February 2009 Journal by Kansas Bar Association

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sem ine ak Now er ! 2.1

Score some CLE points with this All-Star lineup!

9th Annual

CLE Slam-Dunk Friday, February 13, 2009 Saturday, February 14, 2009 Clarion Hotel 530 Richards Drive Manhattan, Kan. 12.0 hours CLE credit,

including 2.0 hours professional responsibility credit

For complete event details, go to www.ksbar.org/public/cle.shtml

The Journal

THE

Board of Editors

Communications Director: Susan McKaskle

Catherine A. Walter, Chair

Topeka

Anne L. Baker

Topeka

Terri Savely Bezek

Topeka

Boyd A. Byers

Wichita

Toby J. Crouse

Overland Park

Hon. Jerry G. Elliott

Topeka

Professor J. Lyn Entrikin Goering Topeka Connie S. Hamilton

Your Partner in the Profession • www.ksbar.org

Focus

Post-Judgement Day: A Guide to Filing Timely Notices of Appeal in Federal Court

Lawrence

Katharine J. Jackson

Manhattan

Michael T. Jilka

Overland Park

Lisa R. Jones Wichita Hon. Janice Miller Karlin Topeka Casey R. Law

McPherson

Michelle Reinert Mahieu

Dodge City

Hon. Thomas E. Malone

Topeka

Julene L. Miller

Topeka

Hon. Lawton R. Nuss

Topeka

Professor John C. Peck

Lake Quivira

Richard D. Ralls

Kansas City, Mo.

Teresa M. Schreffler Lawrence Richard H. Seaton Sr.

Manhattan

Richard D. Smith Topeka Marty M. Snyder Issaku Yamaashi

Overland Park

Rachael K. Pirner, BOG liaison Wichita

Catherine A. Walter, chairperson, cwalter@topeka.org Susan McKaskle, communications director, smckaskle@ksbar.org

Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

KANSAS BAR ASSOCIATION 1882

By Matt Corbin and Casey Tourtillott

Items of Interest

www.ksbar.org

Regular Features

eminder: KBA Officer and R Board of Governors Nominating Petitions Due by March 6

BA Announces New Diversity K Award

Topeka

Matthew A. Spurgin Topeka

OURNAL

of the Kansas Bar Association

Topeka

Evan H. Ice

February 2009 • Volume 78 • No. 2

009 Kansas Bar Association 2 Awards

he Kansas Bar Foundation T Thanks You!

ccess to Justice Grant A Applicants Sought

otice of Amendment of Local N Rules of Practice of the U.S. District Court

6 President’s Message 7 Young Lawyers Section News 13 A Nostalgic Touch of Humor 15 Members in the News 16 Obituaries 17 Law Practice Management Tips & Tricks

31 37 44 47

Appellate Decisions Appellate Practice Reminder Classifieds CLE Docket

otice of Consideration of N Reappointment of Magistrate Judge and Invitation for Public Comment

KBA Seeking Historical Items for Display at Law Center A unique aspect of the newly enhanced Kansas Law Center is a “law museum” that will house and display historical law memorabilia. The museum offers an opportunity for members and friends of the profession to exhibit their personal pieces of law history for all to enjoy. If you or your firm has any historical legal treasures to donate, whether on loan or as a permanent addition to the collection, please contact KBA Executive Director Jeffrey Alderman at jalderman@ksbar.org or call (785) 234-5696. The Journal of the Kansas Bar Association | February 2009 3

1882

KANSAS BAR ASSOCIATION

Need clients? Need increased visibility?

the

K ANSAS BAR

ASSOCIATION’S

Lawyer Referral Service Join LRS online at www.ksbar.org/LRS WHY IS THE LRS GOOD FOR BUSINESS? “ I participated in the KBA Lawyer Referral Service for much of the nearly 20 years that I practiced in Dodge City. During the time I was involved with the LRS, I also advertised intensively in the local telephone directory. Although paid advertising and LRS referrals both generated a substantial volume of inquiries from potential new clients, I found that LRS-generated clients tended to bring more ‘solid’ legal matters and were more reliable than those who initially responded to phone book advertising.” “ The effectiveness in my experience of LRS referrals is demonstrated by my having sent a check to LRS for its 10 percent referral fee of nearly $54,000.” ~ Henry Goertz, Goertz Law Office, Dodge City

Your trusted legal source. MEETS ABA STANDARDS FOR LAWYER REFERRAL

AMERICAN BAR ASSOCIATION THE RIGHT CALL FOR THE RIGHT LAWYERTM

TABLE OF CONTENTS CONTINUED

Article he Life and Times of the T Kansas Judicial Council By J. Lyn Entrikin Goering

19 ... 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 SW Harrison St. Topeka, Kansas 66612-1806 Telephone: (785) 234-5696 Fax: (785) 234-3813 Web site: www.ksbar.org OFFICERS Sarah Bootes Shattuck President

Ashland

John D. Jurcyk President-elect James D. Oliver Secretary-Treasurer

Roeland Park Overland Park

Bruce W. Kent Immediate Past President

Manhattan

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

Cover layout by Ryan Purcell

From the Editor: In the January 2009 Journal of the Kansas Bar Association, a portion of the article “Personal Injury Law Meets Medicaid Law: K.SA. 39-719a Recoveries in Kansas” was unintentionally omitted. The segment, which is below, should be read after Page 40 with the balance of Section V following on Page 41.

V. To Plaintiff’s Attorneys If you are working on a personal injury case and you suspect that Kansas Medicaid (now part of KHPA instead of SRS) may have a claim, please contact KHPA Legal Assistant Jennifer Meyer at (785) 296-4844 or by e-mail at jennifer.meyer@khpa.ks.gov. Meyer will be happy to provide you with the dollar amount of our claim under KSA 39-719a. Please bear in mind that this dollar amount is likely to increase if and when additional bills are submitted to Kansas Medicaid. And also please keep in mind that these bills are not paid by KHPA Legal. KHPA gets its “paid claims” information from EDS, the fiscal agent for Kansas Medicaid. EDS has its own staff, and they are located in a separate building, so there is always a built-in time delay when this information is requested by anyone.

The Kansas Bar Association is

here for YOU

Renew now to keep your benefits coming!

Topeka

MANAGER, PUBLIC SERVICES Meg Wickham Topeka

To renew your membership, please go to our Web site at: http://www.ksbar.org/membership/index.htm

www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 5

From the

President

Thomas E. “Tom” Wright

We have a PAC. Now what?

he Board of Governors of the Kansas Bar Associa(3) Create an effective membership – bar leadership – tion (BOG) took a small but potentially very im Legislature – communication network, and portant organizational step at its December meet(4) Combine with other like-minded folks. ing. With only a few dissenting votes the BOG authorized the creation of a political action committee (PAC). FolIn the next few months, we will identify KBA members lowing an articulate and passionate discussion, the board who have special connections with key legislators. We will directed the BOG executive committee to finalize the pro- then create an e-mail protocol dedicated to political commuposed bylaws and create a PAC. The PAC is to be called the nication. You’ll be asked to tell us who you know and how you “KSBAR PAC” and should be operational before the end of know them. Again we need your engagement. the 2009 legislative session. No organization in Kansas has members with closer or betGovernmental ethics rules prohibit political contributions ter ties to legislators than the Bar. A number of our members by PACs during a legislaserve in the Legislature. tive session. KSBAR PAC Yes, the clarity and logic of our message is the Many KBA members lobby won’t be able to contribute full time for other interests. most important part of our anything until after sine die When asked, our legislators in 2009, which should be in and lobbyists are willing to legislative program. It is just easier if the late May, depending upon help the Bar when it isn’t a message is going to friends. when the veto session conconflict. In the past we have cludes. Since it took several not always asked for help tries over three decades to get a PAC, a few months delay is from these valuable knowledgeable members. not important. Great attendance at the October Legislative CLE Seminar The KSBAR PAC has an eight-member board of directors reflected the strong interest that lawyers have in the political that is separate from the KBA BOG. In order to make KS- system. It helps that many of our own members are legislative BAR PAC credible, its board of directors must be credible. leaders. Sen. John Vratil, Rep. Mike O’Neal, Rep. Paul Davis, According to the proposed bylaws, not more than half of the and Rep. Jan Pauls gave us an insider’s view of how the system members can be from the same political party. Common sense works. This can become an annual event to kick off each legsays the committee should be geographically balanced. Gen- islative session. der, race, and age should be considered as well. In addition to our KBA members we have natural allies. The It is important — make that extremely important — that Wichita, Johnson County, and Shawnee County bar associayou — the members — send us the names of those whom you tions have full- or part-time executive directors. Those major want to serve on the KSBAR PAC board. There are 7,000- bar associations have interests that differ from ours in many plus KBA members. I hope to hear from at least 30 to 40 ways. But on certain issues pertaining to legislation we should members on this issue. Note that I am not asking for money. be able to agree. Other local bars, such as the Southwest KanJust names. sas Bar Association, have expressed interest in legislative matIn the first paragraph I described the creation of KSBAR ters. The KBA Legislative Committee will be exploring opPAC as a “small” step. If KSBAR PAC politically energizes the portunities to combine with local bars in this effort. We need KBA membership, then we can call it a “big” step. A PAC by to help each other. itself does little; but a PAC combined with a plan and greater Yes, the clarity and logic of our message is the most impormembership involvement can do a lot. Here are four parts of tant part of our legislative program. It is just easier if the mesa legislative plan: sage is going to friends. n (1) Create a PAC (done), (2) Find those members who truly care about legislation, Tom Wright may be reached by e-mail at twright21@cox.net or by phone at (785) 271-3166.

6 February 2009 | The Journal of the Kansas Bar Association

www.ksbar.org

Young Lawyers Section News Was 2008 a Success? – A Few Tips to Objectively Judge Your Own Performance By Scott M. Hill, Hite, Fanning & Honeyman LLP, Wichita, KBA Young Lawyers Section president

t is 2009. We have once again started a new year. If you are feedback from clients, partners, other counsel, or the courts anything like me, you have kicked off this year with fresh over the past year. Each taken in its own context might be goals, different expectations, and newfound challenges helpful in its own right, but spend a few minutes to look back for yourself. But simply because the calendar has rolled over over the feedback provided to you over the past year in total doesn’t mean the past year should be forgotten. It’s time to and see if you can reach some objective conclusions about your look back at 2008 and judge last year’s performance. And as I performance. If you are regularly complimented on your writdiscuss below, I hope you can take something from an objec- ing style, chances are that you have performed well in that cattive view of last year and learn from it. egory. If you have received a specific criticism more than once, So, how do we judge ourselves? I’ve always heard that we are then that might be a good measure of your performance in that our own worst critics. Does given area. that apply to you? While it is Set new goals. I generally difficult to objectively judge While it is difficult to objectively judge your find that the best way to your own performance, we own performance, we each have knowledge judge my performance last each have knowledge about is to begin the process about ourselves and our work that no one year ourselves and our work that of setting new goals for the else has. Take that knowledge and make no one else has. Take that upcoming year. If my goal knowledge and make yourfor the next year is to work yourself your own best critic. self your own best critic. Bemore and play less, or vice low are five suggestions that versa, then that is a good might assist you in objectively reviewing your performance. indication that I was not satisfied with my work/play mix last Take a look back at the past year and give it a shot. Hope- year. We each know of ways we can improve as we begin the fully you might identify your successes and mistakes and learn next year. Take that as a good indication of how we might from those. have fallen short in the past year. But remember as you set Review your beginning-of-the-year goals. I hope you set new goals to recognize those areas where you consider yourself personal and business goals last year. They may not have been to be successful. If you don’t feel like you need to set a goal in life changing, but nonetheless you set yourself goals. Was it a specific area, this too might be a good measure of last year’s to work more hours? Or was it to spend more time at home? performance. Was it to be timelier with projects? Was it to learn a new area With these suggestions in mind, take the opportunity to of law? Whatever your target was, take a look back to see if learn from your performances. you stayed on track. Remember that many goals can only be I’m a strong believer that we all learn from our own missubjectively met. Be realistic with yourself and objectively try takes. But I also believe that we can learn from our success as to determine if you made progress toward accomplishment. well. The truth is that we learn (or at least we should learn) Review those goals set for you. Often younger attorneys from each and every experience. Utilize a personal year-inhave goals set for them. Our partners usually set budgets based review evaluation to learn as you move forward in 2009. n on expected billable hours or fee income. If you are privy to that information, take a look to see if you met or exceeded Scott M. Hill may be reached at (316) 265-7741 or by e-mail those expectations. Generally these are realistically set and re- at hill@hitefanning.com. flect objective standards. Look at your results. Results are not always the best indication of performance. Whether we readily admit it or not, there are some cases and issues that we should win or should lose. Simply because we win on a motion or a trial does not always mean that our performance was on par. And on the occasions where we should recognize that we are fighting a losing battle, realize that simply because we lose does not mean we have failed to artfully perform. This doesn’t mean, however, that results should be ignored. Take a look back at concluded projects, hearings, motions, or trials and try to objectively determine whether your performance yielded the best possible result given the circumstances. Review feedback given. Chances are that you have received

www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 7

Reminder: KBA Officer and Board of Governors Nominating Petitions Due by March 6 KBA President-elect KBA Vice President KBA Secretary-Treasurer KBA Delegate to ABA House of Delegates

he KBA Nominating Committee, chaired by Immediate Past President Linda Parks, Wichita, met on Jan. 30 to consider nominations for KBA officers. Those nominations were not available at press time, but can be obtained by calling KBA Executive Director Jeffrey Alderman at (785) 234-5696. In addition to being nominated by the Nominating Committee, individuals can submit a petition, signed by 50 KBA members, to run for any KBA officer position. The deadline to return petitions is Friday, March 6. Petitions can be obtained from Kelsey Hendricks at (785) 234-5696 or via e-mail at khendricks@ksbar.org.

Board of Governors There will be seven positions on the KBA Board of Governors up for election in 2009. Candidates seeking a position on the Board must file a nominating petition, signed by at least 25 KBA members from that district, with Jeffrey Alderman by the March 6 deadline. If no one files a petition, the Nominating Committee will reconvene and nominate one or more candidates for open positions. KBA districts with seats up for election in 2009 are: • District 1: Incumbent Eric G. Kraft is eligible for re-election. Johnson County. • District 2: Incumbent Gerald R. Kuckelman is not eligible for re-election. Atchison, Brown, Doniphan, Douglas, Franklin, Jackson, Jefferson, Leavenworth, Miami, Nemaha, Osage, Pottawatomie, and Wabaunsee counties. • District 4: Incumbent William E. Muret is eligible for re-election. Butler, Chase, Chautauqua, Coffey, Cowley, Elk, Greenwood, Lyon, and Sumner counties. • District 5: Incumbent Martha J. Coffman is not eligible for re-election. Shawnee County. • District 6: Incumbent Gabrielle M. Thompson is not eligible for re-election. Clay, Cloud, Dickinson, Ellsworth, Geary, Lincoln, Marion, Marshall, McPherson, Morris, Ottawa, Republic, Riley, Saline, and Washington counties. • District 7: Incumbent Rachael K. Pirner is not eligible for re-election. Sedgwick County. • District 10: Incumbent Jeffery A. Mason is eligible for re-election. Cheyenne, Decatur, Ellis, Gove, Graham, Jewell, Logan, Mitchell, Norton, Osborne, Phillips, Rawlins, Rooks, Russell, Sheridan, Sherman, Smith, Thomas, Trego, and Wallace counties. For more information If you have any questions about the KBA nominating or election process or about serving as an officer or member of the Board of Governors, please contact Linda Parks at (316) 265-7741 or via e-mail at parks@hitefanning.com or Jeffrey Alderman at (785) 234-5696 or via e-mail at jalderman@ksbar.org. n

8 February 2009 | The Journal of the Kansas Bar Association

www.ksbar.org

KBA Announces New Diversity Award Upon recommendation of the Diversity Committee, the Board of Governors of the Kansas Bar Association recently approved a new Diversity Award that will be given along with the other KBA awards at the Installation & Awards Dinner held during the Annual Meeting. “Respect for diversity is at the cornerstone of the Bar Association’s mission,” said KBA President Tom Wright. “This Award will recognize those groups and individuals that facilitate practices which are essential to the advancement of our profession.” The award recognizes a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct as well as by the development and implementation of diversity policies and strategic plans, which include the following criteria: • A consistent pattern of the recruitment and hiring of diverse attorneys; • The promotion of diverse attorneys; • The existence of overall diversity in the workplace; • Cultivating a friendly climate within a law firm or organization toward diverse attorneys and others; • Involvement of diverse members in the planning and setting of policy for diversity; • Commitment to mentoring diverse attorneys, and; • Consideration and adoption of plans to continue to improve diversity within the law firm or organization, whereas; • Diversity shall be defined as differences of gender, skin color, religion, human perspective, as well as disablement. The award will be given only in those years when it is determined there is a worthy recipient. A nomination form for all KBA Awards can be found on Page 11 of this issue of The Bar Journal.

2009 Joint Judicial Conference and

Kansas Bar Association Annual Meeting June 17-19 at the Sheraton Overland Park Hotel. Make your hotel reservations now for only $139 per night. For reservations call 1-866-837-4214. Award-winning journalist and native Kansan Gerald Seib will be the keynote speaker. Seib is assistant managing editor and executive Washington editor of the Wall Street Journal. He writes the paper’s “Capital Journal” column on a weekly basis and is a regular commentator on Washington affairs for Fox Business News and CNBC. Seib is a native of Hays and a graduate of the University of Kansas. He is the co-author of “Pennsylvania Avenue: Profiles in Backroom Power,” published by Random House in 2008. www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 9

2009 Kansas Bar Association Awards

he KBA Awards Committee is seeking nominations for award recipients for the 2009 KBA Awards. These awards will be presented at the Joint Judicial Conference and KBA Annual Meeting, June 17-19. Below is an explanation of each award. The Awards Committee, chaired by Anne Burke Miller, Overland Park, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is March 6.

Phil Lewis Medal of Distinction: The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. • The recipient need not be a member of the legal profession or related to it, but the recipient’s service may include responsibility and honor within the legal profession. • The award is only given in those years when it is determined that there is a worthy recipient. Distinguished Service Award: This award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. • The recipient must be a lawyer and must have made a significant contribution to the altruistic goals of the legal profession or the public. • Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient. Professionalism Award: This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession. Outstanding Service Awards: These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA. • No more than six Outstanding Service Awards may be given in any one year. • Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations. Outstanding Service Awards may recognize: • Law-related projects involving significant contributions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; • Work by a public official that significantly advances the goals of the legal profession or the KBA; and/or • Service to the legal profession and the KBA over an extended period of time.

10 February 2009 | The Journal of the Kansas Bar Association

Outstanding Young Lawyer: This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA. Diversity Award: This award has recently been approved. More information about this award and its criteria can be found on Page 9. Pro Bono Award: This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor. In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria: • Lawyers who are not employed full time by an organiza tion that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons. Distinguished Government Service Award: This award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service. The award shall be given only in those years when it is determined that there is a recipient worthy of such award. Courageous Attorney Award: The KBA created a new award in 2000 to recognize a lawyer who has displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include a small town lawyer who defended a politically unpopular defendant and lost most of his livelihood for the next 20 years, an African-American criminal defense attorney who defended two members of the white supremacist movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a worthy recipient. n www.ksbar.org

KBA Awards Nomination Form Nomineeâ&#x20AC;&#x2122;s Name Please provide a detailed explanation below of why you have nominated this individual for a KBA Award. Attach additional information as needed.

Nominatorâ&#x20AC;&#x2122;s Name Address Phone

E-mail

Return Nomination Form by Friday, March 6, 2009, to: KBA Awards Committee 1200 SW Harrison St. Topeka, KS 66612-1806

www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 11

The Kansas Bar Foundation Thanks You!

his past year ended on a great note for the Kansas Bar Foundation (Foundation). In December alone, through scholarship contributions, Fellows’ pledge payments, and end of year Foundation donations, we raised more than $21,000. This doesn’t include the almost $53,000 in Raising the Bar pledge payments made in December. The Board of Trustees would like to thank you for continued support of the Foundation’s important work. In December, the second Annual Case, Moses, Zimmerman & Wilson P.A. Scholarship was awarded to Washburn University School of Law second-year law student Jennifer N. Horchem. Upon receiving the award Horchem said, “I am thankful to the Case, Moses, Zimmerman & Wilson firm for choosing me for this award. It will be a great help to my next semester.” The Case Moses scholarship is one of six scholarships set up by the Foundation. The others include the Justice Alex M. Fromme Memorial Scholarship, Marvin Thompson Memorial Scholarship, Hinkle Elkouri Law Firm Scholarship, the Lathrop & Gage Scholarship, and the Justice Robert L. Gernon Loan Repayment Assistance Program. In addition to scholarships, the Foundation is forging partnerships between the bar, courts, and legal aid organizations in Kansas to improve our system of justice and to help low-income and disadvantaged members in our community by ensuring that they have meaningful access to the justice system to protect their rights. The Foundation places special emphasis on issues affecting children and families and also supports exceptional education programs for youth. Since 1986, the Foundation has provided nearly $4 million for public services. Through the years the Foundation has been instrumental in the following projects:

• Developing law-related education programs for youth, including: the statewide mock trial competition for junior and high-school students; conflict resolution programs to reduce in-school violence; legal rights and responsibilities booklets for teens; Law Wise, a school year publication sent to civics’ educators statewide complete with lesson plans and technology information; and a clearinghouse of law-related educational resources for educators.

• Administering the Kansas Bar Association’s reduced fee and pro bono programs.

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

There are a number of ways you can help the Kansas Bar Foundation, and it all truly makes a difference. You can support the Foundation by participating in the IOLTA program, by joining the Fellows program, by designating a gift to one of our scholarships, by increasing your fellows status in giving at the “next level,” or by volunteering your time. The Fellows recruitment season is upon us and we want to grow. If you are interested in becoming a Fellow or increasing your level of giving, please contact Meg Wickham, manager of public services, at (785) 234-5696 or e-mail at mwickham@ksbar.org.

Need Clients? Join the KBA’s Lawyer Referral Service • LRS is not just for low-income clients, this service is for anyone needing an attorney. • The call center screens each call and matches an attorney with the client. • They answer an average of 300 calls each month. • In the past year, LRS generated more than $750,000 for participating attorneys. • LRS attorneys must be a KBA member to receive the discounted annual fee of $85. • To print a PDF of the LRS application go to http://www.ksbar.org/LRS. • To have an application mailed, faxed or e-mailed contact Meg Wickham, manager of public services, at (785)234-5696 or at mwickham@ksbar.org.

12 February 2009 | The Journal of the Kansas Bar Association

www.ksbar.org

A Nostalgic Touch of Humor

Planes, Trains, and Autos: The Sequel By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo.

he movie “Planes, Trains & Automobiles” is one of the best comedies ever made. In the small universe of travel movies, it has no peer. The story line features Steve Martin traveling home to Chicago after a business trip in New York, two days before Thanksgiving. But due to bad weather, his plane is rerouted to Wichita, where he meets another traveler going his way, John Candy. The laughs begin in earnest when the motel has only one room left, and these strangers agree to share it. And then they learn it has one twin bed. The movie, released in 1987, was a premonition of what air travelers had in store 20 years later. These days air travel is not funny. It’s pathetic. Customer surveys reveal that traveling by air ranks just below crown replacements and proctology exams. And all of us have a story. Some of us have many. A year ago my book on travel disasters added a new chapter. But this was no John Candy/Steve Martin comedy. Think “Blair Witch Project” meets the Bates Motel. And this story, I can assure you, is true. It all started with a business trip to upstate New York on Tuesday, March 4, 2008. My arrival brought something you rarely see in those parts during winter — the sun. It appeared for a long time, maybe 10 minutes, then it disappeared. Later, when I checked into a downtown hotel, there was second unusual sighting — people. You see, I’d stayed at this hotel before, and it’s always dead. Funeral homes have more life than this place. Convention planners don’t book this hotel in February, March, April, May, or any other month for that matter. But this was different. The place was full of high school kids. Like a hundred — all giggling, running around, staring at their cell phones, running into walls. There was a convention in town. Something called Distributive Education Clubs of America (DECA). Those students managed to keep me awake for most of Tuesday night. Life was a big party. Two calls to the front desk after midnight got no results. Plan B was opening my hotel room door and expressing my rage to the dudes standing in the hall. Dropping bombs the Air Force doesn’t stock. Problem solved. For that night, at least. www.ksbar.org

On Wednesday, the DECA convention continued. So did the loud gatherings outside my hotel room. More parties and doors slamming. Yelling and screaming; but enough of me. Come Thursday, the weather guy predicted a snow storm, which, for cities adjacent to Lake Erie, is like saying the sun will rise in the east. Friday was my deposition, which went well, with one exception. From noon on, the snow fell. And fell. Big thick flakes that normally would be picturesque except I was 1,400 miles from home. Minutes turned to hours. We finished at 5:25 p.m., my plane was leaving at 6:30 p.m. The client, the witness, and I exchanged firm handshakes, and my cab arrived. I got to the airport gate, the plane was there. “Everything looks good” said the gate agent, which is what they always say, even when things look bad. Which, in this case, they did. An hour later, after sitting on the tarmac, de-icing complete, the pilot said we had “weight and balance issues.” One passenger had to deplane in return for $400. This guy — a really skinny guy — finally volunteered. “What an idiot” I said to myself. Twenty minutes later, he was a genius. Flight canceled and no vouchers for anyone else. Airport closed. Next I’m dragging a carry-on bag and briefcase to a Residence Inn. Once there, I started to call reservation centers. Delta, United, Northwest, Southwest. There were no seats available on any flights Saturday. Zero. Sunday forecast: blizzard — 8-10 inches. The potential was real that I would be getting home sometime in late April. The only flight out in a 200-mile area was in Buffalo, N.Y. Ever driven to Buffalo on I-90? Lunar landscapes are more aesthetic. Ever driven there in a white out? Didn’t think so. You say prayers you haven’t recited since First Communion. The interstate was a graveyard for abandoned cars. I left in such a hurry I didn’t have time to shower or “clean up.” My breath was toxic. Possibly fatal to anything around me, which wasn’t a problem. My hair — OPEC would bid for rights. My underwear — issues. By 11 a.m. I got to Buffalo, two hours early. Some 70 miles. A city noteworthy for four consecutive Super Bowl losses, snow that averages 30 feet a year, and multiple clinical trials for antidepressants. (continued on next page) The Journal of the Kansas Bar Association | February 2009 13

The Buffalo airport looked like a scene from another movie — “Titanic.” Thousands of people gathered there. DECA gone insane. People rushing everywhere, from gate to gate. Snow continued to fall. Every couple of minutes the P.A. announcer said something like this: “Your attention please. Southwest Flight 666 to whatever city you hoped to get to is now canceled. Have a nice day.” And two hours late, our plane to Detroit arrived. It was a big plane, not a tiny commuter plane. That was a good sign. An hour later it left. I was on it. By the time I arrived in Detroit, the connection was gone. The next flight to Kansas City? Seven hours later. Generally speaking, I don’t like to sit in airport bars. Alcohol is a wellknown depressant, and anytime I’m at an airport, I don’t need any help in that category. But this day was an exception. I opened a tab, and another, and boarded the connecting flight, which left on time. At precisely 9:32 p.m. CDT, we touched down, and another Hollywood classic came to mind — Dorothy, holding Toto, clicking her heels. There really is no place like home. n About the Author

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Matthew Keenan has practiced with Shook, Hardy & Bacon since 1985. He may be reached at mkeenan@shb.com.

14 February 2009 | The Journal of the Kansas Bar Association

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Members in the News Changing Positions

Scott W. Anderson has joined Kutak Rock LLP, Kansas City, Mo. Angela S. Armenta has joined Sonnenschein Nath & Rosenthal LLP, Kansas City, Mo. Rachel E. Avey has joined Hite, Fanning & Honeyman LLP, Wichita. Jennifer C. Bailey has become a partner with Hovey Williams LLP, Overland Park. Galen E. Biery has joined Kansas River Water Assurance District No. 1, Topeka. Maureen M. Brady has joined Sanders Conkright & Warren LLP, Overland Park, as an associate. Christine C. Campbell and Bryon S. Wharton have joined Kansas Legal Services, Wichita. Michael S. Cargnel has been promoted to partner with Shook, Hardy & Bacon LLP, Kansas City, Mo. Brandon W. Deines has joined Triplett, Woolf & Garretson LLC, Wichita. Jeff P. DeGraffenreid has joined Spirit AeroSystems, Wichita. Rachel R. Douglas has become a law clerk for the Hon. J. Thomas Marten, Wichita. Timothy A. Emerson has joined McDonald Tinker, Skaer, Quinn & Herrington P.A., Wichita. Chanda M. Feldkamp has joined O’Hagan Spencer LLC, Chicago. Scott R. Flucke, Salvador M. Llach, John D. Rather, and Kathy M. Contois have joined Koch Industries Inc., Wichita. Michael D. Gibbens, Tonganoxie, and Danny K. Wiley, Leavenworth, have been appointed by Gov. Kathleen Sebelius as district judges for Atchison and Leavenworth counties. Richard S. Gordon has joined the Sedgwick County District Attorney’s Office, Wichita. Nicholas R. Grillot has joined Redmond & Nazar LLP, Wichita. Tyler C. Hibler has joined Wallace, Saunders, Austin, Brown & Enochs Chd., Overland Park, and Roger D. Hudlin has joined the firm’s Wichita office. Joshua J. Hofer has joined Morris, Laing, Evans, Brock & Kennedy Chtd., Wichita. Matthew L. Hoppock has joined McCrummen Immigration Law Group, Kansas City, Mo. Douglas P. Jones, Cottonwood Falls, has been appointed as magistrate judge for Chase County. Brandon A. Lawson has joined Evans & Dixon LLC, Kansas City, Mo., as an associate. www.ksbar.org

Christine A. Louis and Charles E. McClellan have joined Foulston Siefkin LLP, Wichita. Norbert C. Marek, Westmoreland, has been appointed as the Maple Hill city attorney. John G. Mazurek has been appointed the Pittsburg City Court judge. Jack D. McInnes has joined Stueve Siegel Hanson LLP, Kansas City, Mo. Matthew D. Mentzer has joined Bever Dye LLC, Wichita. Rebecca R. Messall has joined Hackstaff Gessler LLC, Denver. Lane R. Palmateer has joined the Kansas Corporation Commission, Topeka. Sylvia B. Penner has joined Fleeson, Gooing, Coulson & Kitch LLC, Wichita, as an associate. Sally D. Pokorny, Lawrence, has been appointed by Gov. Kathleen Sebelius as a district court judge for Douglas County. Ryan Wayne Rosauer has joined the North Central Regional Public Defender’s Office, Junction City. Stephanie N. Scheck has been named chair of the employment and labor law/employee benefits division of Stinson Morrison Hecker LLP, Wichita, and Brad A. Vining has joined the Wichita office as an associate. Patrick A. Turner has become the law clerk for the Hon. Eric F. Melgren, Wichita. Randall J. Wharton has joined South & Associates P.C., Overland Park. Katherine A. Zogleman has become a shareholder with Seigfreid Bingham Levy Selzer & Gee P.C., Kansas City, Mo.

Changing Locations

Trista C. Curzydlo has moved to 170 W. Dewey, Wichita, KS 67202. Green & Finch Chtd. has moved to 101 W. 2nd St., 1st Fl., Ottawa, KS 660672212. Amy E. Hackler has started her own practice, Law Office of Amy E. Hackler, P.O. Box 1, Olathe, KS 66051-0001. Bradley D. Honnold has formed a new firm, Goza & Honnold LLC, 11150 Overbrook, Ste. 250, Leawood, KS 66211. Jihyun Kim has moved to 2627 E. Central, Wichita, KS 67214. Jeffrey B. Lapin has started his own practice, Lapin Law Offices, 8033 S. 15th St., Ste. A, Lincoln, NE 68542. Hon. Eric F. Melgren has moved to the U.S. District Court at 401 N. Market, Wichita, KS 67202. Swanson Midgley LLC has moved to Plaza West Building, 4600 Madison, Ste. 1100, Kansas City, MO 64112-3043. Ronald W. Nelson has started Ronald W. Nelson P.A., 11900 W. 87th St. Pkwy., Ste. 117, Shawnee Mission, KS 662154517. JoLynn Oakman has moved to 310 W. Central, Ste. 205, Wichita, KS 67202. Jesse T. Paine has started his own firm, Paine Law Firm, 1502 N. Broadway, Wichita, KS 67214.

(Continued on next page)

“Jest Is For All” by Arnie Glick

The Journal of the Kansas Bar Association | February 2009 15

Members in the News (continued)

Obituaries

James J. Rosenthal, David P. Trevino, and James L. Wisler have formed the firm of Wisler, Trevino & Rosenthal L.C., 1311 Wakarusa Dr., Ste. 2200, Lawrence, KS 66049. Terry S. Stephens has moved to 1631 E. 1st St., Wichita, KS 67214-4117.

Margaret Elizabeth “Betty” van der Smissen Margaret Elizabeth “Betty” van der Smissen, 80, of Fayetteville, Ark., died Nov. 6. She was born Dec. 27, 1927, in Great Bend, the daughter of the Rev. T.A. and Margaret van der Smissen. She earned a law degree from the University of Kansas in 1949 and a recreation doctorate from Indiana University in 1955. Van der Smissen wrote accreditation standards for university recreation curricula, parks and recreation agencies, and American Camping Association camps. In addition to teaching university classes, she was invited to present more than 500 presentations/lectures around the world and authored or co-authored numerous textbooks, chapters, professional articles, and educational films and videos. She is survived by a niece, Gayle van der Smissen Northrop; a nephew, Craig van der Smissen; a great-niece; and two greatnephews.

Miscellaneous

David P. Calvert, Wichita, is a new board member for the Independent Living Resource Center. Ellis & Zolotor Law Office LLC, Spring Hill, was honored with business of the year recognition at the Spring Hill Chamber of Commerce’s Annual Dinner. Dick L. Honeyman and Chris A. McElgunn, both of Wichita, are new board members for the Wichita Festivals. Gary L. Jordan, Ottawa, received the Consumer Advocate Award at the Kansas Association for Justice Annual Meeting. Hon. Janice M. Karlin, Topeka, has been appointed to the U.S. Bankruptcy Appellate Panel of the Tenth Circuit. Andrew J. Nolan, Wichita, is a new board member of Communities for Schools. Sheila M. Reynolds, Topeka, has been selected by the Kansas Continuing Legal Education Commission as the 2008 recipient of the Robert L. Gernon Award. 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.

The Law Firm of

Hite, Fanning & Honeyman L.L.P.

Donald E. Schrag Donald E. Schrag, 59, died Dec. 14. He was a partner at the Wichita law firm of Morris, Laing, Evans, Brock & Kennedy Chtd. He was the son of Erwin and Francis Schrag of Pretty Prairie. He was a member of the Lorraine Avenue Mennonite Church. Schrag was a graduate of Pretty Prairie High School in 1967, Bethel College in 1971, and the University of Kansas School of Law in 1977. He is survived by his wife, Donna Froese, Wichita; two sons, Samuel Voth Schrag, St. Louis, and Joseph Schrag, Colorado Springs, Colo.; brother, Samuel Schrag, Pretty Prairie; and sister, Janette Zercher, Houston. n

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Law Practice Management Tips & Tricks

Calling Dick Tracy By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka

he fascination of video communication continues to capture our interest decades after Dick Tracy upgraded to a “2-Way Wrist TV.” It is quite possible we are only a few years away from finally having them if mobile phone and broadband technology continue advancing at the present pace. Though not watch-sized yet, video conferencing is here and now and the price to play is wonderfully cheap. Hardware A webcam is first (and last) on the shopping list. These tiny cameras capture video and many models also integrate a directional microphone to capture sound. The video craze has caught on to the degree that many models of computers and monitors are integrating webcams as standard. Alternatively, a USB model will run from $30 to $100. Video conferencing quality is more a function of Internet speed (bandwidth) than camera technology but several helpful guides to choosing and configuring a webcam are available at http://howstuffworks. com with “webcam” as the search term. Software I recommend against installing all the software that comes with a typical webcam. In fact, I think it best to install only the video drivers necessary to get video and audio from your camera. There are some better software tools to play with online than will be included in the package of an average webcam. There are two that everyone ought to try before the rest.

Skype Skype offers video conferencing software and service that is currently free of charge for Skype-to-Skype calls. Once you and your contacts have downloaded the software and set up Skype accounts, video conferencing is straightforward and robust. Attorneys Jennifer and Reese Hays are currently spending their second year of marriage separated by the occupation of Iraq. Reese has access to high-speed Internet in Iraq, where he is serving a one-year deployment with the JAG. Initially, Jennifer and Reese tried iChat, video conferencing software included with Apple’s product line, but struggled with frequently dropped calls. Those problems have been greatly reduced using Skype. Jennifer says, “We have found that Skype works the best and utilizes the least amount of bandwidth to ensure a quality picture and sound. Skype has options to be only voice and that works at all times regardless of your connection.” Google Talk In their continuing bid to be the one-stop-shop of the Internet, Google rolled out its own video conferencing component for Gmail users. The Google Talk add-in is a quick download that adds a video component to the Chat section of Gmail. Simply select your contact from within Gmail; if there is a camera icon next to their name, click the “Video and more” option to initiate a video conference session. www.ksbar.org

Several users reported that Google Talk provided an easy interface but sometimes struggled with sharing bandwidth. The video image frequently froze or dropped altogether. Unlike experiences with Skype, if the picture dropped, then the sound would often cut out as well. Google Talk differed from iChat in that sessions would usually recover and resume where iChat would completely drop the connection and require a new call. The product was certainly usable and even useful but still showed rough edges. As with most things Google, basic video conferencing on Google Talk is free. Why? It only takes a few sessions of video conferencing to begin asking why we thought video might improve a phone call. One of the biggest problems with video conferencing is how obvious our distractions become. As you sit in front of the camera, your attention is naturally drawn to the screen to see the other party. As a result, there still is no eye “contact” with video conferencing. Also, the screen competes for our attention with e-mail, browser windows, spreadsheets, and other distractions arrayed beside the video window. Even the starry-eyed, newlyweds Jennifer and Reese admit they often get caught on video with their attention drifting onto other tasks. Even so, video conferencing can provide a more intimate connection between people separated by distance. Because of this increased intimacy, many of the hypothetical, professional uses of video conferencing for lawyers seem suspect. Video conferencing appears less viable as a means to look an out-ofstate client in the eye than it is a way to tuck the kids into bed at home from your homesick hooch in Haditha. 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 presidentelect and legislative liaison. To join the LPM Section or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696. The Journal of the Kansas Bar Association | February 2009 17

18 February 2009 | The Journal of the Kansas Bar Association

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Feature Article

The Life and Times of the Kansas Judicial Council by J. Lyn Entrikin Goering, Washburn University School of Law, Topeka

or more than 80 years, the Kansas Judicial Council has worked quietly behind the scenes to improve the administration of the Kansas judicial system. Since 1927, the Council and its advisory committees have gathered and analyzed data regarding the workings of the state court system, issued a multitude of reports and recommendations, and provided a continuous channel of communication between the Kansas Judiciary and the Kansas Legislature on a host of issues affecting the daily operation of the Kansas court system. Yet many Kansas lawyers know little about the important work of this diminutive state agency1 that speaks softly, but carries a big stick.2 In fact, the Council is a multifaceted organization that has strengthened the Kansas judicial system over time and has gained national recognition for its efforts. Until 1984, the Council published bulletins, at least annually, compiling court statistics and reporting on its work. Over the 25 years since, the Council has published reference works, such as PIK-Civil, PIK-Criminal, and the Kansas Appellate Practice Handbook. Other than its website, however, the Council no longer issues annual reports or other publications to keep the practicing bar advised of the Council’s ongoing work. In the near future, The Journal of the Kansas Bar Association will begin publishing a regular column highlighting the ongoing work of the Kansas Judicial Council and its advisory committees. As an introduction, this article briefly summarizes the history of the judicial council movement in the United States and the Kansas Judicial Council in particular, including the instrumental role the Kansas Bar Association (KBA) played in establishing the Council.

I. History of the Judicial Council Movement in the United States In 1906, Roscoe Pound, then dean of the University of Nebraska School of Law, addressed the annual meeting of the American Bar Association (ABA) calling for comprehensive reform in judicial administration.3 In particular, he decried the unduly contentious, formalistic rules of procedure then characteristic of common law courts, the proliferation of state courts with overlapping jurisdiction, and the lack of judicial finality illustrated by the “lavish granting of new trials” by the appellate courts.4 Although his speech met an “extremely frosty reception,”5 it was later credited as the progenitor of the movement urging reform of American judicial procedure.6 Fifteen years later, Benjamin Cardozo, then associate judge of the New York Court of Appeals, repeated Pound’s concerns and sounded a call to action. His 1921 Harvard Law Review article, A Ministry of Justice,7 triggered a nationwide moveEndnotes begin on Page 22. www.ksbar.org

ment to establish what would later become known as “judicial councils.”8 Cardozo observed that common law rules of precedent imposed rigid constraints on judicial lawmaking, especially given the increasingly common statutory enactment of rules governing court procedure.9 Without the restraint of precedent, legislatures had the ability to act promptly and innovatively, but Cardozo observed that complex issues of judicial administration often called for more thoughtful and comprehensive review.10 To bridge the gap, Cardozo proposed a specialized agency — a “ministry of justice” — to “mediate” between the courts and legislatures to address the tendency of the two branches to operate in “separation and aloofness.”11 In 1922, Congress led the way12 by establishing the U.S. Conference of Senior Circuit Judges,13 which would later become known as the Judicial Conference of the United States.14 The Conference was charged with policymaking relating to the administration of the U.S. courts.15 Congress would later expand the concept by establishing a judicial council in each federal circuit, to be convened at least twice annually.16 Each circuit’s judicial council was charged by statute with “mak[ing] all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit.”17 With the support of the American Judicature Society,18 the judicial council movement quickly took hold in a number of states throughout the 1920s, including Kansas.19 Massachusetts was credited with establishing the first state judicial council,20 implementing the 1921 recommendations of the Massachusetts Judicature Commission.21 Ohio, Oregon, North Carolina, Washington, and California each established judicial councils in rapid succession.22 The Kansas Legislature soon followed, giving life to the Kansas Judicial Council effective June 1, 1927.23 That same year, Connecticut, Rhode Island, and North Dakota established judicial councils by legislation, followed by Virginia and Kentucky in 1928.24 The National Conference of Judicial Councils was formally organized in 1930 in an effort to coordinate the activities of state judicial councils.25 Judge Jacob C. Ruppenthal of Russell, Kan., was elected to the executive committee.26 By 1932, 19 states had established judicial councils, and the bar associations of 10 more states had approved draft legislation.27 In 1938, the ABA House of Delegates approved a set of recommendations relating to judicial administration, urging in part “[t]hat Judicial Councils should be strengthened with representation accorded the Bar and the Judiciary Committees of the Legislative Department.”28 By 1941, 32 states had established judicial councils, of which 29 remained actively engaged in improving the administration of justice.29

The Journal of the Kansas Bar Association | February 2009 19

Feature Article

II. Authorization and Establishment of Kansas Judicial Council In 1926, leading Kansas judges and lawyers took note of the national movement for improved judicial administration.30 Charles L. Hunt, then president of the KBA, appeared at state and local bar association meetings to raise the issue of whether to establish a state judicial council.31 He appointed a committee to consider the question and make recommendations.32 At the association’s meeting later that year, the committee recommended and the association endorsed legislation to establish a judicial council in Kansas.33 The KBA was instrumental in introducing the bill and providing the momentum for its enactment.34 The essential purpose of a state’s judicial council is to continuously study the judicial system and oversee procedural reform.35 However, as might be expected, each state organized its own judicial council consistent with its specific interests.36 Along with the state of Washington, Kansas took a novel approach by including the chairpersons of the legislative judiciary committees as members of the judicial council.37 Early commentators acknowledged Kansas and Washington’s foresight in ensuring legislative representation on their judicial councils to encourage ongoing communication between the judiciary and the legislature.38 Recognizing the value of legislative support to implement council recommendations, the ABA later urged other states to include representatives of legislative judiciary committees as members of the judicial council.39 In 1949, the National Conference of Judicial Councils published a comprehensive report concerning nationwide improvements in judicial administration.40 The report identified 15 states, including Kansas, as having fully implemented the ABA’s optimal recommendation for establishing a wellorganized judicial council.41 Summarizing the strengths of these model councils, the report highlighted the Kansas Judicial Council as one of the most productive: Not only do they have among their members judges, practicing attorneys and representatives of the judiciary committees of the [L]egislature, but in many instances provision is also made for participation by laymen and law school professors. ... The work of the councils of Kansas, New York, South Dakota, and Texas has been outstanding.42 Initially, membership of the Kansas Judicial Council included seven appointees by the chief justice of the Kansas Supreme Court, including one state supreme court justice, two state district judges, and four Kansas lawyers.43 In addition, the authorizing statute conferred membership on the chairpersons of the Kansas House and Senate Judiciary committees.44 In 1927, Chief Justice W.A. Johnston appointed Kansas Supreme Court Justice W.W. Harvey to the first Kansas Judicial Council, along with District Judges E.L. Fischer (Kansas City) and J.C. Ruppenthal (Russell), and lawyers C.L. Hunt (Concordia), R.C. Foulston (Wichita), C.W. Burch (Salina), and Chester Stevens (Independence).45 Sen. J.W. Davis (Greensburg) and Rep. A.C. Scates (Dodge City) occupied the remaining two seats as the legislative members.46 Each initial Council member took the oath of office at the 20 February 2009 | The Journal of the Kansas Bar Association

Kansas Capitol on June 11, 1927.47 Their duties as members were generally comparable to those of other state judicial councils.48 By all accounts, the Council “made a vigorous start.”49 Its goal was to “get together the facts concerning the entire judicial system ... for the Council in its consideration of the ways and means of improvement, so as to make the administration of justice as certain, speedy and economical as can reasonably be done.”50 The Council issued its initial report on Dec. 1, 1927.51 In 177 pages, the report summarized the activities of the district courts by county and by judicial district.52 Because the Kansas Legislature met in regular session only biennially at that time, it did not convene in 1928.53 By the time the Council published its second report on Dec. 1, 1928,54 it had developed a host of legislative recommendations.55 Most notably, the Council recommended that the Legislature unify the court system.56 To implement this and other proposals, the Council prepared and presented several bills.57 The report also included recommendations concerning selection of jury panels, appeals from justice of the peace courts, district court records, Supreme Court law clerks, uniformity in the number of strikes by the prosecution and the defense when selecting criminal juries, defining conspiracy as a crime, defining a new trial and limiting the time for appeal, permitting six-member juries for civil trials, and creating a county court of general jurisdiction.58 J.C. Ruppenthal, the Council’s secretary, modestly noted: The Council [members] have so far been conservative in all their recommendations, and have perhaps been more interested in securing reliable data and in building up a body of court statistics, since nothing of the kind has ever been before assembled in Kansas, than to urge any particular theory or measure of reform.59 As history documents, the Kansas Judicial Council’s early recommendation in favor of court unification would not be implemented until the mid-1970s.60 When the Kansas Legislature re-established the Kansas Court of Appeals in 1977,61 the Judicial Council’s membership was expanded to include one judge from the Kansas Court of Appeals.62 The 1977 amendment increased the Council’s total membership to 10; eight are appointed by the chief justice to staggered, four-year terms.63 The 10-member Judicial Council meets twice each year, once in early December and again in early June.64 Most recently, the Council has been chaired by the Hon. Robert E. Davis of the Kansas Supreme Court, who became chief justice on Jan. 12, 2009, upon the retirement of Chief Justice Kay McFarland. The chief justice has traditionally appointed the most senior associate justice to chair the Judicial Council.

III. Selected Accomplishments of the Kansas Judicial Council The duties of the Kansas Judicial Council are specified by its authorizing legislation.65 With one major addition in 2006, the Council’s obligations have remained essentially the same since 1927.66 The initial annual report to the Kansas governor described the Council as neither a legislative body nor a judiwww.ksbar.org

Feature Article cial body; rather, its mission was “to collect information and act as a clearing house of ideas concerning our judicial system, with the hope of making our judicial system more efficient in the administration of justice.”67 The Council’s statutory goal is “to survey and study the judicial branch of the state and recommend improvements in the administration of justice.”68 In addition, the Council is charged with considering suggestions from judges, lawyers, public officials, and Kansas citizens, and it is authorized to study any area of the law to advance the goal of improving the administration of justice.69 To accomplish its mission, the Council established 18 advisory committees to review specific issues and make recommendations to the Council.70 After reviewing an advisory committee’s recommendations, the Council makes appropriate revisions and then forwards the proposals to the Supreme Court or to the Legislature for further consideration and approval.71 To illustrate, the Council recommends legislation and court rules, develops and revises pattern jury instructions, and issues reports regarding the work of the judicial branch and the performance of Kansas judges.72 A. Legislative initiatives Several significant legislative enactments have resulted from the work of Judicial Council studies. Examples include the Kansas Code of Civil Procedure, the Kansas Code of Criminal Procedure, the Kansas Criminal Code, the Kansas Administrative Procedure Act, the Kansas Parentage Act, the Kansas Uniform Trust Code, and the Kansas Probate Code.73 Council comments and notes accompanying proposed legislation are published in the Kansas Statutes Annotated; while not the equivalent of statutory law, the courts may consider Judicial Council comments as one indicator of legislative intent.74 In 2007, the Legislature established the Criminal Code Recodification Commission and directed the Judicial Council to provide administrative support.75 The Commission’s membership, enumerated by statute, is broadly representative of the Legislature, the judicial branch, prosecution and criminal defense bars, legal education, law enforcement, corrections, and the Criminal Law Advisory Committee to the Kansas Judicial Council.76 The authorizing legislation for the Recodification Commission will expire on July 1, 2010.77 B. Pattern jury instructions Kansas judges and lawyers have long relied upon the Pattern Jury Instructions published by the Judicial Council,78 better known as PIK-Civil and PIK-Criminal. Under the leadership of the Kansas District Judges Association,79 Kansas was among the first of several states to develop pattern jury instructions in an effort to standardize the instructions provided by trial judges.80 PIK-Civil is currently in its fourth edition, and PIKCriminal is in its third. In April 2008, the PIK-Civil Advisory Committee, chaired by Kansas Court of Appeals Judge Stephen D. Hill, presented a “plain English” revision of its Pattern Instructions for Kansas – Civil, following the lead of several other states in reforming pattern jury instructions for clarity and conciseness.81

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C. Judicial performance evaluation In 2004, the Judicial Council appointed the Judicial Performance Advisory Committee to study alternative approaches for evaluating Kansas judges.82 The 2006 Legislature responded favorably to a recommendation of the Advisory Committee by establishing the Commission on Judicial Performance as an independent committee of the Judicial Council.83 The Commission is responsible for evaluating the performance of appointed Kansas judges and disseminating the results to enable voters to make informed decisions about whether to retain judges in office.84 However, evaluation data provided to elected district judges may not be publicly disclosed; only elected judges themselves may use the data “solely for selfimprovement.”85 On Aug. 29, 2008, the Commission published the first evaluations of judges who stood for retention in the Nov. 4 general election.86 The first “Kansas Judicial Report Card” evaluated the performance of two Supreme Court justices, four Court of Appeals judges, and 81 district judges.87 In early 2009, the Commission will publish evaluations of the 11 senior judges appointed by the Kansas Supreme Court to assist the judiciary on a part-time basis.88

IV. Conclusion The Kansas Judicial Council has gathered data, conducted studies, engaged in special projects, published reports and handbooks, and recommended legislation to strengthen the Kansas judiciary and improve the administration of the Kansas court system. Perhaps most importantly, the Council has provided a constructive forum for Kansas judges to regularly communicate with key members of the Kansas Legislature and the Kansas Bar about matters of common concern to Kansas judges, attorneys, and lawmakers. The Council and its 18 advisory committees are currently engaged in a number of significant projects of interest to all Kansas lawyers. As one of the most longstanding, continuously active, and productive councils of its kind,89 the Kansas Judicial Council will continue to play a critical role in policymaking affecting the Kansas judiciary. n About the Author: J. Lyn Entrikin Goering is an associate professor who teaches legal analysis, research, and writing; legislation; and upper-level writing electives at Washburn University School of Law. She was a legislative fiscal analyst with the Kansas Legislature for six years before earning her juris doctor from Washburn in 1987. Following law school, she worked for the Kansas Supreme Court as a research attorney and administrative assistant to the chief justice. She earned an Master of Public Administration from the University of Kansas in 1982.

The Journal of the Kansas Bar Association | February 2009 21

Feature Article ENDNOTES

1. Before 2006, the Kansas Judicial Council employed only four staff members, including its Executive Director Randy M. Hearrell, who has served the Council since 1971. See http://www.kansas judicialcouncil.org/staff.shtml. When the Kansas Commission on Judicial Performance was established in 2006 as an independent committee of the Council, the Legislature authorized three additional employees, bringing the total to seven. While considered part of the judicial branch, the Council is nevertheless an independent state agency. K.S.A. 20-2201 (2007). 2. See The Oxford Dictionary of Quotations 633 (Elizabeth Knowles ed. 5th ed. 1999) (quoting Theodore Roosevelt speech in Chicago, Apr. 3, 1903) (citing N.Y. Times (Apr. 4, 1903)). From 1927 to 1932, the Council published annual reports to the governor. In 1932, the Council began issuing regular reports in the form of The Kansas Judicial Council Bulletin at least once or twice yearly. Publication of the Bulletin ceased after 1984. 3. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29th Conf. Pt. 1 Ann. Rep. A.B.A. 395 (1906). 4. Id. at 406, 409-11, 413. 5. National Conference of Judicial Councils, Minimum Standards of Judicial Administration: A Survey of the Extent to Which the Standards of the American Bar Association for Improving the Administration of Justice Have Been Accepted Throughout the Country xviii (Arthur T. Vanderbilt ed. 1949) [hereinafter National Conference of Judicial Councils]. 6. E.g., Charles S. Coffey, The Judicial Council Movement, 16 Tenn. L. Rev. 960, 960-61 (1939-1940). 7. Benjamin Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113 (1921). 8. Russell R. Wheeler & Donald W. Jackson, Judicial Councils and Policy Planning: Continuous Study and Discontinuous Institutions, 2 Just. Sys. J. 121, 128 (1976-1977) (“As much as anything, [state judicial councils] were the states’ response to Benjamin Cardozo’s 1921 call for a ‘ministry of justice.’”); see Kan. Att’y Gen. Op. No. 2002-3, at 1-2 (2002). Others have credited the English Rule Committee, created in 1875 by the Judicature Act, as the genesis of the judicial council movement. See, e.g., Charles H. Paul, The Judicial Council Movement, 1 Wash. L. Rev. 101, 101 (1926); see also Glenn R. Winters, Silver Anniversary of the Judicial Council Movement, 33 J. Am. Jud. Soc. 43, 43-44 (1949-1950) (quoting § 75 of the English Judicature Act of 1873 as the first attempt to create a council of judges to continuously study court operations and recommend improvements to maintain efficiency). 9. Cardozo, supra note 7, at 113 (“Legislation, supplanting [judicial] fiction and equity, has multiplied a thousand fold the power and capacity of the tool [for adaptation of law to justice], but has taken the use out of our own hands and put it in the hands of others.”); see The State-Wide Judicature Act, 1 J. Am. Jud. Soc. 101, 117 (1917) (noting that courts’ rulemaking power “in the past 60 years ha[d] been usurped by the legislature to the detriment of both branches of government”). 10. Cardozo, supra note 7, at 115. 11. Id. at 113-14. 12. Experience with Judicial Councils, 12 J. Am. Jud. Soc. 83, 83 (1928) (citing the Act of Congress of Sept. 14, 1922, creating the annual Conference of Senior Circuit Judges as “the first legislation in this field”) [hereinafter Experience with Judicial Councils]; see Wheeler & Jackson, supra note 8, at 127-28 (referring to Conference of Senior Circuit Judges as “major impetus” for state judicial council movement). 13. Note, Judicial Councils in Theory and Practice, 42 Harv. L. Rev. 817, 817 (1929) (citing 42 Stat. 838 (1922); 28 U.S.C. § 218 (1926)); Present Status of Judicial Council Movement, 16 J. Am. Jud. Soc. 8 (19321933); see U.S. Courts: The Federal Judiciary, http://www.uscourts.gov/ judconf.html. 14. 28 U.S.C. § 331 (2000 & Supp. V 2005) (effective 1948). 15. Id.; U.S. Courts: The Federal Judiciary, http://www.uscourts.gov/ judconf.html. 16. 53 Stat. 1223 (1939); see 28 U.S.C. § 332 (2000 & Supp. V 2005). 17. Id. § 332(d)(1). 18. See, e.g., The State-Wide Judicature Act, 1 J. Am. Jud. Soc. 101, 109110 (1917) (proposing legislative establishment of judicial councils with limited rulemaking power and broad disciplinary power over judges).

22 February 2009 | The Journal of the Kansas Bar Association

19. Wheeler & Jackson, supra note 8, at 127-28; see Coffey, supra note 6, at 965 (noting that once started, the judicial council movement “spread rapidly through the states”). Some commentators referred to the enthusiasm accompanying the judicial council movement as “proselytizing.” Wheeler & Jackson, supra note 8, at 135. 20. 1924 Mass. Gen. Laws ch. 221, § 34A, quoted in Wheeler & Jackson, supra note 8, at 122. 21. Note, supra note 13, at 817 (citing Second and Final Report of the Judicature Commission 15 (1921)). Massachusetts is generally recognized as the state leader in the judicial council movement, which focused on gathering and reporting statistical data on the work of the judicial branch and making recommendations to improve judicial administration generally. How Courts May Be Co-ordinated: Massachusetts and Wisconsin Plans Point the Way to Great Reform Which May Be Attained Without Amending Constitution, 5 J. Am. Jud. Soc. 105, 106 (1921-22) [hereinafter How Courts May Be Co-ordinated]. However, by 1921, the Wisconsin Legislature had already established a Board of Circuit Judges to expedite and equalize the work of the state judiciary. Id. at 109 (noting that the Wisconsin plan was completed in 1917). Unlike state judicial councils, however, both the Wisconsin Board and the U.S. Conference of Senior Circuit Judges were composed solely of judges. 22. See Note, supra note 13, at 817 & n.3 (citing each state’s authorizing legislation). 23. 1927 Kan. Sess. Laws ch. 187, § 1; see K.S.A. 20-2201 et seq. 24. Experience with Judicial Councils, supra note 12, at 85; Note, supra note 13, at 817 & n.3 (citing each state’s authorizing legislation). 25. Coffey, supra note 6, at 965; see National Union of Judicial Councils, 13 J. Am. Jud. Soc. 102 (1929). The initial conference of judicial councils was convened in October 1929 at the suggestion of the President of the American Bar Association. Id. at 102; see National Conference of Judicial Councils, 14 J. Am. Jud. Soc. 77, 77-7 (1930) (reviewing organizational activities, including adoption of bylaws and election of officers). The National Conference published the first survey of state judicial councils in 1939. Coffey, supra note 6, at 966. The National Conference published several significant studies in the 1940s. E.g., National Conference of Judicial Councils, supra note 5. By 1976, however, the National Council no longer issued annual reports, and its activities were limited to an annual luncheon in the U.S. Supreme Court Building held in conjunction with the annual meeting of the American Law Institute. Wheeler & Jackson, supra note 8, at 129. 26. National Conference of Judicial Councils, 14 J. Am. Jud. Soc. at 7778. 27 Present Status of Judicial Council Movement, 16 J. Am. Jud. Soc. 8, 8 (1932). 28. National Conference of Judicial Councils, supra note 5, at 29 n.1, 506. 29. Coffey, supra note 6, at 963. By 1976, some commentators concluded that judicial councils were less successful than their supporters had optimistically envisioned, noting that no more than 14 states had established councils with “strong policy planning functions.” Wheeler & Jackson, supra note 8, at 135. 30. Report of the Judicial Council of Kansas 8 (1927). 31. Id. at 8. 32. Id. The committee members were Austin M. Cowan and W.F. Lilleston, both of Wichita; James A. Allen of Chanute; Judge J.C. Ruppenthal of Russell; and Justice John S. Dawson, a member of the Kansas Supreme Court. Id. 33. Id. at 8-9. 34. Id. at 9. 35. See Coffey, supra note 6, at 963, 965; How Courts May Be Coordinated, supra note 21, at 105 (noting that all plans for unifying courts and coordinating judicial work aim for greater efficiency); see also Report of the Judicial Council of Kansas 8 (1927) (“The purpose of all of the [judicial council] movements is to secure the more prompt and efficient administration of justice.”). 36. Id.; see National Conference of Judicial Councils, supra note 5, at 65 (noting the many variations in “membership, organization, activities, and effectiveness”); see also Experience with Judicial Councils, supra note 12, at 85. 37. 1927 Kan. Sess. Laws ch. 187, § 1; see also 1925 Wash. Sess. Laws ch. 45.

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Feature Article 38. See Note, supra note 13, at 820 & n.28 (referring to “the age-old friction between judiciary and legislature”). 39. See supra note 28 and accompanying text. 40. National Conference of Judicial Councils, supra note 5, at 73. 41. Id. 42. Id. at 74. By 1949, the Kansas Judicial Council had issued more than 65 publications. Harry D. Nims, The Judicial Council: A Quarter Century of Progress, 35 ABA J. 817, 820 (1949). 43. 1927 Kan. Sess. Laws ch. 187, § 1. 44. Id. 45. Kansas Judicial Council Organizes, 11 J. Am. Jud. Soc. 52 (1927) [hereinafter Kansas Judicial Council Organizes]. 46. Id. 47. Id. 48. Experience with Judicial Councils, supra note 12, at 85. 49. Kansas Judicial Council Organizes, supra note 45, at 52; Experience with Judicial Councils, supra note 12, at 87 (noting that in Kansas, intensive work began immediately following the Council’s organization); see also J.C. Ruppenthal, The Work Done by Judicial Councils, 14 J. Am. Jud. Soc. 17, 25-27 (1930) (summarizing the first three annual reports issued by the Kansas Judicial Council). 50. J.C. Ruppenthal, Kansas Judicial Council Recommends Legislation, 15 ABA J. 239, 240 (1929); see Report of the Judicial Council of Kansas 13, 28 (1927); id. at 10, 11 (quoting Charles L. Hunt, Report to the State Bar Association: The Work of the Kansas Judicial Council (1927) (describing procedures used for Council’s initial data collection)). For many years, the Kansas statute required clerks of the state courts to furnish the Council, upon request, information relating to court rules, procedure, and the “condition of legal business.” K.S.A. 20-2205 (repealed 2003). An early report authored by the first Council secretary observed that collection of statistics alone had resulted in improved efficiency: “The fact of collecting and publishing data has to some extent stimulated interest in disposing of cases that might otherwise drag.” Ruppenthal, supra, at 240; see also Nims, supra note 42, at 819 (noting that Kansas Judicial Council’s publication of statistics had the effect of expediting litigation). 51. Report of the Judicial Council of Kansas 3 (1927). 52. Ruppenthal, supra note 50, at 239, 240. 53. See Report of the Judicial Council of Kansas 177 (1927) (explaining rationale for making no recommendations). 54. Second Annual Report of the Judicial Council of Kansas 3 (1928). 55. Id. at 9-11. 56. Id. at 9; Ruppenthal, supra note 50, at 239. 57. Ruppenthal, supra note 50, at 239. 58. Id. at 239-240. 59. Id. at 240. 60. See 1973 Kan. Sess. Laws ch. 148, § 1; see, e.g., Kansas Judicial Study Advisory Committee, Recommendations for Improving the Kansas Judicial System, 13 Washburn L.J. 271, 279 (1974) (recommending court unification). 61. See K.S.A. 20-3001 (establishing Kansas Court of Appeals effective Jan. 10, 1977). 62. See K.S.A. 20-2201 (2007). 63. 1977 Kan. Sess. Laws. ch. 111, § 1. 64. See Kansas Judicial Council website homepage, http://www. kanasjudicialcouncil.org/home.shtml (listing dates and times of Judicial Council meetings). The Council met most recently on Dec. 9, 2008. Upcoming meetings are scheduled for June 5, 2009, and Dec. 4, 2009. Id. 65. K.S.A. 20-2201 et seq. 66. Kan. Att’y Gen. Op. No. 2002-3, at 2 (2002) (quoting K.S.A. 202203). 67. Report of the Judicial Council of Kansas 7 (1927). 68. K.S.A. 20-2203 (2007). 69. Id. 70. See Kansas Judicial Council, http://www.kansasjudicialcouncil.org/ advisory.shtml. 71. Id. 72. Id. The Council currently publishes pattern jury instructions, probate and other legal forms, a municipal court manual, and an appellate practice handbook. All may be accessed online by active Kansas lawyers without charge. See http://www.kansasjudicialcouncil.org/

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publications.shtml. 73. Kansas Judicial Study Advisory Committee, supra note 60, at 313; see http://www.kansasjudicialcouncil.org/OtherPreviousStudies.shtml. 74. State v. Schlein, 854 P.2d 296, 305 (Kan. 1993); see State v. McCown, 957 P.2d 401, 406 (Kan. 1998). 75. Kansas Judicial Council, About Us, http://www.kanasjudicial council.org/aboutus.shtml; cf. K.S.A. 21-4801 (2007) (establishing Kansas Criminal Code Recodification Commission). 76. K.S.A. 21-4801. 77. Id. at 21-4801(j). 78. The Kansas Supreme Court has observed, “The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions.” State v. Pioletti, 785 P.2d 963, 971 (Kan. 1990). While Kansas trial judges are not required to use the pattern instructions, their use is strongly recommended absent a case-specific reason to modify them. State v. Decker, 66 P.3d 915, 918 (Kan. 2003); State v. Moncia, 936 P.2d 727, Syl. ¶ 5 (Kan. 1997). 79. Don Musser, Instructing the Jury – Pattern Instructions, 6 Am. Jur. Trials 923, 928 (1967). Judge Don Musser then served in the 38th Judicial District of Kansas. At the time, he was also the President of the Kansas District Judges Association and the Chair of the Association’s Committee on Pattern Jury Instructions. Id. at 923. The Committee compiled and published the first edition of the Kansas Pattern Jury Instructions in January 1966. Id. at 928. 80. See id.; see also State v. Wilson, 731 P.2d 306, 309 (Kan. 1987) (discussing Kansas’ leadership in preparing and publishing pattern jury instructions); William J. Parker, Standardized Jury Instructions Succeed, 23 J. Am. Jud. Soc. 177, 177-80 (1940) (describing Los Angeles County Superior Court’s successful development and use of standardized instructions beginning in 1938). 81. Kansas Judicial Council, http://www.kansasjudicialcouncil.org/ PIKPlainLanguage.shtml. A link to the proposed plain language jury instructions is available on the website. Several other states have undertaken to revise pattern jury instructions to make them more comprehensible to jurors. See generally http://washburnlaw.edu/centers/ advocacy/writingtowin/ (website for Symposium on Plain Language Jury Instructions on April 6-8, 2008, sponsored by Washburn University School of Law). 82. Kansas Commission on Judicial Performance, The Kansas Judicial Report Card (Aug. 2008), available at http://www.kansasjudicial performance.org/2008reportcard.cfm. 83. See K.S.A. 20-3201(a) (2007). The statutory authorization for the Commission will expire on June 30, 2010. Id. 20-3201(b). 84. See http://www.kansasjudicialperformance.org/docmuents/KansasJudicial-Report.pdf. The 2008 Legislature expanded the Commission’s evaluation duties to include retired judges appointed by the Kansas Supreme Court to serve part time under authority of K.S.A. 20-2622 (2007). See 2008 H.B. 2642, § 2 (amending K.S.A. 20-3202 effective July 1, 2008). 85. K.S.A. 20-3205 (2007). According to the Judicial Council, the Legislature’s rationale for not disclosing evaluation data for elected judges to the public was that opponents seeking a judicial office would not be subject to a similar evaluation process. See The Kansas Judicial Report Card (Aug. 2008), http://www.kansasjudicialperformance.org/2008reportcard. cfm. 86. Kansas Commission on Judicial Performance, General Information (2008), at http://www.kansasjudicialperformance.org/about thecommission.cfm. 87. See http://www.kansasjudicialperformance.org/reportschedule.cfm (schedule of reports completed in 2008 and planned for future years); see also 77 J. Kan. B. Ass’n 9 (Oct. 2008) (open letter to Kansas Bar from Richard Hayse, Chair, Commission on Judicial Performance). 88. See http://www.kansasjudicialperformance.org/reportsschedule. cfm. 89. See Nims, supra note 42, at 819-20 (summarizing accomplishments of Kansas Judicial Council); Wheeler & Jackson, supra note 8, at 130-31 & Fig. 3 (identifying the Kansas Judicial Council as one of 12 active and “healthy” state judicial councils); Winters, supra note 8, at 45 (noting that in 1949, Kansas was among only eight states with “outstanding judicial councils”).

The Journal of the Kansas Bar Association | February 2009 23

Post-Judgment Day:

Guide toFiling Timely Notices

A ppeal

Federal

Court By Matt Corbin and Casey Tourtillott

10th District Court of Appeals, Denver, Colo.

Legal Article: Post-Judgment Day ...

I. Introduction In law, as in life, timing is everything. Kansas practitioners in the federal litigation world often operate at a frenetic pace to preserve their clients’ right to trial by a judge or jury: When does the statute of limitations run? What remedies must be exhausted before filing suit? Which discovery deadline passes this week? When the day of trial finally arrives, a litigator is likely to have survived a gauntlet of these familiar “timing tests.” But what about post-judgment day? For the losing side, the most pressing issue becomes whether it is in the client’s best interest to pursue an appeal. An attorney must advise the client about a myriad of factors, such as the likelihood of success on the merits, the cost of prosecuting the appeal, and the client’s need for closure or vindication. Although counseling the client on these matters is key, the lawyer must also remain mindful of the next chapter of “timing tests” affecting the client’s right to appeal to the Tenth Circuit and exercise of available post-judgment remedies before the district court. The purpose of this article is to steer Kansas civil practitioners through the labyrinth of deadlines that surface on postjudgment day in federal court. When does the clock for filing a notice of appeal start? What extensions of time are available for filing a notice of appeal or post-judgment motion? Which post-judgment motions toll the time for filing a notice of appeal? These are just a few examples of issues covered in this article that lawyers needs to address when representing their clients on post-judgment day.

II. The Ins and Outs of Filing a Timely Notice of Appeal A. What is the general rule? The general rule is this: If a party wants to appeal a decision of the district court, he must file his notice of appeal within 30 days after the entry of judgment or the order he wants to appeal.1 The party files this notice with the district court, not the appellate court.2 If a case involves the United States or if one of its officers or agencies is a party, there is twice as much time — the deadline is 60 days instead of 30 days.3 B. When does the clock begin? The date used to calculate when the time to appeal begins to run depends on how the district court clerk enters judgment pursuant to Federal Rules of Civil Procedure (Fed. R. Civ. P./Rule) 58. Rule 58 requires the clerk to enter judgment on a separate document except for orders disposing of qualifying motions under Rules 50(b), 52(b), 54, 59, or 60.4 Where Rule 58 requires a separate document, the date of judgment is when the judgment is entered in the civil docket pursuant to Rule 79(a) and either it is set forth on a separate document or 150 days have run from entry, whichever is sooner.5 Where Rule 58 does not require a separate document, the date of judgment is the date the judgment is entered in the civil docket.6 Note that litigants must look to the docket entry date of the judgment, not the date the judge signed the underlying order. Beginning on this date, utilize the guidelines for calculating time found in Federal Rules of Appellate Procedure (Fed. R. App. P.) 26, which generally mirror those in Fed. R. Civ. P. 6.7 www.ksbar.org

C. How about jumping the gun? No need to worry if a party files the notice of appeal before the district court enters judgment or an order formalizing a decision the court previously announced. Fed. R. App. P. 4(a)(2) provides that the notice of appeal will be “treated as filed on the date of and after the entry” of judgment or the order sought to be appealed.8 Likewise, if a party files a notice of appeal after entry of judgment, but before the district court rules on a post-judgment motion listed in Fed. R. App. P. 4(a)(4)(A), then the notice becomes effective “when the order disposing of the last such remaining motion is entered.”9 D. Are extensions of time available? On the opposite end of the spectrum, suppose a litigant finds herself in a situation where the time for appeal has run. If she is within 30 days of the missed deadline, she may not be entirely without recourse: Fed. R. App. P. 4(a)(5) authorizes a district court to grant an extension of time upon a showing of excusable neglect or good cause.10 But the court will not grant greater than either (1) 30 days after expiration of the original appeal time or (2) 10 days after the date of the order granting the motion.11 An extension for excusable neglect is reserved for extraordinary circumstances,12 not for a lawyer’s mistake of law, lack of familiarity with the rules of procedure, or a mere calendaring error.13 Relevant considerations for the district court include: (1) prejudice to the nonmovant, (2) the length of the delay and its potential impact on efficient judicial proceedings, (3) the reason for the delay, and (4) whether the movant acted in good faith.14 The third factor is viewed as the most significant.15 The alternative justification of good cause under Fed. R. App. P. 4(a)(5) is narrower, limited to situations where the movant’s tardiness results entirely from forces beyond the movant’s control.16 In such situations there is no fault — excusable or otherwise — to assess.17 The request for an extension must be filed with the district court; the Tenth Circuit has no authority to enlarge the time for filing a notice of appeal.18 And while the denial of a motion under Fed. R. App. P. 4(a)(5) is an appealable final judgment, it is subject to the deferential abuse of discretion standard.19 In even more limited circumstances, a litigant may be able to persuade the district court to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6). This relief is only available if: (1) the court clerk did not give the party proper notice of the judgment or order within 21 days of entry, (2) the movant files a motion to reopen the time for appeal within (a) 180 days of entry of the judgment or order or (b) seven days of receiving notice — whichever is earlier, and (3) no party will suffer prejudice.20 Where the court grants relief, the litigant has only 14 days in which to file his appeal.21 Some district courts have tried re-entering judgment for the purpose of extending the time to appeal. The Tenth Circuit has rejected this practice and held that the district court may not use Fed. R. Civ. P. 60(b)(6) to justify re-entering judgment in order to allow a party to file a timely appeal.22 Given the high threshold for justifying an extension of time, a lawyer should consult with the client, review the record, and prepare the notice of appeal soon after entry of the final judgment. Waiting until the deadline for filing a notice The Journal of the Kansas Bar Association | February 2009 25

Legal Article: Post-Judgment Day ... of appeal will only increase the risk that an unforeseen event might jeopardize the client’s right to appeal.

A. Which post-judgment motions toll? Fed. R. App. P. 4(a)(4)(A) contemplates six motions that will “toll”34 the time to appeal until the court has ruled on the motions: (1) a Rule 50(b) motion for judgment as a matter of law, (2) a motion to amend findings of fact pursuant to Rule 52(b), (3) a motion for attorney’s fees under Rule 54(d)(2) if the court extends the appeal time under Rule 58(e), (4) a Rule 59(e) motion to alter or amend judgment, (5) a Rule 59(a) motion for a new trial, and (6) a Rule 60(b) motion, if the motion is filed no later than 10 days after judgment.35 With motions under Rules 50, 52, 59, and 60, however, practitio-

ners had better be timely; the court lacks authority to enlarge their deadlines.36 1. Rule 50(b) In a jury trial, Rule 50(b) allows a party to file a renewed motion for judgment as a matter of law within 10 days of judgment, or within 10 days of the jury being discharged if it addresses a jury issue not decided by verdict, such as a mistrial or an issue of law.37 If a litigant plans on utilizing the tolling provision of Rule 50(b), however, he has to plan ahead of time — he cannot file a 50(b) motion unless he has first moved for judgment as a matter of law under Rule 50(a).38 And the 50(b) motion cannot address issues outside the scope of his 50(a) motion.39 2. Rule 52(b) In a bench trial, Rule 52(b) provides an avenue for seeking amendment of unfavorable findings by the court.40 Again, the rule carries a strict, nonnegotiable time limit of 10 days after entry of judgment.41 3. Rule 59(a) and (e) In either a bench trial or a jury trial, Rule 59 offers two options for extending the time to appeal: (1) a motion for a new trial and (2) a motion to alter or amend judgment.42 As might be expected, the motions must be filed within 10 days of entry of judgment.43 A litigant may, however, file his motion before judgment.44 And if he files his Rule 59 motion after filing a notice of appeal, his motion will divest the appellate court of jurisdiction.45 Even if a party does not specifically style a motion questioning the correctness of judgment as a 59(e) motion, the court will likely construe it as one if filed within 10 days of judgment.46 For example, courts have construed a motion to file an amended complaint,47 a motion to dismiss for lack of jurisdiction,48 and a motion for clarification49 as 59(e) motions. Similarly, a motion to vacate judgment may also be construed as a motion to alter or amend if it meets the 10-day deadline.50 4. Rule 60(b) Like the other tolling motions, Rule 60(b)51 follows the 10-day rule.52 Any motion filed more than 10 days after judgment — regardless of how the motion is styled — is generally treated as a motion under one of Rule 60(b)’s six subsections and does not toll the window for filing a notice of appeal from the underlying judgment.53 Rule 60(b) motions must be filed “within a reasonable time,” and for motions under Rule 60(b)(1), (2), and (3), no more than one year after the judgment or order.54 Filing a notice of appeal from the entry of judgment does not toll the time in which to file a Rule 60(b) motion.55 Despite the availability of Rule 60(b) relief, a litigant must be diligent in protecting his right to appeal an adverse judgment. Absent extraordinary circumstances, filing a motion under Rule 60(b) is not a substitute for filing a timely notice of appeal.56 Otherwise, a party could circumvent the time limitations set forth in Fed. R. App. P. 4(a). To appeal the denial of a Rule 60(b) motion, a litigant must file an amended or second notice of appeal (and should normally seek to consolidate this appeal with the initial appeal from the underlying judgment).57 While the appeal of the denial of a Rule 60(b) motion allows the Tenth Circuit to review the district court’s order of denial itself, a party cannot seek

26 February 2009 | The Journal of the Kansas Bar Association

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E. Have mercy, pretty please? If a litigant files the notice of appeal late, it won’t do her any good to plead with the appellate court to hear her case in the interest of justice. The U.S. Supreme Court recently confirmed that the filing deadlines are mandatory and jurisdictional, and that the lower courts lack the authority to create equitable exceptions.23 This is true even where a district court erroneously grants a litigant an extension of time in violation of the Federal Rules of Civil Procedure24 or otherwise induces a party to file an untimely notice of appeal based upon its affirmative statements. The bottom line: A federal practitioner must be familiar with the time limits set forth in the rules of appellate and civil procedure, including the availability of extensions of time.25 Reliance on a judicial officer’s assurances26 could result in a phone call to the firm’s malpractice carrier.27 F. Don’t forget the contents of the notice! Even if a lawyer timely files a document purporting to be a notice of appeal, she needs to make sure that it contains certain information to be valid. She must identify (1) the specific party taking the appeal, (2) the order being appealed, and (3) the name of the court to which the appeal is taken.28 The purpose of this requirement is to give all parties and the court notice of one’s intent to seek appellate review. In a few situations, the Tenth Circuit has recognized the “functional equivalent” of a notice of appeal, but it has still required that these three items be included in the document in order to qualify as a nonprejudicially misnamed notice of appeal.29 For example, the Tenth Circuit has found the following motions could be or were “functional equivalents” of a notice of appeal: a combined notice of appeal and motion for reconsideration,30 a motion to certify,31 and a motion for a certificate of probable cause and for a certificate of appealability.32 Bear in mind that this list is not exhaustive and that the pleadings considered often were drafted by pro se litigants. If a party designates the final judgment as the order being appealed, such designation is sufficient to support the review of all earlier interlocutory orders.33 She will not need to amend this notice of appeal later if the district court rules unfavorably on a “tolling motion,” which is explained below. But she will need to amend her notice or file a separate notice of appeal if the district court rules unfavorably on a “nontolling motion.”

III. The Ins and Outs of Exercising Post-Judgment Remedies

Legal Article: Post-Judgment Day ... review of the merits of the underlying judgment.58 A litigant may simultaneously pursue both an appeal of a final judgment in the Tenth Circuit and a Rule 60(b) motion before the district court.59 Because the filing of a notice of appeal does not divest the district court of jurisdiction to consider a Rule 60(b) motion, the district court must notify the Tenth Circuit of its intent to grant a Rule 60(b) motion and seek a remand for that purpose.60 B. What about motions for reconsideration? Although regularly utilized by litigants, the Federal Rules of Civil Procedure do not recognize motions for reconsideration.61 The proper procedure for seeking reconsideration is to file a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) or a motion seeking relief from judgment under Rule 60(b).62 Generally, the Tenth Circuit characterizes a motion for reconsideration filed within 10 days of the judgment as a motion under Rule 59(e), and a motion filed after 10 days as a motion seeking relief from judgment under Rule 60(b).63 C. Do successive post-judgment motions toll? A litigant can only toll the time to appeal once, and therefore she cannot continue putting it off by filing successive tolling motions. Allowing such abuse of the system would undermine the finality of judgments.64 For this reason, courts have imposed a cutoff: only one post-judgment motion will toll the time to appeal a judgment.65 If, for example, a party files a motion to reconsider the denial of a 50(b) motion, the motion to reconsider will not further toll the appeal time on the underlying judgment. The Tenth Circuit has carved out an exception of sorts to this rule. If a practitioner files a motion to reconsider the denial of a post-judgment motion within 10 days of the denial of that motion, the motion to reconsider will toll the time to appeal to post-judgment ruling, but the post-judgment ruling only — not the underlying judgment.66 Remember, though, on appeal, the appellate court will likely review the denial of the post-judgment ruling with more deference to the district court than it would have reviewed the underlying judgment.67 This does not necessarily mean that practitioners should refrain from filing successive post-judgment motions. But it does mean that if a practitioner wants the underlying judgment reviewed de novo or under another less deferential standard, it would be wise to calculate the time to appeal from the order denying the first post-judgment tolling motion. When making arguments why the appellate court should hear an appeal that is timely only if calculated from the resolution of a successive post-judgment motion, a litigator should be mindful that the appellate court will look to the specific facts of the case to determine when the district court entered a final order.68 In other words, he should check to make sure the orders he repeatedly asked the district court to reconsider were actually final orders. If the district court expressly invited successive post-judgment motions or otherwise indicated that any of its orders were not final, then the appellate court might have jurisdiction over the appeal.69 Also, a practitioner should examine his motion carefully to make sure that it actually falls within the definition of a “successive motion.” To qualify as a successive motion, the “second motion must be ‘based upon substantially the same grounds as urged in the earlier motion.’”70 www.ksbar.org

D. Don’t forget motions for attorney’s fees! A savvy practitioner (i.e., one who wants to get paid) should also know the role that motions for attorney’s fees play in calculating the time for filing a notice of appeal. Unless a statute or court order provides otherwise, Fed. R. Civ. P. 54(d)(2) provides that a motion for attorney’s fees “must be filed no later than 14 days after the entry of judgment.”71 Motions for attorney’s fees are deemed collateral to the underlying judgment on the merits, allowing a district court to retain jurisdiction over such issues after a litigant files a notice of appeal concerning the court’s merits judgment.72 As a result, a Rule 59(e) motion challenging only the court’s award of attorney’s fees does not toll the time for filing a notice of appeal of the court’s decision on the merits of the case.73 A practitioner needs to file a timely notice of appeal of the underlying merits, and then a second timely notice of appeal once the district court enters its judgment on the attorney’s fees. Of course, the second appeal may be consolidated for disposition with the original merits appeal. Also remember that, in the interests of efficiency, the district court may delay the merits appeal until it resolves the attorney’s fees motion under Rule 58(e).74 Specifically, when a proper motion for attorney’s fees is made under Rule 54(d)(2), the court may, before a notice of appeal is filed, order that the motion for attorney’s fees have the same tolling effect as a timely Rule 59 motion.75 After the court enters an order under Rule 58, the time for appealing all issues (both as to the merits and attorney’s fees) does not begin to run until the court enters a final order disposing of the motion for attorney’s fees.76

IV. Conclusion In litigation, judgment day often does not signify the end of the case. Rather, it triggers the beginning of a new phase of the fight. Federal practitioners need to be aware of the deadlines and other issues associated with post-judgment day so that they can preserve their clients’ right to challenge the underlying judgment. n About the Authors Matt Corbin is an associate in the business litigation department at Lathrop & Gage L.C. in Overland Park. Corbin previously served as a law clerk for the Hon. Mary Beck Briscoe, U.S. Court of Appeals for the Tenth Circuit, and for the Hon. G. Thomas Van Bebber, U.S. District Court for the District of Kansas. Corbin received his juris doctorate from the University of Kansas in 2003. Casey Tourtillott, Kansas City, Kan., is a law clerk for the Hon. Carlos Murguia, U.S. District Court for the District of Kansas, and a former law clerk for the Hon. G. Thomas Van Bebber. She is a 2000 graduate of the University of Missouri-Kansas City Law School and has previously authored and co-authored articles for the UMKC Law Review and The Journal of the Kansas Bar Association. The Journal of the Kansas Bar Association | February 2009 27

Legal Article: Post-Judgment Day ... ENDNOTES 1. Fed. R. App. P. 4(a)(1)(A). 2. Id.; Fed. R. App. P. 4(d) (providing that if a party mistakenly files a notice of appeal with the court of appeals, the appellate clerk must send it to the district clerk). 3. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(B). 4. Fed. R. Civ. P. 58(a); see Warren v. Am. Bankers Ins., 507 F.3d 1239, 1243 (10th Cir. 2007) (emphasizing the U.S. Supreme Court’s directive to apply Rule 58 “mechanically”) (citation omitted). 5. Fed. R. Civ. P. 58(c)(2). For a detailed discussion of the separate document rule’s purpose and potential exceptions, see Taumoepeau v. Mfrs. & Traders Trust Co., 523 F.3d 1213, 1216-18 (10th Cir. 2008); see also Mondragon v. Thompson, 519 F.3d 1078, 1081-82 (10th Cir. 2008) (determining that the appellant’s notice of appeal was timely under the separate document rule); Med. Supply Chain Inc. v. Neoforma Inc., 508 F.3d 572, 574 (10th Cir. 2007) (applying the exception to the separate document requirement for orders disposing of motions to reconsider and concluding that the appellant’s appeal was untimely). 6. Fed. R. Civ. P. 58(c)(1). 7. In re Cascade Oil Co., 848 F.2d 1062, 1063 (10th Cir. 1988); see also Delta Airlines v. Butler, 383 F.3d 1143, 1144 (10th Cir. 2004) (applying Fed. R. App. P. 26(a)(2) and Fed. R. Civ. P. 6(a)). Fed. R. App. P. 4(a)(4)(A)(vi) was amended in 2002 to omit a specific reference to Fed. R. Civ. P. 6(a) because Fed. R. App. P. 26(a)(2) was amended to require that all deadlines under 11 days be calculated consistent with Fed. R. Civ. P. 6(a). Prior to that time, the rules were inconsistent. 8. A premature notice of appeal will ripen upon the district court’s entry of a subsequent final order so long as the order leading to the premature notice of appeal: (1) “has some indicia of finality” and (2) “is likely to remain unchanged during subsequent court proceedings[.]” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1111 (10th Cir. 2007) (citations omitted). For example, in order for Rule 4(a)(2) to apply, the premature notice of appeal may not be taken from a clearly interlocutory order. FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 277, 111 S. Ct. 648, 112 L.Ed. 2d 743 (1991). 9. Fed. R. App. P. 4(a)(4)(B)(i). 10. Id. 4(a)(5)(A). 11. Id. 4(a)(5)(C). 12. Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004); Farthing v. City of Shawnee, No. 92-2332-JWL, 1994 WL 68715, at *1 (D. Kan. Jan. 12, 1994). For an in-depth discussion about the excusable neglect standard, see Steven W. Alton & John W. Broomes, What Constitutes Excusable Neglect? 77 J. Kan. Bar Ass’n 6 (May 2008). 13. Magraff v. Lowes HIW Inc., 217 F. App’x 759, 760 (10th Cir. 2007); Farthing, 1994 WL 68715, at *1-2. 14. City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994). 15. Id. 16. Magraff, 217 F. App’x at 760; Bishop, 371 F.3d at 1207. 17. Bishop, 371 F.3d at 1207. 18. Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir. 2006); Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 949 (10th Cir. 1995). 19. City of Chanute, 31 F.3d at 1045. 20. 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(6). Note that the 180 days is an “outer time limit” within which to seek reopening of the time for appeal. Servants of Paraclete v. Does, 204 F.3d 1005, 1010 (10th Cir. 2000). It is not “permissive,” incapable of being “waived for equitable reasons,” and its language is “specific and unequivocal.” Clark v. Lavallie, 204 F.3d 1038, 1040 (10th Cir. 2000). 21. 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(6); Bowles v. Russell, 127 S. Ct. 2360, 2366, 168 L. Ed. 2d 96 (2007). 22. Clark, 204 F.3d at 1040-41. 23. Bowles, 127 S. Ct. at 2366. Bowles overruled Harris Truck Lines Inc. v. Cherry Meat Packers Inc., 371 U.S. 215, 83 S. Ct. 283, 9 L. Ed. 2d 261 (1962), and Thompson v. INS, 375 U.S. 384, 386-87, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964) (per curium), cases that originally established a “unique circumstances” exception to untimely filed appeals. Indeed, before Bowles, the Tenth Circuit recognized the “disfavored” unique circumstances doctrine, but only when “the party had performed an act which, if properly done, would postpone the deadline for filing his appeal

28 February 2009 | The Journal of the Kansas Bar Association

and has received special assurance by a judicial officer that this act has been properly done.” Home & Family Inc. v. England Res. Corp., 85 F.3d 478, 479 (10th Cir. 1996) (quoting Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S. Ct. 987, 103 L. Ed. 2d 146 (1989); see also United States v. Garduno, 506 F.3d 1287, 1292, 1292 n.6 (10th Cir. 2007) (observing that to the extent Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir. 1991), and Stauber v. Kieser, 810 F.2d 1, 1-2 (10th Cir. 1982), authorize an exception to Fed. R. App. P. 4(a)(1)(A)’s 30-day time period, they are overruled by Bowles). 24. See, e.g., Weitz v. Lovelace Health Sys., 214 F.3d 1175, 1180 (10th Cir. 2000) (concluding that “an extension of time granted by the court but clearly prohibited entirely by the Federal Rules does not constitute unique circumstances salvaging an untimely notice of appeal”); Shaw v. Panasonic Co., No. 95-3170, 1996 WL 584918, at *2-3 (10th Cir. Oct. 11, 1996) (holding that the district court’s improper grant of an extension of time to file a Rule 59(e) motion did not raise unique circumstances); Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1258 (10th Cir. 1990) (determining that the district court’s grant of a 30-day extension to file notice of appeal where the rules authorized only 10 days did not amount to unique circumstances). 25. See, e.g., Collard v. United States, 10 F.3d 718, 719 (10th Cir. 1993) (“Rule 6(b) expressly prohibits a trial court from extending the time to file [a Rule 59(e)] motion.”); Evans, 896 F.2d at 1257 (“Fed. R. App. P. 26(b) expressly prohibits extensions of time for filing notice of appeal beyond the time limits set out in the rules.”). 26. See Home & Family, 85 F.3d at 481 (noting that reasonable reliance is “the mainstay of the ‘unique circumstances’ doctrine”). 27. Dings v. Callahan, 4 Kan. App. 2d 36, 38, 602 P.2d 542, 543 (1979) (“An actionable claim against an attorney for professional malpractice asserting failure to prosecute an appeal or protect the client’s rights to appeal from an unfavorable judgment or order requires proof that had a timely appeal been taken, a reversal or more favorable judgment would have resulted.”) (citations omitted). 28. Fed. R. App. P. 3(c). 29. See Rodgers v. Wyo. Attorney Gen., 205 F.3d 1201, 1204 & n.3 (10th Cir. 2000) (listing pleadings that have been construed as a functional equivalent of a notice of appeal); Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 862 (10th Cir. 1995); Brackett v. Hautamaa, 200 F. App’x 758, 760 (10th Cir. 2006). 30. Hatfield, 52 F.3d at 862 (holding that the motion was a functional equivalent because it included the Rule 3 requirements). 31. Brackett, 200 F. App’x at 760 (holding that a motion to certify was not a functional equivalent because the filer did not meet the minimal notice requirements of Rule 3). 32. Rodgers, 205 F.3d at 1205-06 (extending liberal construction of filings given to pro se habeas petitioners to habeas petitioners represented by counsel). 33. See, e.g., Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1383 n.7 (10th Cir. 1994) (“[A] notice of appeal that names the final judgment is sufficient to support review of all earlier orders that merge in the final judgment under the general rule that appeal from a final judgment supports review of all earlier interlocutory orders.”) (citation omitted). 34. Note that the Supreme Court has expressed a preference for referring to the “tolling” question as a question of when the time to appeal begins to run. See United States v. Ibarra, 502 U.S. 1, 4 n.2, 112 S. Ct. 4, 116 L. Ed. 2d 1 (1991). The Court noted that “[p]rinciples of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.” Id. But under Fed. R. App. P. 4(a)(4)(A), “would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided.” Id. (citation omitted). 35. Fed. R. App. P. 4(a)(4)(A). 36. Fed. R. Civ. P. 6(b) (“A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b), except as those rules allow.”). 37. The court will grant a 50(b) motion if there is insufficient evidence to support a particular verdict, viewing the evidence in the light most favorable to the nonmoving party. Sanjuan v. IBP Inc., 275 F.3d 1290, 1293 (10th Cir. 2002).

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Legal Article: Post-Judgment Day ... 38. See Kaiser v. Bowlen, 455 F.3d 1197, 1203-04 (10th Cir. 2006) (citations omitted). 39. Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733, 738-39 (10th Cir. 2007) (citations omitted). 40. The court may grant a 52(b) motion for newly discovered evidence, a change in the law, or manifest error. Westar Energy Inc. v. Lake, 502 F. Supp. 2d 1191, 1193 (D. Kan. 2007) (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (2d. ed. 1995)). 41. See Fed. R. Civ. P. 6(b)(2). 42. The district court has discretion whether to grant any relief under Rule 59. Relief in the form of a new trial may be justified where “the court believes the verdict is against the weight of the evidence, prejudicial error has occurred, or substantial justice has not been done.” Wirtz v. Kan. Farm Bur. Servs. Inc., 311 F. Supp. 2d 1197, 1226 (D. Kan. 2004) (internal quotation marks and citation omitted). Relief in the form of an altered or amended judgment may be appropriate to address new evidence, a change in controlling law, clear error, or would-be manifest injustice. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). 43. See Fed. R. Civ. P. 59(b) and (e). 44. Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1244 (10th Cir. 2007) (quoting Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989)). 45. Stone v. INS, 514 U.S. 386, 402-03, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (holding that a timely Rule 59 motion divests an appellate court of jurisdiction); Warren, 507 F.3d at 1245 (quoting the Advisory Committee Notes to the 1993 amendments of Fed. R. App. P. 4(a)(4)) (“A notice [of appeal] filed before the filing of one of the specified motions [including a Rule 59(e) motion] ... is, in effect, suspended until the motion is disposed of, whereupon, the previously filed notice effectively places jurisdiction in the court of appeals.”) (additional citations omitted). 46. See S.E.C. v. Dowdell, 144 F. App’x 716, 720 (10th Cir. 2005) (noting that a motion “is not defined by the nomenclature used by the movant”). 47. See, e.g., Vreeken v. Davis, 718 F.2d 343, 345 (10th Cir. 1983). 48. See, e.g., Miller v. Leavenworth-Jefferson Elec. Coop. Inc., 653 F.2d 1378, 1380 (10th Cir. 1981). 49. See, e.g., Dowdell, 144 F. App’x at 720. 50. See, e.g., Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); Mehdipour v. Okla. Court of Civil App., 62 F. App’x 203, 208 (10th Cir. 2003). 51. Rule 60(b) motions allow a district court to relieve a party from a final order or judgment based on five specific grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence, which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) a void judgment; and (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. Fed. R. Civ. P. 60(b)(1)-(5). In addition, Rule 60(b) contains a catchall provision, authorizing the court to grant relief for any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b)(6). The burden under Rule 60(b) is considerably higher than under Rule 59(e), as relief is committed to the discretion of the district court and warranted only in exceptional circumstances. Zurich N. Am. v. Matrix Serv. Inc., 426 F.3d 1281, 1289 (10th Cir. 2005); Cashner v. Freedom Stores, 98 F.3d 572, 576 (10th Cir. 1996); Bud Brooks Trucking Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990). 52. Fed. R. App. P. 4(a)(4)(A)(vi). 53. Weitz v. Lovelace Health Sys., 214 F.3d 1175, 1178 (10th Cir. 2000) (citation omitted); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (citations omitted). 54. Fed. R. Civ. P. 60(c); Cummings v. Gen. Motors Corp., 365 F.3d 944, 954-55 (10th Cir. 2004) (abrogated on other grounds by Unitherm Food Sys. Inc. v. Swift-Eckrich Inc., 546 U.S. 394 (2006)). 55. Cashner, 98 F.3d at 579. 56. Cummings, 365 F.3d at 955; Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).

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57. See Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir. 1999). 58. Browder v. Dir. Dep’t of Corr. of Ill., 434 U.S. 257, 263 n.7, 98 S. Ct. 536, 54 L. Ed. 2d 521 (1978); V.T.A. Inc. v. Airco Inc., 597 F.2d 220, 223-24 (10th Cir. 1979). Of course, the district court’s denial under Rule 60(b) cannot be overturned absent an abuse of discretion. Woodworker’s Supply Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 992 (10th Cir. 1999). 59. Cashner, 98 F.3d at 579 n.4. 60. Allison v. Bank One-Denver, 289 F.3d 1223, 1243 (10th Cir. 2002); Aldrich Enters. Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991). 61. United States v. Cos, 498 F.3d 1115, 1123 n.2 (10th Cir. 2007); Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 861 (10th Cir. 1995); see Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989) (construing motion for reconsideration under Rule 59(e)). 62. Houston v. Shames, 212 F. App’x 741, 743 n.1 (10th Cir. 2007); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Hatfield, 52 F.3d at 861. 63. Id. 64. 9 J. Moore, Moore’s Federal Practice § 204.12 n.27 (2d ed. 1995); see also Cos, 498 F.3d at 1135 (Gorsuch, J., dissenting) (quoting Charles L.M. v. Ne. Indep. Sch. Dist., 884 F.2d 869, 871 (5th Cir. 1989) (“The interest of finality requires that parties generally get only one bite at the [motion for reconsideration] apple for the purposes of tolling the time for bringing an appeal.”)). 65. See United States v. Marsh, 700 F.2d 1322, 1324-25 (10th Cir. 1983) (holding that a party “is not entitled to two bites, so to speak”); see also Valdivia v. Orosco, 105 F. App’x 251, 252 (10th Cir. 2004); Okon v. Comm’r, 26 F.3d 1025, 1026 (10th Cir. 1994) (citing Mullen v. Household Bank‑Fed. Sav. Bank, 867 F.2d 586, 587 n.1 (10th Cir. 1989)); Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983); Wagoner v. Wagoner, 938 F.2d 1120, 1123 n.3 (10th Cir. 1991)). Of course, this presumes that the district court does not grant the first post-judgment motion and enter a new judgment. See Palmer v. McKune, No. 07-3007-SAC, 2008 WL 2051096, at *1, & *1 n.4 (D. Kan. Mar. 13, 2008) (citations omitted). 66. See Venable, 721 F.2d at 299. 67. See White v. Am. Airlines Inc., 915 F.2d 1414, 1425 (10th Cir. 1990) (applying abuse of discretion standard to review of order on Rule 60(b) motion). 68. See S. Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023, 1029 (10th Cir. 1993) (determining that an order was not final because “the court itself viewed [the order] as preliminary rather than final”); see also United States v. Cos, 498 F.3d 1115, 1122 (10th Cir. 2007) (quoting Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir. 1993) (“Finality is determined on the basis of pragmatic, not needlessly rigid pro forma, analysis.”)). 69. See, e.g., Cos, 498 F.3d at 1121-23 (holding that because the district court invited the government to file a third motion for reconsideration, the time to appeal ran from the resolution of the third motion). 70. S.E.C. v. Dowdell, 144 F. App’x 716, 721 (10th Cir. 2005) (quoting Ellis v. Richardson, 471 F.2d 720, 720 (5th Cir. 1973)). 71. Fed. R. Civ. P. 54(d)(2)(B)(i); see also D. Kan. Local R. 54.2 (providing that the court will not consider a motion to award statutory attorney’s fees made pursuant to Fed. R. Civ. P. 54(d)(2) unless the moving party first advises the court in writing that after consultation initiated by the moving party, the parties have been unable to reach an agreement with regard to the fee award). 72. Utah Women’s Clinic v. Leavitt, 75 F.3d 564, 567 (10th Cir. 1995) (citation omitted). Unlike motions for attorney’s fees and costs, prejudgment interest is considered part of the plaintiff’s primary compensation and therefore part of the merits of the district court’s judgment. Macsenti v. Becker, 237 F.3d 1223, 1245 (10th Cir. 2001) (citing Capstick v. Allstate Ins. Co., 998 F.2d 810, 812-13 (10th Cir. 1993)). 73. Utah Women’s Clinic, 75 F.3d at 567. 74. See, e.g., Moses v. Halstead, No. 05-2488-KHV, 2008 WL 940801, at *2 (D. Kan. Apr. 7, 2008) (citing Robinson v. City of Harvey, 489 F.3d 864, 869 (7th Cir. 2007)); Rural Water Dist. No. 1 v. City of Wilson, 184 F.R.D. 632, 634 (D. Kan. 1998). 75. Fed. R. Civ. P. 58(e). 76. Rural Water Dist. No. 1, 184 F.R.D. at 634.

The Journal of the Kansas Bar Association | February 2009 29

Access to Justice Grant Applicants Sought The Access to Justice Fund is administered by the Kansas Supreme Court and is intended as a source of grant funds for the operating expenses of programs providing access for persons who would otherwise be unable to gain access to the Kansas civil justice system. Its purpose is to support programs, which provide persons, who otherwise may not be able to afford such services, with increased access to legal assistance for pro se litigation, legal counsel for civil and domestic matters, as well as other legal advice and dispute resolution services. Applications for grant funds will be due May 29, 2009. Grant application packets may be requested from the Office of Judicial Administration, 301 W. 10th St., Rm. 337, Topeka, KS 66612. Please direct telephone inquiries to Art Thompson at (785) 291-3748.

30 February 2009 | The Journal of the Kansas Bar Association

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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 Civil CERTIFIED QUESTIONS AND JUDICIAL COMMENT ON POLITICAL ISSUES KANSAS JUDICIAL REVIEW V. STOUT CERTIFIED QUESTIONS OF LAW FROM THE U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT NO. 100,170 – DECEMBER 5, 2008 FACTS: Plaintiffs, Kansas Judicial Review, a political action committee, Robb Rumsey, previously a judicial candidate and now a state district court judge, and Charles Hart, a state district court judge, filed an action in the U.S. District Court for the District of Kansas against members of the Kansas Commission on Judicial Qualifications and the Office of the Disciplinary Administrator seeking injunctive and declaratory relief under 42 U.S.C. § 1983 (2000). The plaintiffs claimed provisions of the Kansas Code of Judicial Conduct violated their rights to freedom of speech and freedom of assembly under the First Amendment to the U.S. Constitution. The federal district court granted a preliminary injunction against enforcement of the judicial canons in question. The defendants appealed. The U.S. Court of Appeals for the Tenth Circuit determined that the plaintiffs’ First Amendment claims “rest[ed] on sufficiently novel and determinative questions of state law” regarding the canons and that there were “important state policy interests at play” regarding the regulation of judicial conduct and the judicial process. The Tenth Circuit decided not to reach the merits of the plaintiffs’ claims before the Kansas Supreme Court had an opportunity to resolve the underlying questions of state law. CERTIFIED QUESTIONS: (1) Does a judicial candidate violate Canon 5A(3)(d)(I) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues? (2) Does a judicial candidate solicit “publicly stated support” in violation of Canon 5C by personally collecting signatures for his or her nomination petition? (3) Does the definition of “the faithful and impartial performance of the duties of the office” in Canon 5A(3)(d)(i) include all conduct relevant to the candidate’s performance in office? (4) Is the definition of “appear to commit” in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate’s intent to commit himself or herself? (5) Does the definition of “publicly stated support” in Canon 5C(2) include endorsements of a candidate? HELD: Court held under the judicial cannons, announcing a judicial candidate’s legal or political viewpoint is not prohibited. But a candidate who identifies a case, controversy, or issue that is likely to come before him or her when on the bench and who proceeds to pledge or promise a particular result, or to commit to a particular www.ksbar.org

resolution of that case, controversy, or issue, engages in behavior inherently inconsistent with the faithful and impartial performance of the duties of the judicial office. Court also held judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate’s personal views on disputed legal or political issues. Canons 5A(3)(d)(I) and (ii) of the Kansas Code of Judicial Conduct do prohibit a judicial candidate from answering issue-related questions, however, when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy. In answering any questionnaire, it is advisable that a candidate who makes a public statement should emphasize the candidate’s duty to uphold the law regardless of his or her personal views and to remain ever mindful of the impartiality that is essential to the judicial office. Court held that by personally asking someone to sign a nomination petition, a judicial candidate is personally soliciting publicly stated support in violation of Canon 5C(2) of the Kansas Code of Judicial Conduct. Court held that because Canon 5C(2) — the solicitations clause — explicitly prohibits judges and judicial candidates from personally soliciting publicly stated support, the clause necessarily prohibits judicial candidates from personally soliciting endorsements. Such solicitations must be delegated to the candidate’s campaign committee. Court held judges and judicial candidates are not permitted under the solicitations clause of Canon 5C(2) to personally and actively seek endorsements of their judicial candidacies. Judges and judicial candidates may respond, however, to requests regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons. STATUTE: K.S.A. 60-3201 MANDAMUS AND MEDICAL RECORDS COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS V. KLINE ORIGINAL PROCEEDING IN MANDAMUS PETITION FOR WRIT OF MANDAMUS GRANTED IN PART AND DENIED IN PART NO. 98,747 – DECEMBER 5, 2008 FACTS: On Feb. 3, 2006, the Supreme Court issued its opinion in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), which arose out of Kline’s issuance of inquisition subpoenas duces tecum. The Court balanced the patients’ individual privacy interests against the societal necessity and compelling state interest in pursuing criminal investigations, outlining procedures to be followed for redaction of the records before the district court allowed them to be turned over to the attorney general. On May 23, 2006, District The Journal of the Kansas Bar Association | February 2009 31

Appellate Decisions Judge Richard Anderson of Shawnee County, the judge overseeing the inquisition, issued his only written post-Alpha protective order concerning the patient records from the clinics. The order set forth the procedure to be followed to effect the safeguards outlined in Alpha, appointing a Topeka lawyer to assist the judge and act as special counsel for adult patients and as guardian ad litem for minor patients. Kline was defeated in the November 2006 election by Paul Morrison. However, a month later in December 2006, Kline was selected by the Republican precinct committee members to complete Morrison’s term as Johnson County district attorney. Shortly before leaving office, Kline filed charges in Sedgwick County against Dr. George Tiller and assigned a special prosecutor in the case. The clinics filed a joint motion for a protective order with Anderson, seeking to ensure that the patient records produced in the inquisition would remain with Anderson and in the attorney general’s office on Kline’s exit from that office. Although Kline later testified that he directed Eric Rucker to transport the records from the attorney general’s office to Johnson County in mid-December 2006, the actual physical movement of the records did not begin until the Friday before Morrison was sworn-in as attorney general, Jan. 5, 2007, and did not end until Kline had been in office as the Johnson County district attorney for several weeks. In the intervening time, the patient records were stored in more than one automobile; in Stephen Maxwell’s residence; from Jan. 8, 2007, until mid-February 2007, in the dining room of an apartment of another investigator, Jared Reed; and then to Maxwell’s house for sorting to distribute to various places. The distribution and return of these records has a long and tortured history over the next several months. Comprehensive Health of Planned Parenthood (CHPP) filed this mandamus action on June 6, 2007, asking this court to: (1) compel Kline to “comply with [the court’s] directives” in Alpha, (2) compel Kline to “return any copies of petitioner’s medical records” to the attorney general’s office, (3) direct Kline to provide an accounting for those records, (4) issue an order to show cause why Kline should not be held in contempt of the mandate in Alpha, and (5) grant any other appropriate relief, including attorney fees. The Court appointed District Court Judge David King as a special master to conduct an evidentiary hearing and make factual findings. ISSUES: (1) Mandamus and (2) medical records HELD: Court held a writ of mandamus was an available relief and that CHPP and the attorney general had standing in the case. Court rejected Kline’s arguments on ripeness and mootness and that the separation of powers doctrine did not impose an insurmountable obstacle. On the merits, the Court held that the person who holds the position of Johnson County district attorney may lawfully possess the results of a criminal investigation begun by the attorney general. An attorney general or a district attorney may use a private citizen to ferry results of a criminal investigation, in this case Williams and Reed, during the period between employment by the attorney general’s office and employment by the district attorney’s office. However, Court cautioned that to the extent Kline eventually seeks to admit in any criminal prosecution any of the records he and his subordinates and/or private citizens moved from one office to the other, his choices may have exposed that evidence to challenge. Court concluded that CHPP and the attorney general were not entitled to the primary relief they sought. The Court did not force Kline to disgorge “each and every copy” of the patient records Kline and his subordinates have made “and any and all other evidence Kline developed and obtained while he was acting as attorney general that he took with him to Johnson County.” However, the Court ordered the following relief: “Kline shall produce and hand deliver to the Attorney General’s office no later than 5 p.m. on Dec. 12, 2008, a full, complete, and understandable set of the patient records and any and all other materials gathered or generated by Kline and/or 32 February 2009 | The Journal of the Kansas Bar Association

his subordinates in their abortion-related inquisition while Kline was Attorney General. Neither Kline nor any of his subordinates or lawyers may make any exceptions whatsoever for any reason or on any rationale to the foregoing order. ‘Full, complete, and understandable’ means exactly what it says. This set of materials shall be organized and labeled exactly as organized and labeled in the files or repositories maintained by and/or for Kline and his subordinates in the discharge of their duties on behalf of the Johnson County District Attorney’s Office. The cost of the production and delivery of the set of materials described in this paragraph shall be borne by the Johnson County District Attorney’s Office.” The Court did not institute a proceeding against Kline for indirect civil contempt. Since the Court denied the primary relief sought by CHPP and the attorney general, the Court did not order attorney fees. The Court also did not impose sanctions on Kline for his conduct on which CHPP focused. However, in addition to the order to produce documents, a similar order was entered concerning documents in the Johnson County District Attorney’s Office, and then the following sanction: “We also hereby order as an additional sanction that Kline, Rucker, Maxwell, Williams, Reed, and any other employee of the Johnson County District Attorney’s Office requested by the Attorney General shall meet with the attorney general and/or his designee(s) on whatever date(s) and at whatever time(s) designated by the Attorney General up to and including noon on Jan. 10, 2009, and at whatever place(s) designated by the Attorney General for the purpose of explaining all of the materials turned over by 5 p.m. on Dec. 12, 2008, pursuant to the relief and sanction orders contained in this decision by this court.” CONCURRENCE: J. Davis concurred in the result. However, He disagreed with the court’s resolution of the ripeness and mootness issues. Davis also stated that he would not classify the relief granted against Kline and his employees as sanctions. CONCURRENCE: C. J. McFarland concurred in the result and joined J. Davis in his concurring opinion. STATUTES: K.S.A. 20-1204a; K.S.A. 22-3101(1), -3212(g); K.S.A. 22a-101, 109; K.S.A. 60-211, -237, -801; K.S.A. 65-445(c); and K.S.A. 75-701, -704 MEDICAL MALPRACTICE, KANSAS CONSUMER PROTECTION ACT, AND BATTERY KELLY V. VINZANT SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS COURT OF APPEALS – AFFIRMED IN PART AND REVERSED IN PART NO. 94,648 – DECEMBER 12, 2008 FACTS: Kelly’s family physician, Dr. Lind, examined a lump in Kelly’s groin area and diagnosed a hernia. Dr. VinZant performed an inguinal hernia surgery on Kelly in October 1999. Kelly complained of pain and that his left testicle had not dropped. In April 2000, VinZant performed exploratory surgery and removed a mass of tissue, which he thought was the testicle, but later tests proved it was not. In another surgery a week later after a sonogram, VinZant located and removed a necrotized testicle. Two years later, Kelly filed three separate lawsuits, each based on one of the three surgeries, claiming medical malpractice and fraud based on the Kansas Consumer Protection Act (KCPA). The district court granted summary judgment on the KCPA claim. Following a jury verdict finding no fault in the surgery, or failing to perform imaging studies, or failing to inform Kelly of the risks, the district court dismissed the fraud claims and found that the battery claims based on fraudulently obtained consents were barred by the statute of limitations. The Court of Appeals concluded the district court correctly granted judgment on the KCPA claims, the battery claims had expired after the onewww.ksbar.org

Appellate Decisions year period of limitations, Kelly failed to preserve several evidentiary issues, and the district court did not abuse its discretion in failing to grant a new trial and not awarding costs and expenses. ISSUES: (1) Medical malpractice, (2) KCPA, and (3) battery HELD: Court held that where the alleged fraud occurs as part of the informed consent process during medical treatment, a common law fraud claim may not be stated independent of the medical malpractice claim. On the other hand, a KCPA claim may be, and a defense verdict on the medical malpractice claim does not foreclose the KCPA claims, which in this case were severed for a separate trial. Court also held the statute of limitations begins to run on a battery claim at the time of the touching, even if the consent leading to the touching was vitiated by fraud not discovered immediately. The Legislature defines periods of limitations and has not provided an exception to or stated any circumstances extending the statute of limitations for battery based upon concealment of fraud or an inability to discover the battery. Court held the district court did not error in dismissing Kelly’s common law fraud claims, but concluded the Court of Appeals erred in holding that Kelly’s KCPA claims could be dismissed as a matter of law because of the jury verdict. Court remanded for further proceedings on the KCPA claims. STATUTES: K.S.A. 20-3018(b); K.S.A. 22-3602(e); K.S.A. 50623, -626, -627, -634, -635(b); and K.S.A. 60-455, -513, -514 NEGLIGENCE AND PROXIMATE CAUSE HALE V. BROWN SHAWNEE DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 97,232 – DECEMBER 5, 2008 FACTS: Jason R. Packard, an employee of Topeka Electric Construction Inc., was driving east on I-470 in Topeka, when he began to feel lightheaded. He lost consciousness and drove his truck into a tree near the Gage Boulevard off-ramp. Traffic on I-470 became congested as a result of the accident. About 35 minutes later, Hale was also driving east on I-470. She noticed that traffic was slowing down, and she also slowed down and then stopped. Judy Brown was driving behind Hale and collided with the rear of Hale’s stopped car, and Hale sustained physical injuries from the collision. Hale filed a petition seeking damages for negligence against Brown, Packard, and Topeka Electric Construction. Hale settled her claims against Brown. The district court granted Packard and Topeka Electric Construction’s motion to dismiss for lack of proximate cause. The Court of Appeals affirmed the judgment of the district court. ISSUES: (1) Negligence and (2) proximate cause HELD: Court stated that negligence by a third party may interrupt the flow of proximate causation between a defendant’s negligent act and an injury to the plaintiff. Court upheld the district court and Court of Appeals’ holding that the proximate cause doctrine barred Hale’s tort action against Packard. Court found as a matter of law that, under the facts of this case, the driver involved in the one-car accident did not proximately cause the succeeding rear-end collision and is therefore not liable for that accident. STATUTES: K.S.A. 8-1564(b) and K.S.A. 75-6104(o) PARENT AND CHILD IN RE ADOPTION OF A.A.T. SEDGWICK DISTRICT COURT – AFFIRMED NO. 98,740 – DECEMBER 12, 2008 FACTS: Natural father sought to set aside adoption of newborn child, asserting his failure to assume parenting responsibilities and preserve liberty interest in fatherhood should be excused because natural mother induced his inaction by lying to him about the pregnancy and birth, falsely claimed she had an abortion, and lied to the district court regarding natural father’s identity, which prevented him from receiving notice and opportunity to be heard in the adopwww.ksbar.org

tion proceeding. District court refused to set aside the adoption decree, finding the adoption agency and adoptive parents had acted in good faith. Although father had not abandoned mother during her pregnancy, and had not learned of child’s birth until six months later, father should have taken action to determine whether mother had an abortion or whether she had given birth. District court also refused to set aside the adoption decree based on newly discovered evidence (K.S.A. 60-260(b)(2)), for fraud (K.S.A. 60-260(b)(3)), or as void (K.S.A. 60-260(b)(4)). Father’s appeal transferred to Supreme Court. ISSUES: (1) Void decree, (2) fraud, and (3) newly discovered evidence HELD: Adoption is not void. U.S. Supreme Court cases surveyed but none address a newborn adoption. Common factors emerging in state cases are that a natural father has a liberty interest affording a right to notice of proceedings to adopt his newborn child if he: (1) diligently took affirmative action that manifested a full commitment to parenting responsibilities and (2) did so during the pregnancy and in a prompt and timely manner as measured by the fleeting opportunity availed to the father under circumstances of the case. Here, natural father’s opportunity to parent did not develop into a full parenting relationship warranting constitutional protection, and state did not deny him the opportunity to establish such a relationship. Although father may be blameless in failure induced by natural mother’s fraud, his belated attempt to assert a parental interest, beginning six months after adoption was final, cannot overcome the fully matured interests of state and adoptive family in the permanency and stability of the adoption. Trial court correctly found the mother did not qualify as an “adverse party” for purposes of granting relief from judgment for fraud. Under facts of case, no abuse of discretion in trial court’s determination that natural father, by exercising reasonable diligence, could have discovered the birth mother’s lies about obtaining an abortion and her concealment of the birth and adoption of their child. Father entitled to no relief from judgment because of discovery of new evidence. DISSENT (Nuss, J.): Believes analysis of case should begin by viewing year’s worth of mother’s abortion lies in light of Planned Parenthood of Missouri v. Danforth, 428 U.S. 5 (1976). Mother’s deception of father and others may not serve as basis for relief from judgment, but remains a valid judicial determination regarding interference doctrine. Disagrees with majority’s findings that father failed to take enough reasonable steps to establish a constitutionally protected parental relationship with his child, and with majority’s reading of Lehr v. Robertson, 463 U.S. 248 (1983). Relief from judgment should be granted because judgment granted in a manner inconsistent with due process is void. Alternatively, relief based on newly discovered evidence or fraud is appropriate under facts. Would reverse judgment of trial court and remand for further proceedings. DISSENT (Beier, J.): Disagrees that no protected liberty interest was established under facts of case, thus district court was not free to dispense with actual notice to and consent or relinquishment unless one of statutory scenarios in K.S.A. 59-2136(h)(1)-(7) was present when father’s rights were terminated and adoption finalized. Would reverse and remand for appropriate findings by trial court. If none of the scenarios existed, then decree was void. Disagrees that child has a constitutional right in this situation that trumps father’s liberty interest in parenting, and notes no Kansas authority on this point. Also, district court erroneously equated due diligence standard under K.S.A. 60-260(b)(2) to standard father must meet to establish a substantive due process right or liberty interest in parenting. Adoption decree also should be set aside on basis of newly discovered evidence. Case should have been remanded to district court judge. The Journal of the Kansas Bar Association | February 2009 33

Appellate Decisions DISSENT (Rosen, J.): Joins dissent of J. Beier and rationale to remand to district court for further factual findings and legal conclusions under K.S.A. 59-2136(h), but argues the best interests of the child should be considered and given weight by the district court when determining whether to set aside the adoption even though such consideration is not explicitly set forth in statute in effect at time of the adoption proceeding. STATUTES: K.S.A. 2007 Supp. 59-2136(d), -2136(h)(2)(A); and K.S.A. 20-3017, 38-1114, -1114(c) and (d), 59-2111 et seq., -2124, -2129, -2136, -2136(f )-(h), -2136(h)(1)(D), -2136(h)(1)(7), -2213, 60-259, -260(b)(2)-(4)

Criminal STATE V. ANDERSON WYANDOTTE DISTRICT COURT – AFFIRMED NO. 97,420 – DECEMBER 5, 2008 FACTS: Anderson convicted of felony murder and aggravated robbery. On appeal he claimed: (1) trial court erred in refusing to instruct jury on compulsion and violated Anderson’s right to present his sole theory of defense, (2) reversible error to allow witnesses to testify about decedent’s communication at crime scene, and (3) trial court erroneously instructed jury on presumption of innocence. ISSUES: (1) Jury instruction on compulsion, (2) confrontation, and (3) instruction on presumption of innocence HELD: Standard for reviewing a trial court’s refusal to instruct on defendant’s theory of defense is clarified: “A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational fact-finder finding in accordance with the defendant’s theory.” All contrary holdings of Kansas Supreme Court are disapproved. Under facts of this case, no rational fact-finder could have found Anderson had a reasonable belief that death or great bodily harm would be inflicted upon him if he did not cooperate in the robbery. Even if confrontation issue was properly preserved for appeal and violation assumed, the error was harmless under facts of case. Instruction erroneously stated innocence to be presumed “until” rather than “unless” jury was convinced the defendant was guilty but error was harmless. No new facts or law merit reconsideration of identical argument in State v. Gallegos, 286 Kan. 869 (2008). STATUTE: K.S.A. 21-3209, -3209(1), -3209(2), -3401, -3427, -3436, -3436(a), 22-3414(3), -3601(b)(1), 60-404 STATE V. ANGELO WYANDOTTE DISTRICT COURT – AFFIRMED NO. 96,175 – DECEMBER 5, 2008 FACTS: Angelo convicted of first-degree murder. On appeal he first claimed he was denied speedy trial under K.S.A. 22-3402. Second, the state’s peremptory challenges and trial court’s failure to comply with Batson violated Equal Protection Clause. Third, trial court’s failure to instruct on lesser-included offense was reversible error. Fourth, trial court erred in finding Angelo introduced evidence of his good character, and in allowing state to present evidence of Angelo’s prior convictions. Fifth, a mistrial should have been declared when Angelo’s wife erroneously testified that Angelo had been convicted of attempted murder. Sixth, trial court erred in allowing state to play a recorded statement of a witness who had been excused. ISSUES: (1) Speedy trial, (2) Batson compliance, (3) jury instruction on lesser included offense, (4) evidence of good character, (5) mistrial, (6) recorded statement of excused witness, and (7) cumulative error HELD: No speedy trial violation. Although Angelo’s trial began 34 February 2009 | The Journal of the Kansas Bar Association

more than 90 days after his arraignment, K.S.A. 22-3402 not applicable where Angelo was subject to separate speedy trial deadlines set in detainers acts. No purposeful discrimination demonstrated. Record does not reflect a clearly articulated identification of third step in Batson analysis, but trial court essentially performed that analysis and impliedly held that Angelo failed to prove state’s reasons were pretextual. Also, Angelo rather than trial court failed to proceed with third Batson step, and failed to object at the time to the court’s purported incomplete Batson analysis. Better practice for trial court to identify and follow each Batson step, and to clearly articulate findings. Under State v. Cordray, 277 Kan. 43 (2004), trial court erred in not instructing jury on lesser-included offense, but Angelo invited this error by requesting the instruction not be given, and acknowledging that invited error would preclude appeal from consequences of his decision. Under facts, state opened door during direct exam of witness and defense counsel basically commented on it. Evidence of Angelo’s prior convictions for other violent behavior was incorrectly admitted, but error not reversible in this case. No abuse of discretion in denial of mistrial. Under circumstances, which included trial court sustaining Angelo’s objection and admonishing jury to disregard, Angelo failed to show his substantial rights to a fair trial were prejudiced. Under facts, by the playing of the witness’s recorded statement, state’s case was damaged. Any purported violation of K.S.A. 60422(b) thus was harmless under K.S.A. 60-261 and Chapman v. California, 386 U.S. 18 (1967). Claim of cumulative error is rejected. STATUTES: K.S.A. 22-3402, -3402(1), -3414(3), -3423(1), -3601(b)(1), -4301 et seq., -4401 et seq., 60-261, -422(b), -447; and K.S.A. 62-2901 (Corrick) STATE V. BAKER SHAWNEE DISTRICT COURT – AFFIRMED NO. 98,498 – DECEMBER 5, 2008 FACTS: Baker was convicted of kidnapping and felony murder of David Owen in a “hobo camp” in the woods near the Topeka Rescue Mission. Owen was a self-appointed homeless advocate that would disrupt or damage similar camps and insist that the inhabitants call their families. Baker was an accomplice in the beating and hanging of Owens. ISSUES: (1) Jury instructions, (2) admission of photographs, (3) prosecutorial misconduct, and (4) sentencing HELD: Court stated that to constitute the defense of compulsion, coercion or duress must be present, imminent, impending, and continuous. The compulsion must be of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to oneself or one’s family if the act is not done. The doctrine of compulsion cannot be invoked as an excuse by one who had a reasonable opportunity to escape the compulsion or avoid doing the act without undue exposure to death or serious bodily harm. A threat of future injury is not enough. Court held under the facts of this case, the trial court did not err in refusing to instruct on compulsion. Any coercion or duress was not imminent or continuous, and defendant had a reasonable opportunity to escape, or at least withdraw, from the criminal activities. Court also held the determination of whether relevant photographs are nevertheless unduly prejudicial is reviewed for abuse of discretion and under the facts of this case, the trial court did not err in admitting three photographs of the victim’s body. Court held that under the facts of this case, the prosecutor did not commit misconduct when using a sports team analogy to explain the concept of aiding and abetting to the jury. Last, Court held the use of a defendant’s prior criminal convictions as one factor to establish a presumptive sentence does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). www.ksbar.org

Appellate Decisions STATUTES: K.S.A. 21-3205, -3209, -3420(c); and K.S.A. 223601(b) STATE V. BOGGS MCPHERSON DISTRICT COURT REVERSED AND REMANDED COURT OF APPEALS – AFFIRMED NO. 96,921 – DECEMBER 5, 2008 FACTS: Boggs convicted of drug charges related to discovery of glass pipe he denied was his in vehicle in which he was a passenger. Court of Appeals reversed the convictions, holding the admission of evidence of Boggs’ prior possession of marijuana violated K.S.A. 60455. 38 Kan. App. 2d 683 (2007). State’s petition for review granted on four issues: (1) whether K.S.A. 60-455 compliance requirement in State v. Gunby, 282 Kan. 39 (2006), decided after Boggs’ trial, applies; (2) whether Court of Appeals improperly applied de novo standard of review rather than abuse of discretion standard regarding admission of K.S.A. 60-455 evidence; (3) whether Court of Appeals erred in ruling that prior drug use is not a factor to be considered in a nonexclusive possession case; and (4) whether Court of Appeals improperly reweighed witness credibility in finding error was not harmless. ISSUES: (1) Application of Gunby, (2) standard of appellate review of admission of K.S.A. 60-455 evidence, (3) admission of evidence of prior drug use, and (4) harmless error HELD: Because this is Boggs’ direct appeal, his convictions are not yet final and Gunby governs the admission of evidence at issue in this case. Court of Appeals correctly applied a de novo standard of review where key issue as to admissibility of Boggs’ past marijuana use turned on legal questions regarding materiality. Propensity evidence of Boggs’ prior drug use was improperly admitted outside of Gunby safeguards. Because Boggs’ only defense was that he did not possess the glass pipe, element of intent and related elements of knowledge and absence of mistake or accident were not at issue and not material to resolution of Boggs’ case. Recent unpublished Court of Appeals decisions, State v. Vogt, No. 96,660 (Dec. 14, 2007), and State v. Saunders, No. 94,672 (May 4, 2007), are inconsistent with Kansas Supreme Court case law. To the extent PIK Crim. 3d 67.13-D and past appellate cases suggest a defendant’s use of a controlled substance is automatically admissible as an exception to the specific mandates of K.S.A. 60-455, they are disapproved A reviewing court considering a question of harmless error is required to make a determination as to whether the evidence admitted had a likelihood of changing the results at trial. Applying this standard, the admission of Boggs’ prior use of marijuana was not harmless. Case is remanded to district court for a new trial. STATUTE: K.S.A. 60-261, -447, -455, 65-4152, -4162 STATE V. CONLEY SEDGWICK DISTRICT COURT – AFFIRMED NO. 99,279 – DECEMBER 19, 2008 FACTS: Conley’s 1998 conviction for premeditated first-degree murder, and hard 40 sentence were affirmed in direct appeal. 270 Kan. 18 (2000). Conley filed motion to correct illegal sentence, arguing Apprendi claim regarding his hard 40 sentence. District court summarily denied the motion because the issue was previously decided in Conley’s direct appeal. Conley appealed, claiming res judicata is inapplicable to motions to correct illegal sentence, and summary disposition is inappropriate procedure for handling such motions. ISSUES: (1) Res judicata and motion to correct illegal sentence and (2) summary disposition HELD: No error in district court’s holding that Apprendi issue was barred by doctrine of res judicata. That doctrine applies to mowww.ksbar.org

tions to correct illegal sentence filed under K.S.A. 22-3504, and no fundamental fairness exception in this case where issue was raised and decided on the merits in a prior appeal, and U.S. Supreme Court has not changed its position since Conley’s direct appeal. District court’s summary denial of Conley’s motion was proper. The preliminary examination process is well established in Kansas for handling K.S.A. 22-3504(1) motions. No merit to any of Conley’s reasons for changing this established law. STATUTE: K.S.A. 22-304, -3504(1), -3601(b)(1), 60-1507 STATE V. GILL CRAWFORD DISTRICT COURT – AFFIRMED NO. 96,531 – DECEMBER 5, 2008 FACTS: Gill convicted in 1998 on guilty pleas to second-degree murder and aggravated criminal sodomy. In 2006 he sought leave to file an appeal out of time pursuant to State v Ortiz, 230 Kan. 733 (1982), claiming he was not advised of right to appeal his sentence within 10 days. District court summarily denied the motion. Gill appealed. ISSUE: Ortiz exceptions for out of time appeal HELD: First Ortiz exception, as recently clarified in State v. Patton, 287 Kan. __ (2008), applies in this case. State concedes the sentencing judge failed to advise Gill of 10-day limitation for taking an appeal and no evidence Gill actually knew of this deadline. However, case presents example of a defendant who “let the matter rest” in contravention of requirement to prove a timely appeal would have been sought if appropriate information had been communicated at sentencing. Denial of Gill’s motion to file an appeal out of time is affirmed. STATUTES: K.S.A. 22-3608(c), 60-1507; K.S.A. 1996 Supp. 21-3402(a), -4720(b)(2); and K.S.A. 21-3506(a)(3)(A) and (B) (1995 Furse) STATE V. HENSON WYANDOTTE DISTRICT COURT – AFFIRMED NO. 98,753 – DECEMBER 12, 2008 FACTS: Henson convicted of premeditated first-degree murder and criminal possession of firearm. On appeal he claimed, trial court wrongfully refused cross-examination of state witnesses regarding prior acts of violence by murder victim. He also claimed trial court erred in not instructing jury on lesser-included crimes of voluntary manslaughter, and second-degree reckless murder or involuntary manslaughter. ISSUES: (1) Prior acts of violence, (2) jury instruction on voluntary manslaughter, and (3) jury instruction on second-degree reckless murder or involuntary manslaughter HELD: Under facts, no abuse of discretion in trial court’s ruling that two specific fights involving the murdered victim were not probative of any material issue in the case. There was no showing the fights had any connection to the murder, the fights did not involve or relate to the defendant, and no evidence the fights affected the actions of the defendant who did not claim defense of self or another. Moreover, Henson was not prevented from presenting his defense. Lesser-included offense instruction for voluntary manslaughter not appropriate because evidence established the victim’s provocation of Henson occurred 20 to 30 minutes before the shooting, and during this time Henson had cooled off and planned an act of retribution. Lesser-included offense instruction for second-degree murder or involuntary manslaughter not appropriate because no evidence the shooting was reckless. STATUTE: K.S.A. 21-3201(c), -3402(b), -3403(a), -3404(a), 22-3601(b)(1), 60-401(b) The Journal of the Kansas Bar Association | February 2009 35

Appellate Decisions STATE V. HOWARD SEDGWICK DISTRICT COURT – AFFIRMED NO. 98,976 – DECEMBER 19, 2008 FACTS: Howard convicted in 1987 of multiple felonies. In 2007 he filed motion to correct illegal sentence, arguing the sentence in his journal entry of judgment was longer than the sentence pronounced from the bench. District court summarily denied the motion, finding the sentence was not illegal. Howard appealed, claiming his sentence was ambiguous because trial court articulated multiple sentences over two-day period, and the trial court improperly denied him a full evidentiary hearing and appointment of counsel on his motion. ISSUE: Summary dismissal of motion to correct illegal sentence HELD: Under facts of case, the court orally pronounced from bench the same sentence contained in journal entry of judgment, and never intended to impose the lesser sentence Howard alleged. State v. Crawford, 253 Kan. 629 (1993), compared and applied. The sentence imposed was not ambiguous with respect to time and manner in which it is to be served, and was not illegal. District court did not err in summarily denying Howard’s motion to correct an illegal sentence under K.S.A. 22-3504. STATUTE: K.S.A. 22-3504, 60-1507 STATE V. JONES JOHNSON DISTRICT COURT – AFFIRMED NO. 97,065 – DECEMBER 12, 2008 FACTS: Victim who suffered crush injuries when he came to the aid of woman whose purse was snatched by Jones in a parking lot died without recovering from his injuries. Jones pleaded guilty to felony counts of robbery, theft, and fleeing and eluding. He was convicted by a jury on remaining felony murder charge over his defense that the victim died from medical negligence. On appeal, Jones claimed: (1) trial court erred in not allowing defense counsel to question victim’s wife about her consultation with a lawyer about the quality of the victim’s medical care, (2) he was entitled to new trial based on newly discovered evidence that victim’s wife filed civil suit against victim’s physicians and hospital, and (3) jury should have been instructed on aggravated battery as lesser-included offense of felony murder. ISSUES: (1) Testimony of victim’s wife, (2) newly discovered evidence, and (3) lesser-included instruction HELD: Under facts, regardless of whether an attorney-client privilege existed to prevent disclosure of either victim’s wife’s contact with a lawyer or her discussion with that lawyer, district judge’s exclusion of any responses she would have given to questions on this issue from defense counsel was inconsequential. Even if this evidentiary ruling could be characterized as violating the defendant’s due process right to present his defense, error was harmless beyond a reasonable doubt. Newly discovered evidence argument cannot be raised for first time on appeal, and material annexed to Jones’ appellate brief appendix does not appear in the record on appeal and cannot be considered. To pursue this argument, Jones must first present motion to district court. Under facts and sole remaining felony murder charge, Jones was not entitled to a lesser-included offense instruction on aggravated battery where evidence of underlying felony of robbery was strong, aggravated battery was not a lesser-included offense of felony murder based on the underlying crime of robbery, and the instructions given adequately protected Jones’ due process right to present defense that he injured but did not cause victim’s death. CONCURRENCE (Johnson, J.): Agrees that lesser-included offense instruction on aggravated battery should not have been given in this case. Writes separately to document his misgivings about court-made rule that the giving of lesser-included offense instruc36 February 2009 | The Journal of the Kansas Bar Association

tions in felony-murder cases is driven in the first instance by the relative strength of the evidence of the underlying felony. STATUTE: K.S.A. 21-3401(b), -3412, -3436, -3436(a)(3), 60-426 STATE V. JONES WYANDOTTE DISTRICT COURT – AFFIRMED NO. 97,279 – DECEMBER 12, 2008 FACTS: On appeal from first-degree murder conviction, Jones claimed: (1) district court erred in admitting deceased victim’s hearsay statements to paramedics as a dying declaration, (2) prosecutorial misconduct in closing argument, and (3) clear error in trial court’s failure to instruct jury on certain lesser-included offenses. ISSUES: (1) Dying declaration, (2) prosecutorial misconduct, and (3) jury instructions on lesser-included offenses HELD: Victim’s statements to paramedics fell within dying declaration exception to statutory hearsay. Because statements were testimonial in nature, their introduction into evidence would violate Jones’ right to confrontation unless an exception applies. From statements in Crawford v. Washington, 541 U.S. 36 (2004), and Giles v. California, 554 U.S. __, 128 S. Ct. 2678 (2008), court is confident that when given the opportunity to do so, the U.S. Supreme Court would confirm that a dying declaration may be admitted into evidence, even when it is testimonial in nature, and is unconfronted. No prosecutorial misconduct in this case. Prosecutor did not state facts not in evidence, argued inferences that could be reasonably drawn from the admitted evidence, only argued within latitude afforded prosecutorial discussion of the evidence, and did not misstate the law applicable to premeditation. Even if isolated error were to be found, any such error was not reversible. A rational jury could not have found sufficient evidence to convict Jones of lesser-included offenses proffered on appeal. None of these lesser-included offenses comported with Jones’ defense that another person was the shooter. Also, no evidence the shooting was the product of recklessness, or that the attack was a reaction to a contemporaneous provocation. STATUTES: K.S.A. 2007 Supp. 60-460, -460(a), -460(d)(2); and K.S.A. 21-3403(a) STATE V. SCHOW JOHNSON DISTRICT COURT – JUDGMENT REVERSED, SENTENCE VACATED, AND REMANDED COURT OF APPEALS – REVERSED NO. 96,820 – DECEMBER 12, 2008 FACTS: District court denied Schow’s motion to withdraw guilty plea that had been entered with erroneous understanding of his eligibility for probation. Presumptive prison term imposed when Schow’s Florida convictions listed without objection in a previous presentence investigations (PSI) but now contested were used to aggregate misdemeanors into a felony. Schow appealed. Court of Appeals affirmed, finding no abuse of discretion in trial court’s denial of motion to withdraw guilty plea, and finding no error under State v. Hobbs, 276 Kan. 44 (2003), in trial court taking judicial notice of PSI without requiring state to produce to establish disputed portion of Schow’s criminal history. ISSUES: (1) Burden of proving prior convictions and (2) withdrawing guilty plea HELD: As matter of statutory interpretation, a defendant may file a written objection to criminal history worksheet, including convictions, which may have been contained in a previous criminal history worksheet, and such an objection places burden on state to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, district court erred in shifting burden to Schow to disprove the existence of the disputed www.ksbar.org

Appellate Decisions convictions. Sentence is vacated and matter remanded for proper determination of criminal history and resentencing if necessary. To the extent district court refused to grant motion to withdraw plea based upon erroneous understanding that allegation of innocence was a prerequisite, this was abuse of discretion. A defendant seeking to withdraw plea prior to sentencing has burden to show existence of good cause for permitting withdrawal of plea. District court did not apply factors for determining good cause listed in State v. Edgar, 281 Kan. 30 (2006), and Court of Appeals’ finding that Schow was represented by competent counsel is questioned. Denial of motion to withdraw plea is reversed and case is remanded to district court. STATUTE: K.S.A. 21-4707, -4714(a)-(g), -4715, -4715(b) and (c), -4721(e)(2), 22-3210(d) STATE V. THOMPSON MCPHERSON DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED COURT OF APPEALS – AFFIRMED IN PART AND REVERSED IN PART NO. 94,254 – DECEMBER 5, 2008 FACTS: Thompson convicted of multiple drug offenses. Court of Appeals reversed the convictions, finding error in trial court’s denial of motion to suppress. Supreme Court reversed and remanded for consideration of issues not addressed. 36 Kan. App. 2d 151 (2006), reversed and remanded, 284 Kan. 763 (2007). In remanded unpublished opinion, Court of Appeals applied State v. Schoonover, 281 Kan. 43 (2006), and rejected most of Thompson’s multiplicity arguments, but reversed the conviction for possession of lithium metal with intent to manufacture as multiplicitous to the conviction for possession of pseudoephedrine with intent to manufacture a controlled substance. Applying identical offense sentencing doctrine,

it also reversed the remaining severity level 1 drug felony convictions (manufacture of methamphetamine and possession of pseudoephedrine with intent to manufacture a controlled substance) and remanded for resentencing on severity level 4 drug felony offenses. 2008 WL 142103 (Thompson II). Supreme Court granted state’s petition for review of these multiplicity and sentencing issues, and denied Thompson’s cross appeal ISSUES: (1) Double jeopardy and possession of precursors, (2) sentence for possession of pseudoephedrine, and (3) sentence for manufacture of methamphetamine HELD: Double jeopardy issue arises from convictions for multiple violations of single statute. Because Thompson’s conduct and intent to manufacture were unitary, his convictions for possession of two precursors with intent to manufacture methamphetamine subjected him to double jeopardy. Court of Appeals correctly reversed one conviction. Contrary to state’s argument, Schoonover did not explicitly or implicitly overturn identical sentencing doctrine in State v. Campbell, 279 Kan. 1 (2005). Language in Schoonover is clarified. Campbell controls this case. Thompson’s sentence for possession of pseudoephedrine with intent to manufacture is vacated and case is remanded for resentencing to a severity level 4 drug felony. State v. Cooper, 285 Kan. 964 (2008), decided after Thompson II, controls. Thompson’s convictions for manufacture of methamphetamine and possession of drug paraphernalia used to manufacture methamphetamine are not identical for sentencing purposes. Thompson’s severity level 1 drug felony sentence for this conviction is affirmed. STATUES: K.S.A. 2007 Supp. 65-4160, -4160(a), -4161; K.S.A. 20-3018(b), 65-4101 et seq., -4141(a), -4152(a)(2) and (3), -4159, -4159(a), -4159(b), -4161(a), -4162(a)(3), -7006(a); and K.S.A. 65-7006(a) (2002 Furse)

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office

Updating Attorney Contact Information When an attorney’s contact information changes, there are several offices that should be notified. A good place to start is with the Kansas Continuing Legal Education Commission and the Attorney Registration Office. Changes can be submitted via the Internet; the direct link is www.kscle.org/address.aspx. This submission goes directly to the Continuing Legal Education Commission and is then forwarded to the U.S. District Court for the District of Kansas and the Attorney Registration Office. If an attorney is involved in an appeal, the new contact information should be sent to case processing in the Office of the Clerk of the Appellate Courts. The information can be submitted by fax (785-296-1028), by phone (785-296-3229), or by mail (301 SW 10th Ave., Room 374, Topeka, KS 66612). Check with your local district court to update information there. The Kansas Bar Association has an electronic change of contact information page on their Web site; the direct link is www.ksbar.org/membership/change.htm. Check with your local bar association to update contact information there. It is important that all of these offices be able to communicate with attorneys. If an attorney does not update contact information, renewal notices, election ballots, court notices, and orders, and other important documents can be lost or delayed in arrival. Each year a number of attorneys are suspended from the practice of law because attorney registration and CLE renewal notices were mailed to an old address. It is every attorney’s responsibility to notify the Appellate Clerk of any address change within 30 days. Supreme Court Rule 208(c). For further information, call the Clerk’s Office at (785) 296-3229 and ask to speak with Carol G. Green, Clerk of the Appellate Courts. www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 37

Appellate Decisions

Court of Appeals

Civil

BREACH OF FIDUCIARY DUTY AND SELF-DEALING BECKER V. KNOLL FINNEY DISTRICT COURT – AFFIRMED NO. 99,548 – DECEMBER 24, 2008 FACTS: Finney County Water Users Association (FCWUA) is a corporation that maintains 40 to 50 miles of ditches used to draw water from the Arkansas River to irrigate land owned by FCWUA shareholders. Knoll was a shareholder of FCWUA, as well as a director and its president. Morehouse was employed as FCWUA’s full-time ditch superintendent or “ditch rider.” Knoll supervised Morehouse’s work. The Beckers, also shareholders of FCWUA, claimed that Knoll breached his fiduciary duties to FCWUA by engaging in improper self-dealings by using Morehouse to do work on Knoll’s farm at times when Morehouse should have been tending to FCWUA’s ditches. The Beckers sought damages and Knoll’s removal as a director and president of FCWUA. The district court held the Beckers failed to present a prima facie case of self-dealing that would require rebuttal evidence by Knoll. ISSUES: (1) Breach of fiduciary duty and (2) self-dealing HELD: Court concluded there was substantial evidence to support the district court’s findings and that any error in stating that the Becker’s failed to present a prima facie case was harmless. Court agreed with the Beckers that the evidence presented regarding Morehouse’s exclusive work for Knoll for a 30- to 45-day period established a prima facie case that shifted the burden to Knoll with respect to this particular transaction. However, Knoll met his burden to rebut the Becker’s prima facie case. Court stated the district court concluded that the Beckers failed to show that Knoll used Morehouse to work on his farm “to the detriment of the Corporation when Morehouse should have been working for the Corporation.” The district court found no credible evidence of wrongful self-dealing by Knoll and relied on evidence affirmatively presented by Knoll that established that he successfully rebutted the Beckers’ prima facie showing. Court stated that the Beckers presented evidence that Morehouse was on Knoll’s land doing work that was unlikely related to his work for FCWUA. However, none of the witnesses stated that the work was being done when Morehouse should have been working for FCWUA. Although Morehouse was required to work whenever something was needed on the ditches, the shareholders also told Morehouse he was free to get another job, and all agreed that he was free to spend his personal time as he wished. STATUTE: K.S.A. 60-250(a)(1) DRIVER’S LICENSE AND SUBJECT MATTER JURISDICTION KUENSTLER V. KANSAS DEPARTMENT OF REVENUE FINNEY DISTRICT COURT – AFFIRMED NO. 99,564 – DECEMBER 19, 2008 FACTS: Kuenstler was stopped for an improper turn and for failing to maintain his lane of travel. He blew a 0.098 in a breath test. The Kansas Department of Revenue (KDR) suspended his driving privileges. Kuenstler followed proper appellate channels. The trial court ultimately determine that Kuenstler had failed to comply with K.S.A. 77-614(b)(5), which requires that the petition set forth facts demonstrating the petitioner’s entitlement to relief. The trial court stated that Kuenstler’s petition was “devoid of any facts that would tend to demonstrate or indicate with any specificity the issues to be presented.” The trial court found that an amendment of Kuenstler’s pleadings would not suffice to grant the court subject matter jurisdiction. The trial court granted the KDR’s motion to dismiss based on lack of subject matter jurisdiction. ISSUES: (1) Driver’s license and (2) subject matter jurisdiction 38 February 2009 | The Journal of the Kansas Bar Association

HELD: Court held the language in Kuenstler’s petition for judicial review was insufficient to meet the strict pleading requirements of K.S.A. 77-614(b)(5) and (6). Court agreed with the trial court that: “Other than a bare assertion of issues, there were no facts set forth in the petition to demonstrate entitlement to relief ” and Kuenstler failed to plead the specific reasons why relief should be granted. Court also held that Kuenstler failed to comply with the specific pleading requirements of K.S.A. 77-614(b) in his original petition. In his requested amendment, Kuenstler attempted to add facts that would demonstrate his entitlement to relief and particular reasons for why relief should be granted, items that were specifically required by K .S.A. 77-614(b)(5) and (6). Nevertheless, Kuenstler requested those amendments well outside of the 10-day statutory time period for filing his petition under K.S.A.2007 Supp. 8-1020(p). Court stated that a petition in compliance with K.S.A. 77-614 must be filed within the statutory time period to give the trial court subject matter jurisdiction and that the relation back provisions cannot operate to cure the trial court’s lack of subject matter jurisdiction in an administrative action. STATUTES: K.S.A. 8-259, -1020(o); K.S.A. 60-215(c); and K.S.A. 77-614(b)

EXPERT TESTIMONY AND MULTIPLE CHEMICAL SENSITIVITY KUXHAUSEN V. TILLMAN PARTNERS RILEY DISTRICT COURT – AFFIRMED NO. 98,442 – DECEMBER 12, 2008 FACTS: When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, she smelled paint and began to feel ill within minutes of entering the building. She later learned that epoxy-based paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. She estimated that she spent a total of eight hours in the building after it had been painted. Kuxhausen claims that she now has an ongoing sensitivity to a variety of chemicals she encounters in her daily life. She sued Tillman Partners, claiming that all of this is due to her exposure to paint fumes on either that Monday morning in 2004 or on the two later visits. She sought damages of about $2.5 million. Kuxhausen presented a medical doctor’s testimony of her multiple chemical sensitivity, but the district court ruled the expert testimony was not sufficiently reliable to be admitted in a Kansas court. The district court granted summary judgment to Tillman Partners. ISSUES: (1) Expert testimony and (2) multiple chemical sensitivity HELD: Court held Kansas applies the Frye test to testimony about an emerging medical diagnosis, and the validity of a diagnosis of multiple chemical sensitivity is not generally accepted. It therefore fails the Frye test. Kuxhausen’s expert’s opinion was based primarily on deductive, not inductive, reasoning, so the Kuhn exception to applying the Frye test does not apply. Court concluded the district court correctly held that the expert could not testify about multiple chemical sensitivity. Court also held the district court did not abuse its discretion in concluding that Kuxhausen’s expert had not provided a sufficient factual basis for a causation opinion in the case. Court found the district court properly determined that Kuxhausen had not presented admissible expert-opinion evidence that she suffered from multiple chemical sensitivity or that her long-term symptoms were caused by exposure to paint fumes. In the absence of such evidence, Kuxhausen did not have a viable claim for negligence. Therefore the district court properly granted summary judgment to the defendant. STATUTE: K.S.A. 60-456(b) www.ksbar.org

Appellate Decisions GARNISHMENT AND DEFAULT JUDGMENT SOUTHWESTERN BELL YELLOW PAGES INC. V. BEADLE ET AL. SEDGWICK DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS NO. 98,378 – DECEMBER 19, 2008 FACTS: In 1996, Southwestern Bell Yellow Pages (SWB) filed a limited action to recover a debt from Beadle. Beadle failed to appear for the hearing, and SWB obtained a default judgment against Beadle in the amount of $11,288.74 plus 18 percent interest and costs. SWB made several attempts to collect the judgment and renewed the judgment in 2001. In 2003, the district court issued a wage garnishment order naming AirTran Airways. SWB filed a motion for judgment against AirTran for failure to answer a garnishment order. AirTran had sent garnishment checks to SWB, but they got lost in the mail. AirTran reissued checks thinking the matter resolved. SWB continued with its action against AirTran. The district court granted judgment in favor of SWB for $28,611.46 plus interest, attorney fees, and costs based on AirTran’s failure to appear, the order of garnishment was properly served upon AirTran, and that AirTran failed to properly answer. SWB cashed multiple replacement checks and sent a full release of wage garnishment to AirTran. In 2005, SWB’s counsel sent a letter to AirTran demanding payment of the $28,000 judgment. At SWB’s request, the district court issued a garnishment order in 2006 for $33,100.68 showing the Sedgwick County Board of Commissioners as garnishee and AirTran as judgment debtor. AirTran moved to set aside SWB’s judgment. The district court denied the motion for lack of jurisdiction because the motion was not filed within 10 days as required under the general default statute for limited actions ISSUES: (1) Garnishment and (2) default judgment HELD: Court held that the catchall provision “any other default judgment” in K.S.A. 61-3301(c), which provides a 10-day time limit for filing a motion to set aside a default judgment, does not refer generally to any other default judgment granted under Chapter 61. Rather, it is restricted to default judgments appropriately granted under K.S.A. 61-3301(a)(1), (2), or (3). Therefore, court held that because a judgment entered against a garnishee under K.S.A. 613514 does not come within the general Chapter 61 default provisions of K.S.A. 61-3301(a), the jurisdictional time limits for filing a motion to set aside a default judgment under K.S.A. 61-3301(c) do not govern default judgments rendered under K.S.A. 61-3514. Court reversed the district court’s decision denying AirTran’s motion to set aside SWB’s default judgment and remanded for further consideration of the motion. STATUTES: K.S.A. 60-255(b), -260; and K.S.A. 61-1721, -2006, -2801, -2912(I), -3301(a)(1), (2), (3), (c), -3304, -3514 HOLDER IN DUE COURSE AND SET-OFF HURST ENTERPRISES V. CRAWFORD SEWARD DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 98,996 – DECEMBER 19, 2008 FACTS: In September 2005, Crawford and Cactus Roofing issued a check to “Espino Roofing and/or Tomas Hernandez” for $4,768.47 for roofing work that Hernandez and his crew had performed for Cactus. Hernandez cashed the check at Hurst Enterprises, d/b/a Mr. Payroll Check Cashing, where he had cashed previous checks. Approximately one day after issuing a check to Hernandez, Crawford discovered moisture leaks on the roofing project and stopped payment on the check. Cactus spent approximately $4,500 repairing the prior work. Hurst sued Crawford for $4,768.47 plus interest alleging it was entitled to payment because it was a holder in due course of the check. The trial court determined that Hurst was a proper holder in due course, but then allowed a set-off for the damages caused by Hernandez. The trial court awarded the difference to Hurst in the amount of $267.03. ISSUES: (1) Holder in due course and (2) set-off www.ksbar.org

HELD: Court held that K.S.A. 84-3-302(d) does not apply to situations where a holder in due course had fully completed its performance of consideration for an instrument. Court stated that because Hurst paid Hernandez the entire amount of the agreed upon consideration for the check, K.S.A. 84-3-302(d) does not apply. The issue of the quality of the work that Hernandez performed for Cactus does not affect Hurst’s rights as a holder in due course. When Hurst discovered that Cactus had placed a stop payment order on the check, it had already paid Hernandez the full consideration for the check. As a result, Hurst was a holder for value in the full amount of the check. Because Hurst had paid all of the agreed upon consideration to Hernandez, it was entitled to recover the full amount of the check ($4,768.47) from Cactus. Court reversed the trial court’s judgment and remand the case to the trial court with instructions to enter a judgment against Crawford and Cactus and in favor of Hurst for $4,768.47. STATUTE: K.S.A. 84-3-302(d) ROMEO AND JULIET LAW IN RE E.R. FINNEY DISTRICT COURT – REVERSED NO. 100,197 – DECEMBER 12, 2008 FACTS: Twelve-year-old E.R. was adjudicated a juvenile offender for sexually fondling a 14-year-old girl who was a willing participant. E.R. argued to the district court without success that the charge should be dismissed and he should not be adjudicated a juvenile offender because he is younger than the girl involved in this illicit liaison. E.R. was adjudicated to be a juvenile offender by the district court. ISSUE: Romeo and Juliet law HELD: Court stated the Kansas Romeo and Juliet law, K.S.A. 21-3522(a), applies to unlawful voluntary sexual relations between certain minors. Court concluded the plain language of the statute requires the offender to be older than the victim. Court held the district court erred in refusing to dismiss this charge and in adjudicating E.R. to be a juvenile offender for violating K.S.A. 21-3522(a) when he was younger, rather than older, than his female participant. STATUTE: K.S.A. 21-3522(a) TORTS LASHURE V. FELTS GEARY DISTRICT COURT REVERSED AND REMANDED NO. 98,496 – DECEMBER 19, 2008 FACTS: Lashure sued two emergency room doctors for negligently diagnosing gout instead of osteomyelitis. Jury questioned one instruction and entered verdict for defendants. Lashure appealed, arguing the instruction, drafted in negative terms, confused and misled the jury, and interjected erroneous law. The doctors crossappealed from the denial of motion for directed verdict, arguing Lashure’s expert witness failed to prove their negligence caused Lashure’s damages. ISSUES: (1) Jury instruction and (2) directed verdict HELD: The law of professional liability in Kansas, which has transitioned from contract principles to negligence rules, is reviewed. In this case, trial court gave jury an instruction not from PIK, but instead paraphrased from old Supreme Court opinion, which erroneously inserted the idea of perfect care into a medical malpractice case. This could have misled or at least confused the jury such that reversal is necessary. CONCURRENCE AND DISSENT (Greene, J.): Concurs with analysis on erroneous jury instruction and need for new trial. Disagrees with holding on cross-appeal. Plaintiff’s expert was sole causation witness, but that witness’s testimony on crossexamination clearly and unequivocally “delinked” most of plaintiff’s claimed damages from any negligence by defendants. Defendants were entitled to partial directed verdict. STATUTE: K.S.A. 60-250 The Journal of the Kansas Bar Association | February 2009 39

Appellate Decisions TORTS – COUNTIES THOMAS V. BOARD OF SHAWNEE COUNTY COMM’RS SHAWNEE DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 98,586 – DECEMBER 12, 2008 FACTS: Stapleton committed suicide while in close observation unit at Shawnee County jail. Negligence action filed against guard and his immediate supervisor, the warden, and Shawnee County Commissioners. District court granted summary judgment to all defendants, finding plaintiffs failed to allege material facts indicating any defendant knew or should have known Stapleton was subject to an unreasonable risk of physical harm. Thomas appealed. ISSUES: (1) Duty to protect, (2) knowledge of unreasonable risk of physical harm, and (3) claims against county HELD: Cases reviewed involving special duty of care under Restatement (Second) of Torts, finding § 314A(4) applies to facts in this case. As a matter of law, defendants, as Stapleton’s custodian, had legal duty to take reasonable action to protect Stapleton against risk of self-inflicted physical harm. Fact that Stapleton was housed in unit designated by policy as one for inmates possessing suicide factor(s) is sufficient in and of itself to create material fact regarding whether guard and immediate supervisor knew or should have known there was risk Stapleton would commit suicide. Trial court erred in granting summary judgment in favor of these two defendants. Summary judgment for supervisor on additional claim of negligent supervision is affirmed. Summary judgment for warden and county commissioners is affirmed. All claims against defendants in their official capacity are claims against Shawnee County. Pursuant to K.S.A. 2007 Supp. 756103(a), Shawnee County (as an entity) is liable for negligent acts of guard and immediate supervisor. Claim of immunity by guard, supervisor and county based upon enforcement of a written personnel policy and upon exercise of discretionary function has no merit. Case remanded for trial on issues of breach, causation, and damages with regard to these three defendants. STATUTES: K.S.A. 2007 Supp. 75-6103(a), -6104, -6104(d), -6104(e); and K.S.A. 75-6101 et seq. TRUSTS AND MEDICAID BENEFITS WHITE V. KANSAS HEALTH POLICY AUTHORITY BARTON DISTRICT COURT – AFFIRMED NO. 100,171 – DECEMBER 12, 2008 FACTS: On Aug. 28, 1997, Charles B. and Ola White created the Charles L. White Trust for their disabled son. It was a discretionary trust and clearly expressed the settlor’s intent that the trust be supplemental to other benefits that Charles L. White was entitled to receive. Ola died in 1998 and Charles B. died in 2005. The trust was valued at $46,000. In 2006, Charles L. was living in Barton County, where he was receiving benefits in the form of medical assistance by Home Community Based Service and food stamps. In late 2006, Becky Montgomery, with the Great Bend Social and Rehabilitation Services (SRS) office, conducted a review of these benefits and learned of the trust. Montgomery counted the trust resources and determined that Charles L. was ineligible for benefits. A hearing officer determined the trust had been modified to include the necessary language referring to Medicaid benefits. Thus, the hearing officer determined the denial of benefits was erroneous and reversed Montgomery’s determination. SRS reversed the hearing officer. An appeals committee agreed with the SRS’s argument that the trust failed to comply with the statutory requirements to be an exempt resource for Medicaid eligibility purposes, because there was no specific reference in the trust instrument to Medicaid, medical assistance, or Title XIX of the Social Security Act, contemporaneous with the creation of the trust. The district court concluded that the White Trust had been properly modified to be exempt for Medicaid eligibility purposes and that this modification satisfied the language 40 February 2009 | The Journal of the Kansas Bar Association

of the 2004 statutory amendment. The district court also concluded the Legislature either did not intend to apply the statute retroactively or else intended to allow existing trust instruments to be modified to conform to the statute. Finally, the district court concluded that because the trust was not funded until December 2005, the trust modification qualified as “specific contemporaneous language” as required by the statute. ISSUES: (1) Trusts and (2) Medicaid benefits HELD: Court held the plain language and the legislative history of K.S.A. 2007 Supp. 39-709(e)(3) do not support the Kansas Health Policy Authority’s (KHPA) position of a “magic words” requirement. There was no apparent intent by the Legislature at any time to create this sort of arbitrary trap for a trust that, in all other respects, reflected an intent to supplement the medical assistance provided by a state agency. Based upon the plain language of K.S.A. 2007 Supp. 39-709(e)(3), and also the legislative history of the statute, court agreed with the district court that the White Trust was an exempt resource for the purposes of Medicaid, making Charles L. eligible for Medicaid assistance. Court concluded the district court did not err in granting judgment in favor of White and against the KHPA. STATUTES: K.S.A. 39-709(e)(3); K.S.A. 58a-412; and K.S.A. 77-621(c) WATER LAW AND OBSTRUCTING A STREAM FRANK V. KANSAS DEPARTMENT OF AGRICULTURE SUMNER DISTRICT COURT – AFFIRMED NO. 99,206 – DECEMBER 19, 2008 FACTS: T.W. Frank obtained a permit from the chief engineer of the Kansas Division of Water Resources to build a groundwater pit on his land. As a condition of the permit, he built an embankment to prevent surface water from entering the pit. But the chief engineer later concluded that Frank had done something that Kansas law prohibited and his permit didn’t authorize: obstructing a stream. Since 1929, a Kansas statute has prohibited stream obstructions without a permit from the Division of Water Resources’ chief engineer. The chief engineer has adopted a regulation that applies to properties like Frank’s where a site within a watershed area has been altered so that a determination is no longer possible on visual inspection of whether a stream with well-defined bed and banks once existed there. In such cases, under the regulation, “it shall be presumed that [the stream] did exist ... unless the owner ... can conclusively demonstrate that the well-defined bed and banks did not exist before the construction of the project.” The chief engineer interpreted this regulation to mean that it is presumed in certain watershed areas that a stream existed in any location unless the owner can prove that no such stream existed there from 1929, when Kansas adopted the stream-obstruction law, to the present. ISSUES: (1) Water law and (2) obstructing a stream HELD: Court found the chief engineer’s interpretation to be reasonable. Court held the chief engineer’s valid regulation contains a presumption that a stream previously existed within a watershed area of sufficient size. That regulation was applicable to Frank’s property, which was part of a substantial watershed area. Under the regulation, Frank had the burden to show that there had not previously been a stream located where he placed his obstruction. Frank failed to do so. The agency’s application of this presumption was not unreasonable in Frank’s case based upon the evidence that a stream had once existed there. STATUTES: K.S.A. 74-506d; K.S.A. 77-601, -621; and K.S.A. 82a-301, -303a

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Appellate Decisions WHISTLE-BLOWER, CIVIL SERVICE BOARD, AND ATTORNEY FEES KANSAS DEPARTMENT OF REVENUE V. POWELL SHAWNEE DISTRICT COURT – AFFIRMED NO. 99,491 – DECEMBER 12, 2008 FACTS: The Kansas Civil Service Board (Board) entered a default order in favor of the Kansas Department of Revenue (KDR) in an appeal from their action of suspending and dismissing Jill Powell. Powell walked out of the hearing on her claims, so the Board had no choice but to rule in favor of the KDR. As the prevailing party, the KDR sought attorney fees under K.S.A. 2007 Supp. 75-2973(f ), which allows the Board to award attorney fees to the prevailing party in a whistle-blower case. The Board denied the motion for attorney fees. The KDR appealed to the district court, which found the Board had discretion in awarding attorney fees under K.S.A. 2007 Supp. 75-2973(f ). ISSUES: (1) Whistle-blower, (2) Civil Service Board, and (3) attorney fees HELD: Court held under the facts of this case, where the Board refused to grant the KDR attorney fees as the prevailing party in a whistle-blower claim because of the possible chilling effect such a ruling would have on future claims, it was an exercise of the Board’s discretion that will not be disturbed on appeal. STATUTES: K.S.A. 75-2973(f ), (g) and K.S.A. 77-621

Criminal STATE V. BUSSART-SAVALOJA POTTAWATOMIE DISTRICT COURT – AFFIRMED NO. 98,527 – DECEMBER 5, 2008 FACTS: Savaloja was stopped after she turned around before a DUI check point. Savaloja exhibited multiple signs of intoxication and performed poorly on field sobriety tests. Savaloja agreed to a breath test, but then officers thought she may have vomited. Savaloja refused a blood test. She was charged with DUI, third offense. A jury convicted Savaloja as charged. Savaloja filed a pro se appeal in July 2005. For unknown reasons, appellate counsel was not appointed until January 2007 and after multiple extensions on both sides, the case was not ready for argument until June 2008. ISSUES: (1) DUI, (2) due process, (3) refusal of blood test, and (4) sentencing HELD: Court first held that the delay of nearly three years in processing Savaloja’s appeal was presumptively inordinate and weighed in favor of a due process violation. In looking at all four balancing factors, the court held there was an equal balance. However, court stated that since Savaloja received a suspension of her sentence pending appeal, her liberty was not impacted by the delay and this weighed heavily against her. Savaloja failed to demonstrate substantial prejudice. Court also held because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of the testing evidence. Court rejected Savaloja’s sentencing challenge under State v. Ivory, 273 Kan. 44. STATUTE: K.S.A. 8-1001(a), (I) STATE V. JOHNSON CHEYENNE DISTRICT COURT – REVERSED NO. 99,102 – DECEMBER 31, 2008 FACTS: Jury convicted Johnson of felony driving under the influence of alcohol. On appeal, Johnson argued his case should be remanded for a new trial because a juror improperly introduced extrajudicial evidence regarding Johnson’s prior bad acts. He also claimed the trial court failed to completely respond to jury’s question about the consequences of a hung jury, and failed to inquire into the accuracy of the jury’s verdict and ask whether parties wanted the jury polled. ISSUES: (1) Extrajudicial evidence of prior bad acts, (2) response www.ksbar.org

to jury’s question about hung jury, and (3) failure to inquire into accuracy of jury’s verdict HELD: Under State v. Cook, 281 Kan. 961 (2006), and State v. Kaiser, 260 Kan. 235 (1996), evidence of what other jurors said can be considered under K.S.A. 60-444(a). Johnson’s analogy to evidence of prior bad acts under K.S.A. 60-455 is flawed. Here, a juror’s vague statement regarding Johnson’s previous conduct did not substantially prejudice Johnson’s right to a fair trial, and no abuse of discretion in trial court’s denial of a new trial. Trial court accurately told jury that a hung jury would be declared if it was unable to reach a verdict. It did not pressure jury to reach a verdict or to do so within a certain amount of time. Instead, jury was told to discuss the matter further and determine if it was unable to reach a unanimous verdict. Nothing in trial court’s response to jury’s question about consequences of a hung jury prejudiced Johnson’s rights. Johnson waived his right to have jury individually polled by failing to request it, but K.S.A. 22-3421 imposes statutory mandate upon trial court to ask jury in open court whether the verdict is the jury’s verdict. State v. Holt, 285 Kan. 760 (2008), is distinguished. Under facts of case where Johnson presented jurors’ affidavits showing problems with unanimity of the verdict, trial court’s failure to follow statutory mandate of K.S.A. 22-3421 amounted to reversible error. STATUTE: K.S.A. 8-1567, -1567(a), 22-3420(3), -3421, 60248(g), -441, -444(a), -455 STATE V. LEAPER WYANDOTTE DISTRICT COURT – AFFIRMED NO. 98,403 – DECEMBER 5, 2008 FACTS: Leaper was convicted of second-degree murder of Christopher Lovitch after the two had been involved in a fight. There was conflicting testimony at trial as to the shooter of the gun that killed Lovitch. Two witnesses testified that Leaper shot the gun. Several other witnesses of the fight, but not the shooting, said someone else had the gun. During the trial, the tape of the interview of one of the witnesses was missing after it had been placed on the witness stand. A juror alleged that it was the witness testifying on the stand that took the tape of his own interview. The trial court denied a mistrial based on the missing tape and the juror’s alleged witnessing of the witness taking the tape. ISSUES: (1) Mistrial, (2) admission of transcribed testimony, (3) cumulative error, and (4) sentencing HELD: Court stated that behavior of a witness on the stand is part of the witness’s demeanor and did not cause Leaper any prejudice. Court also stated that it is not misconduct for a juror to observe the behavior of a witness on the witness stand. Court held that absent a showing of misconduct by a juror, Leaper cannot demonstrate that his rights were substantially prejudiced. Court held that the trial court did not error in admitting the recorded and transcribed phone calls made while he was in custody in jail where he told the person on the other end of the phone to go talk to the witnesses against him in the case. Court held that Leaper failed to object to the use of the transcripts at trial and during deliberations and he waived the right to challenge the use of the transcripts in both instances. Court also stated it is not evidence of prejudice to merely argue that prejudice resulted from the jury considering the transcripts and audio recording during deliberations. Court found no cumulative error and Leaper’s sentence was consistent with State v. Ivory, 273 Kan. 44 (2002). CONCURRENCE: Judge Malone concurred in the result but disagreed with the majority’s resolution of the “missing cassette tape” issue. Malone concluded the district court abused its discretion by not questioning the juror who reported that the witness took the cassette tape and put it in his pocket as he left the witness stand, but stated the error did not affect the outcome of Leaper’s trial. STATUTE: K.S.A. 22-3423(c) The Journal of the Kansas Bar Association | February 2009 41

NOTICE OF AMENDMENT OF LOCAL RULES OF PRACTICE OF THE U.S. DISTRICT COURT The U.S. District Court for the District of Kansas gives notice of the amendments of local rules 38.1, 83.5.3, 83.5.5, CR 44.1, and CR 49.6. The district court also gives notice of new rules 83.2.4.5 and CR 44.3. Copies of the new rules and amendments are available to the bar and the public at the offices of the clerk at Wichita, Topeka, and Kansas City. The offices are open from 9 a.m. to 4:30 p.m. on all days except Saturdays, Sundays, and federal legal holidays. The new rules and amendments are also available on the U.S. District Court Web site at www.ksd.uscourts.gov. Interested persons, whether or not members of the bar, may submit comments on the new rules and amendments addressed to the Clerk at any of the record offices. All comments must be in writing and, to receive consideration by the court, must be received by the clerk on or before 4:30 p.m., Feb. 27. The addresses of the clerk’s offices are: 204 U.S. Courthouse 490 U.S. Courthouse 401 N. Market 444 S.E. Quincy Wichita, KS 67202 Topeka, KS 66683 259 Robert J. Dole U.S. Courthouse 500 State Ave. Kansas City, KS 66101 Timothy M. O’Brien U.S. District Court, District of Kansas

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NOTICE OF CONSIDERATION OF REAPPOINTMENT OF MAGISTRATE JUDGE AND INVITATION FOR PUBLIC COMMENT The current term of the office of U.S. Magistrate Judge Karen M. Humphreys at Wichita, Kan., is due to expire on Oct. 31. The U.S. District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term. The duties of a magistrate judge position include the following: (1) conduct of most preliminary proceedings in criminal cases, (2) trial and disposition of misdemeanor cases, (3) conduct of various pretrial matters and evidentiary proceedings on delegation from the judges of the district court, and (4) trial and disposition of civil cases upon consent of the litigants. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court. Comments should be directed to Timothy M. O’Brien, Clerk, U.S. District Court, 259 Robert J. Dole U.S. Courthouse, 500 State Ave., Kansas City, KS 66101. Comments must be received by 4:30 p.m., Feb. 16.

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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 You will receive your 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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The Journal of the Kansas Bar Association | February 2009 43

CLASSIFIED ADVERTISEMENTS Positions Available THE KANSAS CITY OFFICE of Kutak Rock LLP is seeking experienced lawyers to support its regional and national practices in the areas of commercial and business litigation, corporate law and finance, and health care. Resumes and inquiries should be addressed to: Kelly Roberts, Office Administrator, 1010 Grand Blvd., Ste. 500, Kansas City, MO 64106, (816) 960-0090, kelly.roberts@kutakrock.com. ASSOCIATE POSITION Downtown Topeka AV-rated law firm seeks attorney with at least 2 years of civil litigation experience. Apply and send writing samples to Managing Partner, P.O. Box 3555, Topeka, KS 66601-3555. PROMINENT WICHITA, KAN., FIRM, seeking an experienced self-motivated defense trial lawyer who wants to specialize in medical malpractice, product liability and transportation. Our firm needs a creative, confident litigator who wants to challenge, fulfill, build and improve their legal profession. Looking for 2 or more years of litigation experience to join our legal team. Salary negotiable, pertaining to experience. Call (316) 613-2800 for further details. PROMINENT LAW FIRM seeking professional litigator to fill an attorney position in our Wichita, Kan., office. Position is currently part time and offers a flexible schedule. This is an exceptional opportunity for a qualified individual wanting to enter and/or 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 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806. 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 display advertising information contact Bill Spillman at (877) 878-3260 or e-mail bill@innovativemediasolutions.com. For classified ads contact Susan McKaskle at (785) 234-5696 or e-mail smckaskle@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. COPYRIGHT 2009 Kansas Bar Association, Topeka, Kan.

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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. For more information about the KRCF, visit www.thekrcf.org.

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Attorney Needed WE, THE PEOPLE of Sedan, Kan., have a dire need for an attorney. Chautauqua County has one remaining attorney who is looking forward to retirement. Located in Southeast Kansas, near Independence and Coffeyville, Sedan has a stable population and serves as the county seat of Chautauqua County. As a rural community we are making great efforts in growth due to our economic base of cattle, oil, and tourism. Situated halfway between Wichita and Tulsa, Okla., Sedan is an aggressive, open-minded, and peaceful community. Over the past few years, tourism in our area has increased due to the Yellow Brick Road and the promotion of Bill Kurtis. In addition, our location in the foothills of the Flint Hills has become a popular destination for local and out of state hunters. Sedan can provide for a good future and a stable law practice in a beautiful rural setting. If you are interested please contact Dick Jones at (620) 725-5730 for further details. The people of Sedan would very much appreciate meeting and welcoming you to our community.

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Office Space Available PROFESSIONAL OFFICES AVAILABLE in newly remodeled office building. Seeking attorneys to occupy three offices on main floor (access to reception area, conference room, office size (12x10). The offices are $600, utilities included. Wireless Internet provided. Additional services available through resident tech firm. Private off street parking for you and clients. Great central location. Referrals available. Call (913) 7060878 and ask for Rachel. Feel free to stop by and look. 7001 W. 79th St., Overland Park, KS. EXECUTIVE OFFICE SUITES AVAILABLE IN LEAWOOD Six full-service executive offices are available in Leawood within one block of College and Nall.

Office Space Available Continued

Each tenant will be charged a monthly base rent for tenant’s office. Referrals available from other attorneys in the building. Call Glen Beal at (913) 387-3180 for more information. OFFICES FOR RENT. Law offices located in downtown Overland Park, in remodeled historic building, free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voice mail, and high-speed Internet access. The offices are in walking distance of coffee shops, restaurants, and retail stores. Seventeen highly respected attorneys in an office-sharing/networking arrangement. Contact Jim Shetlar at (913) 648-3220. OFFICE SPACE two blocks from Johnson County Courthouse at Chestnut and Loula. Two offices available. Includes reception area, conference room, kitchen, secure wireless internet, phones and fax. Free parking. Contact Sandy Meiners at (913) 782-5885 or sandy@sgklawfirm.com.

Referrals LET ME WRITE YOU A CHECK. I want your OKLAHOMA and KANSAS referrals. I pay all costs and do all the work. Member of the Kansas, Oklahoma, and American trial lawyers associations. Practice limited to Plaintiff’s cases. * Truck Accidents * Products * Med-Mal * Oklahoma Insurance Bad Faith * Nursing Home Abuse * Injury Car Wrecks. (405) 410-2848 or (800) 296-6074. Attorney John Branum JBranum@CarrCarrOKC.com. FRENCH LAW OFFICE LLC General practice, including bankruptcy. Reasonable rates. (785) 235-5500.

2009 Joint Judicial Conference

& Kansas Bar Association Annual Meeting

Overland Park, KS • June 17, 18, and 19 www.ksbar.org

The Journal of the Kansas Bar Association | February 2009 45

Let your VOICE be Heard!

2008-2009

KBA Officers and Board of Governors President Thomas E. Wright (785) 271-3166 twright21@cox.net

Topeka

President-elect Timothy M. Oâ&#x20AC;&#x2122;Brien (913) 551-5734 Kansas City, Kan. Tim_Oâ&#x20AC;&#x2122;Brien@ksd.uscourts.gov Vice President Glenn R. Braun (785) 625-6919 grbraun@haysamerica.com Secretary-Treasurer Hon. Benjamin L. Burgess (316) 660-5607 bburgess@dc18.org

Hays

Wichita

Immediate Past President Linda S. Parks (316) 265-7741 Wichita parks@hitefanning.com KBA Delegate to ABA Sara S. Beezley (620) 724-4111 beezleylaw@ckt.net

Girard

K ansas Delegate to ABA Thomas A. Hamill (913) 491-5500 Overland Park tahamill@martinpringle-kc.com ABA Delegate at L arge Hon. Christel E. Marquardt (785) 296-6146 marquardt@kscourts.org

Topeka

Young L awyers Section President Scott M. Hill (316) 265-7741 Wichita hill@hitefanning.com KDJA R epresentative Hon. Meryl D. Wilson (785) 537-6372 Manhattan mwilson@rileycountyks.gov

District 1 Eric G. Kraft (913) 498-3536 Overland Park ekraft@kc-dsdlaw.com

District 7 Matthew C. Hesse (316) 858-4924 Wichita matthew_hesse@via-christi.org

Kip A. Kubin (816) 531-8188 Kansas City, Mo. kak@kc-lawyers.com

Laura L. Ice (316) 660-1258 lice@cfc.textron.com

Wichita

Samuel P. Logan (913) 498-2100 Overland Park slogan@foulston.com

Rachael K. Pirner (316) 630-8100 rkpirner@twgfirm.com

Wichita

Lee M. Smithyman (913) 661-9800 lee@smizak-law.com

District 8 Gerald L. Green (620) 662-0537 jgreen@gh-hutch.com

Overland Park

District 2 Paul T. Davis (785) 843-7674 pauldavis@sunflower.com Gerald R. Kuckelman (913) 367-2008 aca@journey.com District 3 Dennis D. Depew (620) 325-2626 dennis@depewlaw.biz

Lawrence

Atchison

Neodesha

District 4 William E. Muret (620) 221-7200 Winfield muret@winfieldattorneys.com District 5 Martha J. Coffman (785) 271-3105 m.coffman@kcc.ks.gov

Topeka

Teresa L. Watson (785) 232-7761 Topeka twatson@fisherpatterson.com District 6 Gabrielle M. Thompson (785) 539-3336 Manhattan gabrielle7000@sbcglobal.net

District 9 Hon. Kim R. Schroeder (620) 428-6500 judge263@pld.com District 10 Jeffery A. Mason (785) 890-6588 jamason@st-tel.net

Hutchinson

Hugoton

Goodland

District 11 Nancy Morales Gonzalez (816) 936-5754 Kansas City, Mo. nancy.gonzalez@ssa.gov District 12 Christopher J. Masoner (816) 983-8264 Kansas City, Mo. chris.masoner@huschblackwell.com Executive Director Jeffrey J. Alderman (785) 234-5696 jalderman@ksbar.org

Topeka

CLE Docket FEBRUARY

MARCH

*Pending CLE credit approval

Tuesday, February 10, Noon – 1 p.m.

Practicing Law Out of a Duffle Bag: JAG Legal Assistance for Soldiers

Tuesday, March 3, Noon – 1 p.m.

International Transaction Law and Resources

Lebert D. Shultz, Husch Blackwell Sanders, Kansas City, Mo. Linda K. Tiller, Husch Blackwell Sanders, Kansas City, Mo. Telephone CLE

Jason P. Oldham, Kansas Judicial Center, Topeka Telephone CLE

Friday, February 13, 8:40 a.m. – 5:05 p.m. Saturday, February 14, 8:30 a.m. – 12:05 p.m. (KSU vs. KU tip off at 2:30 p.m.) 9th Annual CLE Slam-Dunk

Wednesday, March 4, Noon – 1 p.m.

Medical Malpractice Defense: The Basics

Diane Waters, Bennett Bodine & Waters P.A., Shawnee Telephone CLE

Clarion Hotel, Manhattan Co-sponsored by: Kansas State University Foundation

Tuesday, March 24, Noon – 1 p.m.

Friday, February 20, Noon – 1 p.m.

Breaking Immigration Law News for ALL Employers: New I-9 Employment Eligibility Form and List of Acceptable Documents is Required on February 2, 2009

Mira Mdivani, The Mdivani Law Firm LLC, Overland Park Gail Goeke, The McCrummen Immigration Law Group LLC, Kansas City, Mo. Kathleen Harvey, Kathleen A. Harvey P.A., Overland Park Telephone CLE

Class Actions 101: Best Practices and Potential Pitfalls in Providing Class Notice Brian J. Christensen, Bryan Cave LLP, Kansas City, Mo. Richard W. Simmons, Analytics Inc., Minneapolis, Minn. Telephone CLE

Wednesday, March 25, Noon – 1 p.m.

The ABCs of Education Law – Accommodation, Bullying, and Confidentiality Donna L. Whiteman, Kansas Association of School Boards, Topeka Cynthia L. Kelly, Kansas Association of School Boards, Topeka, Telephone CLE

Wednesday, February 25, Noon – 1 p.m. Introduction to Low-Income Housing Tax Credits

John J. Wiechmann, Kutak Rock LLP, Omaha, Neb. Co-sponsored by: Midwest Housing Equity Group Inc. Telephone CLE

Friday, March 27, 8:30 a.m. – 4 p.m. Health Law*

DoubleTree, Overland Park

1882 82

Thursday, February 26, Noon – 1 p.m.

Legislative Update on Low-Income Housing Tax Credits

John J. Wiechmann, Kutak Rock LLP, Omaha, Neb. Co-sponsored by: Midwest Housing Equity Group Inc. Telephone CLE

KBA Continuing Legal Education: Your Partner in Practice!

For more information, or to register online, visit www.ksbar.org. These KBA CLE seminars are being submitted for accreditation to the Kansas CLE Commission. Potential walk-in participants should call the KBA office at (785) 234-5696 prior to the seminar to check for possible schedule changes.

1882

KANSAS BAR ASSOCIATION

For updates on CLE credit approval, visit www.ksbar.org/public/cle.shtml. To access your Kansas CLE transcript online, visit www.kscle.org/Tran_Query.aspx.