTES: K.S.A. 21-3108, -3401(b), -3427, -3410(a), -3411, 4201; K.S.A. 22-3504(1), -3601(b)(1); and K.S.A. 38-801, -1601 et seq., -1636, -1681(a)(2) STATE V. BRYANT WYANDOTTE DISTRICT COURT – AFFIRMED NO. 95,945 – MARCH 28, 2008 FACTS: Bryant was convicted of felony murder and aggravated robbery after he severely beat and robbed Gustavo RamirezMendez of $23. Bryant challenges the evidence admitted at his trial, the prosecutor’s closing argument, jury instructions, and his motion to change counsel.

ISSUES: (1) Prosecutorial misconduct, (2) prior crimes evidence, (3) admission of photographs, (4) jury instructions, (5) read-back testimony, and (6) motion to change counsel HELD: Court rejected Bryant’s claim of prosecutorial misconduct based on the prosecutor’s argument that “there was evidence that [Bryant] had gone through the pockets of the victim,” the pros36 – MAY 2008

ecutor “called the veracity of the witnesses into question,” and “[t]he prosecutor encouraged the jury to disregard the evidence which supported the defense and to improperly draw inferences from the evidence.” Court held Bryant failed to show plain error. Court found no error in the admission of the evidence that he had been “out” for four days before the crime because he failed to object to the testimony. Court found no error in the admission of the autopsy photographs because the photographs were not included in the record on appeal. Court found the jury instructions were proper and that adding the name of the victim to the pattern instruction was not error. Court rejected Bryant’s argument that the district court erred in not including the defense’s cross-examination when it presented a read-back of certain testimony to the jury during deliberations and that without the cross, it placed undue emphasis on certain portions of the testimony. Court found no abuse of discretion in the read-back testimony. Court found no abuse of discretion in the trial court’s handling of the motion for change of counsel. Court stated the trial court had a reasonable basis for believing that the attorney-client relationship had not deteriorated to a point where the attorney could no longer effectively aid Bryant in the fair presentation of his defense. Bryant failed to show “justifiable dissatisfaction” with his counsel, e.g., a complete breakdown in communications or an actual conflict of interest. Court stated that while the better practice would have been for the court to make specific queries of the attorney and Bryant about the nature of the disciplinary complaints, instead of simply asking Bryant to specify why his attorney should not continue as his counsel, Court could not hold that no reasonable person would have agreed with the district court.

STATUTES: K.S.A. 21-3205; K.S.A. 22-3414(3), -3420, -3601(b)(1); and K.S.A. 60-261, -404, -455 STATE V. COOPER CLAY DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 95,633 – MARCH 28, 2008 FACTS: Cooper was charged with five felonies relating to manufacturing, possessing, and conspiring to manufacture and possess methamphetamine. Cooper pled guilty to one count of manufacturing methamphetamine, in exchange for the dismissal of the four remaining felony counts. In order to provide a factual basis for Cooper’s plea, the state proffered evidence that law enforcement officers had discovered in Cooper’s possession empty blister packs of ephedrine products, an empty coffee filter with methamphetamine residue, and a half-gallon container with approximately 3 inches of fluid that smelled strongly of starting fluid. Based on these proffered facts, the district court accepted Cooper’s plea and convicted him of manufacturing methamphetamine. Pursuant to McAdam, the district court sentenced Cooper as though he had been convicted of a severity level 3 drug felony, imposing a 22-month prison sentence.

Cooper appealed his sentence to the Court of Appeals, arguing that he should have been sentenced for a level 4 drug felony. The Court of Appeals affirmed Cooper’s sentence.

ISSUE: Manufacturing methamphetamine HELD: Court held that manufacturing methamphetamine under K.S.A. 65-4159(a) is not identical to using drug paraphernalia to manufacture methamphetamine under K.S.A. 65-4152(a)(3).

Court stated that the Legislature designed statutes that more severely punish someone who manufactures methamphetamine and that also allow an additional, but less severe, punishment because the person possesses drug paraphernalia used to manufacture methamphetamine. The possibility of cumulative punishments for the same conduct is a policy decision for the Legislature that should not be undercut by this Court. Moreover, the legislative intent directs the discretion of the prosecutor. While the prosecutor may choose to charge an accused under both statutes, that decision would be based THE JOURNAL OF THE KANSAS BAR ASSOCIATION

on evidence that there was a manufacture and that the accused possessed paraphernalia.

STATUTE: K.S.A. 65-4152(a)(3), -4159(a), -4161(a) STATE V. HEATH SHAWNEE DISTRICT COURT – AFFIRMED NO. 97,119 – MARCH 28, 2008 FACTS: Glenn A. Heath Jr., was convicted in 1996 of felony murder and abuse of a child. After allocution, the district court imposed a mandatory life sentence for the felony murder and 68-month imprisonment for the child abuse conviction, to run consecutively. The Supreme Court subsequently reversed Heath’s conviction for abuse of a child because of multiplicity and vacated his sentence for that conviction. At the same time, without remanding for resentencing, the Supreme Court affirmed his conviction and sentence for felony murder. State v. Heath, 264 Kan. 557, 571-72, 591, 957 P.2d 449 (1998). Heath filed a motion to correct an illegal sentence, claiming he was denied his right to allocution for his sentence on felony murder. His motion was summarily denied. Highly summarized, the facts are that Heath filed his 2006 motion to correct an illegal sentence pursuant to K.S.A. 22-3504, claiming that he was never formally resentenced following the issuance of the mandate from this Court’s 1998 decision relating to his direct appeal. Heath claimed he was denied his right to allocution for his current mandatory life sentence. The district court summarily denied his motion.

ISSUES: (1) Illegal sentence and (2) allocution HELD: Court held a denial of allocution does not render an imposed sentence illegal within the meaning of the illegal sentence provisions of K.S.A. 22-3504. Court concluded that the district court correctly determined that Heath’s motion to correct an illegal sentence contained no substantial issues of fact or law, and the court’s summary denial of that motion was proper.

STATUTES: K.S.A. 21-4706; and K.S.A. 22-3504, -3601(b)(1) STATE V. MARTIN DOUGLAS DISTRICT COURT – AFFIRMED AND THE CASE IS REMANDED COURT OF APPEALS – REVERSED NO. 96,126 – MARCH 28, 2008 FACTS: Officers observed Martin exhibiting activity similar to that of someone attempting to urinate. Officers told Martin to leave on his bike. Officers later saw a bike and Martin standing about 20 feet away. Officers did not know what Martin was doing, but they stopped him and ask for identification. When officers ran his identification, they discovered an outstanding arrest warrant and after arrest, they discovered marijuana on his person. The trial court denied the motion to suppress finding it was permissible for officers to run a warrant check. Martin was convicted of possession of marijuana at a bench trial upon stipulated facts. The Court of Appeals reversed holding that Martin should not have been detained for a wants and warrants check under the circumstances.

ISSUES: (1) Motion to suppress and (2) outstanding warrant HELD: Court stated that the discovery of an outstanding arrest warrant may be an intervening circumstance, which removes the taint of an illegal detention from the evidence acquired in a subsequent, permissible search incident to arrest, depending upon the purpose and flagrancy of the official misconduct that created the illegal detention. Court also stated that in determining whether the causal chain between unlawful conduct and the acquisition of evidence has been sufficiently attenuated, three factors are analyzed: (1) the time elapsed between the illegality and the acquisition of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. No single factor is necessarily dispositive. Court applied these three factors and held that, considering the minimal nature and extent of the offiTHE JOURNAL OF THE KANSAS BAR ASSOCIATION

cial misconduct, the outstanding arrest warrant was an intervening circumstance, that sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the fruits of the search incident to arrest.

STATUTE: K.S.A. 22-2303(1), -2305, -2501, -3216(2) STATE V. MITCHELL WYANDOTTE DISTRICT COURT – APPEAL DISMISSED AND CASE REMANDED WITH DIRECTIONS NO. 98,512 – MARCH 28, 2008 FACTS: Mitchell was charged with first-degree murder or felony murder based on aggravated assault, two counts of aggravated assault, and unlawful possession of firearm. His first trial ended in a mistrial and on that same day, he was shot and as a result of his injuries, he waived his right to a speedy trial. In the second trial, the court decided to take two stipulations concerning Mitchell’s prior juvenile record, one for the jury and one for the court. The state took an interlocutory appeal after the court barred the state from submitting any evidence to the jury regarding Mitchell’s adjudication for a person felony while in possession of a firearm. Mitchell objected to the appeal and reasserted his right to a speedy trial.

ISSUES: (1) Juvenile adjudications, (2) elements of crime, and (3) speedy trial HELD: Court held that under Kansas law, the state is required to accept Mitchell’s stipulation as to his status and is precluded from admitting independent evidence to the jury to establish the elements of Mitchell’s status. The state has failed to demonstrate that the district court’s decision is erroneous and not in compliance with Kansas law. Thus, the state cannot demonstrate that the exclusion of its proposed stipulation of the prior juvenile adjudication substantially impairs its ability to prosecute the case. If the exclusion of evidence does not substantially impair the state’s ability to prosecute the case, the state cannot raise the issue as an interlocutory appeal. Court held that as a result, it did not have jurisdiction to address the state’s appeal. Court found that when the state files an interlocutory appeal that is not authorized by K.S.A. 22-3603, the time for the appeal must be charged to the state when computing whether an accused’s right to a speedy trial under K.S.A. 22-3402(1) has been violated.

Court also stated that defendants who have waived their right to a speedy trial may condition or revoke their waiver and subsequently raise the speedy trial issue if the state is aware of the condition or the revocation. Court found Mitchell properly revoked the waiver of his right to a speedy trial and the state had failed to bring Mitchell to trial within the statutory speedy trial period. As a result, the case against Mitchell must be dismissed and he is discharged from further liability.

STATUTES: K.S.A. 20-3018(c); K.S.A. 21-4204; K.S.A. 223402(1), -3603; and K.S.A. 60-401(b), -407(f ), -445

The Judicial Council PIK – Civil Advisory Committee has revised a set of jury instructions using plain language principles. Prior to adopting these instructions, the committee seeks responsible comments from the judges and lawyers who use the instructions in court. The instructions and further information regarding submission of written comments can be found here: www.kansasjudicialcouncil.org/PIKPlainLanguage.shtml MAY 2008 – 37

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office An Improved Appellate Court Web site The official Web site of the Kansas Appellate Courts at www.kscourts.org has recently been redesigned and improved to make information more readily accessible. Three features are highlighted below, but the entire site is well worth a browse.

What’s New This section contains news items selected by the Supreme Court’s Public Information Officer, e.g., notices of judicial vacancies or recent appointments, orders in high profile cases, or reports on specialized topics.

Listen to Oral Arguments of the Supreme Court When the Supreme Court is in session, arguments are broadcast live. At the end of each court week, those arguments are archived on the Web site. The indexes to recent archived arguments have been reformatted for ease of retrieval. Staff continues to work on reformatting indexes to older archived arguments.

Court Rules A volume entitled Rules Adopted by the Supreme Court of the State of Kansas (the Blue Book) is published in the fall of each year. The Web site is continually updated so that any rule accessed will be the current rule, including amendments that have occurred since publication of the Blue Book. There is no longer a need to check a separate location on the Web site to determine recent amendments. For example, recent amendments have been made to Rule 3.03 (a requirement that requests for appeal transcripts be designated “for appeal purposes”), Rule 4.02 (clarifying which documents are required for interlocutory appeals by the prosecution), and Rule 9.03 (clarifying when statutory bonds are required in tax appeal cases). Those amendments are incorporated within the rules on the Web site. Check the history of each rule to determine the date of the most recent amendment.

For questions about other features on the Web site, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.

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Court of Appeals Civil BOARD OF TAX APPEALS AND NOTICE OF PUBLIC HEARING IN RE TAX APPEAL OF THE CITY OF GARNETT BOARD OF TAX APPEALS – AFFIRMED NO. 97,619 – MARCH 14, 2008 FACTS: Anderson County appealed Board of Tax Appeals’ (BOTA) decision granting the city of Garnett’s application for exemption from ad valorem taxation of an ethanol manufacturing plant leased by the city to East Kansas Agri-Energy LLC. County did not raise substantive issues about the merits of BOTA’s decision, but only raised procedural issues concerning the city’s notice of public hearing to discuss the proposed tax exemption and whether the city failed to properly notify county of the public hearing and that the published notice of the public hearing failed to properly identify the purpose of the hearing.

ISSUES: (1) BOTA and (2) notice of public hearing HELD: Court held the published notice of the public hearing to discuss a proposed property tax exemption properly identified the purpose of the hearing. Court concluded that the county was entitled to notice for reasonable amount of time to prepare for the hearing and that under the facts of this case, one day before the hearing was reasonable by the fact that two of three commissioners attended public hearing. Court also agreed with BOTA’s reasoning that the statutes do not provide how the county’s “governing body” should be notified of the public hearing, and it is appropriate to conclude that the county may be served with notice by serving the county clerk.

STATUTES: K.S.A. 12-1744a, -1749d; K.S.A. 60-304(d)(1); K.S.A. 74-2426(c); K.S.A. 77-601 et seq., -621; and K.S.A. 79-201a CONTRACTS, FRAUD, AND VENDOR AND PURCHASER KATZENMEIER V. OPPENLANDER RILEY DISTRICT COURT – AFFIRMED NO. 98,025 – MARCH 14, 2008 FACTS: Katzenmeier purchased eightplexes from Oppenlander who gave sellers’ disclosure statement that represented no knowledge or history of drainage or flood problems, and both parties signed a buyers acknowledgment and agreement. Katzenmeiers hired inspectors who found no evidence of water damage but discovered problems, which could cause water and drainage issues. Fifteen months after closing, Katzenmeiers sued Oppenlander for intentional and reckless misrepresentations with the intent to deceive, alleging Oppenlander knew of and concealed serious leaking and moisture problems. District court granted Oppenlander’s motion for summary judgment pursuant to McLellan v. Raines, 36 Kan. App. 2d 1 (2006), and Katzenmeiers’ failure to set forth in writing which specific representations in the disclosure statement they relied on in signing the contract.

ISSUE: Seller’s disclosure form HELD: McLellan is discussed and applied to Katzenmeiers’ tort claim. Under facts of case, the right to rely on representations made in the disclosure statement does not exist where a purchaser chooses to inspect the property before purchase and, in making such inspection, learns of a defect. Trial court properly granted summary judgment.

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CONCURRENCE (Leben, J.): Concurs with majority based on McLellan precedent, because Katzenmeiers could not show any reasonable reliance on any of the seller’s representations without some additional writing beyond the sellers’ disclosure form. But if writing on a clean slate, would reverse the grant of summary judgment. Under facts of case, Katzenmeiers should have had a right to rely upon representations in sellers’ disclosure form, and those representations were material to the transaction. Supreme Court invited to consider this issue.

STATUTES: None FORECLOSURE AND SHERIFF’S SALE CITIFINANCIAL MORTGAGE CO. INC. ET AL. V. CLARK ET AL. JEFFERSON DISTRICT COURT VACATED AND REMANDED WITH DIRECTIONS NO. 98,216 – FEBRUARY 29, 2008 FACTS: Citifinancial initiated residential real estate foreclosure proceedings in December 2005 and received a judgment of foreclosure in April 2006 for $70,481.83 plus interest, including an order for sale at sheriff’s auction. Brunsvold was the highest bidder at the sale for $6,050. Due to a communications error between Citifinancial’s counsel, there was no appearance at the sale to protect Citifinancial’s interest. Brunsvold acquired an assignment of redemption rights from the mortgagor and filed a motion to confirm the sale.

Citifinancial filed a motion to substitute bid and confirm sheriff’s sale at upset price or in the alternative set aside the sale under K.S.A. 60-2415(b) due to a substantially inadequate bid. After a bench trial, the district court concluded that 60-2415(b) equitable protections applied only for the benefit the mortgagor and that Citifinancial was not entitled to equity because of its failure to appear at the sale. The sheriff’s sale was confirmed.

ISSUES: (1) Foreclosure and (2) sheriff’s sale HELD: Court rejected the district court’s apparent belief that the equity powers of K.S.A. 60-2415 should be invoked only to protect the mortgagor and that clearly the Legislature could have so limited the court’s equity powers in the statute, but court discerned no such language or intent within the statute itself. Court also held that Citifinancial was not barred from equitable relief at confirmation solely by reason of its failure to participate in the foreclosure sale. Court also rejected the buyer’s argument that Citifinancial acquiesced in the judgment. The buyer cited no specific benefits accepted or burdens assumed by Citifinancial that would serve as acquiescence, nor did the buyer cite any authority for the proposition that acquiescence may be found solely by reason of failing to stay execution of a judgment. Court vacated sale and remanded for district court to consider invocation of the equitable powers of K.S.A. 60-2415(b).

DISSENT: Judge McAnany agreed with the majority’s conclusion that Citifinancial did not acquiesce in the judgment by its failure to stay execution. However, McAnany would save for another day the issue of whether the equitable considerations described in K.S.A. 60-2415(b) are solely for the benefit of the mortgagor.

STATUTE: K.S.A. 60-2103(d), -2414, -2415

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HABEAS CORPUS MCHENRY V. STATE MITCHELL DISTRICT COURT – AFFIRMED NO. 97,202 – FEBRUARY 29, 2008 FACTS: McHenry convicted of rape, aggravated indecent liberties with a child, and criminal sodomy. He filed 60-107 motion claiming trial counsel was ineffective for failing to impeach state’s witnesses or present favorable evidence and seeking new trial on new exculpatory evidence. District court conducted an evidentiary hearing and found trial counsel’s performance was ineffective and found there was newly discovered evidence warranting a new trial. It ordered McHenry’s discharge from custody if state does not conduct a new trial. State appealed.

ISSUE: (1) Ineffective assistance of counsel and (2) motion for new trial HELD: State has right under K.S.A. 207 Supp. 60-2102(a)(4) to appeal the district court’s decision in this civil case, and same standard of review applies as in other 60-1507 appeals. Under facts of case, trial counsel’s failure to investigate any prosecution witness, failure to contact any witnesses suggested by the defendant, and failure to investigate a victim’s prior abuse allegation constitutes ineffective assistance of counsel.

Newly discovered evidence relating to a witness’s recantation of the abuse allegations would be extremely significant and would not have been discoverable at trial. If state chooses to prosecute the case again, all issues raised in these proceedings may be considered.

STATUTES: K.S.A. 2007 Supp. 60-2102(a)(4); and K.S.A. 223602, 60-1507 INSURANCE AND CHECK KITING EXCHANGE STATE BANK V. THE KANSAS BANKERS SURETY COMPANY CRAWFORD DISTRICT COURT – AFFIRMED NO. 97,452 – MARCH 14, 2008 FACTS: Exchange State Bank bought a “check kiting fraud indemnification policy” from Kansas Bankers Surety Co. Exchange suffered a substantial loss from check kiting, and it sued Bankers Surety to recover its loss under the policy. The district court found that the policy exclusion applied and granted summary judgment to Bankers Surety. The court held that Exchange willfully extended credit by allowing its customer, Cash Grain, to draw against uncollected funds.

ISSUES: (1) Insurance and (2) check kiting HELD: When an insurance policy provides coverage for a bank’s losses due to check kiting but excludes coverage for any loss that is the result of the “willful extension of credit” by the insured through the payment of checks drawn on uncollected funds, that bank has no coverage when it consciously decided to pay checks against uncollected funds over a period of months, charged overdraft fees, manually forced payment of the overdrafts, and routinely called the customer to get additional checks for deposit to cover the overdrafts.

STATUTES: None INVERSE CONDEMNATION ESTATE OF KIRKPATRICK V. CITY OF OLATHE ET AL. JOHNSON DISTRICT COURT – REVERSED NO. 96,229 – MARCH 7, 2008 FACTS: Kirkpatrick owned property in Johnson County and as part of an intersection improvement, the city took by eminent domain 355 square feet of Kirkpatrick’s property for a permanent road right-of-way and 426 square feet for a temporary construction easement. Kirkpatrick did not appeal the compensation awarded in the eminent domain proceeding. After Kirkpatrick began experiencing water in his basement, he sued the city under the Tort Claims Act 40 – MAY 2008

for damage to or taking of his property due to the construction improvements. After a full trial, the district court concluded that the city conformed to the necessary standard of care in designing the roundabout. Further, the court concluded that no party had negligently deviated from the approved plan, and thus no party negligently caused damage to Kirkpatrick’s property. The court then analyzed the inverse condemnation claim and concluded that city partially took Kirkpatrick’s property by damaging it without paying just compensation for its taking. The trial court also awarded Kirkpatrick attorney fees.

ISSUE: Inverse condemnation HELD: Court stated a claim of inverse condemnation does not lie unless there is a taking and that mere damage to an adjoining property is not a compensable taking unless the damage was necessary to the completion of the public use project. Court concluded that the city did not need to divert water in order to complete its construction of the roundabout because there was no such contention by the estate nor was there any such finding by the district court. Here, the city excavated adjacent land and changed the grade in constructing the roundabout, but no property or property right was taken. The city may have caused more water to invade Kirkpatrick’s property than before the construction, but any such invasion or diversion of water was not necessary to the public improvement. Court also held that Kirkpatrick did not allege or present authorities providing for a common law property right that was taken by the city.

Court held that the estate failed to state an inverse condemnation claim as a matter of law, and the district court erred in concluding otherwise. There was no need to analyze the city’s potential tort liability, because the district court held against the estate on its claim of negligence, and no appeal had been taken from this judgment.

Court stated that because it reversed the judgment against the city, the award of fees must also be reversed.

STATUTES: K.S.A. 26-513(a); K.S.A. 58-3502; and K.S.A. 756101 MECHANIC’S LIEN BUCHANAN V. OVERLEY ET AL. SEDGWICK DISTRICT COURT – REVERSED NO. 97,329 – MARCH 7, 2008 FACTS: Jerry and Carol Overley contracted with Douglas Buchanan for the construction of a single-family home. There was an arbitration agreement as part of the construction contract. During the course of construction the Overleys objected to the quality of Buchanan’s work. Buchanan refused to make repairs satisfactory to the Overleys, and the Overleys stopped their progress payments to him. Buchanan gave the Overleys written notice of default pursuant to the contract. When the Overleys refused to cure the default, Buchanan initiated arbitration proceedings and filed his mechanic’s lien statement. The parties participated in arbitration proceedings, following which the arbitrators entered an award in favor of Buchanan in the amount of $49,542.64. Buchanan immediately filed an action in the district court to confirm the award. The Overleys objected and sought to vacate or modify the award. The district court denied relief to the Overleys and confirmed the arbitration award. The Overleys then sought relief by filing their petition in bankruptcy. The parties later agreed that Buchanan could pursue a state mechanic’s lien foreclosure action as an exception from the bankruptcy automatic stay. As a result, Buchanan filed a petition to foreclose his mechanic’s lien. The Overleys unsuccessfully moved to dismiss the petition as untimely. They then moved for summary judgment, claiming that Buchanan’s mechanic’s lien statement was defective and had been filed untimely. The court denied summary judgment. Later the district court granted Buchanan’s motion to strike the Overleys’ defenses and ordered foreclosure of the mechanic’s lien.

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ISSUE: Mechanic’s lien HELD: Court stated that the mechanic’s lien statute requires that the claimant verify the truth of the facts asserted in the mechanic’s lien statement. The mechanic’s lien statement asserted that the labor and materials supplied to the project were set forth in the attached Exhibit A. Buchanan verified this fact: That the labor and materials supplied to the project were set forth in Exhibit A. He did not state, nor did he verify, his address for purposes of service of process, as required by the statute. Accordingly, Buchanan failed to comply with the requirements of the statute for perfection of a mechanic’s lien. Because Buchanan failed to strictly comply with the requirements of K.S.A. 60-1102 by not verifying his address sufficient for service of process, the district court erred in holding that the lien was valid. Based on this outcome, the court did not address the claim that Buchanan’s mechanic’s lien statement was not filed in a timely manner.

DISSENT: Judge Greene dissented and held that Buchanan’s lien statement complied with the statute, that the provisions of K.S.A. 60-1103 are inapplicable to this case, and that his action to enforce the lien was timely filed based upon applicable bankruptcy law.

STATUTE: K.S.A. 60-1102, -1103 MEDICAL MALPRACTICE AND EXPERT WITNESSES STORMONT-VAIL HEALTHCARE INC. V. CUTRER ET AL. SHAWNEE DISTRICT COURT – AFFIRMED NO. 97,217 – MARCH 7, 2008 (MOTION TO PUBLISH OPINION ORIGINALLY FILED OCTOBER 26, 2007) FACTS: Cutrer had a history of depression and suicidal ideation.

Her primary care physician prescribed Paxil. Cutrer voluntary admitted herself into the psychiatric unit at Stormont-Vail where her medication was switched from Paxil to Remeron. Cutrer was discharged at her request three days later. Cutrer attempted to overdose on the medications. When Stormont-Vail brought a collection suit against Cutrer for $2,758, she brought a medical malpractice counterclaim for breach of duty of reasonable care by failing to place her on the proper taper-phase regimen for Paxil, by sending her home with a two-month supply of medication and failing to advise her therapist of the discharge. Cutrer hired William Logan as her expert. However, the trial court found that Logan’s testimony on the issue of causation was insufficient to defeat a motion for summary judgment.

ISSUES: (1) Medical malpractice and (2) expert witnesses HELD: Court held that Logan never verified or affirmed his report under oath, never filed an affidavit confirming the accuracy of his report, and never testified by deposition or otherwise that the report was accurate and complete. When Logan was questioned in the deposition about his prior report, he generally disavowed many of the opinions contained therein and reiterated that his report was “preliminary.” Court agreed with the district court in concluding that the subsequent deposition was the better source of reliable evidence for purposes of summary judgment and that the district court did not err in looking “primarily” to the subsequent deposition rather than the unverified and unsworn preliminary report in deciding the summary judgment motion. Court held summary judgment was proper against all defendants because the record did not support causation in any event. Without any evidence of an injury caused by this alleged breach in the standard of care, summary judgment was appropriate.

STATUTE: K.S.A. 60-256

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WARRANTY OF MERCHANTABILITY HODGES V. JOHNSON SALINE DISTRICT COURT – AFFIRMED IN PART AND REVERSED IN PART NO. 97,062 – MARCH 14, 2008 FACTS: Hodges purchased a 1995 Mercedes from Johnson, a used car dealer, for $17,020. Three months later Hodges said the air conditioner did not work and the car smelled funny. Hodges sued Johnson in small claims court for the air conditioner repairs in the amount of $3,474 and was awarded the amount of his claim plus interest. Johnson appealed to district court. The court affirmed the award finding there was an implied warranty of merchantability and that although the court did not find a specific breach of the warranty, it was implied in the judgment. However, the court did not allow Hodges’ claim for attorney fees. Hodges appealed the denial of attorney fees and Johnson cross-appealed the finding of an implied warranty of merchantability.

ISSUE: Warranty of merchantability HELD: Court stated that an implied warranty of merchantability warrants the operation of major components that are necessary for the vehicle to operate, such as the engine and transmission, and it is the responsibility of the buyer to ensure that the components incidental to operation are in working condition. An air conditioner is not a major component of a car that is 10 years old with more than 135,000 miles on it, and does not fall within the implied warranty of merchantability. Court found no implied warranty of merchantability, considering the age of the car, the high mileage, and the fact that the Hodges provided no proof that the air conditioner did not work when they purchased the vehicle. The district court erred in applying the warranty of merchantability to these facts. Court reversed judgment. Court held it was not material that Johnson claimed he sold the car at a steep discount. Court also found that since Hodges was not entitled to judgment, he was not entitled to attorney fees.

DISSENT: Judge Leben dissented finding that the district court’s decision that a faulty air conditioner constituted a breach of the warranty of merchantability is supported by substantial evidence and should be affirmed.

STATUTES: K.S.A. 61-2709(a) and K.S.A. 84-2-314

Criminal STATE V. BEE LABETTE DISTRICT COURT – AFFIRMED NO. 97,677 – FEBRUARY 29, 2008 FACTS: Bee pled no contest to a drug crime and the trial court placed him in a nonprison community corrections drug treatment program, with an underlying prison sentence of 13 months. The trial court revoked Bee’s probation upon finding a failure to report, failure to enter into inpatient treatment, and testing positive for illegal drug use and ordered him to serve his prison sentence. The trial court did not consider any alternative placement.

ISSUES: (1) Probation revocation and (2) Labette Correctional Conservation Camp HELD: Court stated that the specific interaction of the wording and provisions of K.S.A. 2003 Supp. 21-4729(f ) and K.S.A. 2003 Supp. 21-4603d(n) require that when the district court finds a defendant has refused to comply with or participate in a mandatory, nonprison drug treatment program, the defendant’s probation be revoked and the defendant shall serve the underlying prison sanction without requiring the district court to consider placement of the defendant in the Labette Correctional Conservation Camp or other nonprison sanctions as set forth in K.S.A. 2003 Supp. 214603d(g). Court held that under the facts of the case the defenMAY 2008 – 41

dant, who was originally sentenced under the provisions of K.S.A. 2003 Supp. 21-4729 and subsequently failed to report or enter into any drug treatment program, had his probation revoked based on a specific judicial finding and was correctly required to serve the underlying prison sentence. The district court did not err in failing to consider placement in Labette Correctional Conservation Camp or other nonprison sanctions.

STATUTES: K.S.A. 21-4603d(g), (n), -4705, -4729(a), (f ); and K.S.A. 65-4160, -4162 STATE V. BLOMQUIST ANDERSON DISTRICT COURT REVERSED AND REMANDED NO. 95,995 – FEBRUARY 29, 2008 FACTS: Blomquist convicted of aggravated indecent liberties with a child, aggravated criminal sodomy, and aggravated indecent solicitation of a child. On appeal, he claimed the prosecutor’s irrelevant and prejudicial references to homosexuality constituted prosecutorial misconduct. He also claimed cumulative error denied him a fair trial by allowing school psychologist to testify that victim fit profile of child abuse victims, by not redacting statements from deputy’s interview with Blomquist, and by allowing a prejudicial photo.

ISSUES: (1) Prosecutorial misconduct and (2) cumulative trial error HELD: Unreasonable for state to assume that a sexual desire for children is among those desires that define a homosexual orientation. It is no more reasonable to assume that a preference for same gender adult sexual partners establishes a proclivity for sexual gratification with same gender children than it is to assume that preference for opposite gender adult sexual partners establishes a proclivity for sexual gratification with opposite gender children. Prosecutor’s conduct was improper, where evidence of Blomquist’s homosexuality was not evidence of charges against him. Given the prejudicial nature of homosexuality, prosecutor’s arguments, questions, and presentation of evidence alleging Blomquist’s homosexuality were analogous to prosecutorial appeals to passion, prejudice, and fear.

Under facts of case, this misconduct was not harmless. Prosecutor’s comments were gross and flagrant, and ill will may be found if evidence and arguments concerning homosexuality are used with sole purpose of prejudicing the jury.

Multiple trial errors found. Trial court abused its discretion in allowing expert’s testimony about social profiling without a proper foundation. Error to not redact deputy’s improper comments on Blomquist’s veracity during police interview. Error to admit photograph of dildo found in bedroom of Blomquist’s mother to impeach Blomquist’s claim of no pornography at the house. Based on prosecutorial misconduct and cumulative error, convictions are reversed and case is remanded for new trial.

STATUTE: K.S.A. 21-3504(a)(3)(A), -3506(a)(1), -3511(a), 60261, -404, -456(a), -456(b)(1) STATE V. EDWARDS DOUGLAS DISTRICT COURT – AFFIRMED NO. 97,237 – MARCH 28, 2008 FACTS: Lawrence police officers arrested Edwards based on a written arrest-and-detain order issued by his parole officer. The parole officer sent a copy of the order to the Lawrence police by facsimile. One detective received the fax and told another detective it had been received; that other detective then arrested Edwards. The arresting officer did not have the faxed copy in his personal possession at the time he arrested Edwards, and the officers did not have any original document signed by the parole officer because it had been sent by fax. Edwards was convicted of aiding a felon and possession of a firearm by a felon.

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ISSUES: (1) Motion to suppress, (2) newly discovered evidence, (3) sufficiency of complaint, (4) jury questions, and (5) prosecutorial misconduct HELD: Court rejected Edwards claims that his statements to police officers should have been suppressed because they came after he was illegally arrested. He claims the arrest was illegal because the officers didn’t have physical possession of his parole officer’s written order that he be arrested. Court held other statutes that authorize arrests on a warrant do not require that the arresting officer have the warrant in physical possession, and Court did not find that the physical possession of the order is a requirement in the statute that allows parole officers to order an arrest. Court also rejected Edwards claims of trial errors. Court held the charging document was sufficient, the trial judge’s answer to the jury was appropriate, and the prosecutor’s comment was within the bounds of appropriate conduct at trial.

STATUTES: K.S.A. 12-4212(a)(2); K.S.A. 21-3812(a), -4204(a)(4); K.S.A. 22-2305(3),-3502, -2401(b); and K.S.A. 75-5217 STATE V. HUNTLEY WYANDOTTE DISTRICT COURT REVERSED AND REMANDED NO. 97,338 – MARCH 7, 2008 FACTS: Huntley convicted of rape and aggravated criminal sodomy of children. On appeal, he challenged the sufficiency of the evidence of rape at the preliminary hearing and trial. He also claimed in part that district court abused its discretion in denying a continuance for Huntley to retain an expert witness in evaluating the child witness testimony and in admitting evidence of nightgown Huntley purchased for daughter several months prior to the alleged abuse.

ISSUES: (1) Sufficiency of evidence, (2) continuance to retain expert witness, and (3) admission of evidence FACTS: Under facts of case, child victim’s videotaped statements as to number of incidents, coupled with a physician’s opinion consistent with the position described by the victim, are sufficient to support Huntley’s convictions of six counts of rape. No claim that insufficiency of evidence at preliminary hearing prejudiced Huntley at trial.

District court erred as matter of law in denying continuance on ground that such testimony was likely inadmissible as involving matters within jurors’ common knowledge and sense. The proper protocols and techniques used to interview child victim witnesses is not a matter within the knowledge and understanding of the average juror. Citing Mullins v. State, 30 Kan. App. 2d 711 (2002), and unpublished Kansas opinions, such testimony could be critical to a defense heavily dependent on casting doubt on child witness reliability. An expert in such matters is of utmost importance, and when denied, likely prejudicial. Under facts showing no lack of diligence by the defense, district court also abused its discretion in denying continuance over concern for rescheduling trial.

Evidence of nightgown Huntley purchased for daughter several months prior to the alleged abuse was not relevant to prove that he had sexually abused her and should not be admitted on remand.

STATUTE: K.S.A. 21-3501(1), 3502(a)(2), -3506, 60-407(f )

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STATE V. JACKSON HARVEY DISTRICT COURT REVERSED AND REMANDED NO. 94,578 – FEBRUARY 29, 2008 FACTS: Jackson convicted of aggravated criminal sodomy and aggravated indecent liberties. On appeal, he claimed he was denied his right under Confrontation Clause by the district court’s refusal to allow Jackson’s attorney to cross-examine the alleged victim about nearly identical allegations of sexual abuse by other individuals against her during the same general time period ISSUE: Right to confrontation HELD: Under facts of case, state’s case made allegations about two other individuals relevant. Credibility of victim was a key issue at trial. District court’s unreasonable restrictions violated Jackson’s right to confrontation, and error was not harmless. Eighth Circuit case discussed as persuasive.

STATUTE: K.S.A. 21-3525, 60-401(b) STATE V. MYERS SUMNER DISTRICT COURT REVERSED AND REMANDED NO. 98,007 – MARCH 14, 2008 FACTS: Myers granted one-year probation, but violation warrant issued in June 2004 alleging in part that Myers failed to report his new address and move to Oklahoma. Myers was arrested two years later. At a December 2006 probation violation hearing, Myers asked district court to quash the probation violation warrant and terminate probation. District court denied that motion and revoked Myers’ probation. Myers appealed, claiming state waived the probation violation by failing to use reasonably diligent efforts to locate him and serve the probation warrant in a timely fashion.

ISSUE: Due process in revoking probation.

HELD: Under facts in case, in light of nearly complete absence of evidence as to state’s actual efforts to attempt service of probation arrest warrant on Myers or to investigate his whereabouts, district court erred in finding state proceeded in a timely and reasonable manner in serving the warrant. State therefore waived the probation violations asserted in its motion to revoke. Remanded for termination of Myers’ probation.

CONCURRENCE (Malone, J.): Agrees with majority because state failed to provide evidence that anyone actually attempted to serve Myers with the probation violation warrant at his last known address, but takes exception to language in State v. Haines, 30 Kan. App. 2d 110 (2002), and State v. Bennett, 36 Kan. App. 2d 381 (2006), that imposes a duty on state to “investigate” a probation absconder’s whereabouts.

STATUTES: None STATE V. RIIS SHAWNEE DISTRICT COURT REVERSED AND REMANDED NO. 97,118 – MARCH 21, 2008 FACTS: Riis entered no contest plea without knowing that the officer who submitted search warrant affidavit in Riis’ case had been under KBI investigation, search warrants and cases from the officer would no longer be accepted, and numerous criminal cases would be dismissed because evidence related to this officer was not credible. Riis filed motion to withdraw plea, motion for production of investigative reports, and motion for district court in camera inspection of police records regarding Riis’ case. District court denied the motions. Riis appealed.

ISSUE: Post-conviction discovery HELD: No statutory provision in Kansas’ criminal code governs discovery for post-conviction motions. Unpublished case (State v.

Griswold, No. 94,835) is discussed and factually distinguished, but THE JOURNAL OF THE KANSAS BAR ASSOCIATION

reasoning is found to be controlling. Under facts and circumstances of case, district court erred in denying Riis’ motion for an in camera inspection of investigative records of the officer. Case is remanded for in camera inspection of these records. If there is no evidence concerning officer’s credibility as it relates to Riis’ case, then discovery motions should be denied and records sealed and retained for any appeal. If there is evidence of officer’s credibility specifically related to Riis’ case, then it is to be provided to Riis and district court must reconsider Riis’ motion to withdraw plea.

STATUTE: K.S.A. 22-2101 et seq., -3210(d) STATE V. SMITH WYANDOTTE DISTRICT COURT – AFFIRMED IN PART AND DISMISSED IN PART NO. 96,120 – MARCH 14, 2008 FACTS: Smith convicted of raping an intoxicated sleeping victim.

Presumptive 184-month sentence imposed. On appeal he claimed there was insufficient evidence of victim’s inability to consent, or of Smith’s knowledge of that inability, to support his conviction.

He also claimed in part the trial court erred in admitting witness testimony of prior similar conduct as evidence showing plan and absence of mistake, in applying the rape shield statute to disallow evidence of victim’s sexual conduct the day before the rape; in instructing jury how to deliberate, in designating a juror as an alternate for purposes of deliberation, and in denying Smith’s motion for a downward departure sentence.

ISSUES: (1) Sufficiency of the evidence, (2) voluntary intoxication jury instruction, (3) evidence of prior similar conduct, (4) rape shield statute, (5) jury instruction, (6) alternate juror designation, and (7) presumptive sentence HELD: Under facts, a rational jury could have found the victim was too intoxicated to give consent and Smith had knowledge of this condition, or that it was reasonably apparent.

Supreme Court has not faced the precise issue in this appeal.

Sexual intercourse with a victim incapable of giving consent, K.S.A. 21-302(a)(1)(C), requires a further state of mind of the offender, i.e., knowledge of that condition if not reasonably apparent. This state of mind is beyond the general criminal intent required for rape. Accordingly, the knowledge requirement of the statute justifies a voluntary intoxication defense. District court’s failure to give a voluntary intoxication instruction in this case was harmless in light of overwhelming evidence against Smith.

Trial court properly allowed the witness testimony as evidence within the express statutory exceptions to propensity evidence in K.S.A. 60-455.

Claim about evidence of victim’s prior sexual conduct not addressed because Smith failed to comply with procedural requirements of rape shield statute. Even if claim were considered it would be rejected on the merits.

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MAY 2008 – 43

Notwithstanding district court’s departure from pattern instruction, no error found.

Under the facts, there was sufficient cause to prompt trial court’s remedial action in substituting alternate juror for one of the regular jurors.

Smith’s challenge to his presumptive sentence is dismissed because there is no jurisdiction to consider it.

STATUTE: K.S.A. 21-3201, -3208, -302, -3502(a)(1)(C), -3525, -3525(b), -4721(c)(1), 22-3412(c), 60-407(f ), -455, -2105 STATE V. UNRUH MCPHERSON DISTRICT COURT – SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS NO. 97,645 – FEBRUARY 29, 2008 FACTS: Unruh pled guilty to manufacture or attempted manufacture of methamphetamine. His sentence was doubled based upon a prior conviction for manufacturing a controlled substance. Unruh’s attorney filed a notice of appeal, but the appeal was never perfected and the trial court dismissed Unruh’s appeal. Unruh filed a pro se motion to reinstate the appeal and a request to be resentenced under McAdam. The trial court ruled that it did not have jurisdiction to reinstate Unruh’s appeal.

ISSUES: (1) Appeal out of time, (2) jurisdiction, and (3) sentencing HELD: Court held that although the trial court lacked jurisdiction to reinstate Unruh’s appeal, his motion is more properly construed as a motion to appeal his sentence out of time under Ortiz.

Court stated that because Unruh has shown that he was furnished an attorney who failed to perfect and complete his appeal, he is allowed to file a direct appeal of his sentence out of time under Oritz.

Although the state argued that Unruh should now be confined to the specific issue identified in his original notice of appeal, court held that Unruh should not be limited to a notice of appeal that was never perfected and was ultimately dismissed in the case. Court also stated that even if Unruh was limited to his original notice of appeal, the notice of appeal sufficiently encompassed the sentencing issues now raised by Unruh and the appellate court has jurisdiction to consider the appeal. Court held that Unruh should be resentenced as a severity level 3 offender for his conviction of manufacturing methamphetamine and that the trial court erred in doubling his sentence. Court stated that because the record established that Unruh’s conviction in this case was his first conviction of manufacturing a controlled substance, his sentenced should not have been doubled.

STATUTES: K.S.A. 21-4705(e), -4710(a); and K.S.A. 65-4159, -4160, -4161(a), -4159(a) STATE V. WAGNER LYON DISTRICT COURT – REVERSED AND REMANDED NO. 97,643 – MARCH 21, 2008 FACTS: Following police discovery of pickup truck in field with its keys and other contents, Wagner was arrested for suspicious activity, read his Miranda rights, and interrogated at scene. In later interrogation, he confessed to several burglaries. Wagner filed motion to suppress his confession and statements. District court found Wagner was illegally arrested without a warrant or probable cause and found officers’ later search of the pickup truck was unlawful, but denied the motion because any taint resulting from the officers’ illegality had attenuated by the time of Wagner’s confession 10 hours later. Wagner appealed.

ISSUES: (1) Lawfulness of arrest and (2) attenuation

44 – MAY 2008

HELD: State argued arrest was not lawful, but did not appeal that trial court’s ruling. Under facts, a reasonable person would believe he was under arrest, and officers’ reasonable suspicion of criminal activity was insufficient to establish probable cause for Wagner’s arrest.

Under facts of case, Wagner’s illegal arrest and unlawful search of his truck were not so attenuated from Wagner’s confession so as to purge the primary taint of the illegal arrest and unlawful search and render his confession admissible.

CONCURRING (Leben, J.): Agrees with majority, but for its finding that it was flagrant for officer to order Wagner out of his truck at gunpoint, force him to lay on the ground, and handcuff him when there was no probable cause to arrest him.

STATUTE: K.S.A. 21-3715(b), 22-2202(4), -2401, -2405(1) STATE V. WENZEL RENO DISTRICT COURT – AFFIRMED IN PART AND REMANDED NO. 97,548 – MARCH 7, 2008 FACTS: Wenzel appealed his conviction and sentence for third DUI conviction. He claimed breath test result should not have been admitted because officer administering test did not testify that he had read the manufacturer’s operational manual for the testing instrument or personally determined that the test procedure complied with that manual. He also claimed the trial court failed to orally pronounce Board of Indigents’ Defense Services (BIDS) attorney and application fees during sentencing, thus these fees may not be assessed. Finally, he claimed the trial court erred in imposing minimum $1,500 fine without first considering Wenzel’s financial resources.

ISSUES: (1) Admission of breath test result, (2) assessment of BIDS fees, and (3) imposition of fine HELD: An adequate evidentiary foundation for admission of breathalyzer test result may be shown through testimony that the machine used had been certified for use by Kansas Department of Health and Environment (KDHE), that the machine operator had been certified by KDHE to operate the machine, and that operator followed testing procedures established by KDHE. There is no evidentiary requirement that the machine operator have separately reviewed the manufacturer’s operating manual for the machine because any significant requirements of that manual should be incorporated into KDHE’s testing procedures. Here, officers were certified by KDHE and administered the test according to KDHE’s established procedures. District court properly admitted Wenzel’s test result even though the officer had not personally read the manufacturer’s operational manual for the Intoxilyzer 5000 machine.

Inconsistency by appellate court panels on this issue is recognized.

A district court’s failure to announce the assessment of BIDS fees at sentencing does not preclude their assessment. On facts of case, BIDS application fee is vacated and matter is remanded to district court to consider whether this fee should be waived for manifest hardship, and if not, district court may then assess the fee. Assessment of BIDS attorney fees is also vacated and remanded for district court to consider whether to assess those fees under K.S.A. 2-4513 and State v. Robinson, 281 Kan. 538 (2006).

When the district court assesses the minimum fine provided by statute for an offense, it need not give consideration to the defendant’s ability to pay it.

STATUTES: K.S.A. 8-1002(a)(3), 21-4607(3), 22-4513, -4529; and K.S.A. 2005 Supp. 8-1567, -1567(f )

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Classified Advertisements Positions Available

Attorney Services

Referrals

TAX/BUSINESS/ESTATE LAWYER — Topeka firm is seeking an attorney with tax education or experience to work in areas of tax, business, estate planning, and probate.

Some experience preferred. Send resume in confidence to Austin Nothern, Coffman, Defries, and Nothern, 534 S. Kansas Ave., Topeka, KS 66603.

planning, general business services, and banking law. We practice in Missouri and Kansas state courts and in the federal courts in Kansas and both districts of Missouri.

We welcome co-counsel appointments.

Call Brandon Kinney at (660) 679-4153 or e-mail at kinney-mpklaw@sbcglobal.net.

LET ME WRITE YOU A CHECK. I want your OKLAHOMA and KANSAS referrals. I pay all costs and do all the work.

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BARBER EMERSON L.C., LAWRENCE, KAN., seeks associate attorney with 2-5 years of family law experience.

Please send resume, law school transcript, and writing sample to 1211 Massachusetts St., Lawrence, KS 66044.

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PARALEGAL SERVICES Smith Legal & Consulting Services Inc., Sheila C. Smith, P.O. Box 12252, Overland Park, KS 66282-2252. Cell: (913) 713-9332 Fax: (205) 449-0285.

ANDERSON ECONOMIC GROUP Experts in economics, finance, and statistics for matters of commercial damages, business and asset valuation, lost earnings or profits, antitrust, taxation, buy/sell agreements, fairness opinions, securities, trusts, and estates.

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Contact Patrick Fitzgerald, Ph.D., J.D., at (405) 360-4040 or visit www.anderson economicgroup.com.

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TIRED OF LONG LINES AT THE LAW LIBRARY? Or wondering how to write the appellate brief due next Monday? Or just too busy with trial work? Visit www. mylearnedhand.com to see how fellow KBA member Arti Rolfingsmeier can help with your research and writing projects. Rates very reasonable. Testimonials also available on-site. Call Arti Rolfingsmeier at (913) 342-8815 or e-mail at arolfingsmeier@ sbcglobal.net.

For Sale THE LAWBOOK EXCHANGE LTD. buys, sells, and appraises all major lawbook sets. Also antiquarian, scholarly. Reprints of legal classics. Catalogues issued in print and online. Mastercard, Visa, and AmEx. (800) 422-6686; fax: (732) 382-1887; www.lawbookexchange.com.

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Call Glen Beal at (913) 387-3180 for more information.

KANSAS REPORTS complete from Vol. 1 through Vol. 261 and subsequent advance sheets. Vols. 1 to 74 in rough shape. KA2d from Vol. 1 through 22 and subsequent advance sheets. $750 or best offer. Phone (316) 265 2834.

SERIES: NATIONAL REPORTER SYSTEM, Brand: West Publishing, Copyright: 1980, Format: Hardbound, Volumes: 1-342 plus advance sheets volumes 339-346, List Price: $6,091 — For sale: $1,500, Contact: Christy at (316) 265-1688.

Referrals FRENCH LAW OFFICE LLC General practice, including bankruptcy. Reasonable rates. (785) 235-5500.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

MAY 2008 – 45

CLE Docket Live & Videocast Seminars

Friday, May 9, 9 a.m. – 3:30 p.m. (Approved for 6.0 CLE credit, including 1.0 PRC) Intellectual Property Institute

The Radisson, Lenexa

Wind Energy Law: The Whirlwind Tour (Approved for 4.5 CLE credit hours) 8:30 a.m. - 12:30 p.m.

Tuesday, May 13 Garden City Wednesday, May 14 Hays Thursday, May 15 Wichita Friday, May 16 Salina

Friday, June 13, 8:25 a.m. – 12:25 p.m. (Session I); 1:25 – 5:25 p.m. (Session II) Legislative & Case Law Institute Video Debut (Featuring the 2008 Kansas Annual Survey as seminar materials) Lenexa, Topeka, and Wichita

Thursday, June 19 – Saturday, June 21

KBA Annual Meeting – Celebrating Our Past, Present, and Future Capitol Plaza, Topeka

Tuesday, June 24 through Monday, June 30

Video Replay Week – Brown Bag Ethics, Environmental Law, and Legislative & Case Law Institute

Multiple sites statewide

Telephone Seminars

(Approved for 1.0 CLE Credit each)

Wednesday, May 14, Noon – 1 p.m.

Representing Parents in Child in Need of Care (CINC) and Termination of Parental Rights (TPR) Cases; Discussion of Immigration and Domestic Violence Issues Erna K. Loomis, Attorney at Law, Olathe

Wednesday, May 21, Noon – 1 p.m.

So, You’re Going to Trial in a Criminal Case … James E. Rumsey, James E.Rumsey Law Firm, Lawrence

Wednesday, May 28, Noon – 1 p.m.

Immigration: State & Federal Legislative Updates Angela Ferguson, Austin & Ferguson LLC, Kansas City, Mo.

KBA Continuing Legal Education: Your Partner in Practice!

For more information, or to register online, visit www.ksbar.org.

These KBA CLE seminars are being submitted for accreditation to the Kansas CLE Commission.

1882

Potential walk-in participants should call the KBA office at (785) 234-5696 prior to the seminar to check for possible schedule changes.

KANSAS BAR ASSOCIATION

For updates on CLE credit approval, visit www.ksbar.org/public/cle.shtml.

To access your Kansas CLE transcript online, visit www.kscle.org/ Tran_Query.aspx.

Wind Energy Law: The Whirlwind Tour Garden City Tuesday, May 13 Hays Wednesday, May 14 Wichita Thursday, May 15 Salina, Friday, May 16

Course Schedule: 8 a.m.

Registra on and con nental Breakfast 8:30 a.m. Wind Energy Law: A Whirlwind Overview of Engineering, Regula ons, and Economics and the Legal Implica ons of Each Arena 9:20 a.m. Wind Farm Industry Agreements: Leasor/ Leasee Rela onship — the Industry from an Inside Perspec ve. What do A orneys for Each Party Need to be Certain is in a Contract?

10:10 a.m. Break 10:25 a.m. Case Law Update 11:40 a.m. Best Prac ces Panel 12:30 p.m. Adjourn Register online at www.ksbar.org or call (785) 234-5696.

Our apprecia on to: Kansas Corpora on Commission Kansas Farm Bureau Legal Founda on for Agriculture Kansas State University Founda on Kansas State University Research and Extension

The KBA has been approved for 4.5 CLE credit hours from the Kansas CLE Commission.

LEAVE YOUR LEGAL LEGACY FOR THOSE

WHO FOLLOW

KANSAS BAR FOUNDATION

KBF Legacy Brick Program

The Bar will have a rededication ceremony for the building on Thursday, June 20, 2008, in conjunction with the Annual Meeting of the KBA. To help raise funds for the renovation project, we are pleased to provide our members and other interested persons with a unique opportunity to support this effort through a special brick campaign. This is your chance to leave your mark on the legal profession forever.

Purchase a brick for yourself or in honor or memory of friends and loved ones. You can have a name, law firm, or message engraved on a brick that will be permanently displayed at the new entrance and garden of the Law Center.

Brick by brick, your generous donations will allow us to provide the funds necessary to expand and improve facilities so that we can enhance member services and promote legal professionalism as well as strengthen our Foundation endowment to be used to make justice accessible to all Kansans and promote a better understanding of the law.

The first KBF president and contributor was L.J. Bond of El Dorado, who served as president from 1957-1962. His words still give inspiration to this day: It is conceivable that this Foundation, 50 years from now, may have a very substantial amount of money and that it can carry out the ends for which it is organized in a manner that would make every lawyer of the state proud to be a lawyer and proud of this foundation.

The first brick will be laid in the spring of 2008 and will continue through the years.

To make your pledge and purchase your own brick, please contact Meg Wickham at Bar headquarters at (785) 234-5696 or e-mail at mwickham@ksbar.org.

Brick Pavers Cost:

There is one brick option. All information must be complete to process your order. Additional “replica” bricks may be purchased at the same price.

Paver Option OPTION 1

Size

Price of Brick

8”x 8”

$1,000