October 2008 Journal by Kansas Bar Association

THE OURNAL of the Kansas Bar Association October 2008 • Volume 77 • No. 9 www.ksbar.org

ITEMS OF INTEREST

REGULAR FEATURES

10 Give a Hand Up to Those in

10 Deadline to Submit 2009 IOLTA Grant Applications is Dec. 1 6

Achieving Diversity in the Kansas Legal Profession By Gwynne Harris Birzer

Need

11 The Right Thing To Do

By Sarah Bootes Shattuck

18 KBA Young Lawyers –

A Personal Tale By Justice Marla Luckert

Honor The Law! The Essential Role of Civility in the Legal System By John J. Jurcyk Jr.

Cover design by Ryan Purcell

19 Serving the Public

By Kannon K. Shanmugam

20 Thinking Ethics

The Abandoned Client By Stanton A. Hazlett

26 Supreme Court of the United States Swearing-In Ceremony for Kansas Bar Association Members

Deferred Compensation for Dummies: The Section 409A Compliance Clock is Ticking By Robert A. Browning

4 President’s Message 5 Young Lawyers Section 13 A Nostalgic Touch of Humor 14 Law Students’ Corner 17 Members in the News 17 “Jest is For All” 16 CLE Docket 18 Obituary 21 Law Practice Management Tips & Tricks 39 Appellate Decisions 45 Appellate Practice Reminders 53 Classifieds

45 Rule 7.042: Affirmance by Summary Opinion

in Us at o J e m o C A! the KB Benefits sh ip Member t c a t i on a i l p p A d an Page 48

46 U.S. Bankruptcy Notice of Local Rules Amended

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.

Current members’ invoices will be mailed in November. The Journal Board of Editors Director of Member Services: Susan McKaskle

Catherine A. Walter, Chair Topeka Hon. Thomas E. Malone Topeka Anne L. Baker Topeka Julene L. Miller Topeka Terri Savely Bezek Topeka Hon. Robert E. Nugent Wichita Boyd A. Byers Wichita Hon. Lawton R. Nuss Topeka Toby J. Crouse Overland Park Professor John C. Peck Lake Quivira Hon. Jerry G. Elliott Topeka Richard D. Ralls Kansas City, Mo. Professor J. Lyn Entrikin Goering Topeka Teresa M. Schreffler Lawrence Connie S. Hamilton Topeka Richard H. Seaton Sr. Manhattan Evan H. Ice Lawrence Richard D. Smith Topeka Katharine J. Jackson Manhattan Marty M. Snyder Topeka Michael T. Jilka Overland Park Matthew A. Spurgin Topeka Lisa R. Jones Wichita Issaku Yamaashi Overland Park Casey R. Law McPherson Rachael K. Pirner, BOG liaison Wichita Michelle Reinert Mahieu Dodge City Catherine A. Walter, chairperson, Board of Editors, catherine.walter@khrc.state.ks.us Susan McKaskle, director of member services, smckaskle@ksbar.org

From the President Thomas E. “Tom” Wright

Fools’ Names and Fools’ Faces Fools’ names and fools’ faces are often seen in public places. Nomina stultorum parietibus haerent. (The names of foolish persons adhere to walls.) — I looked up the Latin.

y Grandma Patterson, “Gommie,” would use the “fools” saying when she needed to remind me that I was being a “showoff.” It became the family motto in a way. Folks who just “wanted to see their names in the newspaper” never came to a good end. It was clear that publicity made a person a target. During prohibition days the local newspaper, The Harper Advocate, printed the names of those who purchased alcohol for “medicinal purposes.” Gommie dearly loved to inquire about the “health” of those on the list. “Dear, I see in the Advocate that you’ve been ill. I’m sure the medicine is making you feel better.” I was also taught that “making waves” was bound to bring a person problems that they didn’t need. I knew that the basic idea in life was to keep your head down and your mouth shut. I learned what was “right.” Our high school civics teacher, Miss Linn, taught us that the Civil War had nothing to do with slavery; it was about constitutional principles, as in “states rights.” Brown v. Board of Education was decided when I was a sophomore or junior. It had no impact in a town that had not a single person of color. When I was a high school senior, President Eisenhower had to face down Orval Faubus at Little Rock. There were a whole lot of people making waves. It made me uncomfortable but I knew enough to keep my mouth shut. In college I played football. As Judge Richard Rogers would say, “Tom made the Wichita State football program what it is today.”* That gives me too much credit. Anyway, when the team played at Houston University the black players didn’t stay with us. They stayed in a different hotel. It wasn’t be-

cause Houston University said that they had to have separate housing. The coaches and others had probably learned from their grandmothers that it was just wrong to “make waves.” Did I speak out. Of course not. These were just the rules and I knew them. Just like I knew that smart women became teachers and nurses, smart men became superintendents and doctors, and water froze at 32 degrees. The rules were not difficult. The theme of this Kansas Bar Journal is diversity. Gwynne Harris Birzer, Scott Hill, and Larry Zimmerman have contributed wonderfully articulate comments. They speak from the heart, and you should carefully consider what they say. From my comments you can tell I have strolled through most of the hard times of change. That makes me like most people. Although we have never done anything dramatic most of us have slowly learned the lessons of history. Diversity benefits us all. I don’t know who said this but I like it, “Our hope lies in diversity, in variety, in colors yet untried, in forms yet unsuspected.” So, how are we doing? We have a presidential candidate who is a person of color and a female vice presidential candidate. Locally we have a ways to go. Sedgwick County has 26 judges, one of whom is a woman and one a black male. Shawnee County and Johnson County do a little better but barely. The Board of Governors of the KBA has six women and only one member of color. I see no active bias or discrimination here. There also isn’t much effort at bringing about diversity. Mostly people just going about their business. The Board of Governors will be discussing these issues this year. Wait. Here I am in print. A target. n * Football program dropped.

Tom Wright can be reached by e-mail at twright21@cox.net or by phone at (785) 271-3166. 4 – OCTOBER 2008

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Young Lawyers Section News Diversity – It’s Not a Generational Issue By Scott M. Hill, Hite, Fanning & Honeyman LLP, Wichita, KBA Young Lawyers Section president

write not as a teacher on the subject of diversity, but as a student with many unanswered questions. I am a 29-yearold white male Christian born and raised in Kansas. I have never been the target of racial or ethnic bias. I have not been unfairly discriminated against because I am a man. I have never been second-guessed because I am a Christian. Because I have not experienced these things, which do unfortunately exist, I cannot pretend to fully appreciate the challenges of minorities. So what can I add? I think I can share what our younger generations — at least those in the majority — often misperceive: Diversity is our parent’s problem. Diversity initiatives are often misconstrued. I have been guilty on occasions. Many equate diversity initiatives as counterracism or countersexism practices. Isn’t this “young lawyer” generation supposed to be beyond this? Our law schools, undergraduate institutions, and even many of our primary and secondary schools for years have practiced equality among all walks of life. Haven’t I been on a level playing field with women all these years? Women made up approximately 50 percent of my law school class. Hasn’t my generation opened its arms to other races and cultures? Isn’t my generation all about embracing being different? But I look around at my peers and what I see are a majority of white males. I see a strong minority of white females — albeit a declining minority in relation to years of practice. I see a disproportionately low percentage of racially diverse men and women. My generation is still not diverse, despite my generation’s strongest desires. So I step back to clarify in my own mind “diversity.” Diversity is a concept that is broader than race and gender. In our profession, diversity means creating an environment that embraces differences and recognizes the unique contributions that each diverse individual can bring. The inclusion of diversity with its many faces helps to enrich our lives and our practice. I once thought diversity was an issue only the more senior generations needed to address. I look at my peers and ask, “Would my generation really unfairly discriminate based upon race, ethnicity, or gender?” Surely not, the older generations raised us better. So won’t the problems fix themselves, I thought. I now know the answer is no. And I believe even my generation needs to be a part of the solution. What can my generation do? First, we can recognize that we must be part of the solution. While I have enormous confidence in the more senior members of our bar, the fact of life is that we are all getting older. Soon, my generation will be the more senior members of the bar with the responsibility to lead this association and our profession in the right direction. We must be prepared to bring to the table not only open minds, but also our own efforts to achieve diversity. These efforts can begin today with where one of my recent columns left off. That column focused on mentoring. Since the vast majority of my peers do not define the worth of a person by gender, or ethnicity, or religious convictions, I believe it is important that my generation begins mentoring now. This mentoring can be addressed to the newer and more diverse body of attorneys

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admitted to the state each year. But mentoring can also be directed toward the still younger generations. I should be mentoring high schoolers. I should be encouraging young men and women who are racial miScott M. Hill norities that the law is a great career to work toward, and so should my peers. Second, we must actively participate in the discussions that are working toward making diversity possible to our very undiverse profession. Our impact can be immediate. Talk about diversity within your firms. Consider diversity initiatives when providing input in hiring new attorneys. While we may not be the decisionmakers in our firms at this stage, our opinions do matter. We must bring those perspectives and opinions to the table. We must be proactive, and we must be heard. Finally, I think a solution lies in simply recognizing why diversity matters. It’s been stated many times, but it never hurts to discuss it again. When an industry, system, or governmental body does not look like the community it represents, it loses credibility. The legal world currently is nowhere near representative (no matter how you measure it) of the general population. Therefore, the system from an outsider’s perspective appears slanted, elitist, and not in the best interest of the general population. Without a doubt, it matters that the legal system is fair. It matters that the legal system provides equal access to all members of society. The unchallengeable truth is that we are not a diverse body — whether it be on the state or local level. The unchallengeable truth is that we all can benefit from becoming more diverse. Diversity needs to be the focus of all. It’s time my generation recognizes that and becomes part of the solution. n Scott M. Hill may be reached at (316) 265-7741 or by e-mail at hill@hitefanning.com.

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Achieving Diversity in the Kansas Legal Profession By Gwynne Harris Birzer, Hite, Fanning & Honeyman, Wichita, chair of KBA Diversity Committee

acial and ethnic diversity has always been a hallmark of American society. Immigration from different parts of the world, and the different fertility and mortality rates among recent migrants, has kept the racial and ethnic composition in flux. Diversity is not only strength, it is a necessity. Our values should reflect appreciation of diversity and inclusion, and they should provide significant insight in order to gain sufficient influence through the legal profession. Chideya Farai in her book, “The Color of our Future,”1 revealed that America’s racial composition is changing more rapidly than ever and that the number of immigrants in America today is the largest when compared to any postWorld War II period. For example, the proportion of African Americans has been gradually rising and by 2020, they are predicted to comprise about 12.9 percent of our total population. Similarly, by 2020 Asian Americans will represent about 6.5 percent of the American population and Hispanics will be responsible for more than 37 percent of our total population.2 National averages suggest that America’s racial and ethnic diversification is proceeding slowly but steadily.3 Data doesn’t begin to reveal the diversity issues that center on persons

with physical and mental disabilities, religiosity, and sexual preferences. Attorneys and other legal professionals entering the profession in the 21st century face both a population and a set of professional values that require skills for negotiating cultural difference. Unfortunately, the legal profession has fallen short of ensuring diversity within its ranks. This is exemplified in a 2000 study by Professor Elizabeth Chambliss.4 The Chambliss study found that minorities are less likely than whites to have judicial clerkships after law school, and among law graduates in the year 2000, only 9.4 percent of minorities had judicial clerkships compared to 12.3 percent of whites. The study also found that minority women in particular have historically been less likely than other groups to begin their careers in private practice. It is important to point out that gender differences among minorities has diminished over time, and current data reveals that minority women enter into private practice at a slightly higher rate than minority men. The gender difference among white law school graduates also has decreased slightly, although white women continue to be less likely than white men to enter private practice. According to the U.S. Census report, total minority representation among lawyers is about 9.7 percent. Overall, minorities are more likely to start off in government and public interest jobs. Among law graduates for the year 2003, only 53.3 percent of minorities entered private practice, compared to 60.5 percent of whites. In 1999 the American Bar Association (ABA) introduced statistics, which indicate the legal profession at that time was more than 92 percent white and less than 8 percent of color while the United States population was 70 percent white and 30 percent of color. The ABA made a public statement suggesting the legal profession has a long way to go before it reflects the ethnic and racial diversity of the general population. Thus, a diversity call to action was born. The ABA convened in a colloquium, which brought together legal educators, corporate counsel, and law firm and bar association leaders in an effort to determine how to achieve greater racial and ethnic diversity in the legal profession. Subsequently, in 2000, the Kansas Bar Association (KBA), under the leadership of then-President Justice Marla Luckert, formed a diversity committee. The diversity committee’s primary purpose is to assist “the KBA with increasing diversity within the Kansas legal profession so that the demographics of the legal profession mirror the demographics of the population of Kansas by the year 2020.” So where should the diversity committee and the KBA begin in working toward the goal of diversifying the Kansas legal profession? What are the issues, challenges, and impediments to such a lofty goal? First and foremost, it is important

to recognize that differences represent opportunities, and opportunities lead to expansion, growth, profit, and ultimately influence. Achieving diversity requires a consistent long-term focus. Perhaps there is misguided fear among some in the legal profession that proposing diversity goals are equivalent to law firms having to sacrifice the best qualified attorneys for mediocrity. This is not the case. In fact, many women, racial minorities, and physically handicapped attorneys graduate with honors from top-tiered and respected law schools, and many of these persons hold prestigious executive positions in the legal jurisprudence. Achieving diversity does not mean a law firm should sacrifice qualifications and excellence in those they seek out for employment. What it does mean is that law firms should make a wholehearted effort to openly recruit women, minority, ethnic, and physically disabled candidates. In many cases these simply do not apply to well-known law firms because they assume that they are not welcome. Oftentimes this belief is perpetuated by the overwhelming nondiverse partners and associates within some law firms. This may give the impression that the law firm is not open to diversity within its ranks. Just because a firm may not receive applications from diverse applicants should not be construed to mean they are not interested. Diverse applicants may simply believe that they do not have a fair chance due to a historically white and maledominated profession. Shortly after the formation of the KBA Diversity Committee, charter members instituted programs that proposed a goal of having the legal profession in Kansas more adequately reflecting the demographics of state of Kansas by the year 2020. Thus, the diversity committee created the Summer Legal Internship Program (SLIP). SLIP is designed to target and mentor high school students by exposing them to the legal field with the objective of encouraging them to consider the legal profession. Other noted programs instituted by local bar associations include grow your own lawyer programs, minority job fairs, and diversity action plans. The diversity committee has proposed several recommendations in order to assist the KBA with the diversity initiative. The first is legal education. Currently, a continuing legal education (CLE) seminar on the subject of diversity is not eligible for CLE credit. The KBA Diversity Committee would like to develop an educational CLE on issues and benefits of diversity to the profession, which would be presented to legal communities across the state. This requires that the committee make a request of the CLE Commission to adopt the necessary protocol that would grant CLE credit for diversity seminars. In keeping with the diversity trends across the United States, the diversity committee is also proposing a Legal Diversity Summit to be held during the 2009 KBA Annual Meeting. The summit would be a part of the educational component of the annual meeting. This would include a formal presentation by committee members on the impact of diversity in the legal profession as well as what this would mean for acquiring corporate

clients. The summit would also include roundtable and panel discussions regarding diversity issues. The diversity committee is also recommending the implementation of a “diversity award.” This award would be presented specifically to a law firm or law organization that creates, develops, and implements a strategic plan that effectively promotes diversity and inclusion. One other recommendation that the diversity committee will make is that the KBA adopt guidelines that make promoting diversity and inclusion in the legal profession a part of their strategic planning process. In essence, the committee proposes that diversity and inclusion become part of the underlying culture. Moreover, the diversity committee would like to encourage bar associations across the state to create individual diversity action plans (plan). However, it is important to note that diversity action plans come with a caveat. It is all too easy to merely create a plan and not take clear implementation measures. It is paramount that a plan be thoughtfully designed and carefully implemented. Establishing an implementation time frame can be beneficial to assure the plan simply is not wasted time and effort. Effective implementation of the plan can also go a long way in avoiding the appearance that the plan is nothing more than mere symbolism. In order to encourage and promote diversity and inclusion within the Kansas Bar it is appropriate that we start internally, with the Association itself. Once we have accomplished our internal goal of increasing diversity, we will be in a more salubrious position to have an impact on aspiring legal professionals. When we appreciate different perspectives, experiences, and approaches, the result will ultimately be a legal profession rich in talent, creativity, and a workplace where exceptional attorneys can work together to provide excellent service to their clients. n About the Author

FOOTNOTES 1. Chideya Farai, The Color of Our Future (William Morrow & Co. 1999). 2. R.W. Judy & C. D’Amico, “Work Force 2020: Work and Workers in the 21st Century,” Hudson Institute (1997).

3. Id. 4. E. Chambliss, “Miles to go 2000: Progress of Minorities in the Legal Profession.” American Bar Association, Commission on Racial and Ethnic Diversity in the Profession (2000).

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Gwynne Harris Birzer is an associate attorney in the law firm of Hite, Fanning & Honeyman LLP, Wichita. Her practice area focuses on medical malpractice litigation. She earned her bachelor’s degree from Washburn University in 1989 and earned her law degree from Washburn University School of Law in 1992.

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8 â&#x20AC;&#x201C; OCTOBER 2008

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Deadline to Submit 2009 IOLTA Grant Applications is Dec. 1

he Kansas Bar Foundation (KBF) is soliciting grant applications for the 2009 Interest on Lawyers’ Trust Accounts (IOLTA) grant cycle that runs from April 1, 2009, through March 31, 2010. The deadline to submit applications is Dec. 1, 2008. The KBF Board of Trustees will make a decision on the applications in February 2009. The Kansas IOLTA program, approved by the Kansas Supreme Court in 1984, is supported by more than 3,450 lawyers across the state. The program collects interest from trust accounts in which funds are nominal in amount or are expected to be held for a short period of time. IOLTA grants are primarily aimed at funding programs that provide civil legal services for low-income people, law-related charitable public service projects, and improvements to the administration of justice, with the largest share going to provide direct legal services for victims of domestic violence. Grant applications are reviewed by the KBF’s IOLTA Committee, which is comprised of appointees from the KBF,

Give a Hand Up to Those in Need Pro bono legal services are desperately needed and your colleagues in the Kansas Bar Association need your help to provide legal services to low-income Kansans. In 2008, we have set a goal to double the number of Kansas families who receive pro bono services — from 250 to 500. Your help is needed in meeting this goal. All areas of practice are needed. No potential clients will be given your name, without your specific approval, and all potential clients will be screened for financial eligibility through Kansas Legal Services (KLS). Many of the cases referred will be cases that KLS cannot accept, due to conflict or other barriers. Clients using this program understand that the attorney has agreed to provide services at no cost for the referred case only. Clients also understand that they may be required to pay filing fees, witness fees, etc. You should accept the case with no expectation of payment for your time or office expenses. KLS may be able to help with extraordinary litigation expenses, when the interests of justice require it. Please volunteer to help those in need by calling Meg Wickham, KBA manager of public services, at (785) 234-5696 or e-mail mwickham@ksbar.org for more information. 10 – OCTOBER 2008

the Kansas Bar Association, the Kansas Supreme Court, the Kansas Association for Justice, the Kansas Association of Defense Counsel, and the governor’s office. The committee forwards its recommendations to the KBF Board of Trustees for final approval. In order to qualify for IOLTA funds, an organization must: • be a 501(c)(3) or 501(c)(6) if a local bar association, • use the funds for a specific charitable purpose, • agree to an audit or a review of expenses, • provide quarterly and year-end reports as necessary, and • demonstrate fiscal responsibility and the ability to provide quality services. For more information or to request an IOLTA grant application for 2009, contact Meg Wickham, manager of public services, at (785) 234-5696 or at mwickham@ksbar. org or visit www.ksbar.org/public/kbf/iolta.shtml. n

Your Total Resource for Practicing Law in Kansas Upcoming Releases: • Kansas Bankrupcty Handbook • Kansas Ethics Handbook • Kansas Long-Term Care Handbook • Kansas Real Estate Practice & Procedure • Kansas Practitioner’s Guide to Family Law 2008 Supplement • Kansas Probate & Trust Administration After Death Handbook

Bookstore 1882

Learning Living Law

www.ksbar.org/bookstore www.KBAbookstore.org

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The Right Thing To Do By Sarah Bootes Shattuck, Kansas Bar Foundation President

... 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 Sarah Bootes Shattuck, Ashland President John D. Jurcyk, Roeland Park President-elect James D. Oliver, Overland Park Secretary-Treasurer Bruce W. Kent, Manhattan Immediate Past President BOARD OF TRUSTEES Hon. Richard L. Bond, Overland Park 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 Edward J. Nazar, Wichita Randall J. Pankratz, Newton H. Douglas Pfalzgraf, Wellington Hon. Ronnie L. Svaty, Ellsworth J. Ronald Vignery, Goodland James C. Wright, Topeka Amy Fellows Cline, Wichita Young Lawyers Representative Katherine L. Kirk, Lawrence Kansas Association of Justice Representative Susan G. Saidian, Wichita Kansas Women Attorneys Association Representative 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 David J. Rebein, Dodge City Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman, Topeka

ometimes I am disgustingly cheerful. I have a laugh that can be heard all over the building and often I don’t even realize I’m laughing. So there might be a tendency to dismiss what I am going to say because I am just a “cockeyed optimist” but … I love lawyers. We are funny, we are smart, and we are generous. Just look at the recent Raising the Bar Campaign. Lawyers from all over Kansas gave their hard-earned money to renovate the Kansas Law Center and grow the endowment of the Kansas Bar Foundation. And when you ask them why they gave, the answer is always the same: it was “the right thing to do.” Take, for example, Wichita lawyers Bill Zimmerman and Dave Moses. Together with their partners Mike Case and Tom Wilson they endowed a scholarship for law students graduating from Kansas, Washburn, or Creighton universities. Why? “Because, even though we’re a smaller firm, we had the ability and the responsibility to do something,” according to Dave. Bill told me, “It was something nice we could do for the legal community and the upcoming generation.” Nice? I’ll say. Or, as Warren Wood from Burlington said, “I have been extremely fortunate throughout my career, through the positions I’ve held and the opportunities I’ve had, all due to having been a lawyer in Kansas. It was one way to give a little back.” Jack Dalton, a former Kansas Bar Foundation president from Dodge City, wrote to me recently, “The practice of law instilled in me a deep admiration, not only of the law, but of my colleagues at the bar. From them, I learned much more law than in law school, enjoyed a tremendous camaraderie, and count scores of them as dear, dear friends. Aside from my family, I count my career in the law as one of the greatest blessings a person could be granted. That is why I feel I should somehow return something to the profession that has been so good to me.” For Rachel Pirner, a Wichita lawyer, giving was part of being something larger than yourself. “I wanted to be part of a great legacy for our profession and it was so needed.” Each of us, as lawyers, has been given a great deal: The opportunity to do interesting work that challenges our minds and our hearts, the opportunity to work for and with interesting people, the opportunity to earn a good living, and the opportunity to contribute to our communities. Scripture teaches us that “to whom much is given, much is expected.” By their example, these lawyers are quietly encouraging each of us to do more. They are acknowledging their debt to the profession and responding with generous hearts. So, I want to thank Bill, Dave, Warren, Jack, Rachel, and all the many other lawyers who contributed to the Kansas Bar Foundation through the Raising the Bar Campaign, who make annual contributions through their fellows pledge, who respond to our year-end solicitation, who “buy” bricks for the Law Center courtyard in honor of family members or lawyers who mentored and encouraged them. You are making a difference today and your contribution will benefit future generations. The Kansas Bar Foundation is about giving back. It’s the right thing to do. n

MANAGER, PUBLIC SERVICES Meg Wickham, Topeka

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OCTOBER 2008 – 11

Your ability to work and earn an income is your most valuable asset. As an active member of the Kansas Bar Association you can receive discounted Disability Income, DI Retirement Security and Overhead Expense Insurance, through Principal Life Insurance Company, to help protect you in the event of a disability. Group LTD through your firm may not be enough. The time to find how you will be paid at time of claim is now, after a disability is too late. Disability Specialists, Inc.* (DSI) is the program administrator and will manage the enrollment process.

FOR MORE INFORMATION Disability Specialists, Inc. (DSI) enrollment office 888/279-8348 8:00 a.m. – 4:00 p.m. Mountain Time You may also contact Jason Heffner, Financial Representative with Principal Life, at (913) 317-6611, ext. 3533 or email heffner.jason@principal.com Identify yourself as an active Kansas Bar Association member and you will be provided with the program details. *Disability Specialists, Inc. is not affiliated with any company of the Principal Financial Group. Disability Insurance has limitations and exclusions. For costs and complete details of coverage, contact your Principal Life representative. Disability insurance is issued by Principal Life Insurance Company, a member company of the Principal Financial Group, Des Moines, Iowa 50392. Policy Forms HH750 | HH702 #09

WE’LL GIVE YOU AN EDGE.®

A Nostalgic Touch of Humor

2 TXT AINT ALW BST By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo.

rom my perspective, the future of eloquent, persuasive advocacy in the form of the written word appears bleak. A couple years ago a university study demonstrated that students who use the grammar and spell-check functions of word processors make more errors than those who didn’t. The study “underscores the danger of relying too heavily on technology.” Strike one. And then text messaging crept into our culture. Any lawyer with a teenage son or daughter knows about text messaging. It’s an indispensable but incredibly annoying way to communicate with your high school student. This is the form of communication that has turned “are” to R, “ate” to 8, “please” to PLS, “thanks” to thx, “please see me” to PCM plus alphanumeric combinations — “gr8” – great. And that doesn’t include the bevy of smiley/sad or other symbols — something called an “emoticon” — that serve as a shorthand expression of a mood, reaction, or feeling. Strike two. So, it should not be surprising that our teachers are finding that this slang has found its way to high school essays. In a recent story from New York, a teacher commented: “Everything is shorthand — no capitalization. The spelling is just awful. There are no commas, no periods.” Of every 20 or so essays this teacher, Phillip Cicione, grades about six or seven essays contain errors such as using the letter “U” instead of you, or a lowercase “i” for the pronoun I. Add to the mix that many teenagers are reading or sending these messages in class and out — particularly while driving. The number of news stories describing serious accidents, including fatalities, grows every week involving teenagers texting while driving. Or consider the news reports from Los Angeles that the engineer blamed for missing a stop signal light that led to a head-on collision with a freight train — killing 25 passengers — may have been distracted by text messaging just before the accident. Strike three. But this column is not about your son wrecking his car while replying to your e-mail that says PCM. Instead, it’s a lighter topic that came to mind in something I saw in the Wall Street Journal. In its July 29 edition, that paper dedicated a story to the infiltration of text messaging to recruiting. And since it’s the associate hiring season, this struck me as timely. Another illustration of “old school” versus “new school” – and, I’m happy to report, in this universe, “old school” still has the upper hand. As reported in the Wall Street Journal: After interviewing a college student in June, Tory Johnson thought she had found the qualified and enthusiastic intern she craved for her small recruiting firm. Then she received the candidate’s thank-you note, laced with words like ‘hiya’ and ‘thanx,’ along with three exclamation points and a smiley-face emoticon. ‘That e-mail just ruined it for me,’ says Ms. Johnson, president of New York-based Women For Hire Inc. ‘This looks like a text message.’ The article continued: Hiring managers like Ms. Johnson say an increasing

(To Text is Not Always Best)

number of job hunters are just too casual when it comes to communicating about career opportunities in cyberspace and on mobile devices. Thank you’s on paper aren’t necessary, but some applicants are writing e-mails that contain shorthand language and decorative symbols, while others are sending hasty and poorly thought-out messages to and from mobile devices. The upshot of the column is simple — ditch the slang, happy faces and use a pen and paper to express your appreciation for getting a return interview. And maybe you will find employment as an attorney. When that day arrives, old school gets trumped by stone age — as new hires get accustomed to legal writing using terms like “wherefore,” “aforementioned,” and “herein incorporated.” How refreshing. n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon since 1985. He may be reached at mkeenan@shb.com.

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www.ksbar.org OCTOBER 2008 – 13

Law Students’ Corner A Little Perspective can Make a Big Difference By Kimberly Lynch, Washburn University School of Law

erspective is the power to understand things in their true relationship to one another.1 As lawyers, we are trained to keep things in perspective. Part of doing so involves remembering why we decided to practice law. While some lawyers practice law for the money and prestige, I believe that most practice law to help others when they most desperately need it. The American Bar Association encourages lawyers to volunteer 50 hours of pro bono services per year.2 Our pro bono services make a positive impression on the community at large. I would like to share my own recent pro bono experience with New Orleans citizens displaced by Hurricane Katrina. As a student, I have embarked upon my last year at Washburn University School of Law. I am proud to say that Washburn Law enables students to make a difference in the community, both locally and nationally. Last year, during winter break, a group of us ventured to New Orleans to assist the Louisiana Justice Institute (LJI). My group traveled to Baton Rouge each day to conduct a survey in the Renaissance Village, the largest Federal Emergency Management Agency (FEMA) trailer park created after Katrina. It was originally home to more than 2,000 Katrina survivors, with more than 350 still remaining in January 2008. LJI created the survey for two reasons: (1) to inform residents about free services and (2) to gather data about living conditions in the FEMA trailers. Before Katrina, most of the Village residents could be classified as the working poor. All of the residents that my survey partner, Tracey Denton, and I interviewed worked full time and lived in rental housing before Katrina. The reconstruction of New Orleans is projected to take years. Home and business owners were the first to return, but renters remained displaced because there were no plausible living arrangements. Rent nearly tripled, meaning that an apartment that rented for $300 before Katrina now cost $900. This helps to explain why so many people were still living in FEMA trailers nearly three years after Katrina ravaged New Orleans. Sadly, the stories that Tracey and I heard were devastating. Many of the residents had broken appliances, such as refrigerators, that remained unfixed for months. Their friends and families could not visit — all visitors were treated as trespassers. There was only one shuttle to take residents into Baton Rouge to look for jobs. The shuttle did not run on a consistent schedule during working business hours. LJI told its volunteers that FEMA intended to close the Village in March 2008. When we surveyed the residents, many FOOTNOTES 1. Merriam Webster Inc., Merriam Webster Online Dictionary, http:// www.merriam-webster.com/ (last accessed August 2008).

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of them had no idea that the Village would soon be closed. FEMA had posted letters on the trailers, but had never explained to the residents what, if anything, was going to happen to them. Some residents could not read or write and were unaware that they were about to become homeless. I will never forget the story of one strong, solemn woman who welcomed us into her trailer home and shared her experiences with us. We learned that before Katrina, she lived in New Orleans and worked as a fry cook at one of the local chain restaurants. She struggled to make it from week to week, but she had her own apartment and was involved in her local community. Her life changed dramatically when Katrina made landfall, causing several levees to break one by one. Her eyes filled with tears when she described how she was able to make it onto a nearby rooftop, but was unable to grab onto a drowning friend. She had to watch and listen as her friend fought to stay afloat, but was carried under by the current. Despite these tragedies, she was determined to get back on her feet and return to New Orleans. When we met with her, she had just found out the restaurant was going to rebuild and welcome her back. While she had a job waiting for her, she still had to find a place to live and reliable transportation. Fortunately, LJI is dedicated to helping people like her not only to appreciate their rights but also to rebuild their lives. While our efforts seemed small in the grand scheme of things, we were able to help LJI toward a larger goal. The information from the survey will enable LJI to design legal services for the survivors at the Renaissance Village. Mother Teresa once said, “We can do no great things, only small things with great love.” Through our small effort to help LJI conduct a simple survey and hand out information, we were able to effect change. Each of us learned that small acts of service truly do make a difference. I hope this story inspires readers to remember why they came to the law and to reignite their passion for public service. n About the Author Kimberly Lynch is a third-year student at Washburn University School of Law. She is president of the Moot Court Council and past president of Women’s Legal Forum. She works at the Shawnee County District Court as a law clerk and is about to begin a new adventure as a mother. 2. ABA, Model Rules of Prof ’l. Conduct R. 6.1(a), http://www. abanet.org/legalservices/probono/rule61.html (last updated 11/29/2006).

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Members in the News CHANGING POSITIONS Susan B. Andrews has joined the Kansas Department of Aging, Topeka. Randall S. Barbour has joined First American Title, Overland Park. Chane C. Carpenter has joined Honeywell International Inc., Olathe. Anne R. Cook has joined Principal Financial Group Law Department, West Des Moines, Iowa. Brian R. Collignon has joined Pistotnik Law Office, Wichita. Kimberlee K. Conard has joined Conard Roell & Associates, Lenexa. O. Paul Corley Jr. has joined Thompson & Knight LLP, Dallas. David B. Debenham has been appointed as a district judge for Shawnee County by Gov. Kathleen Sebelius. Jeffrey R. Elder, Wamego, has been appointed district court judge of the 2nd Judicial District for Pottawatomie County by Gov. Kathleen Sebelius. Laura D. Fent has joined Hinkle Elkouri Law Firm LLC, Wichita, as of counsel, and Johnathan A. Rhodes has joined the firm as a summer clerk. Chad D. Giles has joined Mason & Velasquez P.A., Arkansas City. Cara M. Greve, Topeka, has been named project director for the Kansas Health Service Corp. William H. Henderson has joined Kutak Rock LLP, Kansas City, Mo. Lee W. Hendricks has been made a partner with Stumbo Hanson LLP, Topeka Wm. Scott Hesse has joined the Kansas Board of Healing Arts, Topeka, as general counsel. Paulette F. Hutnick has joined Douthit Frets Rouse Gentile & Rhodes LLC, Kansas City, Mo. Julia D. Kitsmiller has joined Seyforth Blumenthal & Harris LLC, Kansas City, Mo. Michael S. Mogenson has joined the Law Offices of Edward C. Gillette P.A., Mission, as an associate. Sarah E. Morrison has joined Garlin Driscoll Howard LLC, Louisville, Colo. Gary L. Myers has joined the Family Investment Center Inc., St. Joseph, Mo. Bonnie J. Oesch has joined McNearney & Associates LLC, Overland Park. Brooke R. Rank has joined Martin Leigh Laws & Fritzlen P.C., Kansas City, Mo. Jenny R. Redix has joined The Henning Law Firm P.A., Kansas City, Mo., as an associate.

Calvin D. Rider has joined Fleeson, Gooing, Coulson & Kitch LLC, Wichita. Trevor D. Riddle has joined Monnat & Spurrier Chtd., Wichita. Luke P. Sinclair has joined Woner Glenn Reeder Girard & Riordan P.A., Topeka. Alan R. Stetson has joined First National Bank of Kansas, Overland Park. Rebecca S. Yocum has joined Bottaro Morefield & Kubin L.C., Kansas City, Mo.

CHANGING LOCATIONS Brian L. Burge has started his own firm, The Burge Law Firm, 819 Walnut St., Ste. 301, Kansas City, MO 64106. Clarke & Wilson LLC has moved to 1040 New Hampshire, Lawrence, KS 66044. Ronald R. Gooding, Gooding Law Office, has moved to 6600 S.W. 10th Ave., Topeka, KS 66611. Dawn M. Porter has started her own practice, Porter Law Office, 614 Union, Emporia, KS 66801. Scott S. Sumpter has started his own firm, Scott S. Sumpter, Attorney at Law, 4200 Somerset Dr., Ste. 238, Prairie Village, KS 66208. Christopher P. Welsh has moved to 9290 W. Dodge Road, 100 The Mark, Omaha, NE 68114. Stephen M. Zier has moved to 5162 Briana Dr., Klamath Falls, OR 97603.

MISCELLANEOUS James D. Holt, Wichita, has been appointed to the Kansas Credit Union Council by Gov. Kathleen Sebelius. Paula Huff has been appointed as executive director of the Topeka Bar Association. Jeff Kennedy, Wichita, was elected to the board of directors of the University of Kansas Alumni Association. Glenn I. Kerbs, Dodge City, was appointed to the Kansas Governmental Ethics Commission by Attorney General Steve Six. Scott H. Raymond, Topeka, has been promoted from corporate counsel to assistant general counsel and director of legal services for Blue Cross and Blue Shield. Brett A. Reber, McPherson, has been elected as an advisory director for Farmers Alliance Companies.

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.

“Jest Is For All” by Arnie Glick

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

“I didn’t make a conscious career decision to go into appellate work — it’s just that I kept losing all of my trials.” OCTOBER 2008 – 17

KBA Young Lawyers – A Personal Tale By Justice Marla Luckert, Kansas Supreme Court, past Kansas Bar Association and Young Lawyers Section president

he beautiful Rocky Mountains and fabulous recreational facilities of the Broadmoor were at my doorstep and beckoning. Yet, I was being pulled away from the lure of the outdoors by the echo of a conversation with one the partners in my law firm. He had advised, “You should go to the Young Lawyers Section meeting and get involved.” As a very green, newbie attorney attending my first Kansas Bar Association convention, I was not sure whether to take the conversation as a command or a suggestion. Even if a suggestion, why risk having to explain why I would ignore his advice? So, I showed up at the Young Lawyer’s meeting, a decision I never regretted. Just showing up led to fun — I learned of some impromptu social events planned for later in the convention. Additionally, just showing up led to involvement: I was recruited to help with the mock trial program and a public service project. One project lead to another and more and more opportunities to meet with and work with other young lawyers. I soon learned developing those relationships was very helpful. Within weeks of that Broadmoor meeting, I found myself scheduling a deposition with an attorney I had met there. Undoubtedly, those first phone calls and later settlement negotiations progressed more easily because we had met each other in that friendly, nonadversarial setting. In addition, I found the projects to be interesting and the effort rewarding. Some projects focused on students interested in learning more about the law or a career in the law, others were aimed at informing the general public, pro bono assistance, charitable relief, or disaster assistance — many efforts that multiplied the humble services of one into the associational strength of many. After those early months as a new attorney, I did not need either a command or a suggestion from a firm partner to urge my involvement in the KBA Young Lawyers. I had experienced the rewards — personal satisfaction and professional connections. So, I kept going to meetings. Soon, I was serving on committees made up primarily of attorneys who were longingly looking back on their years as young lawyers. Judges, bar leaders, legends of the profession, and models of professionalism — there they were at the same table with me, the newbie. It seemed I had little to offer — just a willingness to be there — but much to receive — advice, lessons from war stories, and friendship. Undoubtedly, there were times my involvement with Young Lawyers added to the stresses caused by satisfying clients and providing the best possible representation, working toward law firm partnership, balancing career with starting a new family, and fulfilling commitments to my church and community. But, as I reflect back to the juggling that occurred in those years, I have no regrets regarding the time I committed to the KBA. The payback was tenfold or more. Some of my closest friendships, most loyal cheerleaders, and best mentors developed from those early KBA meetings. Countless professional encounters were made easier by having met attorneys, 18 – OCTOBER 2008

judges, and legislators I would not have otherwise known. Doors were opened to me, trust developed, and credibility was established. I even reaped some financial rewards from referrals. And, yes, my idealistic goals were realized — many KBA projects I worked on over the years made our corner of the world — inside and outside our profession — better. The KBA Young Lawyers — fun, fulfillment, friendships, and (later) wonderful memories. n About the Author Justice Marla J. Luckert was admitted to the bar in 1980. She then joined the Topeka firm of Goodell, Stratton, Edmonds & Palmer LLP, where she had a general litigation and health law practice. Luckert also served as an adjunct professor of law at Washburn University and in 1992 she was appointed by Gov. Joan Finney to the 3rd Judicial District Court. She was appointed by the Kansas Supreme Court to the Kansas Judicial Council, where she served as chair of the Criminal Law Advisory Committee. In 2000 she became chief judge of the 3rd Judicial District and Gov. Bill Graves appointed her to the Kansas Supreme Court effective Jan. 13, 2003. Editor’s note: “KBA Young Lawyers — A Personal Tale” was first published in the Fall 2008 edition of the YLS Forum, which is published by the KBA Young Lawyers Section. If you are interested in joining this or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696.

Obituary Donald H. Humphreys Donald H. Humphreys, 73, Great Bend, died Aug. 4 after a brief illness. He was born in Ashland on May 16, 1932, the son of John E. and Vinette (Hutcheson) Humphreys. He received his Bachelor of Arts in history from the University of Kansas, served three years in the Marine Corps as an artillery officer, and returned to KU to receive his Juris Doctor. Humphreys spent a couple of years as a FBI special agent in California before moving to Great Bend to practice law. Humphreys was preceded in death by his three brothers, Frederick, J.P., and Richard; his sister, Maxine; and his daughter, Meredy. Survivors include his wife, Alice; sons, Doug, Tarpon Springs, Fla., John, Castle Rock, Colo., Donald, San Diego, and Richard, Hesston; daughter, Alyson Walter, Topeka; and four grandchildren. n THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Serving the Public By Kannon K. Shanmugam, U.S. Department of Justice, Washington, D.C.

or the last four years, I have had the privilege of working in our nation’s capital as an assistant to the solicitor general in the Department of Justice. The Office of the Solicitor General is a relatively obscure component of the federal government. The tasks that it performs, however, are undeniably important. In a nutshell, the Office of the Solicitor General is one of the oldest units in the Justice Department. It was established in the late 19th century, at the same time as the department itself, for the purpose of supervising the federal government’s litigation nationwide. While the office is fairly small by Washington standards — it currently has just 21 lawyers — it has a distinguished history. No fewer than six of our alumni have gone on to serve on the U.S. Supreme Court, including the Court’s two newest members, Chief Justice John Roberts and Justice Samuel Alito. One alumnus, William Howard Taft, even went on to become president of the United States. In the years since its foundation, the office’s primary responsibility has been to handle the federal government’s litigation in the Supreme Court. Because the federal government has institutional interests in virtually every area of the law, it participates in the vast majority of the cases that the Supreme Court hears, either as an actual party to the case or as a friend of the Court. Last year alone, our office filed briefs, and presented oral argument, in 54 of the Court’s 72 cases. Because the federal government is involved in so many cases in the Supreme Court, every lawyer in our office typically has the opportunity to argue at least two cases before the Court per year. Arguing before the Supreme Court is an exhilarating, and not infrequently humbling, experience. There’s a real sense that, at least for those few minutes, you’re right at the heart of our legal system and playing a role, however modest, in the proper functioning of that system. It goes without saying that it is an incredible honor to appear before the highest court in the land. But it is a particular honor to represent our country before that court. And with that honor comes responsibility. As one former solicitor general put it, the job of a lawyer representing the United States is not to achieve victory, but to establish justice. One of the many traditions of our office is that our lawyers wear tailcoats — “morning dress” — when appearing before the Supreme Court. When I put on that tailcoat on the morning of an argument, it serves as a reminder that I’m not only simply serving a client but also serving the public. We live at a time in our nation’s history when serving the public has arguably never been more important. At the same time, with the growing salaries offered to young lawyers by private firms, it is becoming increasingly difficult to attract young lawyers to jobs in the public sector. Like many of my colleagues, I had to take a pay cut when I started in our office — and, with a young family, I can attest that it’s not an easy thing to do. As I hope my own experience demonstrates, however, engaging in public service has its own intangible rewards.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Although I’ve been in Washington for a number of years, I still think of myself as a Kansan first and foremost, and I’m a proud member of the Kansas Bar Association and its Young Lawyers Section. If you’re a fellow member of the YLS, I would encourage you to think about finding a way to serve the public at some stage of your career. I am confident you won’t regret it. n About the Author Kannon K. Shanmugam serves as an assistant to the solicitor general in the U.S. Department of Justice and, in that capacity, has argued seven cases on behalf of the United States before the Supreme Court. He previously worked as an associate at the law firm of Kirkland & Ellis and served as a law clerk to Justice Antonin Scalia on the Supreme Court. Shanmugam was born and raised in Lawrence, and in 2006, the Topeka Capital-Journal named him one of its Distinguished Kansans of the Year. The views expressed in this article are those of the author and do not necessarily represent the views of the U.S. Department of Justice.

OCTOBER 2008 – 19

Thinking Ethics

The Abandoned Client By Stanton A. Hazlett, Disciplinary Administrator

ortunately, instances of a lawyer abandoning clients are few and far between. However, when it does happen, the client is greatly inconvenienced and, at times, the client’s case is compromised or damaged. In this article, I will attempt to explain why this unfortunate event occurs and the response of the bar and judiciary to protect clients who have been abandoned by their lawyer. Why would a lawyer ever abandon his or her clients? My experience has been that this event generally occurs when a lawyer suffers from an impairment, which results in the lawyer not being able to properly take care of the lawyer’s practice or with a lawyer abandoning his practice altogether. Clients are often abandoned if a lawyer is either suspended or disbarred by the Kansas Supreme Court for misconduct. In one instance, more than 50 clients were affected adversely by a lawyer abandoning his practice. Although not an abandonment situation, clients may find themselves in the same situation if their lawyer dies. The problem of lawyer abandonment of clients almost always arises with solo practitioners. In a firm setting, other lawyers in the firm would attend to the needs of the clients. Abandoning a client does result in discipline. The applicable rule is KRPC 1.16 – Termination of Representation. That rule requires an attorney to protect the interests of a client when terminating the representation. The rule also requires giving reasonable notice to the client of the termination, allowing time for employment of new counsel, surrendering papers and property to which the client is entitled, and refunding any unearned retainer. Generally, when a lawyer abandons his practice none of the requirements of KRPC 1.16 are complied with by the lawyer. If the lawyer has been suspended or disbarred, the lawyer is required by Supreme Court Rule 218 to notify all of the lawyer’s clients in writing of the lawyer’s inability to undertake further representation. That notice must include a warning to obtain new counsel. The suspended or disbarred lawyer is also required to notify any court in which the lawyer has appeared of the suspension or disbarment. Compliance with this rule must occur if the lawyer has any chance of being reinstated at a later date. Supreme Court Rule 221 provides a mechanism to address situations where a lawyer has abandoned clients. That rule allows the administrative judge in the district where the lawyer practiced to appoint an attorney or attorneys to inventory the lawyer’s files and take whatever action is necessary to protect the interests of the clients and the attorney. SCR 221 would also be applicable where the lawyer has died, is incapacitated, suspended, or disbarred. The lawyers appointed by the administrative judge are not compensated, but agree to perform this service to assist the bar and the abandoned clients. Kansas lawyers have volunteered to perform these services understanding that they will receive no compensation for their services. At a minimum, the lawyers help the clients with immediate problems in the case or provide suggestions in

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directing the client to new counsel. In some instances the assisting lawyers have actually taken over the client’s case. Other procedures that have been used by administrative judges include authorizing the sheriff’s department to enter a building to retrieve client files and entering an order permitting the assisting lawyer to review trust account records and become an authorized signator on the lawyer’s trust account. Each client who has paid a fee to the lawyer that has not been earned will be advised of the existence of the Client Protection Fund. If the lawyer did not complete the task for the fee paid to the lawyer the Client Protection Fund will quickly reimburse the abandoned client. What can members of the bar do to help alleviate this situation? If you have knowledge that a lawyer has abandoned his or her practice you should immediately notify the administrative judge in your district as well as the Disciplinary Administrator’s Office. If you know of an impaired lawyer with the potential of this sort of problem, please contact Wally Underhill, the director of the Kansas Lawyers Assistance Program, so that he or a member of his committee may intervene. Finally, have a written plan in place to protect your clients should you, for any reason, not be able to continue to represent your clients. Designate another lawyer as the person to come in and take over your practice. The successor lawyer should contact each client and safeguard client property until the clients can decide whom to retain as a new lawyer. (See ABA Formal Opinion 92-369). n About the Author Stanton A. Hazlett, Topeka, received his Bachelor of General Studies from the University of Kansas and his juris doctorate from Washburn University School of Law. From 1977 through 1986 he was engaged in private practice in Lawrence. He has been with the Disciplinary Administrator’s Office since 1986. In September 1997 he was appointed disciplinary administrator.

Wally Underhill Executive Director Kansas Lawyers Assistance Program Confidential Hotline Toll Free 1-888-342-9080 (24/7) Cell: (913) 530-0890 (24/7) Web Site: www.kalap.com

E-mail: help@kalap.com THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Law Practice Management Tips & Tricks

Clients in the Corner Office By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka

any firms are discovering new partners — clients whose involvement in day-to-day firm management go well beyond paying the bills. Legislative reforms like Sarbanes-Oxley and the Gramm-Leach-Bliley Act have given clients a voice at the management table on hiring, technology use, and even real estate decisions. Social reforms are next on the agenda for many clients.

The Wal-Mart Software Stick In 2005 Wal-Mart demanded that law firms it hires move beyond token gestures toward diversity. The top 100 law firms were told that at least one minority and one woman must be among the top five relationship attorneys handling its business or the firm could lose that business. Wal-Mart made good on that promise in 2008 firing four firms it believed were uncommitted to diversity and reassigning $60 million in legal work to more diverse firms. In 2008 Wal-Mart unveiled new analytic software to be used in measuring the diversity of firms toward Wal-Mart’s benchmarks. Implied in the announcement was the accusation that firms were hiring minorities and women to obtain business but that those same individuals were not allowed to work the cases. The function of the software will be to audit billing records to verify that minorities and women account for a prescribed percentage of the firms’ billable hours. Technology is a relatively new addition to diversity efforts but it supplements the close scrutiny many firms undergo in proving their commitment to diversity in hiring and in practice. Other companies have relied on interviews with firm staff, tracking of promotion and retention efforts, and even tracking recognition of attorneys within firms for the work they contribute in efforts to improve the climate for diversity.

The Microsoft Carrot Interestingly, software giant Microsoft has not implemented a software solution to its goal of diversifying the law firms providing its legal services. It has, however, adopted an incentive program, which provides higher fees for more diverse firms. A policy statement issued to its outside counsel in 2008 explained a voluntary system whereby firms could earn a 2 percent bonus on total fees as reward for a 0.5 percentage point increase in the diversity ratio of the firm over a one-year period. While they have not announced analytic software to review firms’ progress toward diversity benchmarks, Microsoft has explicitly excluded tricks commonly used to game the system. Only attorney time is counted, so diversifying the paralegal team or administrative staff does not improve the diversity ratio. Firms cannot count contract attorneys or outside counsel — attorneys must be firm employees. Finally, attorneys can only be counted in one category so a black, lesbian woman is not a “triple-play” on the diversity calculation. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Notably, Microsoft’s diversity aims are broader than simply increasing the number of women and racial minorities providing its legal services. A third category tracked in quarterly or annual law firm reporting includes minorities by sexual orientation. Specifically, any gay, lesbian, or bisexual attorneys counted toward a diversity benchmark must be openly gay, lesbian, or bisexual (reporting suspicions do not improve a firm’s diversity ratio). Microsoft is not unique — Marriott International Inc. has attempted the same expansion and adds another category for attorneys with a disability.

Changing the Hiring Pool The Association of Corporate Counsel attempts to focus the efforts of its 24,000 members drawn from 10,000 corporations toward issues of national importance. Diversity has been a focus and one aim is to diversify the students attending and graduating law school. Through a “pipeline” program, the association seeks to encourage and cultivate high school students to pursue law by placing corporate legal staff in the schools to assist with high school law classes. Students are mentored by corporate legal staff, attend conferences at the companies, and can earn internships and scholarships.

Partners in Progress While many attorneys bristle about clients so boldly claiming the corner office, such clients may ultimately assist the legal profession in attaining one of our highest ethical obligations as set forth in the preamble to the Kansas Rules of Professional Conduct: “... [A]ll lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” 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. OCTOBER 2008 – 21

H onor The Law! The Essential Role of Civility in the Legal System By John J. Jurcyk Jr., senior policy advisor to the mayor and Wyandotte County administrator

“It was the best of times, it was the worst of times.” – Charles Dickens, “Tale of Two Cities”

Introduction Social commentators on American society point out with alarm the growing tide of the lack of civility and manners in all segments of society. A recent example — a ranking U.S. senator labeled the president of the United States as a “loser.” This comment was made while the president was on foreign soil on a diplomatic mission and was contrary to the tradition of speak no evil of the president when he is on foreign soil. The senator offered a half-hearted apology when asked about his comment. Society is beset by examples of daily news reports of road rage and political campaigns, which accentuate the negative and eliminate the positive. Popular political talk shows have hosts that constantly interrupt their guests and the guests interrupt each other, allowing no one to finish their thought. And, of course, we have the talking head lawyers on television who comment about the progress of celebrity criminal trials and often time criticize the tactics of the prosecutor as well as the defense. The resulting impression left is: I could do a better job of prosecuting or defending. And much of this criticism is made without having the benefit of being in the courtroom or knowing all of the facts!

True Life Legal Scene On the legal scene, judges, bar associations, law review authors, and social commentators all document the fact that the judicial system is likewise suffering from a lack of professionalism and civility among lawyers and judges. “The gentle mind by gentle deeds is known. For a man by nothing is so well betrayed, as by his manners.” – Edmund Spenser The professionalism, civility, honesty, and integrity of members of the bar and judiciary are popular topics for discussion in legal circles. Some say that professionalism or civility is difficult to define but one knows it when they see it. However, for the purposes of this article, I will employ the following definition of professionalism: Professionalism is conduct consistent with the tenants of the legal profession as demonstrated by a lawyer’s civility, honesty, integrity, character, fairness, competence, ethical conduct, public service, and respect for the rule of law, the courts, clients, other lawyers, witnesses, and unrepresented parties. (New Mexico Commission on Professionalism, Nov. 28, 2000.) Some contend there is no precise definition of civility other than the general dictionary meaning, which is “politeness.” Others say we know incivility when we see it. The problem, of course, is that one person’s civility is another person’s incivility. It can be a subjective feeling of a subjective 22 – OCTOBER 2008

matter at times. Thus, many bar associations have adopted aspirational codes of professionalism or codes of conduct. A few of those codes are mandatory and do carry some sanctions. “All I want of you is a little civility, and that of the commonest god damnedest kind.” – The New Bedford Classic, as Reported in Zephaniah W. Pease, The History of New Bedford (1918). Supposed to be said by the mate of a whaler to his ill-humored captain.

The Decline of Professionalism What has happened to politeness, manners, and civility? Conventional legal wisdom attributes the decline of professionalism in the legal system to a number of reasons. Some of the more common causes for the decline of civility are: 1. The adversarial system; 2. The dramatic increase in the lawyer population, which has resulted in a diminishment of the sense of community among the bar. Lawyers no longer encounter the same lawyers very frequently. Thus, no fear of tit for tat; 3. Economic pressure of the billable hours; 4. Law is no longer a profession but is now viewed as a business by lawyers and their clients; 5. A litigious society and clients demanding hard-nosed Rambo lawyers who practice the take-no-prisoner or scorched earth litigation tactics; 6. The “Bowling Alone” phenomenon as evidenced by declining lawyer participation in organized civic and bar associations activities; 7. Lawyer mobility – from one firm or city to another and regional law practice; 8. Modern technology, e.g., electronic court filings, faxes, etc., speed up activity and eliminate face-to-face dealings among lawyers and judges. Motion days have been eliminated by many courts, which result in less opportunity for face-to-face contact with lawyers; 9. The equation of civility with weakness or forgetting that meekness is NOT weakness; 10. Lack of mentorship; 11. Rule 11 sanctions; and 12. John McEnroe Syndrome — enjoying incivility, thinking it works, and knowing no better.

Remedies All of the foregoing are familiar reasons for the decline of civility. Many remedies have been advanced to counter and remedy this decline. These consist of: 1. Mandatory CLE on ethics (However, one may be technically ethical and yet unprofessional or uncivil.); 2. Enactment of aspirational codes or creeds on professionalism and civility; see for example Code of Trial Conduct of the American College of Trial Lawyers and Standards for THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Professional Conduct of the U.S. Court of Appeals for the 7th Circuit; 3. Seminars, articles, and talks on professionalism and civility; 4. Professionalism awards to hold out role models; 5. Have the law schools teach professionalism and etiquette; 6. Have judges be less tolerant of uncivil behavior. Judges should be enforcers of civility in litigation; 7. Some bar groups have golf tournaments between claimant’s attorneys and defense attorneys with the winning side receiving a Justice Cup as a prize; 8. One bar groups has advocated “Take Your Adversary to Lunch Week” in conjunction with Valentine’s Day. (A few commentators suggest that there is not a need for lawyers to embrace each other when doing professional work. Clients expect lawyers to act in their best interests. Thus, it might not be professional nor helpful to get too familiar with opposing counsel. There is a line between civility and fraternization. Clients may frown on a lawyer going out for drinks in the midst of a heated trial.)

“A man’s manners are a mirror in which he shows his portrait.” – Johann Wolfgang von Goethe

Some Best Practices Many of the extreme examples of incivility appear in court room situations or discovery proceedings. Here are a few suggestions that might help all of us to become more civil and professional: 1. Follow the Roberts Rules of Order when appearing in court; 2. Stand when addressing the court or making an objection; 3. Direct your comments to the judge and not your opponent; 4. Avoid vulgar language; 5. No first names in the court or proceedings; 6. Address the court as “Your Honor”; 7. Treat all witnesses with respect; 8. Stop talking after the court has made its ruling; THE JOURNAL OF THE KANSAS BAR ASSOCIATION

9. Apply civility in legal writing as well as correspondence, remembering a thoughtful lawyer avoids insults and barbs to opposing counsel as well as others; 10. Be on time for appointments, depositions, and court schedules; 11. If you are in court and there are other proceedings going on while you are waiting to be heard, do not talk so as to interrupt what is going on; 12. Inform your clients as to how they should behave; 13. Know your local court rules for discovery depositions. Think before objecting at depositions. Make legal objections, not speaking ones or insults to opposing attorneys; 14. Avoid arguments at depositions. Instead, call a recess and call the judge for a ruling; and 15. Consider making exercises for stress relief part of your routine.

Rationale for Professionalism It almost goes without saying that acting in a professional manner is not only a good thing but is also the right thing to do. Why is it a good thing to act in a professional manner and be civil in dealing with judges, opposing lawyers, witnesses, and the parties? Here are several reasons: 1. Professionalism enhances the credibility of the lawyer in the eyes of the decisionmaker, i.e., judge, jury, administrative law judge; 2. By enhancing the credibility of the lawyer, it makes his or her arguments and positions more persuasive with the decisionmaker; 3. A courteous presentation permits the decisionmaker to concentrate on the subject matter of the presentation and rules out distraction caused by rudeness and collateral inappropriate personal behavior and attacks; 4. Acting professionally and civilly shows that the lawyer is motivated by respect for his opponent and the judicial system and realizes the importance of the lawyer’s role in the administration of justice; 5. Civility in professionalism demonstrates strength of character. A lawyer with character would act the same way if no one ever found out; 6. It is in lawyers’ self-interest to be civil. Treating your fellow lawyers with respect means that agreements on legal documents are achieved more readily. Additionally, referrals from former opponents result; 7. Successful criminal defense lawyers do not antagonize prosecutors; 8. Jurors treat the clients of respectful civil lawyers better than clients of obnoxious lawyers; and 9. Generally speaking, lawyers who act professionally are subject to less stress in their lives. Therefore, the lawyer can enjoy life more fully, avoid burn out, and spend quality time with the family.

Self-Interest The literature on the professionalism does not often address some of self-inflicted wounds of uncivil conduct. Those who are guided by enlightened self-interest should also consider the downside of uncivil conduct. Here are some of the nega-

(Continued on next page) OCTOBER 2008 – 23

tives about unprofessional and uncivil conduct: 1. Most decisionmakers equate rudeness with a lack of character. Thus, an obnoxious lawyer is thought to have no character; 2. Decisionmakers require (consciously or perhaps unconsciously) more proof or a greater burden of persuasion from the lawyer who is obstreperous and obnoxious. Yes, courts recite that they do not want to punish a client because of the improprieties of the lawyers, but human nature being what it is, obnoxious behavior does not help you win legal arguments;

7. Rude, obnoxious conduct by lawyers, judges, parties, or witnesses has a deleterious, unhealthy affect on the reputation of the legal system. It degrades the system and lay persons especially have a diminished view of the value of the system and lose their respect for the law; 8. Intemperate behavior causes more stress in one’s life and thus is unhealthy; and 9. A lawyer victim of uncivility will not refer business nor recommend an obnoxious lawyer. Criminal prosecutors remember rude behavior of defense lawyers.

Conclusion Courtesy and formality have a positive influence in the administration of justice. Decorum makes for efficiency in the courtroom and increase exchange of information. The rules of decorum and etiquette prevent chaos in the courtroom and assists in the discovery of truth between conflicting evidence. Disruptive tactics thwart justice. Civility aids ethics while uncivility corrupts. Some years ago, the Kansas Bar Association distributed to its members a little desk tent card, which read: “Respect Your Fellow Lawyer.” Following that admonition costs nothing but it is an application of the Golden Rule or a tit for tat. The profession could go a long way towards reaching professionalism and civility by following this simple maxim. If we think first and act as we would want to be treated, I feel confident that the profession will improve in civility and professionalism. One writer even suggests before you act in an uncivil manner, ask yourself if you would want your mother to be present to observe your actions. “The Law: It has honored us; may we honor it.” – Daniel Webster

3. Oral or written obstreperous, rude behavior results in decisionmakers losing their focus on the legal arguments and disrupts the connection between the legal position of the lawyer and the decisionmaker; 4. Shakespeare said: “Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself and what remains is bestial.” Othello, II iii 264. Livy in Maxim 108 noted “and a good reputation is more valuable than money.” One of the fall outs from unprofessional conduct is damage to the lawyer’s reputation. Do you want to be known as a “jerk lawyer”?; 5. Another negative from unprofessional conduct is that such conduct often times strengthens the resolve of the opponent. Many litigants and lawyers when faced with obnoxious activity by the other side become more determined or resolute. Opportunities to settle may disappear. Settlements may not come about or the price of the settlement goes up or down, depending on what side the bad actor is; 6. Judges or juries may also unconsciously discount or increase the damage award as an unconscious fine against the side with the obnoxious lawyer; 24 – OCTOBER 2008

So I recommend that every attorney and judge makes a daily, individual commitment to live and act professionally, realizing that the profession is to serve clients, the public, and the administration of justice. And as officers of the court, we are duty bound to be professional and civil. It is the right thing to do and it is the good thing to do. May we honor the law. n “The Essential Role of Civility in the Legal System” was originally published in The Bencher magazine of the American Inns of Court. It is republished with their permission. About the author John J. Jurcyk Jr. is the Senior policy advisor to the mayor and Wyandotte County administrator. He is the 2004 recipient of the American Inns of Court Professionalism Award for the Tenth Circuit, the 1994 recipient of the Kansas Bar Association’s Professionalism Award, and an emeritus member of the Earl E. O’Connor Inn of Court. He is the former senior member of McAnany, Van Cleave & Phillips P.A., Kansas City, Kan. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

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Supreme Court of the United States Swearing-In Ceremony for Kansas Bar Association Members The Kansas Bar Association offering a threeday excursion to Washington, D.C., for members of the Kansas Bar Association who desire to be sworn in before the Supreme Court of the United States. Members may enjoy the excitement of our nation’s capital March 8-10, 2009, with the swearing-in scheduled for March 9 and a tour of the White House to be set for March 10. If you would like be a part of the group, complete the request form below and return it to the KBA with your payment. For questions, please contact Susan McKaskle, director of member services, at (785) 234-5696 or at smckaskle@ksbar.org. The swearing-in ceremony will be conducted before the justices of the U.S. Supreme Court in the U.S. Supreme Court building at 10 a.m., Monday, March 9, 2009. Seating capacity in the courtroom is strictly limited to one guest per admittee. Others may have the opportunity to view the ceremony from the public viewing area. Total price of $275 includes application fee, group photo, swearing-in reception, and tour of the White House. Hotel and travel accommodations are not included.*

Features of the trip include: • A block of discounted sleeping rooms reserved at the luxury boutique Hotel Monaco, a historic all marble building that is a Registered National Landmark. • Group photos taken in front of the U.S. Supreme Court building. • Swearing-in reception for all attendees and their guests, with invitations extended to the justices of the U.S. Supreme Court. • Tour of the White House. • Hotel and travel accommodations: *Attendees will be responsible for making their own hotel, airfare, and transportation arrangements. Please contact the Hotel Monaco Washington D.C. at (877) 202-5411 and indicate you are registering under the group Kansas Bar Association in order to receive the discounted room rate of $289. In order to receive the discounted room rate and ensure room availability the deadline for making you hotel reservations is Feb. 6, 2009. A limited number of rooms have been reserved for March 8 and 9.

Application Request Form U.S. Supreme Court Swearing-In Ceremony March 9, 2009 Name: Firm Name: Address: City: State: Zip: Phone: KBA#: Please send _____ application(s) for the U.S. Supreme Court sweaing-in ceremony and reception sponsored by the Kansas Bar Association. Please mail or fax this form with payment to: Kansas Bar Association Attn. Susan McKaskle, Director of Member Services P.O. Box 1037 Topeka, KS 66601-1037 Deadline to return application request form to the KBA office is Nov. 15, 2008.

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Kansas Probate Trust Administration After Death Handbook, 7th Edition (Formerly the Kansas Estate Administration Handbook) To be released Oct. 17, 2008 KBA Bookstore Pricing Information: Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$135 Nonmember . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$190

Bookstore 1882

CLE Information for Oct. 17 Bicentennial Center, Salina

8:30 a.m.

Registration & Continental Breakfast

9:00 a.m.

Overview of Trust and Estate After Death Counseling the Fiduciary Identifying and Possessing Assets

9:50 a.m.

Administration of an Estate After Death

Learning Living Law

10:40 a.m.

Break

10:55 a.m.

Administration of a Trust After Death

11:45 a.m.

Lunch (on your own)

1:00 p.m.

Interplay Between Trusts and Estates Regarding Creditor Rights, Spousal Rights, and Special Fiduciaries

1:50 p.m.

Tax Issues in Administration of Estates and Trusts

2:40 p.m.

Break

2:55 p.m.

Ethics on Administration, Representation, and Fiduciary Responsibility

3:45 p.m.

Adjourn CLE Pricing Information: Early Bird . . . . . . . . . . . . . . . . . . . . .$300 KBA Member . . . . . . . . . . . . . . . .$320 KBA Nonmember . . . . . . . . . .$405

For more information about ordering books or signing up for CLEs, go online to www.ksbar.org or call (785) 234-5696.

Deferred Compensation for Dummies: The Section 409A Compliance Clock is Ticking By Robert A. Browning

I. Introduction Most of us involved in the practice of law are familiar with the benefits of tax deferral. We routinely contribute a portion of our salary to our employer’s Section 401(k) or 403(b) retirement plan on a pretax basis, and in many cases our employer makes additional tax-deferred contributions to those plans on our behalf. Even if we don’t have access to an employer-sponsored retirement arrangement, many of us make taxdeductible contributions to an individual retirement arrangement (IRA). In both cases, we are deferring the full use and enjoyment of the money to a later date, and in the process we are “deferring” the taxation of what would otherwise be currently taxable compensation. It’s easy to recognize these tax-qualified retirement plans and IRAs as arrangements that defer compensation. However, there are many less formal arrangements that may result in the deferral of compensation. For example, a simple bonus plan, where 2008 performance is rewarded with a bonus payable in early 2009, is technically a deferred compensation plan. An employment agreement that provides for severance pay or other benefits in the event of early termination of the employment relationship provides for deferred compensation. When a teacher is paid for a nine month academic year in 12 installments, a portion of each payment during the summer months is technically deferred compensation that was earned in the previous fall. Many forms of equity-based compensation arrangements (such as stock options, phantom stock, or stock appreciation rights) provide employees with current rights to future benefits, and therefore provide “deferred” compensation. And there are a number of more obvious types of arrangements, such as long-term incentive plans, supplemental retirement arrangements, and nonqualified executive compensation plans, that also provide for compensation to be paid on a deferred basis. Prior to 2005, these arrangements, which are generally referred to as “nonqualified” deferred compensation arrangements, were not subject to any particular section of the Internal Revenue Code (the Code). Instead, the federal income tax treatment of amounts deferred under such nonqualified arrangements was based on certain tax principles, including the doctrines of constructive receipt1 and economic benefit.2 FOOTNOTES 1. Treas. Reg. § 1.451-2(a).

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These decades-old principles were shaped by various administrative rulings, judicial holdings, and a small number of statutory rules, primarily under Code Section 83 (which deals with the taxation of property, such as stock or an option to purchase stock, that is transferred in connection with the performance of services) and Code Section 451 (which governs the appropriate taxable year of inclusion in income). In 2004, partly in response to abuses by certain corporate executives associated with the collapse of Enron, Congress adopted a new statutory scheme for the regulation of nonqualified deferred compensation arrangements. The American Jobs 2. Id. § 1.402(b)-1(c)(i).

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Creation Act of 20043 made sweeping changes to the federal income tax treatment of deferred compensation arrangements through the enactment of Section 409A of the Code. Section 409A did not merely replace or codify the existing doctrines of constructive receipt and economic benefit. Instead, it created a new layer of regulation in the form of statutory rules and definitions that apply in addition to the existing principles of constructive receipt and economic benefit. As a result, many arrangements that were not previously considered to result in a deferral of compensation are now subject to the new statutory scheme, and many existing deferred compensation arrangements that were previously understood not to result in constructive receipt may now be subject to early taxation, penalties, and interest unless they are modified to comply with Section 409A.

II. History of Section 409A As noted above, Section 409A was added to the Code on Oct. 3, 2004, as part of the American Jobs Creation Act of 2004. The statute is generally effective for amounts deferred after Dec. 31, 2004. Amounts deferred prior to Jan. 1, 2005, are generally exempt from the new regulatory scheme so long as those amounts were “earned and vested” by Dec. 31, 2004. (However, these “grandfathered” amounts remain subject to the same tax principles, administrative rulings, and court holdings that governed nonqualified deferred compensation plans prior to Section 409A.) In addition, amounts deferred prior to 2005 will become subject to Section 409A if the arrangement is “materially modified” after the date the statute was enacted (i.e., after Oct. 3, 2004). Thus, Section 409A applies to: (1) all amounts deferred after 2004; (2) amounts deferred before 2005 that were not “vested” by Dec. 31, 2004; and (3) amounts deferred before 2005 where the arrangement is “materially modified” after Oct. 3, 2004. Since the statute was enacted, the Internal Revenue Service (IRS) has issued no less than 12 Notices regarding various as3. American Jobs Creation Act of 2004, Pub. L. No. 108-357, 118 Stat. 1418 (2004). 4. I.R.S. Notices 2005-1, 2005-1 CB. 274; 2005-94, 2005-2 C.B. 1208; 2006-4, 2006-1 C.B. 307; 2006-33, 2006-1 C.B. 754; 2006-64, 2006-2 C.B. 88; 2006-79, 2006-2 C.B. 763; 2006-100, 2006-2 C.B. 1109; 2007-34, 2007-17 I.R.B. 996; 2007-78, 2007-41 I.R.B. 780; 2007-86, 2007-46 I.R.B. 990; 2007-89, 2007-46 998; 2007-100, 200752 I.R.B. 1243.

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pects of the new statutory scheme.4 In October 2005, the IRS and the Treasury Department issued proposed regulations5 interpreting Section 409A, and on April 10, 2007, these regulations were published in final form.6 Although the final regulations were initially designed to become effective as of Jan. 1, 2008, the effective date was later postponed until Jan. 1, 2009.7 Because the Jan. 1, 2009, compliance date is nearly two years after the date the regulations were finalized, it is extremely unlikely that there will be any further extension of the effective date of the regulations. Consequently, the clock is ticking! All plans, agreements, practices, or arrangements that provide for the deferral of compensation (as that term is defined in the final 409A regulations) must comply with Section 409A and the final regulations, both in form and in operation, by no later than the end of 2008.

III. General Framework of Section 409A Section 409A itself is actually quite short and simple. The statute basically provides that, in order to avoid deferred compensation being included in gross income for any particular year, the arrangement must meet three requirements, both in form and in operation: (1) distributions – amounts deferred must be payable only upon one of the following events: separation from service, a specific date or time, death, disability, change in control, or unforeseeable emergency;8 (2) acceleration – the plan must not permit the acceleration of the time or schedule of any payment under the plan (except as provided in regulations);9 and (3) elections – any election to defer compensation for services performed in a given tax year must be made prior to the beginning of that tax year, and elections regarding the time and form of payment must generally be made by that same date.10 The consequences for failure to comply with Section 409A are severe. If at any time during a given taxable year a nonqualified deferred compensation plan fails to meet the requirements described above (i.e., if there is no written plan or if the plan does not include the basic statutory requirements) or if the plan is not operated in accordance with those requirements, then there are three adverse consequences: (1) income inclusion – all compensation previously deferred under the plan is includible in the participant’s gross income to the extent that (a) the amounts are not subject to a substantial risk of forfeiture and (b) the amounts have not previously been included in gross income; (2) interest – the participant is also subject to interest, calculated at the underpayment rate plus 1 percent, based on the underpayment that would have occurred had the deferred compensation been includible in income in the year first deferred (or, if later, the first taxable year the deferred amounts were no longer subject to a substantial 5. Prop. Treas. Reg. §§ 1.409A-1 through -6, 70 Fed. Reg. 57,930 (Oct. 4, 2005). 6. Treas. Reg. §§ 1.409A -1 through -6 (2007). 7. I.R.S. Notice 2007-86, 2007-46 I.R.B. 8. I.R.C. § 409A(a)(2) (2006). 9. Id. § 409A(c)(3). 10. Id. § 409A(c)(4).

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risk of forfeiture); and (3) penalty – the participant must pay a penalty equal to 20 percent of the amount required to be included in income above.11 Although these tax consequences fall on the service provider (i.e., the individual or entity providing the services for which the compensation is being deferred, such as employees or independent contractors), there may also be consequences to the service recipient (i.e., the person or entity paying the deferred compensation, such as employers or persons hiring contractors) for both: (1) failure to withhold and pay federal employment taxes and (2) failure to withhold federal, state, or local income taxes. Thus, both service providers and service recipients have a vested interest in making sure that any arrangement that results in the deferral of compensation is either (1) exempt from or (2) in compliance with the requirements of Section 409A.

IV. Definition of “Nonqualified Deferred Compensation Plan” The statute and the final regulations provide that a “nonqualified deferred compensation plan” includes any plan or arrangement (other than those specifically exempted below) that provides for the “deferral of compensation.” A plan provides for the “deferral of compensation” if, under the terms of the plan and the relevant facts and circumstances, a service provider obtains a legally binding right, during one taxable year, to compensation that is or may be payable to the service provider in a later taxable year.12 The regulations point out that, although there is no “legally binding right” where the service recipient has the discretion to unilaterally reduce or eliminate the amount of compensation to be paid, the same is not true where the compensation may be reduced or eliminated by operation of the objective terms of the plan, such as the application of a nondiscretionary, objective provision that creates a substantial risk of forfeiture.13 11. Id. § 409A(a)(1). 12. Treas. Reg. § 1.409A-1(b)(1) (2007).

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For example, if an employer and an employee agree, during 2008, that the employer will pay the employee a bonus in 2009, equal to 5 percent of the employee’s annual salary for services performed in 2008, the arrangement provides for the deferral of compensation (because the employee obtained the right to compensation payable in a later tax year). If the parties make the same agreement, but the employer has unilateral discretion regarding the amount of the bonus (i.e., the employer may legally elect not to pay any bonus at all), then the arrangement does not provide for the deferral of compensation. However, if the amount of the bonus is tied to certain objective performance criteria (of the service provider or of the company), then the arrangement provides for the deferral of compensation, even though there is a substantial risk that the performance criteria may not be met, and as a result, some or all of the bonus may not be paid. This is a very broad definition of “deferred compensation.” It sweeps in almost any nondiscretionary promise to pay compensation at a later date, whether in the form of a bonus or incentive plan, an employment agreement, a severance agreement, a supplemental retirement arrangement, an expense reimbursement arrangement, or a multitude of other equity based and nonequity based compensation arrangements. Therefore, any type of contract or agreement that provides for compensation, benefits, or reimbursements in a future year may be subject to Section 409A. If those promises constitute a “legally binding right” to future payment of compensation, one must generally presume that the deferred amounts will be subject to Section 409A unless the arrangement meets one of the statutory or regulatory exemptions.

13. Id.

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V. Plans and Arrangements Exempt from Section 409A The following types of plans are exempt from Section 409A, even though they may provide for the deferral of compensation: (1) qualified retirement plans under Code Sections 401(a) or 401(k); (2) qualified annuity plans under Code Section 403(a); (3) tax-sheltered annuity arrangements under Code Section 403(b); (4) eligible deferred compensation plans under Code Section 457(b); (5) qualified governmental excess benefit arrangements under Code Section 415(m); (6) SEPs, SARSEPs, and SIMPLE plans under Code Section 408; (7) plans involving deductible contributions to a Code Section 501(c)(18) trust; and (8) bona fide vacation leave, sick leave, compensatory time, disability pay, or death benefit plans.14 The final regulations also detail several additional exceptions from 409A, each of which is explained in more detail below. 1. Short-term Deferral Exemption (where the plan does not provide for deferred payment, and the deferred amounts are paid within two-and-a-half months after the end of the tax year in which the amounts are no longer subject to a substantial risk of forfeiture);15 2. Involuntary Separation Pay Exception (for amounts payable solely upon a service provider’s involuntary severance of employment, but only to the extent that the amounts paid do not exceed an indexed dollar limit [currently $460,000] and are paid by the last day of the second taxable year following the year of separation);16 3. Stock Options and Stock Appreciation Rights Excep tion (for options to buy stock of the service recipient the exercise price can never be less than the fair market value of the stock on the date of grant and for stock appreciation rights where the amount payable cannot exceed the increase in the fair market value of a share of stock between the date of grant and the date of exercise);17 and 4. Other amounts exempt from Section 409A.

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ment is no longer subject to a substantial risk of forfeiture or (2) the 15th day of the third month after the end of the service recipient’s taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture. There are two different ways a plan may qualify for the short-term deferral exception: (1) the plan is silent as to when payment will occur and payment actually occurs within the applicable two-and-a-half-month period or (2) the plan provides for payment within the applicable two-and-a-halfmonth period and payment is actually made within that same time period. By way of example, if in November 2008 an employee (who is employed by a calendar-year employer) obtains a legally binding right to a bonus for services performed during 2008, but the plan does not specify when payment will be made, the bonus plan will not be considered to provide for a defer(Continued on next page)

A. Exception for “Short-term” Deferrals The final regulations provide that a “deferral of compensation” does not occur if: (1) the plan under which a payment is made does not provide for a deferred payment and (2) the compensation is actually or constructively received by the service provider on or before the last day of the “applicable two-and-a-half-month period.”18 A plan provides for a “deferred payment” if it provides that any payment will be made or completed on or after any date (or upon or after the occurrence of any event) that will or may occur later than the end of the applicable two-and-a-half-month period. The “applicable two-and-a-half-month period” is the period ending on the latter of: (1) the 15th day of the third month after the end of the service provider’s taxable year in which the right to the pay14. I.R.C. § 409A(d)(1) (2006). 15. Treas. Reg. § 1.409A-1(b)(4) (2007). 16. Id. § 1.409A-1(b)(9). 17. Id. § 1.409A-1(b)(5). 18. Id. § 1.409A-1(b)(4). 19. Id. § 1.409A-1(b)(9)(iii).

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ral of compensation if the bonus is paid or made available to the employee on or before March 15, 2009. Likewise, if a long-term compensation plan provides for a bonus to be payable at the end of a three-year performance period, but only if the participant is employed on the last day of that performance period, and the plan specifically provides for payment within two-and-a-half-months after the end of the calendar year that includes the last day of the three-year performance period, the arrangement will be exempt from Section 409A so long as payment is actually made within that two-and-a-halfmonth period (because the requirement to be employed on the last day of the performance period constitutes a “substantial risk of forfeiture,” which extends the applicable two-anda-half-month period). If a plan provides for a series of payments upon the lapse of a substantial risk of forfeiture, and the plan specifically provides that each installment payment will be treated as a separate payment for purposes of Section 409A, then those payments that are made within the applicable two-and-a-half-month period will qualify for the short-term deferral exception and will not be subject to tax, penalties, and interest even if the arrangement otherwise fails to comply with Section 409A. The short-term deferral exception is one of the most powerful tools for keeping nonqualified deferred compensation arrangements outside the reach of Section 409A. When you are reviewing a client’s existing plans and arrangements for compliance with Section 409A, if you encounter a plan that is subject to, but not in compliance with, Section 409A, your first consideration should be, “Can I restructure the payment provisions of the plan in a manner that will qualify for the short-term deferral exception so that the plan will not be subject to 409A?” For example, if an employer has an annual bonus plan that pays a 10 percent bonus at the end of the first quarter of the following calendar year, that arrangement will be subject to 409A. However, if the plan is modified to either (1) be silent as to when the bonus will be paid or (2) specifically provide for payment no later than March 15 of the following year, then the plan will be exempt from Section 409A so long as the bonus is actually paid by March 15 of the following year.

B. “Separation pay” exception The second important exception from treatment as “deferred compensation” under Section 409A is for amounts that are payable solely upon the service provider’s involuntary separation from service, but only to the extent the amount of severance pay does not exceed a specific indexed dollar limit ($460,000 for 2008), and only to the extent the severance pay is paid by the last day of the second taxable year of the service provider following the year of the service provider’s separation from service.19 Under the final regulations, an “involuntary separation from service” means a separation from service due to the independent exercise of the service recipient’s unilateral authority to terminate the service provider’s services (other than due to the service provider’s implicit or explicit request) 20. Id. § 1.409A-1(n)(i). 21. Id. § 1.409A-1(n)(2)(i).

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where the service provider was willing and able to continue performing services.20 Generally, whether a separation from service is voluntary or involuntary is based on the facts and circumstances. However, any characterization of the separation by the parties in the documentation of the separation is presumed to properly characterize the nature of the separation from service. This presumption may be rebutted where the facts and circumstances indicate otherwise. Importantly, the final regulations also provide that, under the proper circumstances, a separation from service for “good reason” may be treated as an involuntary separation for purposes of the separation pay exception.21 These circumstances generally include a showing that: (1) avoidance of Section 409A was not a purpose of the inclusion of the “good-reason” termination provision; (2) the termination was based on actions by the service recipient that resulted in a material negative change to the service provider in the service relationship, such as in the duties to be performed, the conditions under which those duties are performed, or the compensation to be received for performing such services; (3) the payments due upon termination for good reason are not greater than those payable upon an actual involuntary termination; and (4) the service recipient has an opportunity to cure the condition. This treatment of payments upon termination for “good reason” was a significant change from the proposed regulations, which would have subjected any severance pay arrangement that provided for compensation upon termination for good cause to full 409A compliance (and the risk of early taxation, penalties, and interest if the arrangement did not comply). The final regulations actually go so far as to create a “safe harbor” under which a voluntary termination for good cause will be “deemed” to be an involuntary termination for purposes of the separation pay exception.22 Under the safe harbor, the separation from service for “good reason” must occur during a predetermined limited period of time (not to exceed two years) following the initial existence of one or more of the following conditions, assuming such conditions arise without the consent of the service provider: (1) a material dimunition in the service provider’s base compensation; (2) a material dimunition in the service provider’s authority, duties, or responsibilities; (3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the service provider is required to report; (4) a material dimunition in the budget over which the service provider retains authority; (5) a material change in the geographic location at which the service provider must perform the services; or (6) any other action or inaction that constitutes a material breach by the service recipient of the agreement under which the service provider provides services. The safe harbor also requires that: (1) the amount, time, and form of payment upon termination for good cause must be substantially identical to the amount, time, and form of payment payable due to an actual involuntary separation from service (if such a right exists); and (2) the service provider must provide notice to the service recipient of the existence 22. Id. § 1.409A-1(N)(2)(ii).

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of the conditions giving rise to the termination for good cause within 90 days from the initial existence of the condition, and the service recipient must have at least 30 days to remedy the condition, such that if the condition is remedied the service recipient will not be required to pay the amount. By creating a safe harbor, the final regulations basically provide drafters of employment agreements with a blueprint for how to structure severance pay provisions to be exempt from Section 409A. So long as the severance amounts are: (1) payable only upon involuntary termination without cause or voluntary termination for “good cause” (under terms and conditions that are consistent with the safe harbor); (2) paid on or before the last day of the second taxable year following the year of separation; and (3) do not exceed the applicable dollar limit (which is defined as two times the annual compensation limit under Code Section 401(a)(17)), then the severance pay provisions are exempt from Section 409A. C. Exception for fair market value stock options and stock appreciation rights The third significant category of nonqualified deferred compensation plans that is exempt from Section 409A includes nondiscounted stock options and certain stock appreciation rights that involve “service recipient stock.” Under the final regulations, an option to purchase service recipient stock is not subject to Section 409A if: (1) the exercise price may never be less than the fair market value (FMV) of the underlying stock on the date the option is granted; (2) the number of shares of stock subject to the option is fixed on the date the option is granted; (3) the exercise of the option is subject to tax under Code Section 83 and the regulations thereunder; and (4) the option does not include any feature for the deferral of compensation (other than the deferral of recognition of income until the later of the date the option is exercised or the date the stock acquired pursuant to the exercise of the option first becomes substantially vested).23

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Similarly, the right to compensation that is based on the appreciation in the value of a specified number of shares of service recipient stock between the date of grant and the date of exercise of such right (i.e., a stock appreciation right SAR) is exempt from Section 409A if: (1) the amount payable with respect to the SAR does not exceed the difference between the FMV of the service recipient stock on the date of exercise and the price (the “exercise price”) established at the time the SARs were granted; (2) the “exercise price” of the SAR cannot be less than the FMV of the service recipient stock as of the date the SAR is granted; and (3) the SAR does not include any feature for the deferral of compensation (other than the deferral of recognition of income until the exercise of the SAR).24 For purpose of these exemptions, “service recipient stock” means a class of stock that is considered “common stock” under Code Section 305, and that is issued by either: (1) the corporation for which the service provider provides direct services or (2) any corporation or entity in the chain of entities (where each entity has a 50 percent or more interest in the next entity in the chain) ending with the entity that owns at least 50 percent of the corporation for which the service provider is providing services.25 The 50 percent threshold for determining the entities to include in the chain may be reduced to as low as 20 percent if the use of such stock is based on legitimate business criteria (i.e., if there is a sufficient nexus between the service provider and the actual issuer of the stock). As noted above, whether stock options and SARs are exempt from 409A turns on whether the exercise price of the option or SAR is equal to or greater than the FMV of the underlying service recipient stock as of the date of grant. If nonqualified stock options are issued with an exercise price that is less than the FMV of the underlying stock, the options will be subject to 409A. Options that are subject to 409A cannot have an “open” exercise period, as this would violate the requirement that distribu-

23. Id. § 1.409A-1(b)(5)(i)(A). 24. Id. § 1.409A-1(b)(5)(i)(B). 25. Id. § 1.409A-1(b)(5)(iii)(A).

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tions be made only upon a permissible distribution event. If nonqualified stock options are issued with an exercise price that is equal to or greater than the FMV of the underlying stock, the options will generally be exempt from 409A, and may be exercised at any time (i.e., they may have an “open” exercise period). The final 409A regulations provide that, for stock that is readily tradable on an established securities market, the FMV of the stock may be determined on the basis of the last sale before or the first sale after the grant date, the closing price on the last trading day before or the trading day of the grant, or any other reasonable method that is based on actual transactions in such stock as reported by such market.26 For stock that is not readily traded on an established securities market, FMV must be determined by the “reasonable application” of a “reasonable valuation method.”27 A “reasonable” valuation method must generally take into account such factors as: (1) the value of tangible and intangible assets of the corporation; (2) the present value of anticipated future cash-flows of the corporation; (3) the market value of stock or equity interests in similar corporations or other entities engaged in substantially similar trades or businesses; (4) recent arm’s length transactions involving the sale of such stock or equity interests; and (5) factors such as control premiums and discounts for lack of marketability.28 The use of a valuation method is not reasonable if the method does not take into consideration all available information material to the value of the corporation. The valuation is not reasonable as of a later date if it fails to reflect subsequent information that may materially affect the value of the corporation, or if the valuation is more than 12 months old. The consistent use of a particular valuation method for other purposes, including purposes unrelated to compensation of service providers, is also a factor supporting the reasonableness of that valuation method.

26. Id. § 1.409A-1(b)(5)(iv)(A). 27. Id. § 1.409A-1(b)(5)(iv)(B). 28. Id. § 1.409A-1(b)(5)(iv)(B)(1).

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The regulations also provide three “safe harbors” for determining the value of a nonpublicly traded corporation.29 Use of these methods creates a presumption of reasonableness, which is rebuttable by the IRS only upon a showing that the method was grossly unreasonable. 1. Independent Appraisal – If the stock is appraised in a manner that would satisfy the requirements under Code Section 401(a)(28)(C) for employee stock ownership plans (ESOPs), and the valuation is no more than 12 months before the relevant date. 2. Nonlapse Restriction Method – If the stock value is based on a formula (such as book value or a multiple of earnings) that, if used as part of a nonlapse restriction with respect to the stock, would be considered to be the FMV of the stock under Treas. Reg. Section 1.83-5 (regarding incentive stock options), provided that the stock is valued in the same manner for purposes of any nonlapse restriction applicable to the transfer of any shares of such stock

and provided further that any stock acquired pursuant to the exercise of the stock right is subject to such nonlapse restriction. 3. Start-up Corporation Method – If the value of the illiquid stock of a startup corporation is determined reasonably and in good faith and is evidenced by a written report that takes into account the relevant factors listed above where the term “start-up corporation” means a corporation that has no material trade or business that it or any predecessor has conducted for a period of 10 years or more, and neither the service provider nor the service recipient reasonably anticipate a change in control event within 90 days, or a public offering of the stock within 180 days.30 A different valuation method may be used for each separate action for which a valuation is relevant, provided that a single method is used for each separate action, and the valuation is not retroactively altered. For example, one valuation method may be used to determine the exercise price of a stock option, and another method may be used to determine the value of stock at the time of exercise (or other put or call right). If a nonpublicly traded company becomes publicly traded after options are granted, the value at the time of exercise must be determined on the basis of the rules for valuation of publicly traded companies, even though a different method may have been used to determine the exercise price on the date of grant.31 Generally, the modification, extension, substitution, or assumption of a stock right is treated as the grant of a new stock right. However, a change in the terms of a stock right shortening the period during which the stock right is exercisable is not a “modification” for purposes of this rule. In addition, the extension of the term of a stock right is not treated as an additional deferral feature so long as it is not extended beyond the earlier of: (1) 10 years from the original grant date or (2) the latest date upon which the stock right could have expired 29. Id. § 1.409A-1(b)(5)(iv)(B)(2). 30. Id. 31. Id. § 1.409A-1(b)(5)(iv)(B)(3). 32. Id. § 1.409A-1(b)(5)(v). 33. Id. § 1.409A-1(b)(l).

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by its original terms. Certain extensions made prior to April 10, 2007, as well as extensions of “underwater” stock rights (i.e., where the exercise price is less than the FMV of the underlying stock at the time of the extension) are also exempt from this rule.32 D. Other amounts exempt from 409A In addition to the statutory exemptions and the exemptions for short-term deferrals, involuntary separation pay, and fair market value stock rights, the final regulations also provide that the following types of compensation are not subject to Section 409A: (1) amounts that are not taxable when received, such as retiree health ben efits provided through insurance (note that discriminatory benefits paid under a self-funded plan are taxable, and thus subject to Section 409A);33 (2) deductible business expenses, such as outplacement services and mov ing expenses, paid after termination of employment, so long as such ex penses are incurred by the end of the second calendar year, and are paid by the end of the third calen dar year following termination of employment;34 (3) reimbursement for taxable medi cal expenses incurred during the period that the employee could have elected COBRA coverage under the employer’s medical plan (i.e., 18-36 months after termination);35 (4) other reimbursements that do not in the aggregate exceed $15,500 (2008 figure, indexed for inflation);36 (5) indemnification agreements (i.e., the right to payments to cover an employee’s legal expenses arising from claims associated with the employee’s duties), to the extent the reimbursement is permissible under applicable law;37 and (6) restricted stock.38

34. Id. § 1.409A-1(b)(9)(v)(A). 35. Id. § 1.409A-1(b)(9)(v)(B). 36. Id. § 1.409A-1(b)(9)(v)(D). 37. Id. § 1.409A-1(b)(10). 38. Id. § 1.409A-1(b)(6).

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VI. Complying with Section 409A Generally, it is best to avoid Section 409A, if it is possible to do so. Therefore, in structuring compensation arrangements, service recipients should first consider whether there is a plausible design or alternative that is not subject to 409A. For example, when considering stock-based deferred compensation, the service recipient may wish to consider restricted stock or full FMV stock options or SARs (which if properly structured will not be subject to 409A), whereas discounted options, phantom stock, or stock rights that do not involve service recipient stock (or that include some additional deferral feature) will be subject to 409A. When designing bonus plans and incentive compensation arrangements, the inclusion of a “substantial risk of forfeiture” provision may allow the amounts deferred to be exempt under the “short-term deferral” rule. In drafting employment agreements or severance agreements, employers may wish to take advantage of the “involuntary” separation pay exception, the safe harbor for “good reason” terminations, and the exceptions for certain posttermination expense reimbursements and indemnification. In addition, care should be taken not to “materially modify” grandfathered amounts (i.e., amounts that were deferred and vested as of Dec. 31, 2004). Doing so avoids the possibility that, by failing to comply with Section 409A, either in form or in operation, the amounts deferred will be subject to early taxation, interest, and a 20 percent penalty. If a particular compensation arrangement cannot be structured to be exempt from Section 409A, then it must comply with both the statutory and regulatory requirements. As noted above, there are three primary requirements for deferred compensation arrangements that are subject to Section 409A: (1) limited distribution events; (2) specific rules regarding the timing of deferral elections; and (3) a prohibition on the acceleration of the time of payment. There are additional rules, including: 39. Id. § 1.409A-1(c)(3)(i). 40. Id. § 1.409A-3(i)(2). 41. Id. § 1.409A-1(b)(9)(v)(E).

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(4) a requirement that the arrangement be set forth in writing, and that the arrangement be operated in accordance with that written plan;39 (5) a six-month delay in payments to “specified” employees (i.e., those who are considered “key” employees of publicly-traded corporations);40 (6) special timing rules for expense reimbursements that are not exempt from 409A;41 and (7) special rules for payments based on the timing of payments to the service provider (such as post-separation payments based on the employer’s accounts receivable).42 These requirements are discussed in detail below.

A. Permissible distribution events One of the most restrictive aspects of Section 409A is that nonqualified deferred compensation arrangements must limit the payment of deferred amounts to one of the following six “permissible” distribution events: (1) separation from service (as defined in the final regulations); (2) a specific date or time (i.e., a date or an age, but not an event); (3) death; (4) disability (as defined in the statute and the regulations); (5) change in control (as defined in the regulations); or (6) unforeseeable emergency (as defined in the regulations).43 Under the final regulations, an employee “separates from service” if the employee dies, retires, or otherwise has a “termination of employment” with the employer. Whether a “termination of employment” has occurred is based on whether, under the facts and circumstances, the employer and employee reasonably anticipated that no further services would be performed after termination, or that the level of services the employee would perform after termination would permanently decrease to no more than 20 percent of the average level of services performed over the preceding 36-month period.44 Relevant facts and circumstances include whether the employee continues to be treated as an employee for other purposes (such as salary continuation and benefits), whether other service providers have been treated similarly, and whether the

employee is permitted to perform services for other employers. The employee is presumed to have separated from service where the level of services performed after termination decreases to 20 percent or less of the pretermination level and is presumed not to have separated from service where the level of services after termination is 50 percent or more of the level prior to the termination. There is no presumption either way for levels of service between 20 percent and 50 percent, although a plan may provide that a level of service below some specific percentage (that is greater than 20 percent but less than 50 percent) will be treated as a separation from service for purposes of the plan. For purposes of Section 409A, a service recipient is considered “disabled” if either: (1) the individual is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period

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42. Id. § 1.409A-3(i)(l)(iii). 43. Id. § 1.409A-3(a). 44. Id. § 1.409A-1(h)(1)(ii).

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of at least 12 months; (2) the individual, by reason of an impairment described above, is receiving benefits for at least three months under the employer’s disability plan; or (3) the individual has been determined to be totally disabled by the Social Security Administration.45 A service recipient may receive payment upon a “change in control” if there is either: (1) a “change in ownership” of the service recipient (which generally requires a change in the ownership of 50 percent of the total market value or total voting power of the stock of the corporation); (2) a “change in effective control” of the service recipient (which generally requires a change in at least 30 percent of the total voting power of the stock of the corporation, or a change in the majority of the board members of the corporation, during any 12-month period); or (3) a “change in the ownership of a substantial portion of the assets” of the service recipient (which generally requires a change in the ownership of at least 40 percent of the assets of the corporation during a 12-month period).46 A service recipient may also receive payment upon an “unforeseeable emergency,” which is defined as either: (1) a severe financial hardship to the service provider resulting from an illness or accident of the service provider, the service provider’s spouse, the service provider’s beneficiary, or the service provider’s dependent (as defined in Code Section 152, but without regard to Section 152(b)(1)); (2) loss of the service provider’s property due to casualty; or (3) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the service provider’s control.47 Examples of unforeseeable emergencies include imminent foreclosure or eviction from the service provider’s primary residence, the need to pay for medical expenses or prescription drugs, or the need to pay for the funeral expenses of a spouse, a beneficiary, or a dependent. However, the need to purchase a home, or the need for funds for college tuition, are not considered unforeseeable emergencies. In addition, an unforesee45. Id. § 1.409A-3(i)(4)(i). 46. Id. § 1.409A-3(i)(5). 47. Id. § 1.409A-3(i)(3)(i). 48. Id. § 1.409A-2(a)(3).

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able emergency withdrawal may not be made to the extent the emergency may be relieved through reimbursement or compensation from insurance, by liquidation of the service provider’s assets (to the extent liquidation of such assets would not itself cause severe financial hardship), or by cessation of deferrals under the plan. A plan may provide for payment upon the earlier of or the later of two or more permissible distribution events. It also may provide for payment at an objectively determinable time following a permissible distribution event. Payment will generally be deemed to be “timely” if payment is made within 30 days prior to the event, or by the later of: (1) the last day of the calendar year that includes the date of the event or (2) twoand-a-half months following the date of the event. B. Timing of deferral elections The second primary restriction regarding nonqualified deferred compensation arrangements subject to Section 409A is that any election to defer compensation must generally be made prior to the first day of the calendar year in which the amounts to be deferred will be earned.48 Therefore, if a service recipient wishes to make an “elective” deferral of compensation that will be earned during the 2009 calendar year, the individual must make such election, in writing, by no later than Dec. 31, 2008. There are exceptions to this rule for newly eligible participants (who may make such an election within the first 30 days of eligibility, but only with respect to amounts not yet earned), and for certain performance-based compensation that is payable for performance periods of 12 months or more (for which the election may be made as late as six months prior to the end of the performance period, if certain additional requirements are satisfied). Any election regarding the time and form of payment must generally be made at the time of the election to defer compensation. However, a plan may permit subsequent changes in elections

regarding the time and form of payment if: (1) under the plan the election will not take effect for at least 12 months; (2) under the plan the new payment date is at least five years later than the date payment would have been made (or the date payments would have commenced) as originally elected; and (3) the election is made at least 12 months before the date payment was to have been made (or the date payments were to have commenced).49 In addition, during the “transition period” between the effective date of the statute (Jan. 1, 2005) and the effective date of the final regulations (Jan. 1, 2009), participants may change previous elections regarding the time or form of payment, but only if the new election does not: (1) relate to amounts that would have been payable in the year the election change is made or (2) result in amounts that would have been payable in a later year being paid in the year the election change is made.50 C. Prohibition on acceleration of payment Section 409A forbids the “early” payment of deferred compensation.51 This rule (along with the six-month delay rule for “specified” employees of publicly traded corporations) is designed to prohibit key executives from causing the company to pay their deferred compensation shortly before a significant economic downturn (or insolvency) of the company. Thus, any early payment will be considered a violation of Section 409A (and will trigger both the interest and the 20 percent penalty) unless the payment falls under one of the following exceptions: (1) payments to alternate payees pursuant to qualified domestic relations orders; (2) payments to comply with ethics or conflicts of interest laws; (3) payments necessary to pay the tax on amounts that become taxable, under Section 457(f ), because they are no longer subject to a substantial risk of forfeiture; (4) payments necessary to pay federal employment taxes (such as FICA taxes); (5) payment of amounts that be-

49. Id. § 1.409A-2(b)(1). 50. I.R.S. Notice 2007-86, 2007-46 I.R.B. 51. Treas. Reg. § 1.409A-3(j)(1) (2007).

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come taxable under Section 409A (because the plan fails to satisfy 409A in form or in operation); (6) payments to “cash out” the service recipient’s entire interest in the plan, if that amount is less than $15,500 (2008 figure, indexed for inflation); or (7) payments on account of plan termination, but only if certain additional requirements are satisfied.52 In generally, a plan subject to 409A may be liquidated (and all amounts distributed to plan participants) on account of termination of the plan only if: (1) the termination is not proximate to a downturn in financial health of the employer; (2) the employer terminates all similar nonqualified deferred compensation plans; (3) no payments are made within 12 months of the termination of the plan; and (4) all payments are made within 24 months of the termination of the plan.53 D. Written plan requirement One of the most significant aspects of the final regulations is the requirement that a nonqualified deferred compensation plan must comply with Section 409A in both form and operation.54 Therefore, every plan, agreement, arrangement, or practice that is considered “deferred compensation” under Section 409A must be reduced to writing, and that written plan document must comply with Section 409A, by no later than Dec. 31, 2008. The final regulations clarify that the material terms of the plan (such as the amount deferred and the time and form of payment) must be in writing. Plans of publicly traded employees must include the six-month delay rule for payments (on account of separation from service) to specified employees. Amounts that are not being deferred beyond Dec. 31, 2008, and the special transition rules applicable to such amounts, need not be reflected in the written plan, but taxpayers must be able to demonstrate operational compliance with Section 409A during the 2005-2008 transition period.

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E. Six-Month Delay for Payments to Specified Employees An additional important restriction for deferred compensation arrangements that involve officers or executives of publicly traded companies is the sixmonth delay rule. Under this rule, if a payment of deferred compensation is to be made to a “specified employee” upon separation from service, such payment (or payments) may not be made before the date that is six months after the date of separation from service (or if earlier, upon the death of the specified employee).55 A specified employee is an employee who, as of the date of separation, is a “key employee” of a publicly traded corporation. Key employees are determined under the rules for determining the “top-heavy” status of qualified plans under Section 416. Therefore, a key employee generally includes any person who owns more than 5 percent of the company, and any officer or 1 percent owner who makes more than $150,000 per year.56 The final 409A regulations provide that the term specified employee includes any employee who was a key employee at any time during the 12-month period ending on a specified “employee identification date.” Unless another date is specified, the specified employee identification date is Dec. 31. If an individual was a key employee as of the specified employee identification date, he or she is treated as a specified employee (for purposes of 409A) for a 12-month period beginning on the “specified employee effective date.” Unless another date is specified, the specified employee effective date is the first day of the fourth month following the specified employee identification date. Thus, if the identification date is Dec. 31, the “default” effective date will be April 1, meaning anyone who was a key employee during 2008 would be treated as a specified employee for the period beginning April 1, 2009, through March 31, 2010.

F. Special rules for reimbursements As noted above, an agreement to reimburse expenses incurred in the future (such as following termination of employment) is generally subject to Section 409A unless one or several exceptions applies (such as the exceptions for nontaxable amounts, medical expenses incurred during the COBRA period, and amounts not exceeding $15,500 in the aggregate). There is also an exception for (Continued on next page)

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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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52. Id. § 1.409A-3(j)(4). 53. Id. § 1.409A-3(j)(4)(ix). 54. Id. § 1.409A-3(i)(2).

55. I.R.C. § 416(i)(1)(A) (2006). 56. Treas. Reg. § 1.409A-1(b)(9)(v)(A) (2007).

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outplacement expenses and moving expenses if those expenses are both incurred and paid within specific time frames. For all other types of expense reimbursements, in order to comply with Section 409A, the following requirements must be satisfied: (1) the expense must be incurred over an objectively defined period; (2) the service provider cannot carry over “unused” reimbursement limits from one year to the next; (3) payment must be made by the end of the following calendar year; and (4) the right to reimbursement cannot be subject to liquidation or exchange for another benefit.57 The final regulations also provide that tax gross-ups and reimbursement of taxes or audit expenses are generally subject to Section 409A, but will be treated as complying with Section 409A if the agreement provides that payment will be made by the end of the taxable year following the year in which the taxes are remitted to the taxing authority (or the audit expense is paid).

VII. Recommended Course of Action Before Dec. 31, 2008, employers and other service recipients should take the following steps to comply with Section 409A. 1. Identify all arrangements, agreements, plans, and policies that may constitute “deferred compensation,” as defined in Section 409A. 2. Determine which arrangements are exempt from Section 409A or which be modified to be exempt from Section 409A. 3. Determine whether any arrangements, or any parts of arrangements, may be “grandfathered “from Section 409A. 4. Prepare amendments (or documents, if not previously in writing) to either (1) make the arrangement exempt from Section 409A, or (2) bring the arrangement into compliance with Section 409A. 5. If necessary, obtain approval from the company’s board of directors or the compensation committee. 6. If necessary, obtain approval from the affected executive or plan participant. 7. Review and revise employee communications, enroll ment forms and election forms to comply with Section 409A, and to take advantage of all options afforded under Section 409A. 8. Allow employees/participants to make new time/form of payment elections before 2009, as applicable.

and to bring them into compliance with these new requirements, by the end of 2008. n About the Author Robert A. Browning is a partner with Spencer Fane Britt & Brown LLP, a law firm based in Kansas City, Mo. He is a member of the firm’s employee benefits group, and his practice area includes the pension and tax laws governing qualified retirement plans, health and welfare plans, and executive compensation arrangements. Before joining Spencer Fane in 2008, Browning was a shareholder with Polsinelli Shalton Flanigan Suelthaus P.C. Prior to Polsinelli, Browning was senior counsel for The Variable Annuity Life Insurance Co. (now known as AIG Retirement) in Houston. He received his juris doctorate, with honors, from the University of Houston in 1989, and he is currently a member of the Employee Benefits Committee of the American Bar Association Section on Taxation, the Kansas City Metropolitan Bar Association Employee Benefits Committee, the Employee Benefits Institute of Kansas City, and the Heart of America Employee Benefits Conference.

VIII. Summary We are entering a new world with respect to the tax treatment of nonqualified deferred compensation arrangements. The scope of Section 409A is very broad and is not limited to abusive or complex arrangements. The consequences of failing to comply are severe and can affect both the service provider and the service recipient. Therefore, it is imperative that clients, with the help of their attorneys, make every effort to identify deferred compensation arrangements, 57. Id. § 1.409A-1(c)(3).

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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 member 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 Attorney Discipline IN RE NEIL A. DEAN ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 19,885 – AUGUST 26, 2008 FACTS: Respondent was a private practitioner in Topeka. He wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law pursuant to SCR 217. At the time of the surrender, five separate complaints had gone to the review committee. The committee found probable cause of violations, including lack of diligence, failure to communicate, abandonment of clients, and misappropriation of client funds. HELD: The Court examined the disciplinary administrator’s file and found that the surrender should be accepted and respondent should be disbarred. IN RE JANELL J. FOSTER ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 11,466 – AUGUST 26, 2008 FACTS: Respondent, an attorney from Wichita, voluntarily surrendered her license to practice in Kansas pursuant to SCR 217. At the time she surrendered her license, a complaint was being investigated in which it was alleged that she had converted funds from numerous individuals for whom she was acting in a fiduciary capacity. HELD: The Court examined the disciplinary administrator’s file and found that the surrender should be accepted and respondent should be disbarred. IN RE GRANT D. GRIFFITHS ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 18,527 – AUGUST 14, 2008 FACTS: Respondent was a private practitioner in Clay Center. He wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law, pursuant to SCR 217. At the time of the surrender, seven complaints were pending and alleged lack of competence, diligence, and communication as well as failure to expedite litigation, improper contact with a represented person, failure to return an unearned retainer, and failure to cooperate in the disciplinary process. Respondent admitted misappropriating funds held in trust for minor children. HELD: The Court examined the files of the Disciplinary Administrator’s Office and found that the surrender should be accepted and respondent should be disbarred. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

IN RE CHRISTOPHER G. KELSEY ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 14,217 – AUGUST 26, 2008 FACTS: Respondent, a private practitioner from Lawrence, wrote to the appellate clerk voluntarily surrendering his license to practice law in Kansas pursuant to SCR 217. At that time, eight cases were pending in the Disciplinary Administrator’s Office and were under investigation. Allegations included misappropriation of client funds, lack of diligence, lack of communication, and failure to file timely responses to the disciplinary complaints. HELD: The Court examined the disciplinary administrator’s files and found that the surrender should be accepted and that he should be disbarred.

Civil AUTOMOBILES AND NEGLIGENCE DEAL V. BOWMAN MORRIS DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 96,868 – AUGUST 1, 2008 FACTS: Personal injury action arising from collision of two vehicles at a controlled intersection. Bowman stopped his car at the stop sign, looked both directions before entering the intersection, but collided with Deal’s car, which Bowman did not see due to glare from the sun. District court denied Deal’s motion for a judgment as a matter of law, and jury found no fault/negligence by either party for the accident. Relying on Diaz v. Duke, 206 Kan. 650 (1971), district court denied Deal’s motion for a new trial. In unpublished opinion, Court of Appeals reversed, distinguishing sudden or unexpected blinding in Diaz from a more constant blinding condition, and finding Bowman was negligent as matter of law because it was inherently unreasonable to enter intersection when sun prevented him from seeing whether there were approaching cars. Bowman’s petition for review is granted. ISSUES: (1) Blinding light and (2) reasonably prudent driver HELD: Bowman’s testimony raised factual question concerning the reasonableness of his actions. District court correctly submitted question of negligence/liability to the jury. STATUTE: K.S.A. 8-1528(b), 60-250

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CHILD SUPPORT STATE OF KANSAS EX REL. SECRETARY OF SRS V. BOHRER SEDGWICK DISTRICT COURT – REVERSED COURT OF APPEALS – AFFIRMED NO. 95,935 – AUGUST 8, 2008 FACTS: S.B. was born to Timothy Bohrer and Tracy Saxton (f/k/a Bohrer) on Feb. 28, 1994. They divorced one year later, and physical custody of S.B. alternated between them for several years. In 1999, the state of Kansas initiated a Child in Need of Care (CINC) proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes. Social and Rehabilitation Services (SRS) filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes’ appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case. On March 23, 2005, SRS filed suit seeking reimbursement from Bohrer for funds expended by the state of Iowa on behalf of S.B. and an order for future child support and medical coverage. The district court held that the permanent guardianship terminated Bohrer’s obligation to support S.B. While the appeal was pending, the Legislature enacted the Revised Kansas Code for Care of Children (Code), which states that the appointment of a permanent custodian (formerly “permanent guardian”) without a termination of parental rights does not terminate the parent’s duty to provide child support and medical support. The Court of Appeals reversed holding that the appointment of a permanent guardian under the previous version of the Code did not relieve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer’s substantive rights. ISSUE: Child support HELD: Court stated that parents have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. This common-law duty of support continues until the child reaches the age of majority or the death of the child or the obligor parent. The common-law duty of support ends, however, if parental rights are terminated by adoption, termination of parental rights, or relinquishment of parental rights. Court held that unlike the statutes concerning voluntarily relinquishment of parental rights, adoption, and involuntary termination of parental rights, the statutes providing for consensual appointment of a permanent guardian under K.S.A. 38-1587 do not contemplate a complete severance of the parent’s ties to the child and, thus, the appointment of a permanent guardian under K.S.A. 38-1587 does not terminate the obligation of the natural parent to support his or her child. DISSENT (Johnson, J.): Prior laws affected a transfer of the legally enforceable child support obligation from the parent to the permanent guardian and that the new laws placing that obligation on the parent to the exclusion of the permanent custodian. Johnson would hold that the new law affects the parent’s rights and so, pursuant to K.S.A. 2007 Supp. 38-2283(a), the new code cannot be applied retroactively. STATUTES: K.S.A. 23-9,101; K.S.A. 38-125, -1501, -1502(d), (w), -1581, -1583, -1584, -1587, -2202(w), -2268(b)(4), -2269, -2270, -2272, -2283; and K.S.A. 59-2111, -2112, -2118, -2124, -2142, -3050

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HABEAS CORPUS WILKINS V. STATE JEFFERSON DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 95,023 – AUGUST 22, 2008 FACTS: Wilkins convicted in 1996 on crimes arising from a 1993 murder. In 2003 he filed post-conviction motion claiming (1) his retained trial attorney was ineffective in failing to investigate witnesses or challenge forensic identification of victim and (2) the prosecutor failed to disclose exculpatory evidence of polygraph of only witness who placed Wilkins at scene of crime. Following an evidentiary hearing, district court found the attorney had been reasonable and effective under the circumstances and found no prejudice had been demonstrated. District court also rejected Wilkins’ Brady claim, finding in part the polygraph examinations would have been inadmissible. In unpublished opinion, Court of Appeals reversed and remanded for a new trial, finding the attorney’s performance was deficient, and finding merit to the Brady claim. State’s petition for review granted. ISSUES: (1) Effective assistance of counsel and (2) disclosure of exculpatory evidence HELD: Under totality of circumstances, close question whether Wilkins demonstrated unreasonable performance by failing to hire or consider hiring a dental forensics expert, but no prejudice. Substantial competent evidence supports district court’s findings of no deficient performance in various discovery allegations, and finding no prejudice. No exceptional circumstances excuse for Wilkins’ failure to raise Brady claim that prosecutor did not disclose plea agreements of state witnesses. There is substantial competent evidence that state failed to produce polygraph reports to the defense pursuant to prosecutor’s open-file policy, but nondisclosure of this exculpatory evidence was not prejudicial because it was inadmissible. STATUTE: K.S.A. 60-1507 MUNICIPAL CORPORATIONS AND SCHOOLS POSTON V. U.S.D. NO. 387 WILSON DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 96,568 – AUGUST 1, 2008 FACTS: Poston was injured by door hardware falling on him as he walked from doors of school’s gymnasium to exit building through the school’s commons while recreational activities were in progress in the gymnasium. Poston filed Kansas Tort Claims Act (KTCA) action. District court granted summary judgment to school district, finding recreational use immunity applied. In split decision, Court of Appeals affirmed, 37 Kan. App. 2d 694 (2007). Petition for review granted. ISSUE: Recreational use exception to KTCA HELD: Under facts of case, school district is immune from liability under recreational use exception in K.S.A. 2007 Supp. 75-6104(o) for injury allegedly caused by ordinary negligence that occurred in middle school’s commons while recreational activities were in progress in the gymnasium. Recreational use exception applies because commons was an integral part of the recreational use of the school’s gymnasium and was connected to the gymnasium by plan. DISSENT (Johnson, J.): Majority extends recreational use immunity decision in Jackson v. U.S.C., 259, 268 Kan. 319 (2000), to include commons area designed to provide access to and support activities for the gymnasium. Explains why he views the Jackson holding as suspect and is unwilling to willingly expand that precedent. STATUTES: K.S.A. 2007 Supp. 75-6102(b), -6102 (c), -6102(d), -6103(a), -6104, -6104(o); and K.S.A. 75-6101 et seq. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

STEPPARENT ADOPTION IN RE ADOPTION OF G.L.V. AND M.J.V. ATCHINSON DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 97,546 – AUGUST 22, 2008 FACTS: Twin brothers were born in October 1994; their parents never married. In 1995, mother filed a paternity action, resulting in a determination that the father was the natural father of the twins. Three weeks after their birth, the father left the area and did not return until 1997. The father was awarded weekend visitation, but rarely used it. Although the father has had virtually no contact with the twins, the paternal grandparents and other family have maintained a relationship. The natural father married and has three children and one stepchild. The stepfather of the twins filed a petition to adopt the twins without obtaining the consent of the natural father, because the natural father had little contact with the twins for nine years. The district court denied the adoption finding prior Kansas’ precedent demonstrates the natural father did not fail to perform his parental duty of financial support. ISSUE: Stepparent adoption HELD: Court stated that if a nonconsenting parent in a stepparent adoption has provided regular and substantial affection or financial support for his or her child, that parent has assumed the duties of a parent toward the child. Under such circumstances, the Legislature has determined that it is in the best interests of the child to foster the parent-child relationship when the natural parent does not wish to consent to a stepparent adoption. Court also stated that a judicial determination as to the best interests of a child, standing alone, cannot override the statutory requirement that a stepparent adoption may not be granted without the consent of the natural parent if that parent has assumed the duties of a parent toward the child. Court held that the district court found that the natural father had been making regular contributions to the court-ordered child support by way of an automatic garnishment of his wages. In fact, the father paid the entire amount of child support due during the two-year period preceding the adoption and made significant payments toward his arrearage during that same period. These payments, when coupled with the father’s expressed interest at the adoption hearing that he would like the children to continue to have contact with his extended family and to meet his other children at some time, demonstrate, considering all of the circumstances, that the father did not fail to assume his parental duties in the two years preceding the adoption. K.S.A. 2007 Supp. 59-2136(d), therefore, required his consent to the stepparent adoption. He did not give that consent, and the Court held that the district court appropriately denied the adoption petition. STATUTES: K.S.A. 59-2111, -2136(d); K.S.A. 1989 Supp. 592101(3), -2102(b); and K.S.A. 1990 Supp. 59-2136(d), (h)(4) WILLS, ESTATES, AND APPEARANCE BY TELEPHONE IN RE ESTATE OF BRODERICK LEAVENWORTH DISTRICT COURT – AFFIRMED NO. 97,088 – AUGUST 29, 2008 FACTS: In 1993, Esther Broderick executed a will bequeathing her stocks and bonds to three nephews, Geary, Dale, and Gene, with the residual to go to the same three nephews plus two nieces, one of whom was Margaret Puls. Geary was executor, then Dale, then Gene. At the time of Broderick’s death, Geary had died and Dale had become disabled. Gene filed a petition for the admission of Broderick’s will to probate. Dale was appointed executor. Puls opposed probate of the will. Puls appeared at the hearing by telephone. The trial court found the will was duly executed and the burden shifted to Puls. The trial court found insufficient evidence to overcome the self-proving will and admitted the will to probate. The Court of ApTHE JOURNAL OF THE KANSAS BAR ASSOCIATION

peals reversed, finding the trial court improperly shifted the burden of proof, and Dale had to make a prima facia case showing capacity and due execution of the will. Twelve days before trial, Puls filed a motion to allow appearance by telephone. Later that day, the trial court handwrote the date, his initials, and denied on the proposed order. Dale’s counsel did not object until eight days before trial. Two days before trial, Puls faxed a verified motion to allow appearance by telephone based on claims of disability-based discrimination under the Americans with Disabilities Act (ADA) where she acknowledged that she had received Dale’s objection and the trial court’s denial. The trial court again denied the motion and conducted a trial. The trial court even obliged Puls’ request and Dale’s counsel called one of Puls witnesses to testify. The trial court concluded Dale had sustained his burden of proof and admitted the will to probate ISSUES: (1) Wills, (2) estates, and (3) appearance by telephone HELD: Court stated the evidence, coupled with her June and July 2006 faxes from two different stores in two different towns outside the city of Denver, all indicated Puls is able to leave her home and to at least travel short distances. Court held that travel — here, from the Denver, Colo., metropolitan area to Leavenworth, the Kansas City metropolitan area — is not a major life activity. As a result, Court held Puls did not meet her burden to establish her disability under the ADA. Consequently, her argument that the trial court erred in holding the ADA did not supersede Rule 145 must fail. Because of this missing key ingredient, Court did not address Dale’s argument, i.e., that Puls had not submitted any medical evidence to the court supporting her claim of purported impairments. STATUTES: K.S.A. 20-3018(c); and K.S.A. 60-232, -243(a)

Criminal STATE V. CARAPEZZA LYON DISTRICT COURT – REVERSED AND REMANDED NO. 95,233 – AUGUST 22, 2008 FACTS: Carapezza and Hughes charged as co-defendants in 2004 homicide and convicted in separate trials. On appeal, Carapezza claimed the district court erroneously admitted evidence in violation of her constitutional rights and the rules of evidence. Same facts and similar issues in State v. Hughes, decided this same date. ISSUES: (1) Drug usage, (2) prior unrelated forgeries, and (3) expert testimony HELD: District court erroneously admitted evidence of Carapezza’s drug usage as res gestae without applying 60-455 analysis. Issue of first impression in Kansas, finding evidence of Carapezza’s drug usage was relevant to establish motive, regardless of whether it was primary motive — money or secondary motive — buying drugs. Weighing probative value against its prejudicial effect, no abuse of discretion in trial court’s admission of this evidence, and no real possibility of a different verdict if a limiting instruction had been given. Carapezza failed to preserve issue for appeal regarding evidence that she attempted to cash checks against a closed checking account. Expert testimony relating to propensity of cocaine addicts to commit violent crimes was not relevant and was highly prejudicial under facts of case. This undermined Carapezza’s right to a fair trial. Convictions are reversed. Hughes received use and derivative-use immunity to testify at inquisition held shortly after victim’s death. On remand, district court is directed to conduct a renewed hearing to determine if state satisfies its burden of demonstrating that no part of its case against Carapezza was or will be derived from this immunized testimony. CONCURRENCE AND DISSENT (Luckert, J., joined by McFarland, C.J. and Nuss, J.): OCTOBER 2008 – 41

Disagree with majority’s conclusion that erroneous admission of expert testimony requires reversal of Carapezza’s convictions. This testimony made little difference and evidence against Carapezza was strong. Admission of this evidence did not deny Carapezza substantial justice. STATUTE: K.S.A. 22-3601(b)(1), 60-261, -401(b), -404, -407(f ), -455, -456 STATE V. EHRLICH RUSSELL DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 96,797 – AUGUST 8, 2008 FACTS: Ehrlich pled guilty in August 2003 to possession of marijuana. District court ordered 12 months’ probation with underlying prison term, and reimbursement of Board of Indigents’ Defense Services (BIDS) attorney and application fees. Probation revoked in January 2006. Ehrlich filed notice of appeal, arguing the BIDS attorney fees order was subject to challenge on appeal because district court had jurisdiction to impose a new sentence following probation revocation. In unpublished opinion, Court of Appeals affirmed the revocation and dismissed challenge to BIDS fees because appeal on that issue was untimely filed from the 2003 sentencing date. Petition for review granted on BIDS issue only. ISSUE: Appellate jurisdiction HELD: K.S.A. 22-3716(b) does not authorize district court to impose an entirely new sentence, but instead allows a downward modification of the original sentence. Ehrlich failed to take a timely appeal from BIDS attorney fee judgment and failed to refer to the original sentence or the judgment imposing BIDS attorney fees in his only notice of appeal. Court of Appeals correctly concluded it had no jurisdiction to consider BIDS issue. STATUTE: K.S.A. 22-3504, -3608(c), -3716(b), -4513 STATE V. GALLEGOS RICE DISTRICT COURT – AFFIRMED NO. 98,949 – AUGUST 1, 2008 FACTS: Gallegos convicted of premeditated first-degree murder and criminal possession of firearm. Sentenced to life without possibility of parole for 25 years and consecutive nine months sentence. On appeal he claimed district court erred in not instructing jury on voluntary manslaughter as lesser-included offense and by instructing jury to presume Gallegos was not guilty “until” convinced of guilt beyond reasonable doubt. He also challenged constitutionality of Kansas Sentencing Guidelines Act (KSGA) in light of Cunningham v. California, 549 U.S. 270 (2007), and claimed cumulative error denied him a fair trial. ISSUES: (1) Lesser-included offense instruction, (2) instruction on burden of proof, (3) constitutionality of KSGA, and (4) cumulative error HELD: No error in not instructing jury on voluntary manslaughter as a lesser-included offense. Under facts of case, evidence did not reasonably justify a conviction for voluntary manslaughter. The same instruction language was upheld in State v. Wilkerson, 278 Kan. 147 (2004). Pattern instruction was thereafter modified to use “unless” instead of “until.” Gallegos invited error by proposing the instruction now being challenged. Potential for error could have been avoided by using current version of PIK Crim. 3d 52.02. Same argument related to Cunningham was rejected in State v. Johnson, No. 96,681, decided this same date. No error or prejudice supports claim of cumulative error. STATUTE: K.S.A. 21-3107(2), -3107(2)(a), -3401, -3403(a), -4204, -4204(a)(3), -4204(d), -4701 et seq., -4704(a), -4704(e)(1), 22-3414(3)

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STATE V. HERRON WYANDOTTE DISTRICT COURT – AFFIRMED NO. 96,081 – AUGUST 15, 2008 FACTS: On Sept. 20, 2004, a daylong series of shootings in Kansas City, Kan., occurred during which the victim, Deborah Jackson, was killed from outside her home. Defendant Arthur Herron, who admitted to being in a van with four others at the scene of the fatal shooting, was convicted of first-degree felony murder and conspiracy to commit criminal discharge of a firearm at an occupied dwelling; he was acquitted of the criminal discharge offense underlying the felony murder. Herron was sentenced to life imprisonment plus 32 months to run consecutive. ISSUES: (1) Sufficiency of the evidence, (2) self-defense instruction, and (3) jury instructions HELD: Court stated sufficient evidence supported Herron’s conviction; he did more than listen to his associates’ discussion. He participated in the planning, mobilization, and actual attack. Court acknowledged that Herron’s videotaped interview conflicted somewhat with his unrecorded statements, as reported to the jury, but this was not fatal to the prosecution’s case. A rational factfinder could easily have concluded that Herron was a willing participant in a planned, retaliatory shooting. His friends had returned gunfire throughout the day, his good friend had been shot while in a car, and his own house had been fired on earlier. Furthermore, Herron’s associate had stolen the van so that they would not be recognized; the group loaded it with pistols, high-powered semi-automatic rifles, and ammunition; they drove to the Jacksons’ house; and they pummeled it with more than 30 rounds before speeding away, ditching the van, and scattering. Herron’s felony-murder conviction was supported by sufficient evidence. Court also held that neither in his statements to police nor anywhere else in the record did he or any other witness say that the Jacksons fired first or that there was any reasonable basis for Herron or the others in the van to believe it would be necessary to employ lethal force. What Herron did say was that the group pulled up to the house in a stolen vehicle, that the house was dark, that he did not see anyone in or around the house, and that he did not know where the first shot came from. The idea of self-defense was introduced in defense counsel’s opening statement and repeated in closing argument, but it remained merely theory without factual support. Other than the fact that Eric was known to be armed, there was no evidence that Herron or the rest of the group could have harbored either a subjective belief or an objectively reasonable belief in the necessity of deadly force to defend against an imminent attack. No instruction on self-defense was warranted. The evidence could not support a lesser-included instruction built on a theory of imperfect or failed self-defense. On the facts proved at trial, a jury could not reasonably have convicted Herron of either voluntary or involuntary manslaughter. STATUTE: K.S.A. 21-3205(1), -3211, -3302, -3401(b), -3436, -3434(3), -3601(b)(1), -4219(b) STATE V. HUGHES LYON DISTRICT COURT – REVERSED AND REMANDED NO. 95,256 – AUGUST 22, 2008 FACTS: Hughes and Carapezza charged as co-defendants in 2004 homicide and convicted in separate trials. On appeal, Hughes claimed the district court erroneously admitted evidence in violation of his constitutional rights and the rules of evidence. Same facts and similar issues in State v. Carapezza, decided this same date. ISSUES: (1) Hearsay statements (2) drug usage, (3) prior unrelated forgeries, (4) expert testimony, and (5) derivative-use immunity HELD: Carapezza’s statements to officer were testimonial and admitted in violation of Hughes’ right of confrontation, but error was harmless under the facts. Her statements to cellmates and othTHE JOURNAL OF THE KANSAS BAR ASSOCIATION

ers were not testimonial thus Crawford claim fails, but no abuse of discretion in admitting jailhouse confessions as declarations against interest and as excited utterances. District court erroneously admitted evidence of Hughes’ drug usage and addiction as res gestae without applying 60-455 analysis. Issue of first impression in Kansas, finding evidence of Hughes’ drug usage or addiction was relevant to establish motive, regardless of whether it was primary motive — money — or secondary motive — buying drugs. Weighing probative value against its prejudicial effect, no abuse of discretion in trial court’s admission of this evidence, and no real possibility of a different verdict if a limiting instruction had been given. Hughes failed to preserve issue for appeal regarding bank manager’s testimony about checks Carapezza attempted to cash on a closed account. Expert testimony relating to propensity of cocaine addicts to commit violent crimes was not relevant, and was highly prejudicial under facts of case. This undermined Hughes’ right to a fair trial. Convictions are reversed. Hughes received use and derivative-use immunity to testify at inquisition held shortly after victim’s death. On remand, district court is directed to determine if state satisfies its burden of demonstrating that no part of its case was or will be derived from this immunized testimony. DISSENT AND CONCURRENCE (Luckert, J., joined by McFarland, C.J., and Nuss, J.): Disagrees with majority’s conclusion that erroneous admission of expert testimony requires reversal of Hughes’ convictions. This testimony made little difference, and evidence against Hughes was strong. Admission of this evidence did not deny Hughes substantial justice. Concur person in Carapezza’s position would have understood that her statements would be used against her in a court of law, thus her statements are not insulated from the hearsay rule by 60-460(j). CONCURRENCE AND DISSENT (Johnson, J.): Concurs with result, but dissents from majority’s application of 60-460(j) to a jailhouse confession to a cellmate. Does not believe a reasonable person in Carapezza’s position would have understood that her statements would be used against her in a court of law, thus her statements are not insulated from the hearsay rule by 60-460(j). STATUTE: K.S.A. 22-3601(b), 60-261, -401(b), 407(f ), -455, -456, -460, -460(d), -460(d)(2), -460(j) STATE V. JOHNSON DOUGLAS DISTRICT COURT – AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART, AND REMANDED NO. 96,681 – AUGUST 1, 2008 FACTS: Johnson convicted of four counts of attempted seconddegree murder and sentenced to 122 months. He appealed; claiming (1) trial court abused its discretion by admitting testimony of state’s expert witness after witness violated discovery order that all interviews were to be recorded, (2) Johnson’s statements to officers were not free and voluntary given his intoxication and limited intellectual capacity, (3) introduction of witnesses’ statements prior to their testimony prejudiced Johnson’s right to fair trial, (4) consecutive sentences for longest presumptive sentences are unconstitutional after Cunningham v. California, 549 U.S. 270 (2007), and Apprendi, and (5) district court ordered Johnson to reimburse Board of Indigents’ Defense Services for attorney fees without considering Johnson’s ability to pay and the financial burden imposed. Appeal transferred to Supreme Court. ISSUES: (1) Violation of discovery order, (2) admission of confessions, (3) prior consistent statements of witnesses, (4) presumptive sentences and Cunningham, and (5) attorney fees THE JOURNAL OF THE KANSAS BAR ASSOCIATION

HELD: If a witness violates a discovery order in a manner that does not implicate due process, an abuse of discretion standard governs appellate review of trial court’s decision to admit witness’ testimony rather than excluding testimony as sanction permitted by K.S.A. 22-3212(g). Under facts of this case, no abuse of discretion to admit doctor’s expert opinion testimony regarding Johnson’s mental capacity. Cases examined where low intellect was only factor at issue in whether statement was knowing and voluntary. Under totality of circumstances, Johnson was functioning at a sufficient level to understand his rights and consequences of waiving those rights. Trial court’s finding that statements were knowing and voluntary is supported by substantial competent evidence. No error to deny motion to suppress and admit statements. Johnson did not preserve claim for appeal of his allegation of prejudice in the admission of witnesses’ prior consistent statements. Issue of first impression in Kansas. Apprendi to Cunningham line of cases is examined. A sentence to any term within the range stated in the Kansas sentencing guidelines presumptive grid block does not violate Cunningham or Apprendi. Under K.S.A. 21-4721(c)(1), an appellate court has no jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block. Because district court did not make specific findings as required by K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538 (2006), attorney fee order is vacated and case is remanded for appropriate findings. STATUTES: K.S.A. 2005 Supp. 22-4513; K.S.A. 21-4701 et seq., -4703(q), -4704, -4704(e)(1), -4716(a), -4720(b)(4), -4721(c)(1), -4721(d), 22-3212(g), -4513, 60-404, -456(b), -456(d); and K.S.A. 2000 Supp. 21-4716 STATE V. POLLMAN MCPHERSON DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 93,947 – AUGUST 8, 2008 FACTS: Pollman and wife were riding motorcycles when police stopped wife for traffic infraction and suspicion of DUI. That stop resulted in Pollman’s jury conviction for DUI. District court denied Pollman’s motion to suppress, finding there was no stop or detention because Pollman was told he could leave but chose to stay in vicinity of wife’s traffic stop, and Pollman’s admission to drinking and officer’s observations provide reasonable suspicion for a preliminary breath test. On appeal, Pollman claimed officers had no reasonable suspicion to detain him for DUI investigation or probable cause to arrest him for DUI. He also claimed K.S.A. 2005 Supp. 8-1567(a)(2) is overbroad and vague. Court of Appeals reversed on first claim, finding evidence should have been suppressed because totality of circumstances did not provide reasonable suspicion that Pollman had operated motorcycle while under the influence. State’s petition for review granted. ISSUE: Investigatory detention HELD: Pollman’s obstruction in failing to leave area as officers repeatedly requested, his admission of drinking, and officer’s observations provided sufficient justification for his investigatory detention. Court of Appeals imposed too high a burden. While factors relied upon might give pause if considering probable cause, the less rigorous standard of reasonable suspicion is satisfied. Court of Appeals is reversed. Single issue subject to Supreme Court’s review is affirmed. Case is remanded to trial court for further proceedings, including consideration of Pollman’s remaining claim concerning constitutionality of K.S.A. 2005 Supp. 8- 1567(a)(2). STATUTES: K.S.A. 2005 Supp. 8-1567(a)(2), -1567(b); and K.S.A. 8-1001(b), -1012, 20-3018, 22-2402, -2402(1), 60-2101(b) OCTOBER 2008 – 43

STATE V. SCOVILLE DICKINSON DISTRICT COURT – REVERSED COURT OF APPEALS – REVERSED NO. 96,405 – AUGUST 1, 2008 FACTS: Scoville convicted on plea to manufacture of methamphetamine. In 2005 he filed motion for untimely appeal under State v. Ortiz, 230 Kan. 733 (1982), seeking resentencing under State v. McAdam, 277 Kan. 136 (2004), a case pending before Supreme Court when Scoville was sentenced. District court denied leave to file untimely appeal, finding no Ortiz exception applied. Scoville appealed, arguing he was not fully aware of 10-day period for filing appeal. Court of Appeals affirmed, 37 Kan. App. 2d 341 (2007), without addressing merits of Scoville’s sentencing claim. Petition for review granted. ISSUES: (1) Ortiz exceptions for untimely appeal and (2) application of McAdam HELD: Ortiz and State v. Willingham, 266 Kan. 98 (1998), are discussed and applied. Record does not contain substantial competent evidence to support a finding that Scoville was fully informed of his appellate remedies, specifically, the steps necessary to implement an appeal within 10-day limit. Also, no written waiver of Scoville’s right to appeal was obtained at plea or after sentencing. District court and Court of Appeals are reversed. As held in State v. Thomas, 283 Kan. 796 (2007), when a direct appeal is granted under an Ortiz exception, the appeal is subject to the law in effect at time of its granting. McAdam thus applies. Case is remanded for resentencing. STATUTE: K.S.A. 20-3018(b), 22-3424(f ), -3504, -3608(c), 60-2101(b), 65-4159(a), -4161(a) STATE V. WARLEDO SEDGWICK DISTRICT COURT – AFFIRMED NO. 97,759 – AUGUST 8, 2008 FACTS: Warledo convicted of arson and premeditated firstdegree murder. Hard 50 life sentence imposed. On appeal, Warledo claimed error in (1) admission of statements made before Miranda warnings were administered, (2) admission of video of him alone in interrogation room making unequivocal request for counsel, which jury was allowed to hear, (3) admission of evidence of prior crimes in violation of K.S.A. 60-455, (4) admission of gruesome photographs, (5) prosecutor’s misstatement of law in closing argument, (6) imposition of hard 50 sentence where identical offense sentencing doctrine mandated lesser penalty equal to intentional second-degree murder, and (7) trial court’s weighing of aggravating and mitigating circumstances in sentencing. Warledo also challenged constitutionality of hard 50 sentencing scheme, and claimed cumulative error denied him a fair trial. ISSUES: (1) Statements prior to Miranda, (2) video of Warledo in interrogation room, (3) evidence of prior crimes, (4) gruesome photographs, (5) prosecutorial misconduct in closing argument, (6) identical offense sentencing doctrine, (7) aggravating and mitigating factors, (8) constitutionality of hard 50 sentence, and (9) cumulative error HELD: Video of Warledo’s time in interrogation room supports trial court’s finding that Warledo’s statements were spontaneous and voluntary. Right to counsel not properly invoked because no officers in room at the time. Claim of error in jury hearing this statement was not raised to trial court. State v. Anthony, 282 Kan. 201 (2006), is distinguished because conduct, which led to prior law enforcement contact with Warledo, constituted crimes or civil wrongs, but erroneous admission K.S.A. 60-455 evidence was harmless in light of overwhelming evidence of guilt. 44 – OCTOBER 2008

No abuse of discretion in trial court’s admission of photographs. Prosecutor informed jury that Warledo need not have developed a plan or scheme before fight started, but once started, he could have formed an intent and developed a plan to commit murder. Although comments are reminiscent of troubling statements in State v. Gunby, 282 Kan. 39 (2006), prosecutor’s statements in this case are more in line of those approved in Anthony and were consistent with the evidence. Even if error, it was harmless. First-degree murder and intentional second-degree murder are not identical because first-degree murder requires premeditation. No abuse of discretion in trial court’s weighing of aggravating and mitigating circumstances. Hard 50 sentence enhances minimum sentence to be served and does not expose a defendant to a higher maximum sentence than provided by statute. Under current law, the Kansas hard 50 sentencing scheme is constitutional. No merit to cumulative error claim. Warledo received a fundamentally fair trial. CONCURRENCE (Johnson, J.): Writes separately to confess confusion about how court distinguishes between premeditated first-degree murder and intentional second-degree murder, and to express concern about how the court allows prosecutors to explain the difference to the jury. Views portions of closing argument in this case as an incorrect statement of law, but because facts of case presented something more than a continuous attack culminating in death, jury would have reached same result even without those offending portions. STATUTE: K.S.A. 21-3107(2)(b), -3401(a), -3402(a), -4635, -4635(b)-(d), -4636, -4636(f ) subsections (3), (5) and (6), -4637(b), -4637(f ), -4706(c), 22-3601(b)(1), 60-261, -455

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Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office Original Actions in the Appellate Courts Any party filing an original action in the appellate courts should carefully review Supreme Court Rule 9.01 (2007 Kan. Ct. R. Annot. 70-71), which governs those filings. – – – – – – – – –

The Supreme Court has original jurisdiction in quo warranto, mandamus, and habeas corpus proceedings. Kansas Constitution, Art. 3, Section 3. The Court of Appeals has original jurisdiction only in habeas corpus proceedings. K.S.A. 60-1501(a). The petitioner in a mandamus or quo warranto action shall pay a $125 docket fee. There is no docket fee charged to file a petition for writ of habeas corpus. Rule 9.01(b). If relief is available in the district court, the petition shall explain why the action is brought in the appellate court rather than in the district court. Rule 9.01(a). In the Supreme Court, original actions are assigned for initial consideration and recommendation to an individual justice, except the chief justice, on a rotating basis. Supreme Court Internal Operating Procedure II.B.(1) (2007 Kan. Ct. R. Annot. 79). The petition is then presented to the full Court in conference. In the Court of Appeals, an original action is presented to the motions judge for immediate action. The motions judge can convene a three-judge panel at any time. The petition shall contain a statement of the facts necessary to an understanding of the issues presented and a statement of the relief sought. It shall be accompanied by a short memorandum of points and authorities and such documentary evidence as is available and necessary to support the facts alleged. Rule 9.01(b). Either court may grant or deny the relief ex parte or order the respondent to show cause why the relief should not be granted or to file an answer to the petition. Rule 9.01(c). Further proceedings may be ordered, including briefing. Rule 9.01(e).

For questions about these practices or appellate court rules, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.

In the Supreme Court of the State of Kansas Rules Relating to Supreme Court, Court of Appeals and Appellate Practice Rule 7.042 Affirmance by Summary Opinion

Supreme Court Rule 7.042 is hereby amended, effective the date of this order: In any case in which the court determines after argument or submission on the briefs that no reversible error of law appears and either (a) the appeal is frivolous; (b) the appeal is without merit; (c) the findings of fact of the trial court or, the findings of fact of the administrative tribunal, or the verdict of the jury are is supported by substantial competent evidence; (d) the verdict of the jury is supported by substantial competent evidence the findings of fact of the trial court, the findings of fact of the administrative tribunal, or the verdict of the jury is supported by clear and convincing evidence; (e) the opinion or findings of fact and conclusions of law of the trial court or administrative tribunal adequately explain the decision; or (f ) the trial court or administrative tribunal did not abuse its discretion, the court may affirm by an opinion citing this rule and indicating which one or more of the above criteria it has determined to be applicable. The opinion will be in the following form: “Affirmed under Rule 7.042 [(a) (b) (c) (d) (e) and/or (f )].”

By order of the Court, this 2nd day of September, 2008.

For the Court Kay McFarland, Chief Justice

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Notice of Amendment of the Local Rules of Practice and Procedure of The U.S. Bankruptcy Court for the District of Kansas The U.S. Bankruptcy Court for the District of Kansas gives notice of Proposed Local Rules of Practice and Procedure. The Proposed Local Rules amend the present Local Rules as recommended by the Bench and Bar Committee of the U.S. Bankruptcy Court for the District of Kansas with the approval of the court. Interested persons, whether or not members of the bar, may submit comments on the Proposed Local Rules addressed to the clerk of the U.S. Bankruptcy Court for the District of Kansas at 401 N. Market, Room 167, Wichita, KS 67202. All comments must be in writing and must be received by the clerk no later than Dec. 1, 2008, to receive consideration by the court. Copies of the Proposed Local Rules will be available for review by the bar and the public from Nov. 1, 2008, through Nov. 30, 2008, at:

Wichita Clerk’s Office 167 U.S. Courthouse 401 N. Market Wichita, KS 67202

Topeka Clerk’s Office 240 U.S. Courthouse 444 S.E. Quincy Topeka, KS 66683

Kansas City Clerk’s Office 161 U.S. Courthouse 500 State Ave. Kansas City, KS 66101

Available at www.ksb.uscourts.gov. Copies of the Bench and Bar Committee minutes, at which most of the proposed changes were discussed, are also available at www.ksb.uscourts.gov.

Statement of Ownership as Required by the United States Postal Service

46 – OCTOBER 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Court of Appeals Civil ABANDONMENT OF WATER RIGHTS FRICK FARM PROPERTIES L.P. V. KANSAS DEPARTMENT OF AGRICULTURE PAWNEE DISTRICT COURT – AFFIRMED NO. 98,750 – AUGUST 22, 2008 FACTS: On Nov. 4, 1982, a certificate of appropriation was issued to Bernard J. Debes for Water Right, File No. 17,125 (water right) in Pawnee County. Frick Farm, owned by Kent and Karen Frick, purchased Debes’ real estate, including the water right, on Nov. 22, 2002. In January 2003, Debes received notice from the Division of Water Resources (DWR) that water had not been used under the water right for three years. Debes took the letter to Frick Farm and discussed it with the Fricks. Frick Farm then submitted a water use statement. On Jan. 9, 2004, Frick Farm was sent a letter notifying it that no beneficial use of water had been reported for three years and the water right would be terminated if the period of nonuse extended to five years. The Fricks were asked to report the reasons for their nonuse of the water right and provided a list “as a guide in reporting in your own words the specific situation for your water right(s).” The DWR instituted proceedings to determine the abandonment of water rights. The chief engineer for DWR issued an order of abandonment and termination for nonuse of water for two periods exceeding five years. Through administrative proceedings and a district court review, the termination was upheld. ISSUE: Abandonment of water rights HELD: Court stated that a water right in Kansas is a vested right, or appropriation right, under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land, and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance. All water within the state of Kansas is dedicated to the use of the people of the state and is subject to the control and regulation in the manner prescribed. K.S.A. 2007 Supp. 82a-718(a) mandates that all appropriations of water must be for a beneficial use, and a water right can be terminated if there is no beneficial use of the water without due and sufficient cause for five successive years. Court held that when a verified report, which shows nonuse of the water right without due and sufficient cause for five successive years, is admitted at a hearing before the DWR, it is prima facie evidence of abandonment and termination. Court concluded that Frick Farm had the burden of proof to show lawful and beneficial use of the water or due and sufficient cause for nonuse, which it failed to do. There is substantial evidence to support the termination of Frick Farm’s water right. STATUTES: K.S.A. 77-601, -621; and K.S.A. 82a-701(g), -706, -718(a), -732(a), -1901 ADMINISTRATIVE LAW AND PROCEDURE, JUDGMENT, AND INSURANCE SHELDON V. KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM SHAWNEE DISTRICT COURT REVERSED AND REMANDED NO. 99,012 – AUGUST 1, 2008 FACTS: School superintendent encouraged Sheldon to apply for disability after 1999 and 2000 surgeries did not resolve back pain. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Later, Sheldon’s teaching contract was not renewed for reasons other than disability, with last day of teaching in May 2002. Sheldon first requested Kansas Public Employees Retirement System (KPERS) disability benefits in October 2004. Plan administrators denied Sheldon’s claim in part based on no timely written notice of the claim. In administrative appeal, Sheldon claimed that KPERS employees had dissuaded him from pursuing disability claim. Hearing officer sustained KPERS’ motion for summary judgment, finding claim was not timely. District court affirmed. Sheldon appealed, asserting three grounds for equitable estoppel: (1) inaction by school district in not initiating disability claim process, (2) KPERS dissuaded him from filing a claim by telling him he was ineligible, and (3) KPERS failed to inform him of time limitations. Sheldon also claimed KPERS a had duty to show prejudice in order to invoke defense that claim was too late. ISSUES: (1) Standard of review, (2) timeliness of claim, (3) equitable estoppel, and (4) prejudice HELD: Kansas’ cases provide no guidance on standard of review. It is held that when considering the propriety of an agency’s action in granting summary judgment, a reviewing court must look to K.S.A. 77-612 in considering de novo whether, resolving all facts and reasonable inference from the facts in favor of the nonmoving party, there exists a genuine issue of material fact and whether the party who prevailed before the agency was entitled to judgment as a matter of law. Applying plain reading of unambiguous provisions of policy to the uncontested facts, Sheldon’s claim was clearly untimely. Each ground for equitable estoppel is examined and rejected. Claims-made insurance policies and occurrence policies are discussed. Under KPERS’ plan for disability benefits, KPERS is required to establish prejudice from a late claim in order to avoid coverage on grounds that claim was untimely. Prejudice is not presumed but must be proven. Because there was no uncontroverted fact that available medical records were inadequate for KPERS to defend against the claim, hearing officer was obliged to conclude for purposes of summary judgment that KPERS was not prejudiced. District court erroneously found substantial evidence of prejudice. Summary judgment to KPERS is reversed. Case remanded for further summary judgment proceedings consistent with the opinion, or for resolution of factual disputes regarding Sheldon’s claims. STATUTES: K.S.A. 2007 Supp. 74-4927(3)(a); and K.S.A. 74-4901 et seq., -4903, 77-519(a) -601 et seq., -621(c) subsections (4), (5), and (7) HABEAS CORPUS WILSON V. STATE ATCHISON DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 99,150 – AUGUST 22, 2008 FACTS: Supreme Court affirmed Wilson’s 2001 conviction in a decision filed March 17, 2006. Mandate issued March 20, 2006. In letter dated March 5, 2007, Wilson requested to proceed in forma pauperis (IFP) on a 60-1507 motion. Clerk’s office informed Wilson that a statement of his prison account was needed to file the petition. On April 10, 2007, Wilson submitted IFP affidavit and a new petition raising additional issues. District court denied IFP and clerk informed plaintiff that civil information sheet was required under Supreme Court Rule 123. All documents eventually file OCTOBER 2008 – 47

stamped on May 14, 2007. District court granted state’s motion to dismiss the petition as time barred, and found no manifest injustice in dismissing the motion. On appeal, Wilson claimed district court should have used date mandate was issued or date the mandate was filed in district court, and claimed manifest injustice if not allowed to advance ineffective assistance of counsel claim based upon his attorney’s suspension from practice of law after limitation period had expired. ISSUES: (1) Timeliness of filing, (2) compliance with Supreme Court Rule 123, (3) timeliness of amended petition, and (4) manifest injustice HELD: Wilson’s 1507 motion, mailed March 5, 2007, was timely filed. Three-day mail rule and prisoner mailbox rule discussed. Wilson substantially complied with 60-2001(b) by asking for leave to proceed IFP. A movant’s failure to pay docket fee is not jurisdictional and does not require clerk to reject the motion. Rather than holding a movant’s motion until docket fee is paid, better practice is for clerk to file the motion and allow district court to dismiss the action if movant later fails to pay fee or file poverty affidavit in compliance with 60-2001(b). A movant’s failure to include a cover sheet is not a substantive statutory requirement. Instead, it is a procedural deficiency that does not prejudice the state. Wilson’s failure to submit a civil cover sheet did not require clerk to reject filing of the motion. Amended petition does not relate back to original petition and was not timely filed. Limitation period began running March 17, 2006, when Supreme Court finalized judgment by denying petition for review. Using date mandate issued is contrary to Kansas and federal law. District court properly determined there was no manifest injustice. No logical connection between Wilson’s claim of ineffective assistance of counsel based upon his trial attorney’s suspension from practice of law six years later. STATUTES: K.S.A. 60-215(c), -260(d), -1507, -1507(f ), -1507(f )(2), -2001(a), -2001(b), -2107; and K.S.A. Supp. 1993 Supp. 21-3401 INSURANCE SUBROGATION FARM BUREAU MUTUAL INSURANCE V. PROGRESSIVE DIRECT INSURANCE JACKSON DISTRICT COURT – AFFIRMED NO. 98,199 – AUGUST 22, 2008 FACTS: On July 13, 2003, Joseph Binkley injured Sabrina Henry in a car accident. Binkley was insured by Progressive Direct Insurance Co. (Progressive). Farm Bureau provided underinsured motorist (UIM) coverage to Henry. Henry asserted a tort claim against Binkley for her injuries. Henry notified Farm Bureau of Progressive’s offer to settle the claim for policy limits of $25,000. Given the possibility of an underinsured claim by Henry against Farm Bureau for damages exceeding $25,000, Farm Bureau elected to substitute its payment for Progressive’s offer. Pursuant to K.S.A. 40-284(f ), Farm Bureau then became subrogated to Henry’s right of recovery against Binkley. In December 2005, Farm Bureau requested that Progressive reimburse Farm Bureau for the $25,000 it had paid to Henry. In support of this request, Farm Bureau cited its right of subrogation to enforce the $25,000 settlement offer Progressive originally had extended to Henry. Progressive denied Farm Bureau’s request. More specifically, Progressive claimed that Henry, and thus Farm Bureau as the entity standing in Henry’s shoes, no longer had a right to enforce the settlement offer because the statute of limitations on the underlying tort claim against Binkley expired on July 13, 2005. Farm Bureau sued Progressive, asserting subrogation rights grounded in statute, contract, and equity. Progressive filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings, countering that Farm Bureau’s subrogation rights were limited 48 – OCTOBER 2008

to any cause of action in tort that Henry may have had by virtue of the accident, and that such a tort action was time-barred. Progressive also asserted that Progressive was not a proper party in the suit because Farm Bureau’s subrogation rights limited Farm Bureau to a cause of action against the tortfeasor Binkley. The district court ultimately ruled in favor of Progressive and dismissed the action. ISSUE: Insurance subrogation HELD: Court stated that if a tentative agreement to settle for liability limits has been reached by the insured with an underinsured tortfeasor, the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount and the underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage. The time limitation under K.S.A. 60-512(2) applies when a statute creates a liability where liability would not exist but for the statute; however, if the statute merely provides a procedure for obtaining relief, K.S.A. 60-512(2) is not triggered. Court held that Farm Bureau was subrogated to Henry’s right to recover in a tort cause of action and nothing else. Accordingly, Farm Bureau’s subrogation claim was barred by the statute of limitations. STATUTES: K.S.A. 40-284(f ), -287, -3113; and K.S.A. 60-511, -512(2), -513 LIQUOR LICENSING BLOMGREN V. KANSAS DEPARTMENT OF REVENUE DOUGLAS DISTRICT COURT – DISMISSED NO. 96,839 – AUGUST 29, 2008 FACTS: Daniel Blomgren’s liquor license was revoked by the Kansas Department of Revenue (KDOR) for failing to disclose that he had an ownership interest in another liquor store and his license had been procured through false and fraudulent statements. The revocation was affirmed by the district court. Jill Blomgren’s liquor license was revoked by KDOR for securing advantages from other local competitors due to her multiple activities being carried on from her liquor store. The district court reversed the revocation of Jill’s license, but affirmed the imposition of a $9,500 fine. Daniel appeal. KDOR cross-appealed the decision to reverse Jill’s revocation. ISSUE: Liquor licensing HELD: Court stated the specific provisions for an appeal from the director’s decision to the secretary found in K.S.A. 41-321 and K.A.R. 14-16-24 control. Court held that an appeal to the secretary was essential to the exhaustion of available remedies under the Liquor Control Act. Court held that when the Blomgrens withdrew their appeal to the secretary, their failure to exhaust this administrative remedy barred judicial review. Neither the district court nor this court may invoke its jurisdiction where there had been no exhaustion of administrative remedies, so the court dismissed the appeal and cross-appeal. STATUTES: K.S.A. 41-101, -102, -106, -320, -321, -323; and K.S.A. 77-501, -526, -529, -601, -607(a), (b), -612, -613, -621(c), -622 NEGLIGENCE RURAL WATER DISTRICT NO. 3 OF MIAMI COUNTY, KANSAS V. MILLER PAVING & CONSTRUCTION LLC MIAMI DISTRICT COURT – AFFIRMED NO. 98,890 – AUGUST 22, 2008 FACTS: Miller Paving was the general contractor on a 14-mile gas line installation project for the city of La Cygne lasting approximately four months. During this time, the water district received tickets from Kansas One-Call notifying it that Miller would be doing work in an area where the water district had water lines. During the course of installation, Miller Paving struck and damaged the water district’s water line approximately 14 times despite marking, THE JOURNAL OF THE KANSAS BAR ASSOCIATION

mismarking, or nonmarking of water lines by Courtney Construction. After a bench trial, the trial court found that Miller owed a duty to exercise reasonable care in its excavation to avoid causing injury to others or to the property of others. The trial court held that in the instances where Miller was notified by the water district of the presence of a water line at a given site, but Miller failed to dig test holes to determine the precise location of the water line, Miller failed to exercise reasonable care. The trial court noted that in the two instances where the water district had failed to provide Miller its best information of the location of its water lines, Miller was not liable for the damages invoiced for those dates. Aside from the two line strikes where the water district had neglected to mark the approximate location of its water lines, the trial court granted damages to the water district resulting from Miller’s line strikes. In awarding damages, the trial court reduced the damages claimed by the water district by not allowing damages for items invoiced as “mobilization,” by reducing the items invoiced as “labor” by 50 percent to avoid double recovery, and by correcting the amount billed for parts used in repairing a particular line strike. Accordingly, the trial court entered judgment in favor of the water district on its negligence claim for $6,116.33 plus costs and post-judgment interest. ISSUE: Negligence HELD: Court stated that in cases involving underground utilities, an excavator can be held liable on a theory of negligence when the excavator knew of the existence of an underground facility or should have known that buried utilities would be found in or near the excavation sites and failed to exercise ordinary care. Court held that where the excavator knew that underground water lines were present in its path of excavation, the excavator had a duty to exercise reasonable care to avoid injury to the water lines. Because there is substantial evidence in the record that the excavator’s actions were inconsistent with its duty of reasonable care, the trial court properly determined that the excavator breached its duty. Court also held that the operator of the underground water lines owed a duty of care to the excavator to reasonably mark the location of its water lines. Based on the record, the trial court properly determined that the operator did not breach its duty of care to the excavator, except in the two instances where the operator failed to mark its water lines. STATUTES: K.S.A. 66-1802(e) and K.S.A. 77-109 RECALL ELECTIONS, KANSAS TORTS CLAIMS ACT, AND MANDAMUS COLLINS V. HOEME ET AL. MITCHELL DISTRICT COURT – AFFIRMED NO. 97,483 – AUGUST 8, 2008 FACTS: Collins was elected as county commissioner in January 2003. On Jan. 5, 2005, an application for his recall was filed with Christine Treaster, the county’s election officer. Collins filed petition claiming there were numerous irregularities in the signature gathering process and questioned whether the recall petition was valid. Collins asked for monetary damages as well as other relief. The trial court barred Collins’ petition because his action was not filed within 30 days of Feb. 18, 2005, which was when the recall petition was filed. The trial court acknowledged that even though the county failed to give Collins timely notice of the recall petition, there had been substantial compliance with K.S.A. 25-4331, and ruled that Collins had adequate notice. Collins appealed. While Collin’s appeal was pending, an election to recall him from public office was held and the voters voted in favor of recall. After this court reversed in Collins appeal, the recall committee sought to dismiss the recall petition, claiming the Kansas Recall of Elected Officials Act (Act), K.S.A. 25-4301 et seq. makes no provision for monetary damages, and Collins only recourse would be to request the denial of the recall petition. The district court held that seven of the eight grounds listed by Collins in the recall petition were sufficient and that all THE JOURNAL OF THE KANSAS BAR ASSOCIATION

the reasons listed must be valid and therefore the recall election was invalid. Notwithstanding, the district court dismissed Collins’ case with prejudice because the committee could not be sued. The new commissioner and the election officer are immune under the Kansas Tort Claims Act, (KTCA) and since the case was not a mandamus action, there are no provisions for damages. ISSUES: (1) Recall elections, (2) KTCA, and (3) mandamus HELD: Court held there are no provisions in the Act, which give an individual the authority to sue a recall committee for damages. The Act merely authorizes the court to review decisions of the county attorney and county election officer; it does not allow monetary damages as a remedy for their failure to act, or for decisions rendered. Under the Act, a mandamus action could be brought to compel a recall election. A challenge to the sufficiency of the grounds for a recall election is not a mandamus action, and suing for monetary damages does not transform the proceeding into a mandamus action. Court held the recall committee could not be sued, that the county commissioner and election officer are immune from liability, Collins was not entitled to damages under the Act, and that Collins’ action could not transform into a mandamus action. STATUTES: K.S.A. 12-712; K.S.A. 25-4301, -4322(d), -4331; K.S.A. 60-801, -802(c); and K.S.A. 75-6101, -6103(a), -6104, -4317 TRUSTS JEANES V. BANK OF AMERICA SHAWNEE DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS NO. 97,855 – AUGUST 29, 2008 FACTS: In 1991, Maxine Anton created a living trust agreement where she would receive the income for her life and the remainder was to fund charitable remainder trusts for her stepson and also a personal assistant, but the vast majority of the assets were to pass to Janet J. Jeanes, her niece and sole heir. The trust consisted of stocks and securities. Bank of America was trustee. Sharon Kunard was the attorney that drafted trust documents and a will reflecting Anton’s wishes and all later amendments. At the time of Anton’s death, the estate was valued at nearly $40 million, but estate and inheritance taxes consumed almost half the estate. Jeanes as administrator of the estate, filed a negligence, breach of fiduciary duty, contract, and trust against Bank of America and the local president based on alleged failure to protect Anton’s assets from tax liability upon her death and that setting up a family limited partnership would have saved more than $6 million in taxes. Jeanes later added claims of improperly charged fiduciary fees. The district court granted summary judgment to all defendants. ISSUE: Trusts HELD: Court held the trail court correctly determined that the evidence did not support Jeanes claim that the evidence showed Anton had a contract with Kunard to give estate-planning advice and Kunard breached that contract. Rather, Jeanes’ claims against Kunard sounded only in tort. Court also held that the trial court properly found that Jeanes’ tort claims for legal malpractice did not survive Anton’s death. Court stated that substantial injury resulting from Kunard’s alleged malpractice would have been the estate taxes imposed against Anton’s estate, which did not arise until after Anton’s death. However, the court held the district court erred in granting summary judgment to Wrenick, the local bank president, by holding that the breach of fiduciary duty claim did not survive Anton’s death. Court reversed to the district court to determine whether any damages alleged from the breach of fiduciary duty claim accrued before Anton’s death regarding the management of her trust assets. Court also stated that if any such damages had accrued before Anton’s death, the trial court is directed to determine whether Anton’s OCTOBER 2008 – 49

personal estate was injured by those damages, which would allow them to survive her death. Court also held that the trial court did not error in granting summary judgment to Wrenick because he was acting as a disclosed agent of the bank at all relevant times and was not personally liable to the decedent for any breach of the contract between the bank and Anton. STATUTE: K.S.A. 60-254(b), -1801, -1901 TRUSTS MANGELS ET AL. V. CORNELL GRANT DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS NO. 98,780 – AUGUST 8, 2008 FACTS: Bud and Thelma Helwig executed a revocable trust in 1996 funded with farmland and mineral interests. Their three adopted children (Darrel, Carl, and Judith) were the beneficiaries, but upon the death of each child their share was to be paid per stirpes to the children of each. After Bud’s death, Thelma amended the trust to change the successors to the three children and also that Judith would receive the first $1 million in income and then the remaining divided per stirpes. Darrel and Carl challenged the amendments arguing the trust unambiguously does not permit amendment or revocation after the death of one of the settlors. The district court construed the trust as permitting amendment or revocation by either settlor at any time. ISSUE: Trusts HELD: Court rejected the district court’s holding. Court held the language of the trust is clear and unambiguous in permitting amendment and revocation by both grantors. Court construed the trust as a joint, mutual, and contractual instrument in nature and not subject to revocation or amendment by a surviving settlor. STATUTE: K.S.A. 58a-112 WRONGFUL DEATH, DESIGN IMMUNITY EXCEPTION, AND DISCRETION FUNCTION EXCEPTION WELLHAUSEN V. THE UNIVERSITY OF KANSAS WYANDOTTE DISTRICT COURT – AFFIRMED NO. 98,663 – AUGUST 8, 2008 FACTS: The Wellhausen’s son, Eric, was a freshman at the University of Kansas (KU) and lived in a seventh floor room at Oliver Hall. Against handbook policy, Eric climbed out of the window onto the ledge to smoke a cigarette. Eric fell off the ledge and died. It was determined that his blood-alcohol content at the time was 0.16. The Wellhausens filed a wrongful death action against KU. The district court granted summary judgment to KU finding the claims were barred by the design immunity exception and discretion function exception. The court also found the Wellhausens failed to prove proximate cause and that no reasonable jury could find that KU’s negligence exceeded 50 percent. ISSUES: (1) Wrongful death, (2) design immunity exception, and (3) discretion function exception HELD: Court stated that a university-landlord has a legal duty to use reasonable care to protect its student-tenants, but that duty does not include a duty to warn of known and obvious dangers. Court also stated that a university is not an insurer of the safety of its students, and the doctrine of in loco parentis does not apply to contemporary collegiate life. Hence, a university has no obligation to protect students from their own reckless and negligent acts. Court held under the facts of this case, summary judgment was proper on parents’ wrongful death action against university based upon application of discretionary function exception, K.S.A. 75-6104(e), as universitylandlord owed no duty to warn an intoxicated student-tenant of the open and obvious danger that results from crawling out of a narrow window of seventh floor dormitory room and attempting to drop down to a 2-foot-wide concrete ledge several feet below the window. 50 – OCTOBER 2008

STATUTE: K.S.A. 75-6103, -6104(e), (m)

Criminal STATE V. BOTTOM JACKSON DISTRICT COURT REVERSED AND REMANDED NO. 98,973 – AUGUST 22, 2008 FACTS: Officers executed warrant in December 2006 to search Bottom and O’Brien residence for evidence of child abuse. Viewing drug paraphernalia in plain sight, officers obtained and executed second warrant to search for drug evidence. Bottom and O’Brien filed motion to suppress all evidence because first warrant was based on stale information more than four months old, and second warrant flowed from the first illegal warrant. District court granted the motion, finding the information in the application was too stale to provide probable cause to issue a warrant. District court also found the magistrate had abandoned his neutral role, and the first warrant was so facially invalid that no law enforcement officer could have relied upon it in good faith. District court further found the second warrant was based only on information developed from execution of the first warrant. State appealed. ISSUE: (1) Stale information in search warrant affidavit and (2) Leon good-faith exception HELD: Federal cases discussed. Case presents close question as to whether information in the search warrant affidavit was so stale as to render the search warrant invalid. No need to answer that question in this case because evidence obtained under the first warrant could be admitted under Leon good-faith exception. Applying State v. Hoeck, 284 Kan. 441 (2007), the information contained in the affidavit for a search warrant provided some indicia of probable cause sufficient to render official reliance on the warrant reasonable. DISSENT (Pierron, J.): On the close question presented in this case, he would sustain the original warrant. STATUTES: None STATE V. JOHNSON JOHNSON DISTRICT COURT – AFFIRMED IN PART AND REVERSED IN PART NO. 96,111 – AUGUST 29, 2008 FACTS: Johnson convicted of felony obstruction of official duty, assault of a law enforcement officer, criminal trespass, and two counts of identity theft. On appeal, Johnson claimed district court erred in denying motion for acquittal on (1) obstruction of official duty charge because he was acquitted of the only possible felony underlying the obstruction charge, (2) identity theft of John Dale because Johnson intended to defraud financial institutions rather than Dale, and (3) identity theft of his brother Michael Robinson because Johnson only used his brother’s identity to avoid arrest and outstanding warrants. He also raised constitutional claims about aggravated sentences and use of criminal history to enhance sentence. ISSUES: (1) Felony obstruction of justice, (2) identity theft of John Dale, (3) identity theft of Michael Robinson, and (4) sentencing HELD: State v. Seabury, 267 Kan. 431 (1999), did not alter holding in State v Hudson, 261 Kan. 535 (1997), that “touchstone” for classification of an obstruction offense is the reason the officer approached the defendant and not the status of the defendant. Under circumstances, where officers believed they were investigating a forgery based upon information available to them, trial court did not err in denying motion for acquittal. Ample evidence supports Johnson’s conviction for identity theft with regard to a real person, John Dale. Johnson possessed several THE JOURNAL OF THE KANSAS BAR ASSOCIATION

counterfeit checks and identification in Dale’s name, and Johnson’s use of Dale’s identity to negotiate fabricated checks constituted a fraud upon the financial institutions involved. Insufficient evidence supports the second identity theft conviction. Under the circumstances, the connection between Johnson’s possession of identification bearing his brother’s name and any scheme by Johnson to use that identification to aid in passing counterfeit checks was tenuous at best. This conviction is reversed. No merit to sentencing claims. STATUTES: K.S.A. 21-3110(9), -3808, -3808(b)(1), -3808(b)(2), -4018, -4721; K.S.A. 2004 Supp. 21-3110(9); and K.S.A. 2003 Supp. 21-4018 STATE V. MORLOCK SEDGWICK DISTRICT COURT – REVERSED NO. 97,447 – AUGUST 29, 2008 FACTS: Traffic stop of van in which Morlock was a passenger resulted in discovery of 113 pounds of marijuana. District court denied Morlock’s motion to suppress the evidence, and Morlock was convicted of possession of marijuana with intent to sell and no tax stamp. On appeal, he claimed the arresting officer violated Morlock’s constitutional rights by asking questions about travel plans, which were unrelated to purpose and scope of the traffic stop, and the officer exceeded the scope and duration of the stop when he ran a warrant check on Morlock’s driver’s license without reasonable suspicion of criminal activity. ISSUES: (1) Questioning about travel plans, (2) warrant check on passenger, and (3) consent to search as removing taint HELD: Issue never explicitly addressed by Kansas’ courts. Federal cases discussed. During a routine traffic stop, a law enforcement officer may question the driver about his or her travel plans provided the questioning is reasonably related to scope of the traffic stop and questioning does not unreasonably alter the nature or duration of the stop. Generally, this is limited to questioning concerning the driver’s place of departure or destination. Muehler v. Mena, 544 U.S. 93 (2005), is distinguished. Under circumstances of present case, office’s routine questions of Morlock and the driver about their travel plans were proper, but officer had no authority to ask each about their Phoenix plans and purpose in going there because these inquiries were not reasonably related in scope to the traffic infraction, which justified the stop. Officer’s investigation went further off course when he seized Morlock’s driver’s license and ran warrant checks on both the driver and Morlock. State v. Damm, 246 Kan. 220 (1990), is not diminished by Illinois v. Caballes, 543 U.S. 45 (2005). Under totality of circumstances, officer lacked reasonable suspicion of criminal activity when he requested Morlock’s driver’s license to run warrant check, and violated Morlock’s constitutional rights pursuant to Damm. No break in causal connection between officer’s illegal actions and the evidence obtained, thus no need to analyze voluntariness of Morlock’s consent to additional questioning and search of van. District court erred in denying motion to suppress. Morlock’s convictions are set aside and he is discharged from further proceedings. DISSENT (Leben, J.): Would affirm the district court’s judgment. Extensive dissent argues that: recent U.S. Supreme Court cases dictate that officer may ask for a passenger’s ID and run a warrant check during a traffic stop, and strongly indicate an officer may ask questions about travel plans during a traffic stop so long as it doesn’t unduly extend the duration of the stop. Even under traditional rules, officer’s actions with Morlock in this case were within proper scope of a traffic stop, and Damm and State v. Smith, 286 Kan. __ (2008), do not control the result. Even if officer’s actions were improper, he had reasonable suspicion to justify an investigatory detention of Morlock, and any taint to the marijuana evidence was attenuated by Morlock’s consent during a later voluntary encounter. THE JOURNAL OF THE KANSAS BAR ASSOCIATION

STATUTE: K.S.A. 22-2402(1), -3216(2) IN RE P.L.B. SHAWNEE DISTRICT COURT REVERSED AND REMANDED NO. 99,428 – AUGUST 22, 2008 FACTS: Four months after sentencing in juvenile proceeding, P.L.B. filed motion to withdraw no contest plea to aggravated indecent liberties, claiming plea was not knowing and voluntary because trial court failed to tell him the possible direct consequences of his plea. P.L.B. appealed the trial court’s denial of that motion. State argued the trial court lacked jurisdiction to consider P.L.B.’s motion in a juvenile matter and claimed motion was untimely. ISSUES: (1) Motion to withdraw plea in juvenile action, (2) K.S.A. 2007 Supp. 38-2344(b), (3) timeliness of motion, and (4) withdrawal of plea to correct manifest injustice HELD: No Kansas case law supports state’s jurisdictional argument. Trial court had jurisdiction to consider P.L.B.’s motion to withdraw plea. Trial court informed P.L.B. of his rights, but record does not affirmatively show P.L.B was aware of sentencing alternatives when plea was entered as required by K.S.A. 2007 Supp. 38- 2344(b)(6). Under facts, the motion to withdraw plea was timely filed. Factors for determining manifest injustice are stated and applied. Because trial court did not tell P.L.B. about sentencing alternatives, P.L.B. could not have made a knowing and voluntary plea. A plea under these circumstances would have been unfair. Because trial court did not apply its discretion within legal standards of K.S.A. 2007 Supp. 38-2344(b) before accepting P.L.B.’s plea, it abused its discretion by denying P.L.B.’s motion to withdraw his plea. STATUTES: K.S.A. 2007 Supp. 38-2344(b), -2344(b)(6), -2344(c); K.S.A. 22-3210, -3210(a), -3210(a)(2), -3210(d), 38-1601 et seq., -1633, -1633(b); and K.S.A. 21-3504(a)(3)(A) (Furse) STATE V. REED WYANDOTTE DISTRICT COURT –AFFIRMED NO. 97,507 – AUGUST 29, 2008 FACTS: Reed convicted of rape and aggravated indecent liberties with a child. On appeal he claimed (1) district court erred in allowing an expert witness to testify about why children may recant allegations of sexual abuse, (2) prosecutorial misconduct in stating that Reed refused to give formal statement to police, (3) statutory rape and aggravated indecent liberties statutes are unconstitutional, (4) cumulative error denied him a fair trial, and (5) use of Reed’s criminal history to enhance sentence violated Apprendi. ISSUES (1) Child victim recantation, (2) prosecutorial misconduct, (3) constitutionality of K.S.A. 21-3502(a)(2) and K.S.A. 213504(a)(1), (4) cumulative error, and (5) criminal history HELD: Based on State v. Oliver, 280 Kan. 681 (2005), and State v. McIntosh, 274 Kan. 939 (2002), expert witness’s testimony about why children may recant allegations of sexual abuse was admissible. Under facts, prosecutor’s comment was close to but no violation of Doyle. Even if statement was improper, it did not amount to reversible error. K.S.A. 21-3502(a)(2) and K.S.A. 21-3504(a)(1) do not violate 14th Amendment Due Process Clause by prohibiting all unmarried adolescents from engaging in consensual intimate activity without regard to their maturity level. Legislature has legitimate goal of protecting children from adult sexual predators, and both statutes are rationally related to carrying out that goal. No merit to cumulative error and Apprendi claims. STATUTE: K.S.A. 21-3502(a)(2), -3502(b), -3504(a)(1), -3504(b), -3506(a)(1), 60-404 OCTOBER 2008 – 51

STATE V. SIMS JOHNSON DISTRICT COURT – SENTENCE VACATED AND REMANDED NO. 97,943 – AUGUST 22, 2008 FACTS: Sims committed two adult felonies while on conditional release on juvenile adjudication. District court ordered the adult sentences to run consecutive to the juvenile adjudication. Sims appealed. ISSUE: Consecutive sentences HELD: K.S.A. 21-4603d(f )(1) does not authorize consecutive sentences for an adult conviction and a juvenile adjudication under Kansas Juvenile Justice Code. To extent the statute is ambiguous as to whether juvenile adjudications may trigger application of consecutive sentences, the statute must be construed in the defendant’s favor. This is consistent with State v. Crawford, 39 Kan. App. 2d __, 185 P.3d 315 (2008), and addresses statutes in effect when Sims committed the crimes in June 2006. STATUTES: K.S.A. 2007 Supp. 38-2364, -2364(2); and K.S.A. 21-4603d(f ), -4603d(f )(1)

52 – OCTOBER 2008

STATE V. WATKINS BUTLER DISTRICT COURT – AFFIRMED NO. 96,804 – PUBLISHED VERSION FILED AUGUST 6, 2008 FACTS: Watkins convicted of drug offenses. Prosecutors filed the complaint in April 2003, alleging criminal acts in February and March 2003. Watkins was arrested on a warrant in May 2005. On appeal, she claimed the statute of limitations had expired prior to her arrest. ISSUE: Statute of limitations for criminal prosecution HELD: Under the circumstances, district court correctly held the arrest warrant was executed without unreasonable delay. State’s efforts were not perfect, but Watkins would have been arrested on outstanding warrant in February 2004 traffic stop if she had not lied about her identity. Criminal prosecution of Watkins was not barred by statute of limitations. Additional issue regarding admission of evidence from the February 2004 traffic stop was not preserved for appeal, but confrontation claim would have had no merit. Holding in State v. Sherry, 233 Kan. 920 (1983), that confrontation right is a trial right that does not apply at preliminary hearing, remains good law after Crawford v. Washington, 541 U.S. 36 (2004). STATUTES: K.S.A. 60-404; and K.S.A. 2003 Supp. 21-3106 sections (8), (9)(b), (10), and (11)

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Classified Advertisements Positions Available CITY ATTORNEY The city of Dighton, Kan., population 1,200, is seeking to fill the position of city attorney, effective Jan. 12, 2009. This is a part-time position providing supplemental income to an area practitioner licensed to practice law within the state of Kansas. Salary is negotiable. Submit letter of interest and resume to: City of Dighton, Attn. Chelle Anderson, City Clerk, P.O. Box 848, Dighton, KS 67839 (620) 397-5541. Please visit the city of Dighton, Kan., Web site at www.dightonkansas.com. THE KANSAS RURAL COMMUNITIES FOUNDATION (KRCF) is seeking attorneys who specialize in charitable and estate planning who would like to be included in our free statewide client referral service. Established in 2006, the KRCF is a 501(c)(3) nonprofit charitable corporation that works with benefactors throughout Kansas to create funds and make gifts that benefit their communities. If you would like to be included in the KRCF client referral service, please contact René Eichem, executive director, at (785) 456-8444 or krcf@wamego. net or Jeff Elder, Elder Law Office, at (785) 456-8414 or elder_pa@hotmail.com. For more information about the KRCF, visit www.thekrcf.org.

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OCTOBER 2008 – 53

The Kansas Bar Association Proudly Presents A New Online Magazine*

How Lawyers Succeed.

Mission The Complete Lawyer focuses solely on the personal and professional development of lawyers. Our contributors are veteran coaches and consultants, innovative authors and practicing lawyers. Goal The purpose of every article that appears in TCL is to provide fresh insights and tools that help lawyers improve their success and satisfaction in both their careers and lives as a whole. Departments ASSOCIATES, BOOK REVIEWS, BUSINESS DEVELOPMENT, COMMUNICATIONS, COACHING & MENTORING, DIVERSITY, FINANCIAL MATTERS, HEALTH, HUMOR, LEADERSHIP, MANAGING, NAVIGATING YOUR CAREER, ON WRITING, PERSONAL DEVELOPMENT, PROFILES, TECHNOLOGY, THE FAMILY, TREND WATCH, WOMEN IN THE LAW, WORK/LIFE BALANCE and much moreâ&#x20AC;¦ Distribution In early October you will receive the first issue of TCL via e-mail from the bar association. The magazine is published every 60 days but is available continuously at: http://Kansas.thecompletelawyer.com *The Complete Lawyer is a collaborative effort of the Kansas Bar Association in cooperation with The Complete Lawyer, LLC.

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