February 2018 Journal

Your Partner in the Profession | February 2018 • Vol. 87 • No. 2

4A | Frid ay, Mar ch 11, 201 6 | The Topeka Capital -Journal

OPINIO N THhEe TOope PEK Volum e 142

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, No. 132

• Friday , March

ZACH AHRE PUBLI SHER NS

11, 2016

The Top eka Cap with the ital-Jou merger rnal, pub of lished and The The Topeka Da daily, wa Topeka ily s formed State Jou Capital, whi in 1981 ch was rnal, whi founde (COPYR ch dates d in 187 IGH T, back to THE TOP 9, 1873.

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This medical guide is a valuable resource filled with informatio important n in all fields of medicine and health for the entire family.

2017

Vol. 1 No.Vol. 1 No. 194 194

This medical guide is a valuable resource filled with information important in all fields of medicine and health for the entire family.

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ContraCco t fotr r act for appraisern appis r a iser is not ren neow t ed COU SIO N NTY

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nsas Su behind preme a haze As the Court of secrec is, by de only ap y. olitical sign, clo robed Soon justices branch isdon’t ma of Tides” afte are no becam t guide ke all of government, movie d the sev their de by publi in tive bra en put the 199 cisions c opini nches on in publi are as the .

Nolte, film’s For tha c. They executi on its t reaso Ma ve n Alive. c n, we ap and leg ing do

By JUDITH ZACCA cket to islaplaud the This cou ” so that the To CourierTraveler RIA peka Hi ing To court for ldn work of the I thoug pekans gh Scho office can bringing ht (and continue. an op ol on W Nolte,

By JUDI its tra As Ch The Cowley Coun THcomm wh ZACCission ednesd ief Justic portunity to Tom Wi o play a press relea ARIA will issue sioners voted ty commis- Couri ay night, velso that the see the e page Su erTraveler se with that work of the grantjustices actor whngo, wa announce morning not Thursday nday, arg Lawton Nuss ment next office can to renew the at work. pointed week , uments continue. open to Wilt said. contract of But wh o did w county appra out on at made before the pu The commiss Cowley Cou Lance Leis thi the bli the h nty ion er of s tim c. and to place isersion A numb ch com op will co citizensmisBut tho ara e a press relea issue inion hand on on administr him ers vote to hear author cter cre se argum urt have alw se with that when most d the comm ative leave Visiting Kans sdayisPat Co announce people ays be until the end morning not Thur as Supreme ents week. nroy ment next On Wedne and props en Court Justi tosione reners’ to a group which expir of his contract,cont week , w deciWilt said. the sday, the are at work or are in the mo ract of counsion thank of Arkansas ce Carol Bier, cente es June 30. the Conro rning, evening City High in schoo r, court bro ty ed In a special Lance Leis aiser School senio and District Cour a A number themappr meeting est ma y, I wrote, , a tim l.

Photo by JOHN for their t judge Nick ug and rs for the of held dr ht citiz n to e at ed plac ali wh arg ens SHELM the St. re-enactm e him s ch Cowley Coun hand to hear on on administ work and en mo AN uments ent of a cour Peter, far left, assig It was ve. ty Courthous re Tope rativ the commis- ose to do Visiting Kan n roles to the e leave t case Thur Conro e, commission gave so. them In his had kans co sday at ACHS public y, ers until the end of went into execu and props sas Supreme Court invitatio sioners’ deci . a his in ou crafted sentenaft uld att rouncont tive session which d of ract, to a group Just n on thi end. Hu sly lus Kansas Supr for 30 minu expires June ce d its wo of Arkansas ice Carol Bier, cent appla30. sion an tes. use. s page nthan begged h and true t er, Court Justi eme City High ked rk are mission chair Then comIn a special , Nuss ce School seni and District Court sometim ply

By REBECCA McCU remarks Wayne Wilt them meeIn Leis said, “th ting Photosaid forwa wrote to be read alo judgCaleb ors for the Stegall, their nt to be

by JOHN held at the e Nick no action es defin later in the that “...

SHEL e Supre re-enactmenleft, had their jobs CourierTraveler TCHEON Peter, farin the MAN nefit the work and been taken day, discuSt. WiltCow ed for mo entail befor salmon Coun remiley sses W left, me t un nded of execu ty e Cour a assi ir perso tai you by resitive sessio e takCourt his job cour ing questions. thouthat gn dents se, all and t case Thursda gave them agree and com Comymissi roles n. faces of n passes an those wh nal agen miss dead ione lines underst role of the the such mi oner Alan at ACH wenfiling d The Kansas forrs Students from gri t into appe cour da S. o Groo zzl exec a round of sinfor alsutive t simand wh s.” court syste m then made clear rap of appra ies hovert Dexter system with “is in the sessi isals and Central m mation. on a motionfor rema y Nuss Kan in in place busin 30 minu not sas of Burden to renew Suprem It wa applause students from , as do all dream ids. Copperh tes. Then would ing and deliv ess of ensurthe contr schools got e appeals meet . s a not-s ed of pla Cou e andrt ering justic a lesson in like to to Just ings. comCentral of put Leis o-subtle ice on admiact mission in the chair Way said Stega e,” cing the In anrem the U.S.By Burden refute d co court REBEsyste ll. He arks ne Wilt shi trativ Cale nis-said The CourierTr Leis CCAmMcCU and Dexter nservati beSteg referenc leaveall, avele ThurTCHE , and comm no le r was Ospreys nbones of hu sdayON that Kansas has explained from Kans unab actio n had ves in to conta e to Go sionedisc isschools Thur the as Supreme CourierTra left, day, Wilt rem later leningth three enta r Bob nt slept wi ct been jobs Leis astake levelsil Voeg the veler Court to its courttheir usse in sday Justice Caleb press v. the ere ele n of s s inde secon Sam Br exec Legislat time. before takth the d, plu afternoon system — thejob d resi- to defin utive session. ded motio his dents that district n. The at the courts, theing ques ownbac e the co and ure wh Cowley Coun Stegall and tion impo Leis scream mmeting dre ir all dead school in s. court of appe wasione passed 3-0. themotion was Com miss hired by the ty District k o have linessin role urt as Dexter. ing thr and the supre filing appe of the cour The forg their r Alan Students Court judge county comm Kansasalscour a parti gone to motion Groo ough deeam me court als of appr agenda t Leis will no Chrisfrom m then mad ission in June t system syst .

SmithDex Buaisal san bo div em Dextand longer be gre 2013 t at ter District “is rem Photo p, in with a on es e s er High court . the Cent ain a Thou at rec by mot work tow REBECCA dy of lib s are the citizens business of in plac as not to rene gh not a Cowl ion ralol.

Scho It was ing in the ent po of Burden “front lines ard her students McCUTCHE ensurdo all w the cont ey The ing Co ll show eral jus who ne scho ” the deliv appeals mee e, wi visit office but fromappraiser’s andCounty nativ ON olswas e, Leis is ract system, gotpart Stegall said, ofand ering justi a lesso s Kans tices South Carol nroy who desr of tings. th the Kans ver ele towith Cen familactivities surro be receiving iar putthe tral ofwill Leis andSteg said ce,” his salar U.S. courtunding n in the as Supre ans are most c onhavin cted the ina’s sed area, The CourierT bra Lowcou admginisall.ofHe y, a Burd en the total of theThur law’s impact on system Kansas Supr nches grow and ve leave far mo uct me Co raveler n up on Dexter $17,760trati for three a local com- explained that Kan , and eme Court’s a dairy sday was of state unable to munity origi breath ntry as someth ive re impre m. months. His comfarm urt tha sas has thre Kan visitfrom missouth sas scho contact Leis to westVoeg e: er Bob govern yearlysion salarols Theas n they of Wich e levels here.

Thu ey CounSupr ssed y was to nates rsda its cour JustCowl The $76,9 poofll, co of the “the bold, fec ing y ty. eme Cou ment. rt secon iceteam seconded press time. are wi Justic 60.y He had more ele ita. t Cale afte d level, the mot es tid rnoo Wilt nducted the system — district th other edbupSteg n said ion. The than also all and Kansas Cour at the cour 10 with sensua al marsh, exqund a localCow an interim pass motion Leis was hire only 21 pe theals, ley judge t ofts, scho by cour appra Appe s toCou was ol l, t Fo nty iser visit of in ed the rce exist See appe d Dex Dist will beter. rt Hays 3-0. AISE county rict by the s to give andpeop APPR nt of Ka schoo smell of uisite als in heat, appointed thelesupr Cou county com ls durin rt judg R State Un g the eme court. a secty-one the So nsans e Chri a smell Leis Page 14A missSix day. sA Smit ond chance to will night ion u sem no Dist in court pe are ive have h lik Dex June long 2013. Thou ricttheir at Photo by REBE rcent of en, ter sessio e new rsity, fou courts dissatisfi HighnScho was held case gh Le a Cow OW CCA OLLworking in the apprer be Thursday , as nt Kansan ol. tled heard“fro fumed and spilled wi milk they are enti- are the latur nd at Southweste ed with McCUTCHE LEY County nati notgis ley e and 69 aiser’s ” of the syste visit was part to. The court lines with EGE s are dis ne, all CollegeThe rn offic ON ve, ac the co e but will in Winf ield, RUSTE Leis Stegall of m, p appeals is fami Ever aft seawater cord percent satisfied activ ur be rece iar with the said ESiving where of hears every case lities surround justic , and mos ing to his salar y, es heard are dis area, having that come t of the with the t. point in er, there wo.” arguments ing the the po before it. law’s impa a total of $17, grown up two Kan satisfied ct ons a loca Perhap casessas ll.

Kansas . Supreme on for three mon 760 on a dair describe anyone else uld be no l community orig with the Court’s People who y farms the Stega ths. His year visitll and southwest trying have theirinates here to Cow uphita.

Smith salar y was govern of Wic ley County. ly marsh animal dre their ow Legislature . explained The second $76,960. or, . Forev ams or to an Justtoices See He stude n d had DEXT level bra go nts teamwhat mor“fi ermore ER Wilt also said would Kans the , theas Supr vernor nches e than ed up with xes”10 Page 14A Kansas Court experi , the wo eme local judges Photo ’s office an interim of gove

By JOHN SHELM for the judg of App appraiser enc try e Scott McQ Court Justice Eric by TESSA CASTOR rld to visit coun eals, e AN rn thr sh exist jud the Lo See APPRAISthe po will be appo ment be ould cle ough Co uin speak s to give Rosen, left, iciary schools duri dents Thur ty CourierTraveler College presi wcounto a group inted ER ll is co fore mo nroy’s an Severa ng the day. of about 20 and ond chance people a sec- sday afternoon at Sout Page 14A Dennis Rittle dent Dr. rrect, Ka such as impe night cour A ving on stuto have their umn, I l years after eyes. hwestern Kansan t session achmen nsans College. to lege has sever said the colcase heard, me The Cowley

By JOHN s ThurSHELM t legisl would al critic sdayANat Sout was held as they are LEY Fla., ho t Conroy at that colCollege Board main OW of victim for Justice, a ation. prefer of Trustees tenance proje al OLLEG entitled hwestern tel where a Na Courie Coll recen rTrave If group E RUST that. we hap ege cts, whic brief to. The court of s of vio ler in Win have been , serend ples, property taxes tly raised tional overv appeals of frien pened deferred becau h hearopera EE lent cri bring s ever ipitou iew of the justices hear field, where legal rooms of funding to ds and system se ingSthe case that Kansas ing improvem for buildmes, ac ,y expla concerns. d argu . We dis have adjoin sly, ining thecom family Kans before When confr ir es ents levels cu ses Supreme Cour ments on three twoascase to “We it. spe and sed ing its covere Arkansas City sion to need make court the appeal memb But the aking s. justices t Justice one girl confe onted by the principal, Carol Bier, process. improvecampus. ers ments to the Topeka To Peop ir evide givelestude of Topeka, phone, to each oth d this while ssed, while of politi The tax incre Stegall whontshave known as High. a bette and andhNick St. the other, nce for travelin Peter, chief er a controls and environmental standing of ase is 1.25 their cking T.L.O mills. One judge of Smit simult conversation on the the workings r underthe all g dock by Cowley Coun the accusation ., continued to deny aine mill is $1 for the Brow HVAC system 19thexpl an d to stud court See ,DEX of each egation et sessio Judicial Distr per eightTER $1,000 dolla .

Conside ents whaty’s n Center,” senior stude the ho eously hearin that I was Kansas ict in Winf is that When t rs of asses Rittle ns occu chose with a group nts were tel wall.

Sup therem ring ele ield, met n to act out Page 14A g throu princ sed By JOHN said in a writt value Photo half of eipal , whic Cou of seniors

by TESS rre confi judg searc a en rt famo h cti gh state ment d scate woul ev hed SHEL Just e A “The us Thur Scot ons are CASTOR in gene the Arkansas City . d mean dice the idence court MAN andEric an incre State of New sday at t McQ girl’s purse Rosen,ase High Scho was ral ele , evide Jersey v. T.L.O case,dent held ev of politi spea of $14.38 found that uin CourierTra The veler College pres ncea grou for left, k to s Thu In the 1985 ol. funds woul Bier and St. ction ye .” ery oth C cking. iden p of a home appraand d also be afted she n sellin Peter gave marijuanarsdayprove t Dr. used to beau itic students were case, two high schoo Dennis Rittl Cr ars. ised at er year, students a t 20 stuSubmitt at school. rnoowas at Sout g hwe $100abou tify the caml e said thes of the cour

stern,000. that is pus and impr the restroom. discovered smoking ing lette Coll college has sevetun ege. t are dr ately for The

By JOHN SHEL The mill Signed hardly ove campus in See SENIORS levy increase rs to th signaCowley letters iven by MAN Kansan ege maintenance ral critical expected to is of Trus ge, makiColl Boar ng wit and it Page 14A e d easie ag h edito CourierTraveler s, tees raise $316 the wri a day for students r enda an projects, whic the jus recently raise brief operation ,507 prop annually, ter’s full have been tices are d ideolo publica time telepho h producing rs tod erty taxesand visito al defe nam over rred ne tion view $1,58 e, gy num because legal system, for buildnot. . Becaus ad of the Kans 2,535 over of funding . Forber wil can be ing See COL five impr expl as e

renewed

Kansas ju visit area stices Kansasschools

ju visit area stices schools

KORA: A Primer on the Kansas Open Records Act

Mary Feighny P34

ACHS senior s re-enact real court ca se

On the Road with...The Supremes!

Doug Weller P28 r 10, 20

Invitatio n to the communit y Kansas Special Supreme Co urt Session Octob er Garden 13, 2015 City Hi gh Scho ol Octob er

15 THE GA

A ‘historic ’ visit RDEN CIT

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5, 201 5, My fam ily stil my gre l ow at-g ed in sou randparen ns the land ts hom thwest 1870s, so I am Kansas in esteadthe late invite especi other hom ally ple dants, ase and eve esteader des d to ryone else fro cenarea, to m the the Ka join nsa Suprem s justice e Court s for a specia l session court Octobe 13. r The will heacourt argum r oral ent two Wic s on es and hita casChief Jus one fro tice “w m est Lawton of Nuss way 81” Highat 6:30 starting p.m. in of the the Ga at 2720 rden City Hig auditorium Bu h Sch after thi ffalo Way Blvd. Rigool justice s special ses ht s sio inform will greet eve n, the seven al area out reception in ryone in an side the the This auditor commons first-ev is the Suprem ium. er visit e Cou to our knowle to Garden Citrt’s The Kan second dge, it y .

And, sas Sup is justice hearin time in histor only the s (front reme Court, g cases y consist row fro argued the court is The ing of m left) always Supreme Cou at night. justice Marla J. s (back Lucker Kansa been open to rt’s work has row fro t, Chief s. m left) during But to observthe people of Justice Dan the firs Lawton hood, peo t 150 yeae our work Nuss and Biles, Eric Ro ple rs sen, Lee of had to courtr Carol Bei stateoom in tra Courtesy Johnso er. the cou Topeka vel to our photo n and By rt MIC .

Caleb Ste HAEL MA ty visits started ma Then in 201 gall; and mmares RESH is our to hear cas king commu 1, h@gctele es. nin nigram.com time and th destinatio Garden Cit um, 272 y 0 n cer Bu dur isto tain we hav ing tha ric is ly the The line ffalo Way Blv e tra t far up of cas court offi the word loca d. be hea The yea veled so far. thest west l rd cia es hours r after ls and ney nity vis the Cou has change that will to discus attorour the Kan s are using d heard tream its, we also sta first commu to describ sas Sup nounce rt’s visit was since the pre s the cases all to Gar they d firs e vious den Cit reme Court the Int Topeka cou rted to live Before up inc six weeks ago t anis a goo sern visit headin night. lud For the y next wee ka late anyone et. This ser rt sessions on d g bac case tha es a Sedgw . The linek. r cases the turnout for 154-year first time ick Cou will hav Wednesday, k to Topeargum anywhere to vice allows the in owner t seeks to res nty the jus ents wh hear Tu Supreme Cou three watch the jus history of the the shi olv tices breakf e a by-invitat oral ile the tices wil esd Live rt will owned p interest in e ast wit ion-on Garde l be comCourt, “This ay night. busine h ly a cou step towInternet stre y are made. fam n rt Cit is the me ss ily ing to person local officia after mber in our ls and Wende y. more accard making aming is a big state, andhighest court The jus nel. wheth died, and an one family l Wurst, our wo wit essible jud tice er they are h app ge Ga it still s the chief ma rk will arr for rden eal of to the Cou erred in lac fac ive in people even all the king difficul trict, sai the 25th Jud district person ks the opp Tuesd City Monda holdin rt of Appeals . But t decisioed time,” icia d cou y ay ortuni thi g al intera and l tha ld wil Dis s Wurst to the visit wa ns be t l hav on ty for A lot nity vis with me ction sai for was par searched beca vehicle mbers e a luncheon Biles and efront by Jus s brought posure of residents d. for add its provide. that commu ked aus Cou of e in get nty the on it tice premis And the the dri Chief itional their exthe cou Fin Bar Ass Nuss, TV sho es is also Justice Dan veway rts fro ociatio ney wh After ws, and to search police had what ledpersonal int chance Lawton of com o proposed bers wa a warra of a eractio Garde Wurst m court justice the luncheon, n. . us to the ide ing n tching remem n nt s, The jus a other jus to Finney shows night. City oral arg schedule the the Per local jud accompanied the tices als Cou wh We app app tice ry um ile nty Mason eal of s. ents gro the atto argum to reciate “It’s four to ges, will fan by some a first-de o will hear ent convic rney wo wing up wh that hol at five sch out to gree mu an adding historic,” Wu day end s after Kansa tion the ere vis uld For din ool per fro it g always rst securi s the Ka rde son to and det m s should ns’ ty reason in the area.

Appea nsas Cou said, get break confess ermine Reno County r school allow eve workls down was suf s, rt of on s to be See Ses n more a few timhas visited ficient whether the visited times and being pub sion, Pag “I hop the witness sta and Garde re vict the evi es, but are not e E2 n licl Court nd. and get e they will defend dence to con The jus y released. has not the Suprem City com court imp ant, wh a tice . e court sys good feeling e out The jus April, jury and roperly ins ether the and Fin s visited Hays tices at 6:30 tru there is tem,” he sai of the be the ney Cou in p.m. Tu will be in ses mitted whether the cted the d. fur den Cit esday popula a good percen “I think visited thest west nty will at the sion motion an error wh court com y High the tion to tag Ga y hea e of en it den that School have for r cases. seeing “I thi auditor ried a them wo is intereste the The jus a mistrial. id in our hat nk it is a nic rk.” tices Wurst Wedne e feels peo sday mo will meet see the and an opport feather in attend rning m will com ple who for a few to go to work withouunity to much e away bet Top t having of how ter understan with a Wurst eka,” Wurst the Sup said he ding said. functio reme Cou hopes ns. there rt See His toric, Pag e E2

Supreme Court m aking fir st-ever tr H ip to GC

Special s ess opportu ion a rare nity for s tudents B

By AUSTI

afisher@ N FISHER gctelegr am.com GCHS auditor efore Mo “I’m ver ium. y hon Acosta nday, David have an the GC knew not opport ored to HS stu abo this,” Aco uni presid dent cou Suprem ut the Kan hing ent of sta sai ty like sas e Court. interv the Tra ncil as d in an Health City Hig iew on Next des Aca h of its com demy and and old Ga week, the 18-y Each of Wednesda istory cla School teache rden Cit y. ear the justice commit munity ser head senior ss about r Da y High s will be seven wil the Kan vid Duran, left Suprem tee, said the vice Court’s l get to me School one stu ass ign Brad sas Sup Ka dent am ed et Nading/T Garde e Court’s vis nsas act as seven justice the reme Co , talks Wedn selecte elegram n City a studen it to d from bassador, esday wit s and urt. nex for opp eac hig t ambas t week one ortuni h of h sch h studen get a tas ty for studen is an ts in three casof them as the sador mies, ool’s upper the wh aca te y es ts hea o of deand to will ans public the rea r questio “The in specia meet the wer any l ns they at 6:30 studen high school world. about might p.m. Tu l session ts Ga have to graduawho are goi esday surrou rden City or at the ng nding the I believ te next spr area. ing, Acosta e they know , who ser how big don’t really ves on and sca See Sch ry the ools, Pag e E2

Welcom

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ACHS senio rs re-enact real court

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case Ark City un veils mas ter plan fo r pa

LEGE years. aining the ovem Kansas Supr When conf ents levels and Page 14A three court ronted by eme Court Arka the appeal nsas City cam to its one girl conf the principa Carol Bier Justice proc To giveBystud pus. , of Topeka, CODYents l, essed, whil GRIESaEL ess.

The tax incr and Nick St. known as e the othe Peter, chie bette ease is 1.25 standing Courie T.L.O., r, f judge of rTrave mills. One of the ler ings r underwork Cowley Cou theMedi Center. continued to deny mill is $1 accucal 19th Judicial court, eigh satio per nty’s $1,000 “Now t senior stud of each District in thatn. the hospital Whe group of cham dollars of assessed Winfield, chosen to After nearl ents were with a grou n the solid is y prin on two footin valu met more act city years of planber mem p of e, whic g it’s cipa out offici ning, l conf iscat sear a famo a good and bers,ldthe publi h wou chedd,”the starte “The State us cour Arkansas City seniors Thursday at aincr als have mean c were on hand girl’s purs time to geted and videomedi he said. an t case the of made futur New , ease publi e, evidence High Scho e visio Jerse of to watch c was foun depicting Hernd n for y v.Arka In the Wilso ande 38 the ol.

T.L.O Bier and St. that what the$14. z said nsas.”City’s 1985ncase provedproje variousfor a hom Park.

Peter gave shectwas mareffor and its e apprpark amen , two high t toa preserve the is anselli ijuan ities will students were students a Ark City mana school ng complete. at lookaised the exper $100,000 like when in the Arkat scho ol. .

Nick Hern vereger said thedisco City area have ience many the restroom d smo ande time The king Wilso z mast had with The n park and er plan millislevy See SEN work .on the was right to beginin made pass that on eral phase incr up ease park, whic gener IOR of sevexpe s and is to future Wednesday h commenced Page 14A ations. S to raise onents, which are ctedcomp , when the Arkansas all of $316 “We all love indep ,507 well-know train engin endent City man ally, and canannu Photo by CODY n e began to each other ager Nick Wilson Park them to have our children and want ucin be comp prodof unde GRIESEL tions to remo Hernande as fundging allows.$1,582,5leted of Commerc master plan durin z ve lead-based rgo renova- growing up,” those same experience 35 over g the Ark discusses the five years.

Hernande s paint. he said. ground is e Coffee on Thur The south City Cham z said The

Could Con doleezza R ice save th e day

concerns. of l be pub “We need on topics lished. Preferthe volume rec con make impr eiv ments to the oveare sub of general inte ence will be giv ed, ject to edi res en controls and environmental ting for t in Topeka and to length Ka for the Brow HVAC system and cla n rity. er,” Rittle said ThCent e in a writ GO P isn’t ten a deb ment. facing ate ove state r polic rather The fund Opinion s woualdho stilebetak y, but also a per used to beau eover ious for MICHA tifynic the tiona pus and impr - ce. Tradi-by l Repucam EL GE will fin ove RSON d presen cambli cans pus signage, mak to suppo it very diffi with a are now ingted cu deeply it easie for students r series of criticize rt Cruz, wh lt into the wed op and fla o servin visit ors totions. An g the too sof d Trump for has strong convention t with a plu y eventu party’s ideals d See COLma tion. Cr on illegal im being nied the rality but LEG all E migralea y requir is ving the city sday morn an aerial rend final visio Page 14A east candid uz would be ber on releasing easy to nomination deing. In n for the park near the train corner of the park, ition of the ate aga a weak season it, at least for e the plan or held back presented , was future park the back- work becau and Clinto during an beginning inst Hi . a current playg can con imagine a Re it is is expected se ofBy Arkansas City . n.

Area Cham lla theCODY round, Donald finanGRIE pu to be comp ventio SEL lems with ber of Com cial prob conser His 100-proo ry leted year. un SouthCouri n with bliTr merc mic later event ity an ump is vat CenterTra winning e Coffee haelger this Thursday ral Kans veleras eryone’s ism isn’t to f son@w ical Center. tumult d decorum all the mission cham morningMed in the ashpos nominat the Republi evcomtas of uo bers at City “No t.com te. And, the us 196 South can cratic Hall. w WILSON that theSee Ca SPORTS as A large ing to ion but not conven 8 DemoAfter near hosp group of cham Optio it. Acros sw told me rolina Repu one solid footing Page 14A ital is on mor ly two year tion.

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34 | KORA:

A Primer on the Kansas Open Records Act

Mary Feighny

28 | On the Road with...The Supremes

Doug Weller

Cover design by Ryan Purcell

6-10 | 2018 KBA Awards Information

44 | 10 Law Students Benefit from KBF Scholarships

17 | Math and the Law Series:

49 | 2018 Legislative Outlook

A Lawyer who Works with Water Also Relies on Math................................................ Kenneth Titus

........................................................ Joseph N. Molina

31 | Kansas' Favorite Son Bob Dole Honored with Congressional Gold Medal

Regular Features 11 | KBA President

25 | Substance and Style

13 | KBF President

32 | Diversity Corner

15 | YLS President

54 56 59 63

I Didn't Go to Law School to Run a Business.......... ..................................................... Gregory P. Goheen Be a Mentor...Be a Mentee. You'll be a Better Lawyer ................................... Hon. Evelyn Z. Wilson

Confidential Help is There for Struggling Lawyers .......................................................... Clayton Kerbs

19 | Law Practice Management Tips & Tricks

Consumer Electronics Show .... Larry N. Zimmerman

21 | Law Students' Corner Mental Illness and the Legal Profession:

Overcoming the Taboo...........................Emily Brown

Kill the Comma? A Case for Punctuation Preservation .............................Harrison M. Rosenthal Death in the Workplace: Dealing with Grief.......... ...........................................................Diana Stanley

| Members in the News | Obituaries | Appellate Decisions | Appellate Practice Reminders

Get a Cause................................... Douglas T. Shima

64 | Classified Advertisements

24 | Mid-Winter 2018 CLE Schedule

www.ksbar.org | February 2018 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION 2017-18

Journal Board of Editors Emily Grant, chair, emily.grant@washburn.edu Sarah G. Briley, sbriley@morrislaing.com Hon. David E. Bruns, brunsd@kscourts.org Richard L. Budden, rbudden@sjblaw.com Boyd A. Byers, bbyers@foulston.com Jennifer Cocking, jcocking@capfed.com Connie S. Hamilton, jimandconniehamilton@gmail.com Michael T. Jilka, mjilka@jilkalaw.com Lisa R. Jones, ljones@fgcu.edu Hon. Janice Miller Karlin, judge_karlin@ksb.uscourts.gov Casey R. Law, claw@bwisecounsel.com Hon. Robert E. Nugent, judge_nugent@ksb.uscourts.gov Professor John C. Peck, jpeck@ku.edu Rachael K. Pirner, rkpirner@twgfirm.com Richard D. Ralls, rallslaw@turnkeymail.com Karen Renwick, krenwick@wbsvlaw.com Terri Savely, savelyt@kscourts.org Teresa M. Schreffler, tschreffler@gmail.com Richard H. Seaton Sr., seatonlaw@sbcglobal.com Sarah B. Shattuck, bootes@ucom.net Richard D. Smith, rich.smith@ag.ks.gov Marty M. Snyder, marty.snyder@ag.ks.gov Patti Van Slyke, journal editor and staff liaison, pvanslyke@ksbar.org Catherine A. Walter, cwalter@topeka.org Meg Wickham, dir. of communications and member svcs., mwickham@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com Natalie Yoza, yozan@kscourts.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association.

The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at editor@ksbar.org.

Ryan Purcell, graphic designer, rpurcell@ksbar.org The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year.

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

Copyright Š 2017 Kansas Bar Association, Topeka, Kan.

For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org.

Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

4

The Journal of the Kansas Bar Association

Let your VOICE 2017-18 be Heard!

KBA Officers & Board of Governors President Gregory P. Goheen, ggoheen@mvplaw.com President-elect Bruce W. Kent, bruce.w.kent@gmail.com Vice President Mira Mdivani, mmdivani@uslegalimmigration.com Secretary-Treasurer Charles E. Branson, cbranson@douglas-county.com Immediate Past President Steve N. Six, six@stuevesiegel.com Young Lawyers Section President Clayton Kerbs, ckerbs@kerbslaw.com District 1 Toby J. Crouse, tcrouse@foulston.com Christi L. Bright, christi@thebrightfamilylawcenter.com Diana Toman, tomand@compassminerals.com District 2 Sarah E. Warner, sarah.warner@trqlaw.com Hon. Sally D. Pokorny, spokorny@douglas-county.com District 3 Angela M. Meyer, Angela-meyer@att.net District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Cheryl L. Whelan, cheryl.whelan@ag.ks.gov Vincent Cox, vcox@cavlem.com District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Sylvia B. Penner, spenner@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, greg@splaw.legal District 11 Mark Dupree, Mark.lawdupree@gmail.com District 12 Bruce A. Ney, bruce.ney@att.com Nancy Gonzalez, nancy.gonzalez@ssa.gov Alexander P. Aguilera, alex@sbhlaw.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Michael F. Powers, mpowers@8thjd.com KBA Delegate to ABA Rachael K. Pirner, rkpirner@twgfirm.com Hon. Christel E. Marquardt, christel.marquardt@yahoo.com ABA State Delegate Linda S. Parks, parks@hitefanning.com ABA YLD Delegate Joslyn Kusiak, jkusiak@kellykusiaklaw.com Executive Director Jordan Yochim, jeyochim@ksbar.org

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

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With a

Nomination

Learn more about the awards online at

http://www.ksbar.org/awards 6

The Journal of the Kansas Bar Association

2018 Awards of the KBA The KBA Awards Committee is seeking nominations for award recipients for the 2018 KBA Awards. These awards will be presented in June at the KBA Annual Meeting in Overland Park. Below is an explanation of each award and a nomination form for completion. The Awards Committee, chaired by Sara Beezley, of Girard, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is Friday, March 2.

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.

• A 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; • This 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.

Pillars of the Community Award This award is available to a Kansas lawyer and KBA member with a minimum of 10 years active non-specialized, general legal practice in a predominately low-density population area of Kansas. Recipients will have had substantial practice in small or solo law firms or local government service. Requirements are flexible but consideration will be given to the following factors, including how such factors apply to the lawyer’s community: • the variety/diversity of law practiced • impact/high profile law work • general contributions to the law and legal profession • specific contributions to the legal profession • mentoring and support for legal education • contributions to the State/community • notable civic activities • periods of elected or appointed public/government service • military service • examples of volunteerism and charitable activity • reputation in the organized bar, State and community This award may be but need not be given every year. More than one recipient can receive the award in a one year.

www.ksbar.org | February 2018 7

Awards of the Kansas Bar Association (Con’t.)

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.

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 recognizes an individual who has shown a continued commitment to diversity; or 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.

Outstanding Service Award(s) 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.

—more— 8

The Journal of the Kansas Bar Association

Awards of the Kansas Bar Association (Con’t.)

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.

Pro Bono Award(s) 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. · No more than three Pro Bono Awards may be given in any one year.

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 organization 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.

www.ksbar.org | February 2018 9

KBA Awards Nomination Form Nominee’s Name _______________________________________________________________ Please provide a detailed explanation below of why you have nominated this individual for a KBA Award.

Attach additional information as needed. q q q q q

Phil Lewis Medal of Distinction Distinguished Service Award Professionalism Award Pillars of the Community Award Distinguished Government Service Award

q q q q

Courageous Attorney Award Outstanding Young Lawyer Diversity Award Outstanding Service Award q Pro Bono Award/Certificates

______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Nominator’s Name _____________________________________________________________ Address ______________________________________________________________________ ______________________________________________________________________ Phone _____________________________ E-mail____________________________________ Return Nomination Form by Friday, March 2, 2018, to: KBA Awards Committee Attn: Deana Mead 1200 SW Harrison St. Topeka, KS 66612-1806 10

The Journal of the Kansas Bar Association

kba president

I Didn't Go to Law School to Run a Business

by Greg Goheen

T

he legal profession is seldom portrayed as a business.

It is, instead, often romanticized as some sort of noble pursuit for truth and justice divested from the reality that the practice of law is a means of making a living, a business enterprise, subject to the same market pressures and common concerns as any other business. Court room dramas as depicted on the big and small screen seldom spend any time on the practical side of the profession as I am sure audience surveys would suggest that the daily cash flow concerns of a lawyer would garner little, if any, interest from the general public. The thrill of hiring staff, purchasing supplies, leasing space and other pleasures associated with running a business seldom form the basis for someone aspiring to pursue a career as a lawyer.

Yet, the practical side of the business of law is critical, not only to lawyers' sustained ability to provide for themselves, but also to be able to effectively and adequately provide representation for their clients. The pressures of a failing or unstable business side to a law practice can cause more problems for a lawyer, whether financial, emotional, ethical or otherwise, than any other source. Nor is this business side concern limited to those lawyers running solo or small law firms. Lack of understanding of the business side of the profession can also cause problems for lawyers who are employed by governmental entities, businesses and large law firms. Adding to this problem is the fact that lawyers seldom come into the profession with a practical background in how to run or operate a business. A lawyer's business operations are frequently run by www.ksbar.org | February 2018 11

kba president

trial and error making it difficult to succeed and causing unnecessary anxiety and stress for the practicing lawyer.

Running a business or managing a career is hard work. It is easy to get overwhelmed when you are worrying about legal issues involved in the representation of a client's case while at the same time trying to sort out issues concerning an office lease. Lawyers as business owners have to decide mundane matters which may have major consequences for their practice —whether and how much insurance to maintain, where to locate, how to advertise, whether and how many employees to hire, what equipment or technology to acquire and whether such equipment should be leased or owned. Even lawyers who are not business owners face business decisions which affect their careers such as how to evaluate job offers, how to market themselves to clients (internal or external) and how to manage and coordinate benefits and salary.

Like many other professional associations, the KBA provides services and resources for lawyers to assist them in learning how to run and operate successful businesses. Most of the services provided by the KBA are housed in Law Office Management Practice Services ("LOMAP"). LOMAP can provide KBA members with confidential and free law practice management help and resources. This includes everything from answering questions, providing consultations, offering professional development CLE, authoring a regular blog, developing forms and lending library resources to evaluating technology and vendors. LOMAP is designed to allow KBA members to access vast amounts of information available to help them run and manage the business side of their practice in a manner that is useful and not intimidating. Many of these services can be easily accessed through the KBA's website or by telephone.

12

The Journal of the Kansas Bar Association

A key component of assisting KBA members with information necessary to effectively operate their law practices is the recently published 2017 Desktop Reference on the Economics of Law Practice in Kansas. This reference, which was last published in 2012, provides updated information on a multitude of factors relevant to the business of practicing law. The Reference was developed through a survey and covers topics such as billing rates, taxable income for Kansas lawyers and other aspects of law office economics. Hopefully, this resource will provide valuable information to assist lawyers with managing their firms and careers.

It is important for the health of our profession that each lawyer have and develop a successful legal career and business. The KBA as an organization is designed to assist lawyers in their professional development which includes providing guidance and resources to help attorneys in all aspects of the business of law. I hope each of you take advantage of these and other benefits provided by the KBA so you can enjoy successful and rewarding careers. n About the Author Gregory P. Goheen is a shareholder at McAnany, Van Cleave & Phillips, P.A., where he has practiced since graduating from Southern Methodist University’s Dedman School of Law in 1993. He received his bachelor’s degree in 1990 from the University of Kansas. Greg is past President of the Kansas Association of School Attorneys and Fellow and past Trustee of the Kansas Bar Foundation.

kbf president

Be a Mentor...Be a Mentee. You'll be a Better Lawyer.

by Hon. Evelyn Z. Wilson

I

know you’re busy, so I’ll start big and go from there.

Be a mentor. Please.

Be a mentee. Because you must. If you stop learning, you’ll soon be obsolete professionally.

Almost all attorneys—even really, really good ones—can benefit by having someone with whom to consult.

Really, really good attorneys aren’t afraid to bounce ideas off other lawyers and ask if they’ve missed something. They know their good reputations will not suffer if others know they don’t know everything.

Lawyers who are not really, really good, at least not yet, may not know what they should “bounce off,” and might not have a lawyer friend who can answer the questions they do ask.

They might be afraid that they’ll look dumb.

That is what I’ve seen sometimes, in my role as judge, when an attorney is faced with a problem or issue with which they are unfamiliar. The attorney will ask me for “guidance.” Maybe it’s because the lawyer thinks I should know, and it’s safer to ask me. I know the individual needs help and wants to do it right. But I can’t be co-counsel. I can’t give the “guidance” that attorney needs. I can’t be the one who advises the attorney on strategy or the law because I’m the judge, and I have to remain neutral. We all know that. And when I try to respectfully point that out to the attorney on the phone, I usually hear something like “Oh, of course. Thank you.”

But then what? Does the attorney take my advice and reach out? Or do they just plow ahead, doing their “best”?

I absolutely love to preside over hearings when each party is represented by a good lawyer. If it’s a trial, I usually get to just sit back and watch the action. Watch and learn. It’s exhilarating. I’m happy to confirm that I see a lot of good lawyers in action. I hope people believe that Judge Evelyn Wilson is a lawyers’ judge. I try to be.

Most attorneys are well-intentioned when they ask me for guidance. They don’t want to get into trouble or incur the old judge’s wrath by doing the wrong thing. I get that. But why isn’t their first inclination to hit the books or call a more experienced and respected lawyer to help them out? (Yeah, I can usually tell if they’ve looked it up in the statutes or case law, or called another lawyer.)

S

It’s going to take the effort of experienced, good attorneys to help solve this ongoing problem. Young, or inexperienced attorneys, need mentors—even if they don’t know it.

Greg Lee is the guy to call for a mentor in Topeka. His phone number is: 785-357-6311. He tells me that experienced attorneys are very willing to help. We have lots of “lawyers’ lawyers” in Kansas.

Just take that first step—reach out for assistance; reach out to assist. n On a final note. Different topic.

Congratulations to all of our Kansas Bar Foundation scholarship winners. As a member of the Scholarship Committee, it was my pleasure to learn about the applicants. They are all quite remarkable, and the committee wished we could give money to them all. I know for sure they will all succeed. They already have.

About the Author Hon. Evelyn Z. Wilson is Chief Judge of Kansas’ Third Judicial District (Shawnee County). Before taking the bench in 2004, she practiced law for 19 years—seven years in northwest Kansas and 12 years in Topeka. Judge Wilson graduated from Bethany College and Washburn Law School.

www.ksbar.org | February 2018 13

CALLING ALL

VENDORS, SPONSORS AND ADVERTISERS!!

Vendors, sponsors and advertisers are integral influencers in making the Kansas Bar Association partnerships possible.

We offer many options to showcase your products, services and people while featuring competitive price points through the following: • • • • •

Annual Meeting Continuing Legal Education Programs Golf Tournament Journal (10 issues per year) Public Service Outreach ○ Law Wise (newsletter resource for teachers and students in elementary school through high school) ○ High School Mock Trial Tournament ○ Constitution Day Projects • Trivia Night • Vendor Marketplace • Web Marketing Deana Mead Let’s discuss how the KBA can align your law firm or KBA Associate Executive Director company goals and objectives with our events and (785) 861-8839 | dmead@ksbar.org participants.

Contact

yls president

Confidential Help is There for Struggling Lawyers

by Clayton Kerbs

I

n the previous edition of the Journal, I wrote about the quality programming at the annual gathering of the Southwest Kansas Bar Association. At the 2017 meeting, Professor Janet Jackson of Washburn University School of Law presented on work-life balance, stress and substance abuse. For me, it was a very informative and convincing presentation. As President of the Young Lawyers Section, and a member of the YLS board for four years, I helped plan social and education events for young lawyers. Undoubtedly, most involve alcohol. Why is that? Why, as lawyers, is our first instinct to plan an event that involves alcohol being served?

This concept is fostered in law school as well. I remember several invitations to events that involved open tabs at Skinny’s. I understand it is an effort to lure law students into participating in something they probably should be participating in anyway, but are we instilling bad habits?

Given the stresses of law school and law practice, shouldn’t we know better than to flood law students and young (and old) lawyers with free alcohol?

Numerous studies have examined the prevalence of alcohol use by law students and young lawyers, as well as the occurrence

of depression. The numbers should be a wakeup call for us as a profession to confront the issue, to reach out to friends who are struggling, and to not let these common struggles become a “Scarlett Letter” when someone admits to having a problem and seeks help for the problem.

Law Students In 2014, a survey of law students from fifteen law schools was conducted on the topics of substance abuse and mental health, and the results published in the Journal of Legal Education.1 The study was administered through a grant from the ABA Enterprise Fund, sponsored by the ABA Commission on Lawyer Assistance Programs, Law Student Division, Solo, Small Firm and General Practice Division, Young Lawyers Division and Commission on Disability Rights. Support was also provided by the Dave Nee Foundation.

Here are a few of the startling findings: • Over 50% of law students surveyed had been drunk in the preceding thirty days • 43% reported binge drinking at least once in the preceding two weeks

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yls president

• 22% reported binge drinking two or more times in the preceding two weeks A high percentage of law students drinking frequently may not be a surprise, but the more shocking statistics were in regards to those not seeking help for their unhealthy habits.

• Only 4% of those surveyed had ever spoken with a health professional about their alcohol use • Over 60% of those surveyed admitted they did not seek professional help for fear of a negative effect on either bar admission or future employment Lawyers' A joint study,2 released in early 2016 by the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation, examined substance abuse and mental health issues in lawyers. There was a large sample size of almost 13,000 practicing lawyers and the results, as you probably guessed, were concerning.

• 20% reported drinking levels consistent with problematic drinking; however, only 3% sought help • 30% of young lawyers (those practicing less than ten years) reported problematic drinking habits • 47% reported their drinking habit developed in the first fifteen years of practice • 28% experience mild to high levels of depression and less than half sought help Those not seeking help cited reasons such as concerns over confidentiality and negative impact on career advancement.

Anne McDonald, Executive Director of the Kansas Lawyer Assistance Program (KALAP), assures us that her organization serves both law students and lawyers. The assistance provided is 100% confidential, even in disciplinary proceedings. This assurance should remove a barrier for those needing help, but it clearly is not doing so on its own. We need to create a culture in our profession that encourages healthy habits and openness.

If you or a classmate or fellow attorney need help, KALAP can be reached at 785-368-8275. n

1. Jerome M. Organ, David B. Jaffe & Katherine M. Bender, Ph.D., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ., Autumn 2016, at 1, 116-156.

2. Full text of the study can be found here: http://journals.lww.com/ journaladdictionmedicine/fulltext/2016/02000/the_prevalence_of_substance_use_and_other_mental.8.aspx

About the Author Clayton Kerbs currently practices in his hometown of Dodge City with his father, Glenn.

Clayton’s practice consists of domestic and municipal law cases. He attended Creighton University and Washburn University School of Law. Prior to practicing law, Clayton worked for U.S. Senator Jerry Moran. Clayton is married to Leah; they have two sons, Porter and Chandler. ckerbs@kerbslaw.com

NOTICE OF CONSIDERATION OF REAPPOINTMENT OF MAGISTRATE JUDGE AND INVITATION FOR PUBLIC COMMENT The current term of the office of United States Magistrate Judge Kenneth G. Gale of Wichita, Kansas, is due to expire on August 1, 2018. The United States 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; (4) and 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 and should be directed to Timothy M. O’Brien, Clerk of Court, United States District Court, 259 Robert J. Dole U.S. Courthouse, 500 State Avenue, Kansas City, KS 66101. Comments must be received by 4:30 p.m., March 9, 2018.

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Math and the Law: A 2018 Journal Series

A Lawyer Who Works with Water Also Relies on Math

by Kenneth Titus

“

If I were good at math, I would’ve been a dentist,” uttered a visiting professor teaching a first semester torts section to my law school class. Even after all the hours spent trying to figure out that statement, and all the jokes along the way, the question remains: do attorneys need to know math? Some attorneys enter law school with an engineering, science, or accounting background, but often it seems that they are drawn to specialties in tax law or intellectual property. How might those of us who are not mathematically inclined and who practice in other areas need to use math in our profession?

I have spent time working at the Kansas Department of Transportation, the Kansas Attorney General’s Office, and currently at the Kansas Department of Agriculture. In all of these roles, I have found myself surrounded by professionals who rely on math to accomplish their daily tasks, and as such, I have had to learn to speak their language. Engineers

design roads and bridges and hydrologists measure water in the ground, in the river, and how it moves from point to point. It does not take long to figure out that when you are an attorney in an organization filled with engineers, planners, hydrologists, and scientists, it is important not only to learn as much as you can about your client’s craft, but to also learn how to communicate on a professional level with those folks who often are scientifically, not legally, minded.

Much of my current practice involves water law as I often work with the Division of Water Resources which acts according to the Kansas Water Appropriation Act.1 The Division of Water resources is led by the Chief Engineer, and his duties are broad, requiring that he “control, conserve, regulate, allot and aid in the distribution of the water resources of the state for the benefits…of all its inhabitants….”2 These duties manifest themselves in multiple ways, including granting new www.ksbar.org | February 2018 17

math and the law—journal series

water rights applications, approving changes to existing water rights, and bringing enforcement actions for overpumping and other violations of law. Further, impairment complaints can arise when someone with a newer, or junior, water right is preventing someone with an older, or senior, water right from using water that the senior water right is entitled to use.

Another key duty comes in implementing tools contained in the Groundwater Management District Act to help preserve the life of groundwater sources such as the Ogallala Aquifer or to remedy streamflow impairments.3 Finally, there is substantial work related to the monitoring and enforcement of the four interstate water compacts that Kansas maintains with Colorado, Nebraska, and Oklahoma.4 The pure amount of raw data involved in such water management can be intimidating at first, but it can be made less so if one learns the mathematical language and concepts used in the water world. For example, water is often measured in acre-feet, which is the volume of water required to cover an acre to the depth of one foot, or 43,560 cubic feet or 325,850 gallons. When dealing with surface water rights, the term cubic foot per second (cfs) is used and is a rate of withdrawal or release representing a volume of one cubic foot passing a given point during one second, which is equivalent to 448.83 gallons per minute or 86,400 cubic feet per day, or 1.9835 acre-feet per day or 646,317 gallons per day. Municipalities usually think in gallons and farmers usually think in acre-feet or acre-inches, so it is important to be able to calculate and convert, as well as to conceptualize and communicate, all of these measurements.

Another common mathematical concept and term in water law is “accounting.” Water is a basic commodity, and like any other commodity, it must be counted and tracked.

This can result in complex accounting procedures that are especially prevalent in interstate water compacts. These models allow states to track the proper distribution of water among the various states and users as required by federal law.5 Understanding where the water is going and who is using it are critical to protecting the rights of downstream users, which is Kansas’ position in three of our four compacts. Being able to track water accurately and to understand the immense amount of detailed data that is produced is foundational information for annual compact meetings of the states, and can form the basis of litigation over water and potential damages. Conflicts can easily arise because states—including their respective attorneys—do not always agree on how to count and measure water.6 Hydrologists also develop models of varying degrees of complexity which can simulate the effects of future withdrawals or be used to show the current effects of water use. Both the Republican River and Arkansas River Compacts use models to show how groundwater pumping affects streamflow.

Models are also useful for intrastate purposes, such as to show how water tables are declining, whether an impairment 18

The Journal of the Kansas Bar Association

exists, pumping effects on streamflow or the effect of potential changes on nearby water rights.

Legal practitioners in water quality will also find that many of the same skills are also required for their work. Along with some of the water quantity aspects I have described here, water quality requires precise measurements of various elements in the water as it is tracked at various points. There are numerous environmental laws and regulations in place to protect people and the environment, with each area of the law creating a special set of technical requirements.

Once an attorney is able to understand and communicate clearly with the client, there remains a need to convey this information to non-water professionals or the public in an understandable manner. Knowledge of water management and water law can vary greatly within the legal profession, much less the public, so knowing where to start a conversation is important. For example, technological advances have provided vast amounts of data to the average farmer, making them sophisticated irrigation operators. On the other hand, there may be many residents of towns and cities who have no idea where the water they use every day comes from.

One of the responsibilities that falls onto the shoulders of an attorney in this, and other scientific-based fields, is making sure that the client, such as an engineer or hydrologist, is able to communicate his or her knowledge in an understandable way to people unfamiliar with water management.

As with any area of the law, being able to understand and communicate clearly with your clients is critical in water law, and one of the primary foundations for this is understanding the math involved in measuring, counting, tracking, predicting, and talking about the use of water. In this article, I have only brushed the surface of how water law intertwines with math, but the law, like many other fields, does not shy away from the topic—even though lawyers might. n 1. K.S.A. 82a-701 et seq.

2. K.S.A. 82a-706.

3. K.S.A. 82a-1029 et seq.

4. K.S.A. 82a-519; 82a-520; 82a-528; and 82a-529.

5. See e.g., the Republican River Compact and the Arkansas River Compact.

6. Kansas and Colorado went to the Supreme Court in 1902, 1907, 1943, 1985, 2001, and 2009 over the Arkansas River.

About the Author Kenneth Titus is Chief Legal Counsel at the Kansas Department of Agriculture where he advises the agency regarding water, animal health, and the various programs within the agency. He attended the University of Kansas School of Law and also received a Master of Arts in History from Kansas State University. kenneth.titus@ks.gov

law practice management tips and tricks

Consumer Electronics Show

by Larry Zimmerman

T

he massive Consumer Electronics Show (CES) in Las Vegas is ongoing as I write this and promises an exciting 2018 for electronics and gadget shoppers.

Some 4,000 vendors show up hawking their wares to almost 200,000 industry professionals from around the world. Big names like Samsung, Intel, LG and Sony appear in some of the same display halls as do tiny startups with nothing but a snappy video about their prototype. Prognosticators looking for the next big trend almost always get it wrong, but it is still fun reading the dispatches and trying to figure out what techies think or hope we consumers will want.

CES for Old People At least one report coming from the tech site Gizmodo.com noted quite an interest in old people. That should be of interest to lawyers considering the continual aging of our profession.

A few of the gadgets noted were: e-Vone – (e-vone.com) The French company has developed a line of custom shoes and sneakers with a host of embedded sensors. Accelerometers, gyroscopes, and pressure sensors can recognize when the wearer is struggling or has fallen while GPS and Bluetooth radios can connect to and alert emergency services and family. Anticipate $100-150 for the shoes and around $20/month for monitoring.

Hip’Air – (hip-air.com) Replace your lame fanny pack from the ‘90s with a hip belt with an integrated, automaticallydeploying airbag. Sensors can recognize a fall happening and inflate the airbags within 0.08 seconds to cushion impact and prevent serious injury.

L’Oreal UV Sense – (lorealusa.com) The cosmetic company continues to care about customers’ skin with a tiny 2mm by 9mm UV radiation sensor that sticks on a fingernail or sunglasses. The battery-free device communicates with apps to warn of exposure levels. Available in 2018 exclusively through dermatologists for about $40.

High-Tech Bathrooms Some reports seem to suggest a disproportionate interest in electrifying and computerizing our bathrooms for some reason. Some of the highlights: Toto Floatation Tub – (toto-usa.com) The aim of this device is to make the user feel like they are floating weightlessly.

Specially aimed jets combine with the buoyancy of water to lift you off the tub’s surfaces allowing a meditative experience—I guess. Just don’t spend too much time meditating on the $19,000 price tag.

Delta Alexa Faucet – (deltafaucet.com) Alexa, the smart assistant from Amazon, can now control your tap. Pick a temperature and duration or amount of water and tell the faucet. It will turn on and deliver—hands-free.

Kohler Verdera Voice Lighted Mirror – (us.kohler.com) In addition to managing your water faucets, Alexa can handle your lighted mirror adjusting brightness and all other Alexa functions. Pricing ranges from $800-1,300, depending on size.

Elmer Smart Shower – Once again, Alexa finds herself managing your bathroom with integration into a shower system that provides full surround sound, temperature and www.ksbar.org | February 2018 19

law practice management tips and tricks

other water control, and dispensing of essential oils. Tear out that old analog shower, and replace it with an always-listening, $3,000 model.

Kohler Numi Intelligent Toilet – (us.kohler.com) Yes. The toilet is Alexa enabled, too. This time, she apparently controls hands-free flushing, bidet, air drying, odor control as well as feet warmers, seat temperature, music, and lighting. The oldfashioned, remote-control model appears to be around $7,500 so expect a premium for bringing Alexa on-board.

Foldimate Laundry Folder – (foldimate.com) This simple robot does one thing—fold clothes. Insert an article of clothing into the top and collect it neatly folded from the bottom. The demonstration video indicates users will experience more sex, tea parties and football once freed from folding laundry – really!

Just $980, but you will have to wait until 2019 for delivery.

Land and Air Travel Autonomously driven, alternative fuel vehicles continue to fascinate CES attendees as well. Just imagine how useful windshield time could be if the vehicle drives itself.

Faraday FF91 – (ff.com) Faraday really wants to compete head-to-head with Tesla, and the FF91 is its entry into that battle. The FF91 is an SUV that can achieve 0-60 in 2.39 seconds, making it the fastest SUV on the market. No pricing yet, but they are sure they can ship in 2018.

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Hyundai Nexo – (hyundaiusa.com) Hyundai heads a different direction focusing on the fuel source with one of the first consumer-ready hydrogen vehicles. The 120 kW engine is powered by hydrogen from three 700-bar tanks and a 1.56 kWh lithium-ion battery. The range is 350 miles with water as the only emission.

Volocopter – (volocopter.com) When autonomously driven, cars are not exciting enough; you need an autonomously driven passenger drone. This 15-rotor aircraft was pitched by Intel CEO, Brian Krzanich, during his keynote suggesting it to be a fun, safe ride just waiting for FAA approval.

ForwardX CX1 Suitcase – If autonomous cars and helicopters are too bold for you, then maybe an autonomous carry-on bag is more your speed. The regulation-size bag is fully motorized and can follow you through the busiest airport and conference hall at speeds of up to seven miles per hour. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee. kslpm@larryzimmerman.com

law students' corner

Mental Illness and the Legal Profession: Overcoming the Taboo

by Emily Brown

I

am mentally ill, and I want to be a lawyer. These aren't disparate concepts.

But it doesn’t always feel that way.

I was diagnosed with Obsessive Compulsive Disorder (OCD) my junior year in high school. Before I was diagnosed and received treatment, I was an absolute mess. I didn’t sleep.

I barely ate; I weighed under 90 pounds. I had panic attacks daily, and I had a fever or an infection almost every week. The doctors tested me for everything under the sun. At one point, a doctor looked at me and asked if what I was experiencing was “all in my head.”

Eventually, my parents pushed me to get psychiatric treatment. With the aid of medication, I have been able to alleviate my symptoms. My decision to go to law school was a scary one. While I thrive in high-stress environments, mental illness does, too. And law is anything but low-stress.

Individuals in the legal profession are prone to higher incidences of depression than the general population, and as many as one in four lawyers suffer from anxiety, social alienation, isolation, and depression.1 With higher incidents of depression, comes a higher rate of suicide. The National Institute for Safety and Health found that male lawyers age 20 to 64 are more than twice as likely to die from suicide than are men the same age in a different occupation.2 The high-stress, competitive environment of the legal profession is the perfect place for mental illness to flourish.

And while our field has made strides in educating lawyers and future lawyers about mental health issues and ways to cope with the environment we work in, the profession is still not a place that is particularly friendly to people like me.

Bar applicants are often required to disclose information about their mental health, sometimes even whether they have been treated for mental health issues.3 To determine if I was www.ksbar.org | February 2018 21

law students' corner

qualified to be a lawyer, some states would use the fact that I have a mental health diagnosis against me.

I could get into the long list of tics and odd personality traits I have, most of which stem from my OCD diagnosis.

But that long list doesn’t interfere with my ability to do a good job. It doesn’t interfere with my professionalism or my intelligence.

In one job interview, the interviewer kept mentioning the importance of organization and detailed notes. I mentioned that I had OCD, so I was a big fan of organizing things. I still remember that long pause and the sinking feeling in my stomach. The interviewer asked if that would be a problem at work. If I would be uncomfortable doing things their way. I assured them that no, that would never be a problem. I left feeling like I misspoke.

I’ve always tried to be open about my mental illness. With openness comes discussion. And with discussion, I hope one day there will be more understanding about mental illness.

But sometimes I doubt my openness in a field like law, where the slightest flaw can affect your future career.

Law is not unique in treating individuals with mental illness like something taboo. You can see this sort of thinking in our very own criminal justice system. Instead of putting money into mental health treatment or education, we, as a society, decided to incarcerate individuals with serious mental illness.

Serious mental illness affects men and women in jail at rates four to six times higher than the general population, according to a 2015 Vera Institute of Justice Report.4 And currently, there are 10 times more mentally ill people in jails and prisons than in state mental health institutions.5 As mass incarceration becomes a more and more prominent topic, current and future lawyers will need to find solutions to this trend. They will need to face the taboo and have realistic

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and honest conversations about mental health and mental health treatment. Hopefully, amongst that group of criminal justice reformers and lawyers are people like me. People who are a little odd. Maybe those who do things a little differently.

But people who understand what it means, what it feels like to have a mental illness. People who’ve experienced anxiety attacks and who know what it feels like when your mind feels like it has betrayed you.

I am mentally ill, and I want to be a lawyer. And I won’t let these be disparate concepts. n About the Author Emily Brown is a third-year law student at the University of Kansas School of Law. She was diagnosed with Obsessive Compulsive Disorder in high school, and she openly discusses and writes about her mental illness to help lessen the stigma associated with being mentally ill.

After she graduates, she hopes to become a prosecutor somewhere in the state of Kansas.

In her free time, she yells about hockey and parents a 4-year-old German Shorthaired pointer.

1. Andrea Ciobanu & Stephen Terrell, Out of the Darkness: Overcoming Depression among Lawyers, American Bar Association, https:// www.americanbar.org/publications/gp_solo/2015/march-april/out_the_ darkness_overcoming_depression_among_lawyers.html (last visited Dec 3, 2017).

2. Id. 3. Id. 4. Ram Subramanian et al., Incarceration's Front Door: The Misuse of Jails in America, Vera Institute of Justice (2015), https://www.vera.org/ publications/incarcerations-front-door-the-misuse-of-jails-in-america (last visited Nov 21, 2017).

5. Caitlin Curley, Mass Incarceration: Why Is America Making Prisoners of the Mentally Ill?, GenFKD (2016), http://www.genfkd.org/massincarceration-why-is-america-making-prisoners-mentally-ill (last visited Nov 21, 2017).

e h t e v a

S

e t Da

ANNUAL MEETING 2018 Thurs. & Fri. June 14 & 15 DoubleTree Overland Park

www.ksbar.org | February 2018 23

Mid-Winter CLEs Live CLEs: 2018 Spring Oil, Gas & Mineral CLE March 2, 2018 Fort Hays State University-Eagle Communication Hall 1 Tiger Place Hays, KS

Webinars: Mesa CLE Webinar: The Ties That Bind Avoiding Inappropriate Entanglements in the Practice of Law February 14, 2018 (Noon-1:00 PM) Mesa CLE Webinar: Attorney, Heal Thyself February 21, 2018 (Noon-1:00 PM) KBA Webinar: A Rising Tide Lifts Most Boats – How Technology Floats Good Lawyers and Sinks the Bad February 23, 2018 (Noon-12:50 PM) Mesa CLE Webinar: Lies, Damn Lies and Legal Marketing February 28, 2018 (4:30-5:30 PM)

substance and style

Kill the Comma? A Case for Punctuation Preservation

by Harrison M. Rosenthal

T

he Oxford comma: a punctuator fraught with controversy and contention.1 Opponents criticize its unnecessary linguistic obtrusiveness, while proponents glorify its ability to clarify and specify. This seemingly conceited diacritic has been giving lawyers, and society’s less pedantic, “pause” for years. For those unfamiliar, the Oxford comma, also known as the serial comma, is the punctuation device used between the penultimate item of a list and its coordinating conjunction.2 For example: “the first-year law student is doctrinaire, punctilious, and overly pompous."

Recently, there has been a growing trend to eradicate the Oxford comma from use in modern grammar; both the Associated Press3 and the New York Times4 find it inconvenient and highbrow. Even the University of Oxford itself does not strictly adhere to its own comma.5 Waves of concern washed over the grammatical community when The University of Oxford Public Affairs Department disposed of its use in its official style guide.6 So aside from concerns of English correctness—and junior-high dogmatism—why should such a simple piece of grammatical minutia be cause for legal concern? Omitting the Oxford comma leaves room for syntactical ambiguity as to whether the final listed items should be interpreted jointly or separately. By way of example: “I would like to thank my lawyering professors, Justin Bieber and Snoop Dogg.” While it is self-evident that neither the Beebs nor Snoop is my lawyering professor, the possibility for confusion – especially in the context of statutory interpretation – runs rampant. This confusion was the issue in O’Connor v. Oakhurst Dairy:7 the case of the ten-million-dollar Oxford comma.8 In what might be the seminal class-action case for comma crusaders, milk-truck delivery drivers sued their employer for

$10 million of overtime pay.

Under Maine law, employees who work more than forty hours per week are entitled to timeand-a-half pay.9 But a statutory exemption precludes time-anda-half pay for workers engaged in “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”10 Note the absence of punctuation between “shipment” and “or distribution.” This omission, whether intentional or inadvertent, creates two categories of employees: workers who package goods for distribution (favoring the plaintiffs) and workers who solely distribute the goods (favoring the defendant).

In a 29-page grammar lesson, the First Circuit held that because the statute’s plain meaning was ambiguous on its face, semantical discrepancies must be resolved using the canons of construction.11 Out of the canons argued, the court relied on the following two: the rule against surplusage, and the rule of parallel construction. The first instructs a court to “give independent meaning to each word in a statute and treat none as unnecessary.”12 Therefore, while “shipment” and “distribution” might appear synonymous to a layperson, the law-trained reader must not conclude redundancy in statutory analysis. Because “shipment” and “distribution” must be interpreted separately, the rule against surplusage cuts against the defendant.

On the other hand, parallelism calls for “every element of a parallel series [to] be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb).”13 Linguistically, the clause at issue is composed of gerunds (verbal nouns ending in “-ing”) and nouns (“shipment” and “distribution”). If gerunds are to be interpreted with other www.ksbar.org | February 2018 25

substance and style

gerunds, and nouns are to be interpreted with other nouns, “shipment” belongs with “distribution” – not with the laundry list of gerunds. Therefore, the parallel interpretation cuts against the plaintiffs.

Adding to the confusion, Maine’s legislative drafting manual advises against using the serial comma altogether.14 So the First Circuit emerged from the grammatical thicket noting that all of these analyses were inconclusive.15 The court then applied a liberal construction analysis. Because public policy favors the health and adequate maintenance of hourly workers, “ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose.”16 Based on this worker-friendly reading of the law, the court held for the plaintiffs, reversed summary judgment, and remanded the case for further proceedings.

In conclusion, the Kansas bar can glean two fundamental lessons from O’Connor. First and foremost, use the Oxford comma perpetually and without pause. Kansas legislative specification regarding comma usage is relatively thin; so is Kansas case law regarding the Oxford comma. It behooves all parties to clarify any shadow of ambiguity before problems arise. Second, and perhaps more important, the presence or absence of commas – be it Oxford or others – is wholly irrelevant to the essence of legal writing: conveying clear, unambiguous meaning through the written word. Let not any essential meaning hinge on a comma; when in doubt, add an unnecessary comma or another explanatory sentence.

While commas might not literally save lives, they certainly mitigate legal risk and save us from experiencing unnecessarily expensive grammar lessons. n

1. See Mary Norris, A Few Words About That Ten-Million-Dollar Serial Comma, The New Yorker (Mar. 17, 2017), https://www.newyorker. com/culture/culture-desk/a-few-words-about-that-ten-million-dollarserial-comma.

2. See Mary Norris, Holy Writ, The New Yorker (Feb. 23, 2015), https://www.newyorker.com/magazine/2015/02/23/holy-writ.

3. See Jen Doll, The New AP Stylebook Will Not End the Oxford Comma Debate, The Atlantic (May 29, 2013), https://www.theatlantic. com/national/archive/2013/05/new-ap-stylebook-oxford-comma-debate/314787/.

4 . See Carmel McCoubrey, Opinion, For Want of a Comma, The New York Times (Mar. 16, 2017), https://www.nytimes.com/2017/03/16/ opinion/for-want-of-a-comma.html.

5. See Linda Holmes, Opinion, Going, Going, And Gone?: No, The Oxford Comma Is Safe ... For Now, Monkey See (June 30, 2017, 11:31 AM), http://www.npr.org/sections/monkeysee/2011/06/30/137525211/ going-going-and-gone-no-the-oxford-comma-is-safe-for-now.

6. University of Oxford Style Guide, Public Affairs Directorate, University of Oxford 13 (2016), https://www.ox.ac.uk/sites/files/ oxford/University%20of%20Oxford%20Style%20Guide%20%28updated%20Hilary%20term%202016%29.pdf. See also Jason Boog, Oxford Comma Dropped by a University of Oxford Style Guide, GalleyCat (June 29, 2011, 11:35 AM), http://www.adweek.com/galleycat/oxfordcomma-dropped-by-university-of-oxford/34361.

7. O'Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017).

8. Norris, supra, note 1.

9. Me. Rev. Stat. Ann. tit. 26, § 664(3).

10. Id. § 664(3)(F).

11. O'Connor, 851 F.3d at 72.

12. Id. at 73.

13. Id. at 74 (quoting The Chicago Manual of Style § 5.212 (16th ed. 2010)).

14. Legislative Council, Main State Legislature, Maine Legislative Drafting Manual 113 (2009), http://maine.gov/legis/ros/manual/ Draftman2009.pdf.

15. 851 F.3d at 79.

16. Id. at 70.

Oxford University

About the Author Harrison M. Rosenthal is a first-year J.D./Ph.D. student at the University of Kansas Schools of Law and Journalism, respectively. Aside from punctuational pedantry, Rosenthal’s research interests include First Amendment expression, press freedom, and communications law. Rosenthal has interned for the American Civil Liberties Union of Kansas and the Seventh Judicial District of Kansas, authoring reports on recidivism, court diversion programs, and the merits of judicial election.

rosenthalhm@ku.edu

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The Journal of the Kansas Bar Association

Ward Law Offices, LLC welcomes Tony A. Potter, Of Counsel to the firm.

T. Lynn Ward w Tony A. Potter w Laura E. Poschen 345 Riverview, Suite 120 | Wichita, KS 67203 316.260.3120 | wardlegal.com

KBA Feb 2017 T Potter.indd 1

12/7/17 8:45 AM

The Journal of the KBA is looking for YOU if: n You have an idea for a substantive article for The Journal and are ready to pursue it; n You enjoy writing and research and would like to take on a topic already identified by the Board of Editors as an issue of interest to our members and readers; n You know of a lawyer in your practice or community who is an unsung hero or has an unusual or fascinating avocation and would like to see their story in print; n You are interested in writing a shorter, feature article on an area of practice or issue of concern to your colleagues; Please contact The Journal editor at: editor@ksbar.org or visit with any member of the Board of Editors (see list on Page 4 of The Journal of the KBA.)

www.ksbar.org | February 2018 27

n Special SeeCssoiuort

rem Kansas Sup

.

6:30 pupbli.m c reception l

8 p.m. informa

ON THE ROAD

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5, 201 5, My fam ily stil my gre l ow at-g ed in sou randparen ns the land ts hom thwest 1870s, so I am Kansas in esteadthe late invite esp other hom ecially ple dants, ase and eve esteader des d to ryone else fro cenarea, to m the the Ka join nsas Suprem justice e Court s specia for a l session court Octobe 13. r The will heacourt argum r oral ents on two Wi chita cas es and Chief Jus one fro “west m Lawton tice of Nuss way 81” Highat 6:30 starting p.m. in of the the Ga at 2720 rden City Hig auditorium Bu h Sch after thi ffalo Way Blvd. Rigool justice s special ses ht s sio inform will greet eve n, the seven al area out reception in ryone in an side the the This auditor commons first-ev is the Suprem ium. er visit e Cou to our knowle to Garden Citrt’s The Kan second dge, it y. And, sas Sup is justice hearin time in histor only the s (front reme Court, g cas y the cou consist row fro The Sup es argued at rt ing of m left) night. is reme Cou always justice Marla J. s (back Lucker Kansa been open to rt’s work has row fro t, Chief s. m left) during But to observthe people of Justice Dan the firs Lawton hood, peo t 150 yeae our work Nuss and Biles, Eric Ro ple had rs sen, Lee courtr Carol Bei to travel of stateoom in Courtesy Johnso er. to our the cou Topeka photo n and

By MIC Caleb Ste HAEL MA ty visitsrt started ma . Then in 201 gall; and mmares RESH is our to hear cas king commu 1, h@gctele es. nin nigram.com time and th destinatio Garden Cit um , 2720 Bu y istoric we hav certainly the n during tha The line ffalo Way Blv is the wor e travel t far up court offi d. ed so far. thest we be hea d loca The st rd has of cases tha hours neys are cials and atto l nity vis year after our t cha the wil to nge l dis Cou the Kan rusing cus d heard tream its, we also sta first commu to describ sas Sup nounce rt’s visit was since the pre s the cases all to Gar they d firs e vious den Cit reme Court the Int Topeka cou rted to live Before up inc six weeks ago t anis a goo sern visit headin night. lud For the y next wee ka late anyone et. This ser rt sessions on d g bac case tha es a Sedgw . The linek. r cases the turnout for 154-year first time ick Cou will hav Wednesday, k to Topeargum anywhere to vice allows the in owner t seeks to res nty the jus ents wh hear Tu Supreme Cou three watch the jus history of the the shi olv tices breakf e a by-invitat oral ile the tices wil esd Live rt will owned p interest in e ast ion-on Garde l be comCourt, “This ay night. busine ly a family court per with local step towInternet stre y are made. n Cit is the hig memb ss ing to officia sonnel in our er died, after one fam ls Wende y. hes more accard making aming is a big and . sta Th wheth e justice and an ily our wo with ma te, and they t court essible judge for l Wurst, chi er Garde it still are ef distric king diffi erred in the Court of appeal of the 25t n City s will arrive lacks the to the peo rk even all tric h Jud Monda the tim in t ple. Bu cult dec faced t, sai Tuesd person opport could be holding tha Appeals y ay e,” Wu t al to the d this visit waicial Dist a veh rst sai isions A lot of nity vis interaction unity for with me will have a and on search for icle s wa efro d. lun bro ed bec reside s par nt by Jus ught Biles and posure for add its provide. that commu County mbers of the cheon nts get on the tice premis ked in the dri ause it And the Chief itional their exFin Bar Ass Nuss, TV sho courts es is also Justice Dan veway ociatio ney wh After fro ws, and to search police had what ledpersonal int chance Lawton of com o proposed bers wa a warra of a eractio Garde Wurst m court justice the luncheon, n. . us to the ide ing n tching remem n nt s, The jus a other jus to Finney shows night. City oral arg schedule the the Per local jud accompanied the tices County wh We app appeal tices. ument the atto ile growin ry Mason argum to reciate of a firs also will hea s “It’s four to ges, will fan by some g up wh ent convic rney wo that hol at five sch out to adding historic,” Wu day end s after Kansa tion fro t-degree mu r an the per ere vis For sec din ool rst sai the Ka rder son to uld always get and det m Ren s should urity rea s in the are it ns’ wo g d, Ap nsa bre o con erm pea Cou sch rks Court allow eve ak dow a. fess on son ls ine ools to nty was suf See Ses of n n more be visiteds, times and a few timhas visited ficient whether the being pub sion, Pag “I hop the witness sta and Garde re vict the evi es, but are not e E2 n licl Court nd. and get e they will defend dence to con The jus y released. has not the Suprem City come out court imp ant, wh a good tices vis . e cou The jus Ap fee eth rop rt ril, ling er ited erly ins sys jury and the and Fin tices at 6:30 tru there is tem,” he sai of the be the ney Cou Hays in p.m. Tu will be in ses mitted whether the cted the d. fur den Cit esday sion an popula a good percen “I think visited thest west nty will at y High motion error when court comthey hav tion tha to hear tage of School the Garfor seeing it denied t cas e “I auditor them wo is intereste the The jus a mistrial. a our think it is es. id in rk.” a nice tices Wurst hat Wedne feels peo sday mo will meet see the and an opport feather in attend rning m will com ple who for a few to go to work withouunity to much e away better Topeka t having wit ha und of how ,” Wurst Wurst the Sup erstanding said he said. functio rem hopes e Court ns. there See His toric, Pag e E2

Supreme Court m aking fir st-ever tr H ip to GC

Special s ess opportu ion a rare nity for s tudents B

By AUSTI

afisher@ N FISHER gctelegr am.com GCHS auditor efore Mo “I’m ver ium. y hon Acosta nday, David have an the GC knew not opport ored to HS stu abo this,” Aco uni presid dent cou Suprem ut the Kan hing ent of sta sai ty like sas e Cou interv the Tra ncil as d in an Health iew on Next we rt. des Aca High Sch Wedne ek, of its com demy and and old Ga Each oo sda rden Cit the 18-yearclass abo l teacher Da justice of the seven y. commit munity ser head senior y Hig s vid wil h wil ut the Duran l be Suprem tee, said the vice Court’s l get to me School one stu Kansas Brad Nadi Kansa dent am assigned et the e Court’s seven Suprem , left, talks We ng/Teleg s Ga act sele jus bas rde as a tices and visit cted dnesday e Court ram sador, n . for one student ambas opport City next we to with stu high sch from each of uni ek of them the sador ool dents in three is an ty ’s upper for stu get a tas mies, as the dents to cas te public es and meet y hear que who will ans acade“The of the real stions in specia wer any the they at 6:30 studen high school world. about p.m. Tu l session ts who Garde might have to esday are n gra surrou City or going dua at the nding the I believ te next spr area. ing, Acosta e they know , who ser how big don’t really ves on and sca See Sch ry the ools, Pag e E2

Welcom

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Finney Co e the Ka unty Bar Asso ciation nsas Su is preme Court to proud to Garden City.

28

Kansas Supre SupreC moeuCrtouJusti me r c DEAN t Justeicses Attorn K. RYAN Br yce H ey At L

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OPINION

Members of Editorial Ad The CapitalJournal’s edit Ray Beers Jr., orial advisory visory Board Laura board are Zach Mike Hall, Jess Burton, Darren Canady, Ahrens, Garry Cushinbe ica Hosman , Vern McFalls, rry, Matt Gas John Stauffer sen, and Frank Yba rra.

THE he TOP opek EKaA Cap AP Volume 142,

ITAL ita l--JJou OUrn RNal AL

No. 132 • Friday, Mar ch

ZACH AH RENS PUBLISH

11, 2016

4A

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The Topeka with the merg Capital-Journal, publ ished daily er of The Tope , was form ka Daily Cap ed in 1981 and The Tope ital, which ka State Jour was founded nal, which in 1879, dates back to 1873.

(COPYRIG HT, THE

EDITORIA

TOPEKA

CAPI TAL-

JOUR NAL

, 2016)

L

Supreme Cour t deserves thank s Justices put their

with session at work on display Topeka High Sc hool

Farewell to the prince of tides

The work of the Kan sas Suprem tered behind e Court is, a haze of sec by design, Soon after recy. cloisAs the onl Tides” bec “The Prince of y apolitical ame branch of robed just movie in 1991 a blockbuster Opinion governme ices don’t nt, the sev make all of put the film , People magazine KATHLEEN en are not gui was unwelco the ’s ir decisions ded by pub PARKER Nolte, on its leading man, Nick in public. who wasn’t me duty for a writer lic opinion tive branch They inclined to as the exe Man Alive.” cover as the “Sexies es are. ers through guide othcutive and t legislaThis couldn’ For that rea Writing isn’ their self-realization t possibly son, we app . t gro I tho be true, ught (and laud the cou But such was up therapy. ing docket wrote) at rt for brin to Topeka the price Nolte, who paid for exp ging its trav High School played pro the time. ing Topeka osing so muc Conroy tagonist Tom Wingo, elon Wedne him ns an opport h of self and his sday night, family, boo actor who was a good-looking unity to see gra afte As Chief Jus ntr did k boo the justices k, as tice Lawton But what mad well by his role. at work. plain his tort he sought to exkathleenpark Nuss pointe page Sunday er@washpost.c ured childho the charact e him sexy was d out on this , argument himself. om od to er created s before the opinion open to the by author Pat court have When he was Conroy, who beloved public. But Wondering always bee week. died last those argum whether we roy was read n’t writing, Contime when n be next-do ents are in might ing most people or Con neig day roy, the hbors, we — or talking — four hours a I wrote, was morning, a are at work poked our On Wedne est man aliv to Marlette the sexiheads out or in school the sday, the cou pho e. our respecon tive doors, ne, nea . rt brought It was Con rece the evenin decades. Ma rly every day for arguments roy, after all, were delighte ivers to ears, and g, a time wh had to the pub who en more Top two novels rlette, who wrote dreds cho face-to-face d to find ourselves lic in ous crafted sentences so sen of his own ekans cou se to do so. . ly lush and death in a before his suld attend. that evenin Over drinks later true that 200 HunIn his invitat begged to g, drew cartoon 7 car accident, also be read alou they me with stor Conroy regaled ion on this s and wro d.

He com ies, te pag and its wo While he doo that “... salm ic including e, Nuss said cartoonist rk are som that on dreame dled, he like strips. , “the Suprem mou Dou talk to his etimes defi d to ply want to e Court face ntain passes and the bro d of teased him merg Marlette had friends ned for you s of grizzlie benefit the cilessly One can only . by those wh my sexiest s hovering wn ir personal clear rapids. wish to hav -man-alive about o simWe agree over a party line agendas.” e had colu We talked and unders with those dreamed of Copperheads ... about friends mn. tand why raconteurs two, both such misinfo placing thei chil , Nu fam dre wit ss ily, n h would like in the shin and wri razor-sharp r fangs rmation. vision, wic bon to refute Why, he ask ting. ked senses It was a not Ospreys slep es of hunters. of and a flair -so-subtle ten my own ed, hadn’t I writfor express humor ered, plum t with their feathreference fath and conser ing mos er-daug what t others hide meting dre to Gov. Sam novel? I beg vatives in ams screaming an to answerhter Brownbac the Legisla The last tim or never notice. through dee elves lengths to waiting ...” k ture who hav e I saw Con motion dive p, when he inte , “I was define the was, alas, roy e gone to gre s toward her slowto complet court as a rrupted nine years imposing e It was Con ring.” at partisan bod ago at Marlette’s their agenda roy who your father the sentence: “for fun y of liberal on citizen to die.” were two amoeral, where we justices South Carolina’s sed described But a recent s Yes wh . o ng ucti nev Low 10 eulogist ve poll shows er elected country as became fore s and them.

Kansans are something “I wish I had with the Kan ver bre bon athe ded you bers of wha far more imp : “the bold as memsas Suprem the time, his ,” he said. At t , fecu ressed e Court tha of the tida branches of “Team Ma Conroy dubbed l marsh, exq nd aroma n they are Santini — father — the great rlet state govern sensual, the uisite and was up in with other measure, we te.” Bereft beyond ment. their hotel room, wai The poll, con in heat, a smesmell of the South ting for his gering wit were nearly stagducted by son esco ll like h to rt him to Fort Hays grief and cho new only 21 per semen, and tears as State Unive king cent of Kan spilled win milk, that had bro the family weddin rsity, found fumed wit sans are dis g of fare we rendered our wor on ught them Sixty-one h seawater e, all perwell. Conroy ds satisfied wit to Naples.

Before we percent of .”

Ever after, loved how h the court. we returne Kansans are “What’s it parted, I asked him , as Legislatur d point in any there would be no dissatisfie , like to be Pat e and 69 per ers would to our seats, the oth d with the one roy?”

Conpat us on the cent are dis describe anim else trying to Kansas according offe bac sati r k and commendati sfied with to the poll. al dreams He threw marsh. For ons as tho the govern or the back his hea we’ d eve sco ugh Perhaps the roa rmore, the or, red a touc d and red with laug would exp world Legislatur hter: “It’s a He found this hdown. erie dre nce e am! and the Low up their ow ” he said, tho governor’s try through both funny heartbreak n branches ugh I was and Conroy’s eye counoffi nev ce er ingl sho sure y of governme lovely. Now uld clean Several yea he s. “fixes” for we are hea Sometimes, really meant it. nt before mo the judicia rtbr umn, I met rs after that collosing season oken again, our ving on to ry such as Conroy at it was a nighas his readers know, the poll is impeachm upon us, ano a Fla., hotel correct, Kan tma of our mos ent legisla where, sere Naples, ther One painful re, too. t bril sans would tion. If ndipitously, we happen Kansans for irony was down. At leas liant players prefer that. ed recognition Justice, a gro rooms. We to have adjoining that his boo his tion in kno t there is consolaof victims up of friends disc libe ks ove win rated thro had red this whi of violent speaking to and family Marlette can g that Conroy and le crimes, acc eac sufferers — ngs of fellow members bringing the phone, a con h other on the used justices the depress laughing and roar together now, ir session versation that abused, the ed, the of politickin wee to sim Top pin father-hater ultaneously I was g at the eka High.

But their evi glory of it g by to seek ther s — not all dence for the hotel wal hearing through apy or wri of the living. — as ever the envy the allegat traveling doc l. te books but to share ion is that ket session half of the Conroy at their miseries with s occurred Considerin book signings Kathleen Park in general g elections . This er election yea are held eve Sub for the Washingto is a national columnist evidence of mi rs. ttin ry other year, g letters to n Post Writers politicking.

Group. that is har Signed lette the editor Critics of the rs dly and a daytime with the writer’s full nam court are driv Mail tunately for en by agenda publication. telephone number will e, address Kansans, the and ideolo Bec be Letters Edit Fax justices are or, can be publishe ause of the volume rece considered for gy. ForTopeka Cap not. ived, not all d. Preferen (785) 295-123 ital-Jour on topi ce will lette 0

T

he Kansas Supreme Court has increased its public profile the past six years by conducting special sessions across the state.

To date, the Court has heard oral arguments in 14 commuCould Condoleez za Rice save the nities, garnering considerable media coverage and drawing a day for Repfarublarger licans?audience each time than typically seen in the justices' courtroom in. During those trips across the state, justices also have met with thousands of students to talk about the judicial system and its role in government.

The Court's venture outside the Kansas Judicial Center began in 2011. Justices marked the state's 150th anniversary INSIDE: by returning to the state Capitol—its home from 1869 until 1978. There, justices heard oral arguments in the newly INSIDE: restored historic Supreme Court courtroom. The sesquicentennial celebration continued with special sessions in Salina, Greensburg, and Wichita.

ISSION Y COMM NT OU C CCOWLEY "It was, to our knowledge, the first time in the Court's hisC C ct for tory" a r r t o f n r t o c o oral arguments had taken place outside Topeka, said a C n oro Contr er is er is Chief that s sf HoofnH i t a s o r e p is ts u a p s Justice Lawton Nuss. r G e Gu app a ewed newed e n r e r t t o o n n "As we began to hold court in Kansas communities, we also began to refine our approach," Nuss said. "Among other things, we started to hold oral arguments on college campuses so those students could easily attend."

Then in 2015, at Fort Hays State University in Hays, Kan., the Court held its first evening session in an effort to reach justices even more members of the public. Nearly 700 people arrived Kansas a schools visit arseas justices to watch the Court in session. Each special session's set of oral ls o Kan a scho arguments since then has been at night. visit are cs of general rs be interest in Tope given to concise lette are subject rs ka and Kansas. to editing for length and All letters clarity.

nal 616 S.E. Jeffe rson Topeka, Kan . 66607

Email

letters@cjon line.com

The GOP a debate ove isn’t facing Opinion rather a hos r policy, but tile takeove will find it a pernicious r by MICHAEL GE very difficult RSON to support tional Rep force. Tradiinto the con Cruz, who ublicans are vention wit has criticized presented strong plur Trump for with a seri now message. For ality but is h a bein too soft on es of deeply flaw nied deillegal imm g of State Con mer Secretary ong ed tion. Cruz igra- eas the nomination, it is serving the options. And oing FBI would be a y would stan doleezza Rice party’s idea weak can to imagine a Republi candidate concerning investigation d for everyth may eventu ls aga convention the handlin ally require ing clas Clinton. His inst Hillary with all the Trump does not — g of leaving it, sified mat uni ty 100 gravity, and at least for -proof dignity, cha dec conservatis ton-Trump erial. A Clina season. racter and tumultuous orum of the m isn’t to evrace raises ous seri 1968 Demomoral pur - small eryone’s tast the michaelgerso Donald Tru cratic conven pos but seri n@washpost.c But why wou e. tion South Car e. And, as one of a Trump ous prospect om winning the mp is ld anyone olina Republi Option 3: Sup . presidency serious take Rep told ubli can por Wh . can me, he see t a cennomination ich could ter-right, thir Opt less and diffi such a thankd-p in a thick laye ms “covered did and lasting bring serious ing to it. Acrbut not sweep- can ion 1: Support the ate for pre arty canr of people damage to would be a cult role? It didate in oss the stat sident who repellant.”

American that have vote heroic act es would rep democracy in the hop second place, of self-sacrific resent a civi d so far, he e of Option 2: Eve standing in and has gotten e rights Rep l Trump’s plur beating the of the party for the sake about 35 per ubli Trump’s plur n if alit There is, in world. of the vote cen and the cou hold the cor canism and alit y try. and is barely t more votes and y with fact, no clea can ne And this can ’t beaten by or morally track to get r delegates. the party in message of a single can be didate satisfying wou the requisi on “We may be in trus ld didate pro opti t for better for Republi , deny him bab 1,237 delegate te days. This says Sen. Lin a position,” cans. Option on a majority political futu ly have no app of roa dele the ch dse 2 is win outrigh s in order to gates obv wou re, y Graham depend on “where we , t finding a stro ld she might tip since he or next ious choice for the tion and stopat the convenhave to rall land conven at the Clevetwo wee candidate ng around Ted y tion toward a close election who is wil After all, the him there. to it, a con ks. If it comes Cruz as the Clin ling So what are . to eng ton only ven elec age in (which would, in tion battle toral way to stop anti-Trump terrain gets worth hav fact is Republican Donald but (given an important less favorabl Trump.” Ma ing to save the motivat , be part of s the to Trump the e party. But licans who — Repubion) such efforts) history of from in this arg rco Rubio, if Ohio or want their Option 4: Ess .

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Clinton is REG , conserv Mich actu ative ael Gerson is ally a dism candidate, a national al columnist involved in for the an Writers Group. Washington Post 2017 le is a valuab ant al guide import This medicce filled with ine of medic . resour in all fieldsentire family for the information and health

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OMMISSI

31 March

the work of so that the continue. ue off ice can mission will iss The com e with that releas t week, a press nex nt com ounceme . mi County onsann said s t com zen ay ty Wil Cowley rsd of citi d. y Co berun voted Thu ew the miszens on Wilt sai A num Cowle day com sioners ren theurs er of citi misedrTh to hea g not to theiA numb hansd vot appraisersioner com ew dec mornin reners’ d t tosion of county hear the decithanke raiser contract and to place him morning no sion app hand to sioners’ ed ir s county for the nk Lance Lei trative leave them tract of ce him sion tha inis to pla k and contract,con and on adm s wor his their Lei of vem end Lance them for the ve elea atigav until the str June 30. ct, ini ires tra and conof on adm work round which exp meeting end ofahis m se..

30 In a special ley County until the appelau gave the Cow ires Jun arks of In rem nd held at the , commissioners which exp g rou a etin use cial melate r in the session Courtho In a spe Leis applause. y Coun-ty executive LMAN s Cowle inded resiners JOHN SHE n comwent into s at, the In remark Photo by Wilt rem mi utes. The es for ssio heldday assign role deadlin com for 30 min ir Wayne Wilt se,t all S. far left, als n hou ts tha er in the rais sio nCourt cha den lat ses app St. Peter, Thursday at ACH take k sion of n ive s Nic mis bee eals cut Lei exe LMAN all g oapp on had e rt judge a court case int filin ed resiasndocom N SHE no acti Suprem went of trict Cou ion. pla.ce,

by JOH The in tes sesses lt remind nes for Kansas tice verol ainnu and Dis re-enactment Photosaid remmi ign day, Wi gs. Wilt center, asscuti n the t, exe deadli Ala meetin for 30 all Court Jus gall, er, farinlef . er ol Bier, seniors for the yne was t eals r HS Car sion Wa tha sal app vele AC ir rai s Pet at ool Justice eb Ste rierTra a motion mission cha St.ses daymis taken dents kcus CalNic e Court City High Sch ursCom bee n made The Cou had eals of app Leisnas of Suprem rt case Th Groom the urt judge contact me left, dis contract filing app place, as do all acttoion Kansas Arkansas pre the Suew n. of a cou trict Co - d noble and the Visiting to a group of in nsa to sren Ka adminis sai unass tim not and Dis re-enactmenthis job the court e.ive sessiothe ps remain s.

Leies on center, pre execut hired Ala and pro puttic n to Jus role of urt and commis in theLeis was s meeting eler was Co er by in en rol Bier, seniors for the eal ion Jun and l, Ca with e e, iss app gal ed tic tem leav siona motio sys iveSte erTrav Comm comma misde second leb trat Ca h School from ley Court Jus sesgele tion was county n The Couri tact Leis as of Bob students Burden cusVoe not a Cow Supreme ansas City Hig dis om3.the tractilsion t, er of con Though Gro201 lef Kansas Ark . The themo the con s is fam sCentral motion and unable to Visiting to a group of the job ini ter native, Lei adm to renew his e. ps and Dex courtger be notCounty s on a, having Leiare the. no Thursday before tak pasesed press tim hired by the and pro of 3-0 puhtthe lon misrol s entail schools l ry farm andiartowit a daicom Leis wil their job ns. on at the with in June Leis was ve,onand appraiser’s leaup afterno Dexter. . onded system stio in them groewn hita tem tiv g mission ng sec N que sys tra Wic kin le y in eivi HEO rt com ing fro of wordents est school l be recn ,760 southw sas cou b Voege A McCUTC county t a Cowle n 10 was stu but wilBu rde $17 sioner Bo The Kan iness of ensurBy REBECC more tha tion ough no office al ilA bus ” He had ler ntr ofa total ofHis yearly n. The mo 2013. Th ive, Leis is fam REBECC Ce “is in the ivering justice, his salary, CourierTrave r s.

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www.ksbar.org | February 2018 29

on the road with the supremes

For the school visits, justices partner with local judges to talk to students about the court system in Kansas and what it takes to become a lawyer or a judge. One justice even leads students in a re-enactment of a Supreme Court case.

The Kansas Bar Association partners with the Court by providing two publications to give to students when the justices visit schools: "For the Record: A Guide to Your Rights and Responsibilities as a Young Adult" and "On Your Own: A Guide to Your Legal Rights and Responsibilities as an Adult."

Jamie Dawson, the head government teacher at Emporia High School, said the Court's October 2017 visit to his city gave students a valuable lesson.

"The session itself was one that we used for all of our seniors and advanced students to see how the courts operate," Dawson said. "Typically, my kids are familiar with what they have seen on television shows, but they have no true idea about the appeal process and how arguments work. These traveling sessions are the best way to actually get students to see these cases and how the courts work."

Emporia High was one of seven area schools that hosted visits from a Supreme Court justice and an area judge in early October 2017. Justices and judges also visited Northern Heights High School in Allen, Chase County Junior-Senior High School in Cottonwood Falls, Hartford Junior-Senior High School in Hartford, Olpe Junior-Senior High School in Olpe, and Emporia State University. Students from Flint Hills Technical College in Emporia joined the Emporia State visit.

Altogether, about 700 students participated.

Not only have the school visits been a successful outreach to students, Nuss said, but they have helped draw adults to the evening oral arguments.

"Many of those students like the afternoon experience so much that they also attend the evening oral arguments—often bringing their parents," Nuss said.

Dr. Mark Tremaine, an attorney who leads the Sterling College criminal justice program, said the special sessions are a valuable teaching resource. Since the traveling docket program began, Tremaine has taken student groups to watch oral arguments in Hutchinson, Winfield and Emporia.

"I prep them beforehand, so they see how the oral arguments work—that they're not going to see a trial. Typically, afterward, they have an opinion on which attorney did better, which one presented better. And afterward, they get to visit with the justices. It's been a really good experience for our students," he said.

About three-fourths of the criminal justice majors at Sterling plan careers in law enforcement, Tremaine said, while the remainder plan to attend law school.

Dawson, of Emporia High, said his students enjoyed the visit to their school by Justice Dan Biles and Lyon County 30

The Journal of the Kansas Bar Association

District Judge Jeffry Larson and then were able to watch the Supreme Court justices at work that evening at Emporia State University.

"The ones who attended the evening session thought it was very interesting to hear the arguments being made by the different groups," Dawson said. "When we explain these things in class, often the students think they are going to be dry discussions and arguments, but most of them agreed, after watching it live, that it was extremely interesting and even kind of exciting to think about how the justices will rule.

"When we talked about it afterward, back in class, there were so many different ideas and takes on how they thought the justices should rule, and we had great discussion about what can and cannot be done by law," Dawson said.

In her visits to local schools, Justice Carol Beier uses an actual court case to draw students into the workings of the court. She, a local judge, and the students act out and vote on a U.S. Supreme Court case, New Jersey v. T.L.O., which deals with the search of a student's purse at school and the vice principal's discovery of marijuana.

"My colleagues and I always have a lot of fun during our school presentations," Beier said. "It is fascinating to hear the Fourth Amendment arguments the participants come up with on behalf of the student and the State, and the ultimate vote is usually split, just as it was in the original case. I hope the exercise gives the students a feel for the complexity of our jobs as justices."

The traveling court sessions have been a success on all fronts, said Nuss.

"We continue to receive great feedback from the communities where we hold oral arguments. And we receive great feedback from the students, faculty, and staff from the many schools we visit in the afternoons," he said.

The Court anticipates scheduling twice-yearly visits to Kansas communities for the foreseeable future. The dates and locations are announced about two months in advance. The special sessions, like the Court's regular sessions in Topeka, can be watched live online at www.kscourts.org. n

About the Author Doug Weller, a communications specialist for the Kansas Judicial Branch, is a longtime Kansas journalist. He was a reporter and editor at The Pratt Tribune; The Hays Daily News; the Salina Journal; and The Register, the newspaper of the Catholic Diocese of Salina; and was design director of the short-lived B Magazine based in Lawrence. He earned a bachelor's degree in journalism from the University of Northern Colorado. He and his wife live in Lawrence.

Kansas' Favorite Son—Bob Dole— Honored with Congressional Gold Medal

O

n Wednesday, January 17, leaders of the U.S. House and Senate gathered in the rotunda of the U.S. Capitol to present a Congressional Gold Medal to former Senate Majority Leader Bob Dole in recognition of his service to the nation as a soldier, legislator, and statesman.

Kansas Senator Pat Roberts, who initiated the enabling legislation, said he drummed up support for the award from all 100 senators in just two days, telling Dole, "You are our hero."

Robert Joseph “Bob” Dole, now 94 years old, was born on July 22, 1923, in Russell, Kan. In World War II, he suffered devastating injuries while aiding a fellow soldier; it took more than three years for him to recover. He was later awarded two Purple Hearts and a Bronze Star for his wartime service. ressg n o sC r Dole finished his education, earning his law deKansa nd Speake gree from what was then Washburn Municipal Colh t i w a . t e e left r stag e righ lege (now Washburn University) in Topeka, Kan. cente rump to th nell to th t a t en on .T He later went on to represent the state of Kansas a mom s and Pres itch McC d e y M o n in the U.S. Congress from 1961 until 1996—eight j i . r n k e d n Dole n Lynn Je n. Maj. L years in the House of Representatives, followed by e a wom yan and S 27 years in the Senate.

R Paul During his 35 years in Congress, Sen. Dole was a passionate advocate for the disabled, choosing policy over partisanship to achieve significant Social Security reforms and to advance the Americans with Disabilities Act. Since leaving Congress, Senator Dole has continued to selflessly serve the American public—particularly our nation’s veterans. He is also a Kansas Bar Foundation Fellow.

The Congressional Gold Medal is the highest civilian honor the United States can bestow. In accordance with Public Law No:115-60, a single gold medal was struck to honor Senator Dole. d The President also participated in the bipartisan, Gol sional ole. s e r bicameral ceremony. n g on D the C Sen. Bob f o ides mer erse s ely for for v e r and lusiv Front struck exc l Meda Bob, I campaigned for you in 1968 with my law partner Wint Winter. You later signed my application to be admitted to the U.S. Supreme Court bar.

Congrats on the award. You deserve it most certainly. We are in great need of more statesmen and women, like you, in government today. We have lost the capacity for civil discourse.

God bless you.

Robert "Bob" Green Ottawa Ks

the diversity corner

Death in the Workplace: Dealing with Grief

by Diana Stanley

D

eath is a thorny issue in the workplace. What works for one person may not work for another. In some ways, grief responses are totally diverse in that each person experiences grief differently. On the other hand, it is useful to examine grief through the lenses of ethnicity, gender, and age to better tailor a support system for colleagues.

Ethnicity Grieving processes vary widely depending on the culture, but most practices relate to a spectrum of explicit and implicit support. Explicit support is assistance typically asked for by the bereaved. The help is framed as being specifically because of the loss.1 Friends and family will ask the bereaved if they need help, but the onus is on the bereaved to ask for specific assistance. One explicit support culture is Irish-American Catholics. Families may organize large wakes with food, tears, and stories about the deceased. Implicit support is inclusion in communal networks without discussing loss. This style is prevalent in Asian cultures which tend to avoid outward expressions of grief, but enjoy considerable implicit support.2 Towards the middle are many Islamic cultures which permit “weeping softly� and limits outward grieving to three days.3 The best advice is to take the time to learn about their culture, 32

The Journal of the Kansas Bar Association

and identify which support system is their norm. This is also helpful when interpreting coworker responses to your own grief such as if an Asian American does not talk to you about your loss, but extends implicit support.

Gender As a rule, the differences between the grieving processes of men and women is somewhat analogous to a severe romantic breakup. Women tend to experience more acute grief symptoms in the short term than their male counterparts.4 However, men take more time to process a severe loss and are more likely to suffer physical ailments and suicidal depression. Employers should consider that women tend to need more support in the early stages of grief, but they adapt and heal sooner whereas men may need a much more proactive approach over a longer period.

Age There are three main age groups to consider. In Young Adulthood (25-35), most people solidify their sense of self. As such, grieving young adults may struggle with personal identity and severe loneliness. Coworkers should lean toward social interaction to help.5 In contrast, work tends to be a haven

the diversity corner

for Middle Adults (35-60) because many cope by “keeping busy.”6 It is not unusual for them to initiate projects with a single-minded focus. However, they also tend to self-isolate and have less patience for small inconveniences. Finally, Older Adults (60+) tend to see grief as a natural part of life, but are most likely to suffer physical ailments. Coworkers should avoid “disenfranchising” them of their grief by assuming they are better off emotionally than they are. Grief is a balancing act, the older you are, the more experience you have coping with loss, but you are also less resilient. The younger you are, you have less experience, but you are more resilient.

What can we do?

Amidst the varied cultural responses to grief, there are some steps coworkers and supervisors can take that would help most of them. In Sheryl Sandberg’s book, Option B, she writes about her Platinum Rule, “Treat others as they want to be treated.”7 Let the bereaved grieve at their own pace and if they want to work—let them. Many grieving people find the structure of work a helpful coping mechanism, but they feel overwhelmed or inadequate due to their emotional vulnerability. That is part of why many bereaved employees lose their jobs within a year of a death of an immediate family member.8 A strong support system at work can be the difference between a lawyer who stays and a lawyer who leaves.

Our default response to learning about a coworker’s loss is empathy. However, the cardinal rule of supporting the bereaved at work is that empathy is nice, encouragement is better.9 For example, after a meeting, tell bereaved colleagues that they brought up a good point, and you are glad they were there. One study has shown that this type of material support is especially effective when it comes from supervisors, likely because they are ones normally responsible for giving feedback.10 The same study indicated that the best way peers can help is by including the bereaved in social events and encouraging them to attend.11 People tend to distance themselves

from the bereaved out of a desire not to bother them, but this behavior leads to compound loss or the loss of their colleague’s companionship.

Sir Arthur Conan Doyle once had his character Sherlock Holmes say, “The best antidote to sorrow is work, my dear Watson.”12 Granted in the story, the detective is using the phrase to cajole his old friend into joining him for a murder investigation, but it still speaks to the power of work—and a sensitive coworker—in healing from trauma. n 1. Dairine M. Pearson, et. al., Culture, Social Support, and Coping With Bereavement for Asians and Asian Americans, 35 The Forum (Association for Death Education and Counseling), 2, 7 (2008).

2. Id. at 8.

3. Nooria Mehraby, Psychotherapy with Islamic Clients Facing Loss and Grief, 9, Psychotherapy in Australia, 2, n.p. (2003).

4. J.H. Chen, et. al., Gender differences in the effects of bereavement-related psychological distress in health outcomes. 29 Psychological Medicine, 367 (1999).

5. Nancy Hooyman & Betty J. Kramer, Living Through Loss: Interventions Across the Life Span, 214 (1st ed. 2008).

6. Id. at 250.

7. Sheryl Sandberg, Option B, 51 (1st ed. 2017).

8. Lauren Christine Leger, “Effects of workplace social support on the grief process,” (masters dissertation) University of Montana 2000, 16.

9. Sandberg at 70.

10. Leger at 47.

11. Id. at 50.

12. Sir Arthur Conan Doyle, The Return of Sherlock Holmes, “The Empty House”, online edition.

About the Author Diana Stanley is a 1L who just finished her first semester at KU Law. She is a member of the St. Thomas Moore Society and Women in Law. Stanley_de@ku.edu.

www.ksbar.org | February 2018 33

Office of Legal Services 1000 SW Jackson, Suite 560 Topeka, Kansas 66612-1371

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KORA:

A Primer on the Kansas Open Records Act

by Mary Feighny

“Information is the oxygen of democracy. If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they cannot take a meaningful part in the affairs of that society.”1

T

he Kansas Open Records Act2 (KORA) imposes a duty on the state, its agencies and local government to make public records available unless a disclosure exception applies.3 This article will serve as a primer for public agency attorneys, private attorneys seeking access to records on behalf of their clients, and for seasoned KORA attorneys, an update on recent cases and legislative changes. For the genesis and history of this thirty-four year old law, the author recommends Theresa Schwartz’s seminal Journal article.4

General The Kansas appellate courts have been unwavering in applying a liberal construction to the legislature’s edict that public records are generally open for inspection.5 Disclosure exceptions are always narrowly interpreted and the burden of proving an exception is on the agency.6 The availability of records from other sources never excuses production.7 However, KORA does not require public agencies to create records or compile information.8

What is a public record

may 2016

KORA identifies what is and what is not a public record. A “public record” is “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of: (1) any public agency; and (2) any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities, programs or operations of any public agency.”9 This definition captures not only paper records,10 but also computer data, including emails.11 It also includes court records12 and records provided to a public agency by a third party.13

a primer on the Kansas Open Records Act

What is not a public record A “public record” does not include: (1) records owned by a private person or entity that are not related to functions, activities, programs or operations funded by public funds;14 (2) records made, maintained or kept by a state legislator or a member of a governing body of a political/taxing subdivision of the state;15 and (3) records identifying employers’ individually identifiable contributions for workers compensation, social security, unemployment insurance or retirement.16

What is a public agency Similar to the definition of a public record, KORA identifies what is and what is not a public agency. A “public agency” is: (1) “the state or any political or taxing subdivision of the state17 or any office, agency or instrumentality;18 and (2) any other entity receiving or expending and supported in whole or in part by [public funds].”19

What is not a public agency A “public agency” does not include: (1) “any entity solely by reason of payment from public funds for property, goods or services;”20 and (2) judges at the municipal, district court and appellate levels.

The affirmative definition of a “public agency” (i.e. state and local government) is more easily understood than the ambiguous provision excluding entities receiving public funds.

The Kansas Attorney General has issued several opinions on the subject of when a private entity falls within KORA’s grasp—the conclusions of which vary depending on the facts but generally turn upon (1) the extent of the public funding; (2) whether the funds are for services traditionally provided by government; and (3) whether the entity was created by a governmental entity or statute.21 The most recent case exploring this conundrum is State v.

Great Plains of Kiowa Cty., Inc.22 where a panel of the Kansas Court of Appeals concluded that financial records held by a private entity operating a county hospital are public records.

Great Plains of Kiowa County (GPKC), a non-profit company established solely to operate the Kiowa County Memorial Hospital, leased the hospital from the hospital board of trustees. GPKC’s operation was funded, in part, by a county mill levy that provided about 20% of GPKC’s revenue—the rest being provided by federal grants and patient billings. When the county commissioners requested copies of vouchers for payment of professional and management fees and documents related to executive salaries, GPKC demurred on the basis that it was not a ‘public agency’ simply by virtue of its having received county funds, citing K.S.A. 45-217(f ) (2)(A) (‘public agency’ not an ‘entity solely by reason of payment from public funds for property, goods or services of such entity.’)

36

The Journal of the Kansas Bar Association

In an action filed by the county to enforce KORA,23 the district court concluded that the exception did not apply because it is limited only to vendors and not entities providing services directly to the public. In addition to ordering disclosure, the court levied the maximum civil penalty allowed by law—$500.24 A panel of the Kansas Court of Appeals—clearly irked by the hospital board of trustees’ failure to fulfill its statutory requirements to keep financial records open for public inspection25—concurred with the district court and held that GPKC’s operating records are public records. The court’s holding was based upon factors considered by Colorado courts when interpreting Colorado’s Open Records Act which served as a template for KORA. The Colorado courts focus on a public agency’s involvement with the private entity by weighing the following factors: (1) the level of public funding; (2) whether there has been a commingling of funds; (3) whether the activity was conducted on publicly owned property; (4) whether the services were an integral part of the public agency’s decision-making process; (5) whether the private entity was performing a governmental function or a function which the public agency otherwise could perform; (6) the extent of the public agency’s involvement or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity was functioning.26 Key to the Kansas Court of Appeal’s decision, in addition to the funding, was that GPKC operated a publicly owned hospital and provided services directly to the public.

“GPKC has only one function – to operate the Hospital on behalf of the [hospital board]. As far as the record shows GPKC provides no services to any other entity, public or private. The [hospital board] cannot hide its records by delegating the operations to GPKC and violate its statutory duty to maintain adequate financial records pertaining to the operations of the County-created hospital. By assuming the role as the sole operator of the hospital on behalf of the [hospital board], GPKC’s operating records are deemed to be public records.”27 As of this writing, the decision is under review by the Kansas Supreme Court28 whose opinion will, hopefully, shed light on the circumstances under which KORA’s reach extends to private entities providing services to the public.

How to request a record; fees All public agencies are required to adopt record request procedures which generally can be found on the agency’s web site.29 Most agencies provide a request form but any written request is sufficient.30 The agency can require the requestor’s name and address as well as proof of identity.31 If names and

a primer on the Kansas Open Records Act

addresses of individuals or business entities are requested, the record custodian may require that the requestor execute a certification that the requestor will not use the list to sell property or services or sell the list to a third party who does so.32 Statutory exemptions33 to the sale prohibition exist.34 Once the certification is received, the custodian must provide the records even if the custodian suspects that the requester may use the list for the prohibited activities.35 The custodian has three options: (1) grant access within three business days;36 (2) inform the requestor that access cannot be granted within three business days but will be available at a later date; and (3) deny the request within three business days.37 It is customary for an agency to provide a reason for denial but it is not required unless requested.38 The ‘three day rule’ does not mean that the records have to be supplied within those three days—only that the agency respond within three business days.39 The attorney general takes the rule seriously and will not hesitate to spank an agency for its cavalier disregard.40 If the records exist41 and are not subject to copyright42 or a disclosure exception,43 the agency can request that the requestor pay a ‘reasonable fee’ for the records before the latter are produced.44 The fee cannot exceed the actual cost of furnishing the records, which can include the cost of staff time required to make the information available.45 KORA does not allow flash drives or other installable electronic devices, nor does KORA require that an agency produce copies of audio or visual items unless they were used in a public meeting.46 However, records that are electronic must be provided in that format.47

Finally, access can be denied if the request places “an unreasonable burden” on the agency or if repeated requests “are intended to disrupt . . . essential [agency] functions,”54 but the burden is on the agency to prove by a preponderance of the evidence that refusal is justified.55 If the request is denied, the agency must cite the closure exception but only if requested.56 Records containing both disclosable and non-disclosable information can be redacted to exclude the latter with the redaction costs assessed to the requestor.57

Exceptions to Openness; Record Closure; Redaction

Exception: Attorney/Client Privilege; Attorney Work Product

Not surprisingly, some public records are not open.

Depending upon the type of record, state and federal laws may prohibit or restrict disclosure.48 Additionally, K.S.A. 45221 lists 54 record categories that a public agency may refuse to provide. In other words, disclosure of public records falling in these statutory categories is discretionary.49 However, exceptions are narrowly interpreted by the courts and the burden of proving an exception is on the agency opposing disclosure.50

Records privileged under the Rules of Evidence58 or constituting attorney work product do not have to be provided.59 The two seminal cases addressing these exceptions involved media requests for attorney billing statements60 and prison correctional records. 61 In Cypress Media, Inc. v. City of Overland Park,62 the Kansas City Star sued the city of Overland Park to obtain attorney fee billing statements from outside counsel. The city—while willing to provide the statements—insisted on redacting narrative statements as protected under both the attorneyclient privilege and work product.

In ordering disclosure of the un-redacted billing statements, the Kansas Supreme Court honed in on the definition of ‘communication’ in the privilege statute.63 The Court rebuffed the city’s argument that the privilege applies to every interaction between an attorney and client but refused to adopt the Star’s argument that the privilege exists only when advice is given or received. The Court also rejected the city’s work product claim.64

“Meeting this burden requires more than generalized allegations, conclusory language, or mere arguments of counsel; a sufficiently detailed record must be provided to show the reasons why a claimed exemption applies to the materials requested.”51 Non-disclosure provisions in contracts that are public records are void as against public policy.52 Also, records that could have been discretionarily closed (e.g. personnel records) become open if discussed at an open meeting.53

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a primer on the Kansas Open Records Act

In Wichita Eagle & Beacon Pub. Co. v. Simmons,65 the newspaper sought documents received and generated by prison incident review boards whose task was to review incidents where parolees had been charged with murder.

The boards’ purpose was to assess the potential for liability and public criticism. The Kansas Department of Corrections raised several KORA exceptions, including the work product statute.66 Despite the fact that the reports had been prepared at the behest of the agency’s legal counsel, the Kansas Supreme Court found that there was insufficient potential for civil liability in light of the immunity bestowed upon parole officers by the Kansas Tort Claims Act. Accordingly, the Court found the agency’s assertion that the documents in question were prepared in anticipation of litigation lacking in ‘conviction or certainty.’67 “While documents prepared specifically at the request or direction of legal counsel in anticipation of litigation need not be disclosed under the KORA exemption found in K.S.A. 45–221(a)(25), the subjective decision to mark records as “prepared in anticipation of civil litigation” should not by itself imbue the records with the protection of this privilege when, in reality, there is no likelihood that litigation will ensue.”68

Exception: Employment Records; Employees and Applicants A public agency must provide the names,69 positions, salaries,70 service durations and employment contracts for officers and employees71 but can refuse to provide ‘personnel records, performance ratings or individually identifiable records72 pertaining to employees and applicants for employment.’73 The purpose of this exception is to protect the privacy of employees, ‘save personal reputations and encourage qualified people to work for government.’74 This exception would close the home addresses of public employees, including law enforcement officers,75 but would not close records regarding independent contractors retained by a public agency.76 Recently, the Kansas Court of Appeals applied the disclosure exception for applications for appointed positions. In Salina Journal v. Brownback,77 the governor’s office rebuffed a media request to provide a copy of the applications of individuals who had applied for county commissioner vacancies in two newly created districts on the basis that the personnel record exception covered records for ‘applicants for employment’ which included applicants for appointed positions.

The district court, relying upon Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr.,78 concluded that applicants for appointed positions were ‘nonemployees’ and, accordingly, the disclosure exception did not apply. Southwest Anesthesia 38

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Serv. involved a request for records pertaining to physicians who were not employed by a county hospital but who were characterized as independent contractors. The Kansas Court of Appeals opined that the personnel record exception does not apply to independent contractors.

On appeal, the governor successfully distinguished Southwest Anesthesia because the latter did not involve applicants for employment. Refusing to apply KORA’s liberal construction mandate79 because K.S.A. 45-221(a)(4) is not ambiguous, the court reversed the district court and held the personnel record exception includes records pertaining to individuals seeking appointment as officers in public agencies.

Exception: Criminal Investigation Records While an agency has discretion to provide or close criminal investigation records, if the agency does not disclose the records, a person can bring an action in the district court to require disclosure.80 Not surprisingly, the attorney general81 and the courts are protective of these records.

“Criminal investigation files are sensitive. Raw investigative files nearly always include the names of many innocent people. Where the files are open to public scrutiny, the potential for injury is great. In addition, if criminal investigation files are open, many people with information which might lead to a resolution of the investigation will refuse to disclose such information.

Investigations will be badly hampered. Thus, only under very restricted circumstances may the district court require disclosure.” 82 When determining whether the disclosure exception applies, the first issue is determining whether a record is a ‘criminal investigation record’ which KORA defines as: (1) an audio/video recording captured on a law enforcement body or vehicle camera;83 or (2) records of an investigatory agency or criminal justice agency compiled in the process of preventing, detecting or investigating violations of criminal law.84 Police blotters, court

a primer on the Kansas Open Records Act

records,85 jail rosters, and traffic violation records are available unless the record involves a vehicular homicide.86 In Seck v. City of Overland Park,87 the plaintiff sought law enforcement investigatory records pertaining to the apparent suicide of a former county commissioner arguing the records were not ‘criminal investigation’ records because the death was a suicide. Thus, the investigation did not entail detecting or investigating a violation of criminal law.

The court rejected the plaintiff’s claim relying upon Harris Enterprises, Inc. v. Moore88 which concluded that the exception’s intent is to protect innocent people whose names might surface in an investigation, either as suspect or informant. As the court explained, “until a death has been declared a suicide, it may be a potential homicide.”89 Even if the records meet the definition of ‘criminal investigation records’ the agency still cannot be compelled to produce the documents unless an action is brought in district court. The district court, after reviewing the documents in camera, may order disclosure if: 1. The plaintiff establishes that disclosure is in ‘the public interest.’90 The burden of proof is satisfied if the plaintiff can show: (a) there is a legitimate public interest; and (b) the records, if disclosed, will promote and serve that interest.91 In Harris Enterprises, Inc. v. Moore,92 the Olathe Daily News requested the investigation records of a double homicide after the murderer was convicted. The Kansas Supreme Court upheld the district court’s decision not to compel disclosure on the basis that while there was a legitimate public interest, the plaintiff had not established that the records, if disclosed, would promote and serve that interest.

“The KORA does not contain a definition of “public interest,” nor has that concept been expressly defined by this court. The trial court noted that, in general, the

term means more than “public curiosity.” The court further held that, to be a matter involving public interest, it must be a matter which affects a right or expectancy of the community at large and must derive meaning within the legislative purpose embodied in the statute.”93

2. If there is a ‘public interest,’ the burden of proof shifts to the agency to establish that disclosure would: (a) interfere with prospective law enforcement actions, criminal investigations or prosecutions; (b) reveal confidential sources or informants; (c) reveal confidential investigative techniques; (d) endanger a person’s life or physical safety; or (e) reveal information relative to the identify of a sex crime victim.94 Upon request, the agency must reveal the statutory basis for closure.95 Even if the court determines disclosure is in the public interest and none of the law enforcement-related factors exist, the court retains discretion to deny disclosure.96 Finally, woe betide the district court that grants an agency’s motion to dismiss out of hand.97 In Green v. Unified Government of Wyandotte County/Kansas City,98 Trina Green filed a KORA action for police records involving the shooting of her son by law enforcement officers. She alleged that a public interest existed by virtue of the numerous media stories and the absence of a stated law enforcement-related factor (i.e. interference with law enforcement; confidential sources revealed etc.) Abjuring the rule of accepting as true the allegations for purposes of a motion to dismiss,99 the district court dismissed the petition—with prejudice—“based upon its findings and utilizing the discretion provided under K.S.A. 45-221(a)(10).”100 Finding an abuse of discretion, a vexed appellate court panel reversed and remanded the matter.

“We don't know what “findings” the district court may have made; it didn't provide any factual findings in its two-paragraph order. But a district court is not to make factual findings on a motion to dismiss for failure to state a claim. Instead, it's supposed to accept the facts that have been included in the plaintiff's petition. (Citation omitted).

Subsections (B) through (F) of K.S.A. 2016 Supp. 45-221(a)(10) do provide some factors the court must consider, such as whether disclosure would interfere with a criminal investigation (subsection [B] ) and whether disclosure would endanger anyone's life or safety (subsection [E] ). But we don't know anything about how the district court may have analyzed whether any of the potential harms listed in subsections (B) through (F) were likely to arise from disclosure because other than telling us the conclusion—that it was “utilizing the discretion” provided by the statute—it gave

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a primer on the Kansas Open Records Act

no other information about how it had exercised its discretion. Instead, the district court appears to have simply decided that disclosure shall not be made whenever a law-enforcement agency objects, even though the statute clearly gives the court discretion to order disclosure in such cases.” 101 Before leaving this subject, note that the legislature recently addressed vehicle and body camera recordings by requiring law enforcement agencies to allow the subject of the recordings and certain other individuals to listen to and view the recordings.102

Exception: Administrative Hearings; Civil Litigation; Correspondence Administrative hearings and civil litigation records can be withheld if compiled in the process of investigating violations of civil law or administrative rules, but only if disclosure would interfere with a prospective adjudication or civil litigation or reveal a confidential source.103 Once the investigation is complete, the exception no longer applies. 104 Correspondence between a public agency and a private individual does not have to be disclosed unless the correspondence provides notice of an agency action or policy, or if the correspondence is shared with the public.105 For example, letters from members of the public to local governing body members and state agencies may be discretionarily closed,106 but notices from the Kansas Supreme Court to attorneys who have failed to timely register are open.107

Exception: Drafts; Opinions; Staff Recommendations Protecting an agency’s internal deliberations precludes disclosure of notes, drafts, memoranda, recommendations and any other records expressing opinions or proposed policies or actions.108 In Fish v. Kobach,109 the federal district court easily concluded that a draft of a possible amendment to the National Voter Registration Act authored by the Kansas Secretary of State and shared with the president-elect could be closed.

However, this exception evaporates if the documents are publically cited in a public meeting agenda or identified in a public meeting.110 Also, once a report is final, the preliminary working papers may be subject to disclosure.111

Exception: Personal Privacy Records containing personal information may be closed if disclosure would constitute ‘a clearly unwarranted invasion of personal privacy.’112 This phrase is defined as ‘revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.’113 The analysis begins with whether the records contain 40

The Journal of the Kansas Bar Association

information of a personal nature.114 Social security numbers, dates of birth, and mother’s maiden names met this standard where a company seeking real estate information from the register of deeds balked at having to pay the cost to redact this information.115 Home addresses of public employees116 and information concerning law enforcement officers and their family members117 meet this standard, but not membership lists at city golf courses.118 If the record contains personal information, the next step is to determine whether disclosure would constitute a “clearly unwarranted invasion of personal privacy.” This requires balancing the privacy rights of the individual against whether there is a legitimate public interest in disclosure.119 This public interest may exist if release of the information would illuminate government conduct and contribute to the public’s understanding of government activities.120 It will not shield records just because the agency is uncomfortable with disclosure.121 In the most recent attorney general opinion on disclosure of personal information, Attorney General Derek Schmidt concluded that the secretary of state could disclose to the federal government122 information from the voter registration database, specifically names, residence addresses,123 dates of birth and party affiliation of registered voters because state election law allows disclosure.124

Enforcement Any person, county/district attorney or the attorney general can enforce KORA in the district court where the public records are located.125 The plaintiff can recover costs and attorney fees at both the district court level and on appeal if the court finds that denial of access was not in good faith and with no reasonable basis in fact or law.126 However, if the defendant prevails, the same can be awarded upon similar findings. An award of attorney fees may be mandatory if the appropriate findings are made because of the statutory change in 2000 from "may award" to “shall award” in K.S.A. 45-222.127

a primer on the Kansas Open Records Act

Only a person seeking access to records has a cause of action—not a person attempting to prevent an agency from producing the records.128 Hunter Health Clinic v. WSU, 129 addresses a situation where employees of a public agency who were board members of a private agency used the public agency email system to communicate about the private agency. When the media made a KORA request to Wichita State University for emails relating to Hunter Health Clinic, the university— not caring a whit about emails having nothing to do with WSU—dutifully gathered the emails for production. Hunter filed a KORA action in district court to enjoin WSU from producing the emails.

Concluding that the emails were private records and that Hunter had a ‘significant personal stake’ in preventing release of the emails, the district court granted the injunction. The Kansas Court of Appeals reversed on the basis that KORA does not create a cause of action with respect to private records.

Thus, Hunter lacked standing to make a KORA claim.

While the attorney general and county/district attorneys have always had the ability to enforce KORA, the legislature beefed up that authority in 2015130 by bestowing upon the attorney general the power to enter into consent orders and consent judgments,131 issue findings of violations, and enforce orders and judgments in the event of non-compliance.132 Moreover, the attorney general may impose civil penalties up to $250 for consent orders and $500 for findings of violations.133 If the attorney general has to file a court action to enforce the office’s orders and findings, the court can require the recalcitrant agency to pay the attorney general’s court costs, investigation costs and attorney fees.134 Consent orders and findings of violations can be accessed on the statutorily required Wall of Shame.135 1. Article 19, The Public’s Right To Know: Principles on Freedom of Information Legislation (London, International Standards Series 1999), 1, available at http://www.article19.org/pdfs/standards/righttoknow.pdf.

2. K.S.A. 45-215 et seq.

3. K.S.A. 45-216.

4. Theresa Marcel Nuckolls (now Schwartz), Kansas Sunshine Law; How Bright Does It Shine Now? The Kansas Open Meetings and Open Records Acts, 72 J. Kan. B. Ass'n. 28 (May 2003).

5. K.S.A. 45-216; State Dept. of S.R.S. v. Employee Relations Board, 249 Kan. 163; 815 P.2d 66 (1991).

6. State Dept. of S.R.S. v. Employee Relations Board, 249 Kan. 163; 815 P.2d 66 (1991); Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987).

7. Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 222, 50 P.3d 66, 87 (2002).

8. Kan. Att’y Gen. Op. No. 93-126 (1993); City of S. Hutchinson Police Department Consent Order http://ag.ks.gov/docs/default-source/ open-government-orders/2017-og-0003.pdf?sfvrsn=6 9. K.S.A. 2016 Supp. 45-217(g)(1).

10. Burroughs v. Thomas, 23 Kan. App. 2d 769, 937 P.2d 12 (1997) (photographs; coroners’ records).

11. State of Kansas, ex rel., Robert T. Stephan v. Robert C. Harder, 230 Kan. 573, 641 P.2d 366 (1982); Kan. Att’y Gen. Op. No. 02-1 (2002) (emails).

Conclusion KORA’s modest goal was to make it easier to get public records. Since that time, the world has changed. Emails and tweets splashed onto the internet, social media and cell phones capturing all sorts of government antics have given ‘transparency’ a new and unsettling meaning. Records once the subject of KORA requests are now accessible with the swipe of a finger or the click of a mouse.136 Still, KORA remains a serviceable tool in the quest for government accountability. n

About the Author Mary Feighny is the deputy city attorney for the City of Topeka. In that capacity, she advises the planning, public works, and finance departments.

Prior to joining the city legal department, she was the deputy attorney general overseeing the Legal Opinions & Government Counsel division of the Kansas Attorney General.

12. Supreme Court Administrative Order No. 156; Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980).

13. Kan. Att’y Gen. Op. No. 93-132 (1993) (private insurer records deposited with Department of Revenue).

14. Ted P. Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L.Rev.205, 221 (Winter 1985)(e.g. personal income tax information, job search records); K.S.A. 2016 Supp.

45-217(g)(3)(A)(“private person” does not include a public agency’s officers or employees acting pursuant to their official duties); State v. Great Plains of Kiowa City, Inc. 53 Kan. App. 2d 609, 389 P.3d 984 (2017) (financial records in possession of private operator of county hospital are public records).

15. K.S.A. 2016 Supp. 45-217(g)(3)(B); Kan. Att’y Gen. Op. No. 02-1 (2002) (emails created by City Council members).

16. K.S.A. 2016 Supp. 45-217(g)3)(C)(records of lump sum contributions for groups are public records).

17. Municipal judges, district court judges and Kansas appellate court judges are excluded. K.S.A. 2016 Supp. 45-217(f )(2)(B).

18. K.S.A. 2016 Supp. 45-217(f )(1); Kan. Att’y. Gen. Op. No. 93-130 (Kansas Turnpike Authority).

19. K.S.A. 2016 Supp. 45-217(f )(1).

20. K.S.A. 2016 Supp. 45-217(f )(2)(A). Kansas Attorney General Robert Stephan limited this exception to vendors. Kan Att’y Gen. Op. No. 86-48 (1986). See also K.S.A. 2016 Supp. 45-220 which requires most

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non-profits receiving public funds annually in excess of $350 to make available documents showing receipts and expenditures.

21. Kan. Att’y Gen. Op. 04-34 (2004) (non- profit subsidized by government funding providing services to developmentally disabled not a ‘public agency’); Kan. Att’y Gen. Op. 01-22 (2001) (private entity contracting with Kansas Department of Corrections to provide medical services for inmates not a ‘public agency’); Kan. Att’y. Gen Op. No. 97-64 (1997) (National Collegiate Athletic Association not a ‘public agency’); Kan. Att’y. Gen. Op. 01-13 (2001) (non-profit promoting economic development is ‘public agency’ by virtue of total funding from city and county and four of seven directors appointed by governmental entities); Kan. Att’y Gen. Op. 94-111 (1994) (non-profit providing services to developmentally disabled is a ‘public agency’ by virtue of governance and control exerted by county/state); Kan. Att’y Gen. Op. 93-130 (1993) (Kansas Turnpike Authority is public agency); Kan. Att’y Gen. Op. 88-61 (1988) (Arkansas City Memorial Hospital a public agency; City instrumentality); Kan. Att’y Gen. Op. 86-48 (1986) (Jobs Council overseen by appointees from private and public agencies, funded by City, is public agency).

22. 53 Kan. App. 2d 609, 389 P.3d 984 (2017)(petition for review granted May 18, 2017).

23. K.S.A. 2016 Supp. 45-222.

24. K.S.A. 2016 Supp. 45-223.

25. K.S.A. 19-4608.

26. Denver Post Corp. v. Stapleton Dev. Corp., 19 P.3d 36, 39 (Colo.

App 2000).

27. State v. Great Plains of Kiowa County, Inc., 53 Kan. App. 2d 609, 620, 389 P.3d 984, 991 (2017).

28. Kansas Supreme Court Docket: December 13, 2017.

29. K.S.A. 2016 Supp. 45-220(a); K.S.A. 45-226 (public agency must designate freedom of information officer); K.S.A. 45-227(KORA brochure required).

30. K.S.A. 2016 Supp. 45-220(b); Kan. Att’y Gen. Op. No. 2009-18; 92-28.

31. K.S.A. 2016 Supp. 45-220(c).

32. K.S.A. 2016 Supp. 45-220(b); 45-230.

33. Kan. Att’y Gen. Op. No. 2001-47 (2001) (professional membership/education).

34. K.S.A. 2016 Supp. 45-220(c); K.S.A. 45-230. Kan. Att’y Gen. Op. Nos. 2006-26 (2006) (state agency services); 98-55 (1998) (contacting sellers on contracts for deed); 96-68 (1996) (list used to purchase property/services).

35. Kansas Dept. of Social& Rehabilitation Services v. Public Employee Relations Board, 249 Kan. 163, 815 P.2d 66 (1991).

36. The three day response time begins to run the day after the agency receives the request. See City of South Hutchinson Police Department Consent Order http://ag.ks.gov/docs/default-source/open-governmentorders/2017-og-0003.pdf?sfvrsn=6 37. K.S.A 45-218(d); Telegram Pub. Co. v. Kansas Dep’t of Transp., 275 Kan. 779, 69 P.3d 578 (2003).

38. K.S.A. 45-218(d).

39. A Citizen’s Guide to Open Government (Kansas Attorney General) http://ag.ks.gov/docs/default-source/publications/a-citizens-guide-to-koma-kora.pdf?sfvrsn=12 (Page 16-17). For a cautionary tale, see Telegram Pub. Co. v. Kansas Dep’t of Transp., 275 Kan. 779, 69 P.3d 578 (2003) (attorney fees awarded).

40. City of South Hutchinson Police Department Consent Order (53 days before response/$100 penalty) http://ag.ks.gov/docs/default-source/ open-government-orders/2017-og-0003.pdf?sfvrsn=6.

41. KORA does not cover records not yet in existence. Kan. Att’y Gen. Op. No. 98-51 (1998).

42. K.S.A. 2016 Supp. 45-219(a).

43. K.S.A. 2016 Supp. 45-221.

44. K.S.A. 2016 Supp. 45-219(c).

45. K.S.A. 2016 Supp. 45-219(c)(1)(2). Kan Att’y Gen. Op. No. 87-4

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(1987) (actual cost does not include overhead costs.) Fees for legislative and judicial records can be found at K.S.A. 46-1207a and the Kansas Supreme Court Rules, respectively. K.S.A. 2016 Supp. 45-219(c)(3)(4).

Fees for executive branch records are established by the agency heads, the amount of which can be appealed. K.S.A. 2016 Supp. 45-219(c)(5).

46. K.S.A. 2016 Supp. 45-219(a)(g).

47. Kan. Att’y Gen. Op. No. 2009-14.

48. K.S.A. 2016 Supp. 45-221(a)(1)(e.g 42 C.F.R. § 2.20/drug/alcohol treatment records; K.S.A. 2016 Supp. 38-2212/child in need of care fatality reports; K.S.A. 39-709b/public assistance recipients; K.S.A. 2016 Supp. 25-2320(b)/voter registration: social security, driver’s license, nondriver’s identification numbers; K.S.A. 75-3520/social security numbers; K.S.A. 22-4707/criminal history records).

49. Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 50 P.3d 66 (2002); Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987).

50. Telegram Pub. Co. v. Kansas Dep’t of Transp., 275 Kan. 779, 69 P.3d 578 (2003)(railroad crossing hazard ratings); Data Tree, LLC v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005)(register of deeds records).

51. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 417, 997 P.2d 681, 688 (2000). See Telegram Pub. Co. v. Kansas Dep’t of Transp., 275 Kan. 779, 789, 69 P.3d 578, 586 (2003)(“[a] refusal to allow . . . public access to [railroad crossing hazard ratings] under such a remarkably clear statute simply because no court in the country has yet required access under identical circumstances does not provide KDOT a reasonable basis . . . for nondisclosure.”)

52. Kan. Att’y Gen. Op. Nos. 93-55 (1993), 91-116 (1991).

53. Kan. Att’y Gen. Op. No. 92-132 (1992).

54. K.S.A. 45-218(e); Kan. Att’y Gen Op. No. 98-51 (1998).

55. K.S.A. 45-218(e).

56. K.S.A. 45-218(d).

57. K.S.A. 2016 Supp. 45-221(d); Data Tree LLC v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005); Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 50 P.3d 66 (2002).

58. K.S.A. 60-426.

59. K.S.A. 2016 Supp. 45-221(a)(2)(25).

60. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (2000).

61. Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 50 P.3d 66 (2002)( correctional records, identifying parolees, conditionallyreleased inmates, and former inmates on post-release supervision status charged with murder).

62. Note 60, supra.

63. K.S.A. 60-426(c)(“’communication’ includes advice given by a lawyer in the course of representing the client and includes disclosures of the client to a representative . . . of the lawyer incidental to the professional relationship.”)

64. “The attorney work product doctrine does not offer a per se exemption for all records prepared by or for an attorney.” Cypress Media, 268 Kan. at 427.

65. Note 61 supra.

66. K.S.A. 60-226(b)(4).

67. Wichita Eagle & Beacon Pub. Co. at 274 Kan. at 219.

68. Id. at 274 Kan. at 219-220. But see Stauffer Commc’ns, Inc. v. Bd of Cty Comm’rs, 2001 WL 34117818 (Kan. Dist. Ct. Jan. 12, 2001)(attorney retained by county to investigate and report on county jail administration relative to sexual harassment complaints protected under work product and attorney client privilege.); Kan. Att’y Gen. Op. No. 99-48 (1999) (attorney client privilege protects community college board attorney’s investigation of student altercations.)

69. Kan. Att’y Gen. Op. No. 88-61(1988) (city hospital employees).

70. Kan. Att’y Gen. Op. No. 2010-3(‘Salary’ does not include accrued, unpaid vacation/sick leave).

71. K.S.A. 2016 Supp. 45-221(a)(4).

a primer on the Kansas Open Records Act

72. Kan. Att’y Gen. Op. No. 91-127 (1991) (employee discipline). See City of Independence Consent Order (Blank city manager performance evaluation form not a personnel record, especially given its availability on the Internet; $250 penalty) http://ag.ks.gov/docs/default-source/opengovernment-orders/2017-og-0001.pdf?sfvrsn=8 73. K.S.A. 2016 Supp. 45-221(a)(4); Kan. Att’y Gen. Op. No. 2010-3 (performance ratings, evaluations, references, resumes, personal contact information).

74. Kan. Att’y Gen. Op. No. 2010-3.

75. Kan. Att’y. Gen. Op. No. 2006-8 (law enforcement officer’s residence address, home telephone number, family member information and photograph); Kan. Att’y Gen. Op. No. 97-52 (1997) (public employees’ residence addresses). See also K.S.A. 2016 Supp. 45-221(a)(51)(public agency websites; home address of law enforcement officers).

76. Sw. Anesthesia Serv., P.A. v. Sw. Med. Ctr., 23 Kan. App. 2d 950, 937 P.2d 1257 (1997).

77. 54 Kan. App. 2d 1, 394 P.3d 134 (2017).

78. Note 76, supra.

79. K.S.A. 45-216.

80. K.S.A. 2016 Supp. 45-221(a)(10).

81. City of South Hutchinson Police Department Consent Order (http://ag.ks.gov/docs/default-source/open-government-orders/2017og-0003.pdf?sfvrsn=6 82. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 67, 734 P.2d 1083, 1089 (1987).

83. K.S.A. 2016 Supp. 45-217(c)(1); K.S.A. 2016 Supp. 45-254 (Individuals who are subjects of police body/vehicle camera and other statutorily-designated individuals may listen or view the recording upon request).

84. K.S.A. 45-217(c)(2).

85. Affidavits and sworn testimony supporting issuance of arrest and search warrants may be disclosed under certain circumstances. K.S.A 2016 Supp. 22-2302; 22-2502.

86. K.S.A. 2016 Supp. 45-217(c)(2). Willis v. Kansas Highway Patrol, 273 Kan. 123, 41 P.3d 824 (2002)(vehicular homicide); Kan. Att’y. Gen. Op. 98-38 (standard arrest reports closed but first page of standard offense report is open except for social security numbers and identification of sex crime victims).

87. 29 Kan. App. 2d 256, 27 P.3d 919 (2000).

88. 241 Kan. 59, 734 P.2d 1083 (1987).

89. Seck, at 29 Kan. App. 2d 258, 27 P.3d 922.

90. K.S.A. 2016 Supp. 45-221(a)(10)(A).

91. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987).

92. Id. 93. Id. 94. K.S.A. 2016 Supp. 45-221(a)(10)(B)-(F).

95. K.S.A. 2016 Supp. 45-221(a)(10)(F).

96. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987).

97. Green v. Unified Government of Wyandotte County/Kansas City, 54 Kan. App. 2d 118, 397 P.3d 1211 (2017).

98. Id. 99. Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc., 305 Kan. 761, 388 P.3d 84 (2017).

100. Green at 54 Kan. App. 2d at 120, 397 P.3d at 1213.

101. Id. at 1213.

102. K.S.A. 2016 Supp. 45-254.

103. K.S.A. 2016 Supp. 45-221(a)(11).

104. Kan. Att’y Gen. Op. Nos. 97-76 (1997) (licensee disciplinary proceedings); 91-127 (1991) (internal investigation of employee).

105. K.S.A. 2016 Supp. 45-221(a)(14).

106. Kan. Att’y Gen. Op. Nos. 87-149 (1987) (attorney letter to city council member); 89-127 (1989) (parole board); 97-76 (1997) (complaint to board of accountancy).

107. Kan. Att’y Gen. Op. No. 88-117(1988) (notice of regulatory action).

108. K.S.A. 2016 Supp. 45-221(a)(20). Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 50 P.3d 66 (2002); Kan. Att’y Gen. Op. No. 2013-5(draft minutes of county commission meeting exempt from disclosure unless cited in a meeting agenda or in an open meeting); Kan. Att’y Gen. Op. No. 90-14 (1990) (memoranda authored by school board staff expressing opinions not subject to disclosure unless publicly cited).

109. 2017 WL 2719427 (D. Kansas 2017).

110. K.S.A. 2016 Supp. 45-221(a)(20).

111. Burroughs v. Thomas, 23 Kan. App. 2d 769, 937 P.2d 12 (1997) (coroner’s records); Kan. Att’y Gen Op. No. 91-138 (1991) (Legislative Post Audit working papers).

112. K.S.A. 2016 Supp. 45-221(a)(30).

113. K.S.A. 2016 Supp. 45-217(b).

114. Data Tree, LLC v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005) (microfilm records from Register of Deeds sought for commercial purposes; cost to convert microfilm to digital information with redaction of personal information assessed against requestor).

115. Id. 116. Kan. Att’y Gen. Op. No. 97-52 (1997).

117. Id. (photographs, home address, home telephone number, family members).

118. Kan. Att’y Gen. Op. No. 2001-33(membership at a golf course is not ‘unusually embarrassing’ and presents no special danger).

119. Data Tree, LLC v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005); Kan. Att’y Gen. Op. No. 2006-8.

120. Kan. Att’y Gen. Op. No. 2006-8.

121. City of South Hutchinson Police Department Consent Order) (Crime scene renderings, police narrative reports and coroner diagnoses involving death of deputy sheriff’s child not subject to privacy disclosure exception) http://ag.ks.gov/docs/default-source/open-governmentorders/2017-og-0003.pdf?sfvrsn=6 122. Presidential Advisory Commission on Election Integrity.

123. Unless the voter has requested nondisclosure pursuant to K.S.A. 2016 Supp. 25-2309.

124. Kan. Att’y Gen. Op. No. 2017-10; K.S.A. 2016 Supp. 25-2309(j).

125. K.S.A. 2016 Supp. 45-222(a); Wichita Eagle & Beacon Pub. Co., 274 Kan. 194, 50 P.3d 66 (2002); Altevogt v. Youth Friends, 29 Kan. App. 2d 473, 27 P.3d 947 (2001)(no jurisdiction where the records were never maintained in county where district court located).

126. K.S.A. 2016 Supp. 45-222(d). See Telegram Pub. Co. v. Kansas Dept. of Transp., 275 Kan. 779, 69 P.3d 578 (2003)(attorney fee award upheld; no case law supporting nondisclosure; bad faith).

127. 2000 Kan. Sess. Laws, Ch. 156, §4(c)(d). Willis v. Kansas Highway Patrol, 273 Kan. 123, 41 P.3d 824.

128. Hunter Health Clinic v. WSU, 52 Kan. App. 2d 1, 362 P.3d 10 (2015).

129. Id. 130. 2015 Kan. Sess. Laws, Ch. 68.

131. K.S.A. 2016 Supp. 45-251; 45-253. County/district attorneys may utilize consent judgments as well.

132. K.S.A. 2016 Supp. 45-251, 45-253.

133. K.S.A. 2016 Supp. 45-251(a)(1)(A)(ii); (a)(2)(D).

134. K.S.A. 2016 Supp. 45-251(c)(4)(C); (c)(5)(A)(B). An agency can escape the Attorney General’s investigation and attorney fees by entering into a consent judgment. K.S.A. 2016 Supp. 45-253(b).

135. K.S.A. 2016 Supp. 45-251(e); http://ag.ks.gov/open-government/ enforcement-actions 136. http://www.kansas.gov/KanView/ (state revenue); https://www. data.gov/ (federal government).

www.ksbar.org | February 2018 43

Ten Law Students Benefit “Being a lawyer is not merely a vocation. It is a public trust, and each of us has an obligation to give back to our communities.”

— Janet Reno

S

everal KBA members, family members of KBA members, and firms have established scholarships to recognize law students for their determination, academic achievement, community service and desire to practice law in Kansas.

New for 2018 is the Hon. Richard D. and Cindy Rogers Scholarship.

"I want Dick's legacy to be an inspiration, to encourage others to give their time and money, to mentor and give back to the legal profession and to the community. Through this scholarship, we honor his service through the years and express gratitude for the many opportunities he gave to his family and all those with whom he came in contact," Cindy Rogers stated.

Congratulations to these outstanding students who will be honored at the February 15th Court Appreciation Dinner in Topeka.

Hon. Richard D. and Cindy Rogers Scholarship – $1,000 The scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending Washburn University School of Law to assist with the costs of tuition. The student must have been admitted to law school and must be a Kansas resident, preferably from a rural community. Preference will be given to applicants who have displayed perseverance in the pursuit of a legal education, and who share the passion for the law with the late Judge Rogers, a passion as exemplified in community or pro bono service.

Curry Sexton/Washburn University School of Law An Abilene native, Sexton grew up on a farm before attending Kansas State University and obtaining degrees in Business Marketing and Business Management while serving as a captain on the football team. A third-generation Washburn Law student, Sexton is currently a 3L assuming roles as a senior staff writer on the Washburn Law Journal, a council member on Washburn’s Moot Court team, and a trial team member on the Texas Young Lawyers Association trial team. With a rural Kansas background, Sexton plans to practice in Kansas upon graduation and admission into the bar.

“I am especially humbled and honored to receive the Hon. Richard D. and Cindy Rogers Scholarship. Judge Rogers was a tremendous advocate for the state of Kansas and many people throughout.

I hope to make even a margin of the impact on those around me as Judge Rogers did in his lifetime and in his career as an attorney and a judge.”

from KBF Scholarships

Case, Moses, & Zimmerman P.A. Law Student Scholarship – $1,100 This scholarship is intended to go to a future Kansas lawyer attending a Kansas law school, Creighton University School of Law or Oklahoma City University School of Law. This award is specifically given to a second-year student who intends to practice law in the state of Kansas.

Brandon Fortman/Washburn University School of Law Fortman, a 3L, is originally from Wichita, Kan., where he graduated from Wichita State University with a BA and MA in English. Fortman lives in Olathe with his wife Meghan, their three children, William 8, Mason 4, and Clara 7 months. He is currently a judicial law clerk at the Shawnee County District Court and plans on maintaining his family’s roots in northeast Kansas by practicing in the area when he completes law school.

“I am sincerely grateful for the generosity shown by the Kansas Bar Foundation in selecting me for the Case, Moses, & Zimmerman P.A. Law Student Scholarship. It provides added financial flexibility and motivation as I enter the final stage of my legal education and I am truly humbled at being the recipient of this award.”

The Justice Alex M. Fromme Memorial Scholarship Award – $900 The award shall be provided to a law student attending the University of Kansas School of Law or Washburn University Law School who is committed to practicing law in Kansas.

Mackenzie Maki/Washburn University School of Law A Wichita native, Maki received her Bachelors of Science in biology in 2014 from Wichita State prior to attending Washburn University School of Law. She is currently an intern for the Shawnee County District Attorney's Office helping prosecute traffic and other misdemeanors. Before this position, she worked for the Kansas Bureau of Investigation as a legal extern. Maki recently married fellow law student Brock Baxter and they will graduate in May 2018.

She intends to return to Wichita this fall to work as an associate for Hite, Fanning & Honeyman L.L.P. As the mother of a four-year-old, she values public safety and the legal process.

"I sincerely thank the Kansas Bar Foundation for choosing me as the recipient of The Justice Alex M. Fromme Memorial Scholarship Award. This financial aid helps me and my family prioritize our legal studies and gain experience and understanding in a variety of law-related positions. The Kansas Bar Foundation's generosity and commitment to the education of legal scholars in the state empowers us to excel and serve the community proudly.”

www.ksbar.org | February 2018 45

Hinkle Law Firm Student Scholarship – $2,300 This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Because community service is extremely important to the Hinkle Law firm, applicants must also demonstrate a history of community involvement to be considered.

Teresa Offerman/Washburn University School of Law Offerman, a 3L, is a Wichita native and earned a B.A. in Public Relations prior to attending law school. She has worked as a legal extern for the Honorable C. William Ossmann in Topeka, clerked for Hinkle Law Firm LLC, competed on Washburn's TYLA Trial Advocacy Team, and mentored 1L students as a study group leader. This summer, Offerman will work as a summer associate for McAnany, Van Cleave, & Phillips, P.A. in Kansas City.

"I am incredibly honored to be chosen as the 2018 recipient of the Hinkle Law Firm Student Scholarship. My sincere thanks and appreciation go out to the Kansas Bar Foundation for the generous award and for investing in Kansas' future lawyers. May we always proudly serve our communities and represent the Kansas Bar with utmost integrity."

Lathrop Gage Student Scholarship – $1,900 This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Applicants must demonstrate a history of community involvement to be considered.

Jennifer Salva/ Washburn University School of Law Originally from Sugar Creek, Mo., Salva and her family moved to Olathe in 1999 so her sister—who has profound disabilities and deafness—could have better educational resources and attend Kansas School for the Deaf.

Salva became an advocate for her sister’s social, educational and employment needs, and plans to share those skills in her career as an attorney. Salva is a graduate of the University of Kansas, a 2L at Washburn University School of Law and former editor of the Kansas Bar Association Journal. She has enjoyed her federal judicial externships and recently secured a position as a term clerk for Judge Julie Robinson (U.S. District Court for the District of Kansas) for 2018-19. She will spend this summer with Lathrop Gage in Kansas City.

"Kansas Bar Foundation scholarships are incredible opportunities that truly make a difference in Kansas students' lives. These scholarships ease the financial strain of law school while getting students excited about being active members of the Kansas Bar Foundation during our careers. I am so proud to be among the Kansas students selected for this honor."

Frank C. and Jeanne M. Norton Scholarship Award – $1,700 This scholarship is available exclusively to Washburn University School of Law students in their second or third year of study who are not receiving any other scholarship support.

Ryan Crowell/Washburn University School of Law A native of Conway Springs, Crowell attended Southwestern College in Winfield and received his Bachelor of Arts in English Literature as well as minors in History, Leadership, and Criminal Justice. Crowell is currently a 1L at Washburn University School of Law. Growing up in rural Kansas, he developed a strong bond with the state and plans on practicing in Kansas following law school.

“I am extremely grateful to be this year’s recipient of the Frank C. and Jeanne M. Norton Scholarship Award. Thank you to the Kansas Bar Foundation and all others who have supported these scholarships. With the help of this scholarship, I hope to graduate law school and serve those in my community as a member of the Kansas Bar.”

Capitol Federal Foundation Diversity Scholarship – $1,000 This scholarship promotes the practice of law in the state of Kansas by recognizing a third-year law student attending Washburn University School of Law or the University of Kansas School of Law. Each scholarship will be awarded to a law student who has demonstrated a bona fide intention of practicing in the state of Kansas. Applicants must exhibit exemplary leadership in promoting diversity and inclusion in the law student's school and broader legal community.

Deborah Barnes Jones/Washburn University School of Law Barnes Jones, a 3L, came to Washburn via a first career as a British diplomat and marriage to an American husband with roots in Topeka. A non-traditional JD candidate, she appreciates the opportunities she has had to experience different work places, including an externship with the Customer Protection Division of the office of the Kansas Attorney General and with the Honorable Steven L. Hornbaker in Junction City. She also worked for the KBA Lawyer Referral Service and interned with the Office of the State Bank Commissioner. She will be working with Federico Consulting for the 2018 State Legislative Session.

“I was intrigued by the premise of the Capitol Federal Foundation Diversity Scholarship, which gives the recipient the chance to participate in the KBA Diversity Committee and to contribute an article to the KBA Journal. Before I came to Washburn, diversity for me was something to be “managed” in the international teams I worked with. Since starting my studies, I have seen how my own diversity has led to both benefits and challenges for me and my new legal community. I am delighted to be a recipient of this scholarship. This is a wonderful affirmation of my aspiration to work in and contribute to the Kansas legal community and gives me an immediate and practical way to do that.”

Maxine S. Thompson Memorial Scholarship – $900 This scholarship promotes the practice of law in the state of Kansas by awarding a law student, originally from Kansas and attending the University of Kansas School of Law or Washburn University School of Law an annual scholarship. The award recipient must have completed no less than 60 hours toward a law degree and must plan to practice in a rural Kansas area, preferably western Kansas.

Joseph Uhlman, University of Kansas School of Law A native of Sedgwick, Uhlman was a firefighter for fifteen years before enrolling in law school at KU. He is currently the Chief Justice of the Court of Parking Appeals, and a member of the Kansas Law Review. After graduation, he plans to return to the Harvey County Attorney’s Office, where he interned the last two summers.

“I am humbled to have been selected for the Maxine S. Thompson Memorial Scholarship. This scholarship reflects the support the Kansas Bar Foundation gives to Kansas law students. I hope to carry on that spirit of generosity as a part of our legal community.”

The Frank M. Rice Scholarship – $4,000 The Frank M. Rice Scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending the University of Kansas School of Law or Washburn University School of Law to assist with the costs of tuition. The scholarship is intended to help law students become lawyers in the mold of Frank M. Rice who was “among the finest…in the Bar.

www.ksbar.org | February 2018 47

He was at the top of his class…and always applied the highest level of legal scholarship to any legal matter in which he was involved.” The recipient must have been admitted to law school and must be a Kansas resident.

Jeff Pike/Washburn University School of Law Pike was born and raised in Great Bend and earned a B.S. in Business Administration from Kansas State University. A 2L, Pike spent last summer clerking at Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. in Wichita and will be returning this summer.

“Growing up in the heart of Kansas, I would not be where I am today without countless Kansans investing in me along the way. The Frank M. Rice Scholarship goes beyond financial assistance and helps demonstrate I am committed to staying in Kansas and serving those who have helped make my success possible. I would like to thank the Kansas Bar Foundation and its donors for this tremendous honor.”

The John E. Shamberg Memorial Law Student Scholarship – $900 This scholarship is provided for a student attending the Washburn University School of Law. Preferred candidates will have an interest in plaintiff’s work, a bona fide intention to practice law in Kansas, and exhibit professionalism and high character in their academic and personal lives by participation in school and community activities.

Audrey Koehler/Washburn University School of Law Koehler is a 2L at Washburn University School of Law. After growing up in Wichita, Koehler attended Wichita State University where she earned a B.A. in Sociology with minors in Psychology and Criminal Justice. Prior to starting at Washburn, Koehler worked at COMCARE of Sedgwick County as a Crisis Case Manager. Koehler is a member of the Washburn Law Journal and works as a research assistant for a professor. After graduation, Koehler would like to return to Wichita to use her advocacy skills to improve her community.

“I am honored to be selected as this year’s recipient of the John E. Shamberg Memorial Law Student Scholarship. This scholarship allows me to focus on my studies and to better prepare to be an effective advocate for others. I am so thankful for this opportunity and for donors that make law school possible for students like me.”

Your investment continues to give.

KBA members who establish scholarships provide a gift that keeps on giving. Through annual scholarship awards to law students, everyone benefits through an investment in the profession and the people who may eventually establish a scholarship.

“Since I have been on the scholarship committee, we have always had more worthy applicants than we do scholarships. Every recipient has expressed gratitude over the help the KBF has provided to his or her education," stated Katherine L. Kirk, Chair, KBF Scholarship Committee. “A scholarship is a living memorial or honor which not only keeps on giving, it provides encouragement and recognition to deserving law students.”

To donate to an established KBF scholarship fund, create a new scholarship endowment or discuss other options for giving: Please contact Jordan Yochim, executive director, at (785) 234-5696 or at jeyochim@ksbar.org Donations may also be made online at: http://www.ksbar.org/donations/

2018 Legislative Outlook

by Joseph N. Molina

T

he 2018 Kansas Legislative session began on January 8th, and for the first time in several years the state of Kansas isn’t facing a serious budget problem. In years past the state was plagued with falling revenues and missed projections. Some blamed a stagnant economy, others poor agriculture outputs, but many focused on the 2012 tax cuts as the cause of the budget pains. So, in the closing days of the 2017 session the legislature passed a sweeping tax plan that did away with many of the 2012 tax policies.

The Legislature's 2017 Tax Plan: -Established three tiers of income tax: 3.1%, 5.25% & 5.7%.

-Eliminated statutory trigger to reduce income tax if revenues are above CPI. -Eliminated business pass-through exemption (LLC Exemption).

-Extended STAR Bond authority for 3 years; 1-year moratorium on new projects.

-Reinstated medical, mortgage interest and property tax deductibility with a 3-year phase in.

-Reinstated child care tax credit.

-Reinstated loss carry-forward.

The bill is projected to raise $591 million in FY 2018 and $633 million in FY 2019. The state operates on a 2-year budget cycle.

The bill is retroactive to January 1, 2017, with modified rates for this year: 2.9%, 4.9% & 5.2%.

The new income brackets are as follows: $0-$30,000 3.10% $30,000 - $60,000 5.25% $60,000+ 5.70% With this new-found revenue stream, things have started to look up. For instance, in December 2017 the state received more than $355 million in state paid income tax, that is $80 million more than projected in November. However, caution is needed since we are not yet exactly sure how the recently passed federal income tax cuts will hit Kansas. This may not be known till April tax filing date.

Nevertheless, the state is in a better spot financially than it has been in some years. This will be helpful to the primary concern of the 2018 Kansas Legislature which is how to pay for the school finance lawsuit before the court-imposed deadline in May. The estimate for school funding is around $600 million, way more than any revenue surplus currently on-hand.

Legislators will have three main options, 1) pay the $600 million; 2) Change the constitution; 3) Ignore the court.

Thus far we have seen all three options discussed in the media.

There has already been one constitutional resolution aimed at limiting the court’s power to close schools. See; SCR 1609, introduced by Senator Pyle. Even Governor Brownback encouraged a constitutional amendment aimed at school finance, but he did not provide any specific language. I am sure a redefinition of the school funding provision in the Kansas Constitution will be on tap.

www.ksbar.org | February 2018 49

2018 legislative outlook

We have heard from conservative legislators who believe the court overstepped its bounds by interfering with the “power of the purse”. These legislators believe the court has no authority to demand more money for schools and that the court’s decision can be ignored.

Finally, some may find it simpler to comply with the court order. Here, again Governor Brownback suggested adding $600 million over 5 years to the school funding formula.

However, he did state this could be done with no new taxes.

Raising taxes is highly unpopular, especially after hiking them up in 2017. Some mentioned a statewide mill levy increase to pay for schools. This might have equity implications, but it would raise the needed funds. There will be ample posturing which might lead to negotiations, but how that plays out and in what time frame is yet to be determined.

It is also important to remember that 2018 is an election year and these votes will be used in many primary races to paint incumbents as tax & spend legislators. Couple this with a highly contested race for governor and you have a wild beginning to the election cycle.

The cast of candidates for governor grows by the week but the front runners are: Lt. Governor Jeff Colyer Will become Governor if/when Brownback leaves.

Dr. Jim Barnett, R-Topeka Physician, past state senator, congress & gov. candidate Wink Hartman, R-Wichita Wichita businessman Mark Hutton, R-Wichita Wichita businessman and former state rep.

Kris Kobach, R-DeSoto Secretary of State Ed O’Malley, R-Wichita Fmr. state rep./President/KS Leadership Center.

Ken Selzer, R-Overland Park Commissioner of Insurance Kevin Yoder, R-Overland Park 3rd District U.S. Congressman Laura Kelly, D-Topeka Kansas State Senator Carl Brewer, D-Wichita Former Wichita Mayor Josh Svaty, D-Ellsworth Fmr. State rep. and fmr. Secretary of Agriculture Rep. Jim Ward, D-Wichita House Minority Leader Greg Orman, I-Overland Park Unsuccessful candidate for U.S. Senate in 2014 50

The Journal of the Kansas Bar Association

Other races of interest include: Secretary of State Rep. Keith Esau, R-Olathe Rep. Scott Schwab, R-Olathe Sen. Marci Francisco, D-Lawrence 2nd District Congressional Seat Sen. Steve Fitzgerald, R-Leavenworth Sen. Caryn Tyson, R-Parker Rep. Kevin Jones, R-Wellsville Paul Davis, D-Lawrence Note: State senators are in the middle of 4-year terms and are not required to resign from office to run for another office.

State representatives effectively give up their positions when they seek another office.

In the 2016 election Kansas saw a move back to a more moderate legislative body. This proves the pendulum of politics can swing rather quickly. There are also signs of a strong national democratic showing in 2018 which could play a part in Kansas Congressional races, but many believe that the seats won by moderates in 2016 will be highly contested due to the number of tax issues these legislators were forced to make.

This will be an interesting summer/fall.

The Kansas Bar Association will be engaged on several technical issues with a direct impact on the practice of law. For instance, the KBA supports changes to the Kansas Supreme Court’s budget proposals, the Uniform Arbitration Act, and a variety of probate issues. These proposals, along with other information pertaining to the Kansas Legislature, can be found on the KBA Legislative Homepage, www.ksbar.org.

Additional Information: The official state website for the Kansas Legislature is: www.kslegislature.org From that site, you can find information on the House and Senate members and contact information, calendars, bill introductions, committee activity, minutes of committees, committee memberships and virtually anything related to the Kansas Legislature.

Lawyers and Law-Trained Legislators 2018 Kansas Legislature KANSAS SENATOR

Senator David Haley Senate District No. 4 D-Kansas City Haley is the managing partner of Village East, a redevelopment company in Kansas City, Kan. He served in the Kansas House from 1994-2000 and was elected to the Senate in 2000.

He was re-elected in 2004, 2008, 2012 and 2016. Sen. Haley

2018 legislative outlook

is the ranking minority member of the Senate Committee on Judiciary and the Senate Committee on Public Health and Welfare. He is also a member of other joint committees. Senator Haley received his J.D. from Howard University. http:// kslegislature.org/li/b2015_16/members/sen_haley_david_1/ KANSAS STATE REPRESENTATIVES

Representative John Barker House District 70 • R-Abilene Barker is a farmer, retired District Court Judge, and U.S. Army veteran. Rep. Barker served 25 years as a judge for the Eighth Judicial District covering Dickinson, Geary, Marion, and Morris counties. Rep. Barker has been recognized for his work with Kansas youth, championing initiatives to prevent drug and alcohol abuse, working with local school districts to reduce truancy rates, and working with juvenile offender programs. Rep. Barker and his wife of 30 years live in Dickinson County where they raised their two children. http://kslegislature.org/li/b2015_16/members/rep_barker_john_1/ Representative Jess Burris House District 82 • R-Mulvane Burris is a Washburn Law graduate who filled the unexpired term of Rep. Pete DeGraaf. Burris is an attorney for the Knasas Department of Health and Environment and former lawyer for the Kansas Secretary of State's Office. http://www.kslegislature. org/li/b2017_18/members/rep_burris_jesse_1/ Representative Steve Becker House District 104 • R-Buhler Becker is a retired District Court Judge for Reno Co. Rep. Becker was appointed in June 1981 and retired in January 2007. Prior to his appointment, Rep. Becker practiced in Hutchinson. Rep. Becker graduated from Washburn Law School in 1975. http://kslegislature.org/li/b2015_16/members/rep_becker_steven_1/ Representative John Carmichael House District 92 • D-Wichita Carmichael represents the 92nd District in Wichita. He earned his Political Science degree from the University of Kansas in 1979, his Administration of Justice degree from Wichita State University in 1980 and his law degree from KU School of Law in 1982. Rep. Carmichael is Of Counsel with the law firm of Conlee, Schmidt and Emerson, LLP in Wichita. Rep. Carmichael has been a member of the Wichita Bar Association and the Kansas Bar Association for more than 30 years. Rep. Carmichael will serve as ranking minority member on the House Judiciary, as a member on Elections and Energy/Environment and Local Gov. committees this session. http://kslegislature.org/li/b2015_16/members/rep_carmichael_john_1/ Representative Erin Davis House District 15 • R- Olathe Davis represents the 15th House District in Olathe, Kansas.

She was reelected in 2016. A recent graduate of the University of Kansas Law School, she is a member of the Rokusek Law Office, LLP in Lenexa, Kan., specializing in family law, including divorce, custody, Child in Need of Care parent’s attorney and Guardian ad Litem, juvenile offender and adult criminal work. http://kslegislature.org/li/b2015_16/members/rep_davis_erin_1/ Representative Blaine Finch House District 59 • R-Ottawa Finch is majority owner and president of Green, Finch & Covington, Chtd. His practice covers a broad spectrum of legal issues including municipal law, real estate, contracts, corporate law and estate planning. He also teaches at Ottawa University as an adjunct faculty member in the fields of history, political science and pre-law. Finch is a former city commissioner and mayor of the City of Ottawa. Rep-Elect Finch graduated Summa Cum Laude from Ottawa University with degrees in history, political science and psychology. Finch is a member of the Kansas Bar Association and a member and past president of the Franklin County Bar Association. He attended Washburn University School of Law. http://kslegislature.org/li/b2015_16/members/rep_finch_blaine_1/ Representative Dennis “Boog” Highberger House District 46 • D-Lawrence Highberger graduated from the University of Kansas Law School in 1992. His areas of private practice have included wills, estates, contracts, family law, federal communications law, and general civil practice. Highberger served on the Lawrence City Commission from 2003 to 2009 and was Mayor in 2005/2006. He has been an active member of the Lawrence community and currently serves on the Douglas County Food Policy Council, the City of Lawrence’s Public Incentives Review Committee (PIRC) and Sustainability Advisory Board (SAB), and the boards of directors of Independence, Inc., the Community Mercantile Education Foundation (CMEF), and the East Lawrence Neighborhood Association (ELNA). http://kslegislature.org/li/b2015_16/members/rep_highberger_dennis_1/ Representative Tim Hodge House District 72 • R- North Newton Hodge is member of the Adrian & Pankratz law firm in Newton Kan. Hodge has developed his practice in diverse areas such as tax law, real estate, business law, secured transactions, and Medicaid planning. He has served as an adjunct professor of business law at Tabor College. During law school, he clerked for the Kansas Board of Tax Appeals and the Kansas National Education Association. Before law school, Mr. Hodge served as a teacher and a coach at Peabody High School. He and his wife reside in North Newton with their three children. His wife is a teacher in the Newton School District. Hodge graduate magna cum laude from Tabor College in 1999 and received his JD from Washburn Law School in 2003. Hodge also attended the Oxford Honours Program in 1998. He is a KBA member since 2004. www.ksbar.org | February 2018 51

2018 legislative outlook

Representative Susan Humphries House District 99 • R-Wichita Humphries joined the Kansas Bar in 2014, after graduating from the University of Denver Sturm College of Law. During law school Humphries had clinical experience in mediation at the Rocky Mountain Children’s Law Center. Humphries practices at Shultz Law Office, P.A., in Wichita, with a focus on adoption and general law. Humphries is the coordinator for Wichita Christian Legal Aid, which offers free legal aid at three non-profits. Humphries married husband Cary after graduating from Texas Christian University, and they proceeded to live in (and enjoy!) five states and two foreign countries. They moved to Kansas for the first time in 1981, and have considered it their married home ever since. They have four adult children (two are married), and one grandson.

Humphries' district includes Andover and east Wichita.

Representative Leonard Mastroni House District 117 • R-La Crosse Mastroni is currently a Rush County Commissioner, serving in that capacity since 2011. Previously, he was a district magistrate judge where he served on the KDMJA Legislative committee for 12 years. Mastroni also served a chairman of the KDMJA Legislative committee and its educational committee. Mastroni attended Fort Hays University where he received his BA in political science. Mastroni also attended University of Nevada at Reno where he graduated from the national judicial college.

Representative Vic Miller House District 58 • D-Topeka Miller is returning to the Kansas House. He previously served for three terms. Miller also served as Shawnee County Commissioner (15 yrs.), and Topeka City Councilman (8 yrs.), once acting as Topeka Deputy Mayor. Miller also served as Topeka Municipal Judge and Kansas Property Valuation Director. He has spent his legal career as a sole practitioner.

Miller graduated from Emporia State and Washburn University School of Law. Representative Fred Patton House District 50 • R-Topeka Patton graduated from the University of Kansas Law School before joining the legal research staff at the Shawnee County District Court. Currently, Patton owns and operates Patton Law Offices, LLC in North Topeka with a varied practice including banking, business/corporate, construction, estate planning, general civil, probate, and real estate. Patton is very active in the community having leadership roles in more than 15 local organizations. http://kslegislature.org/li/b2015_16/ members/rep_patton_fred_1/ Representative Bradley Ralph House District 119 • R-Dodge City Ralph is currently the city attorney for Dodge City, Kan. Prior to this position he was in private practice with the firm of

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Williams, Malone & Ralph for 25 years. His private practice focused on representation of insurance companies, healthcare providers, schools, and municipalities. Ralph has been active in his community in leadership positions with his church and the Community Foundation of Southwest Kansas. He has also served the legal profession on several committees, including the Professional Ethics Committee. He is a graduate of St. Mary of the Plains College and Washburn University School of Law. Ralph and his wife Shannon have three adult children.

Representative Jim Ward House District 86 • D-Wichita Ward is the owner of the Law offices of James Ward of Wichita. He was appointed to the Kansas Senate to fill a vacancy in 1992. He was later elected to the Kansas House in 2002 and reelected every two years through 2016. Rep. Ward serves as the Assistant House Minority Leader and is a member of the House Committees on Calendar and Printing, Health and Human Services, Interstate Cooperation, Judiciary and Legislative Budget, as well as several joint committees. He received his J.D. from Washburn University School of Law. http:// kslegislature.org/li/b2015_16/members/rep_ward_jim_1/ Representative John Wheeler House District 123 • R-Garden City Wheeler is the former Finney County Attorney, first elected in 1993. He was first elected to the House in 2016. He is a graduate of Fort Hays State College (1969) with a degree in political science and pre-law. He graduated from Washburn School of Law in 1976. Prior to being elected as Finney County Attorney, Rep. Wheeler was in private practice with Calihan, Green, Calihan and Loyd, Associates, 1976-1979, then Soldner & Wheeler, Partner, 1979-1987, and finally with John P. Wheeler, Attorney at Law, Solo Practitioner, 1988-1992. Rep. Wheeler is a proud member of Harry H. Renick American Legion Post #9, Past Commander; Garden City Salvation Army Advisory Board; Garden City Noon Lions Club; and the Finney County Historical Society.

2018 Kansas Legislature: Senate: 31 Republicans/09 Democrats House of Representatives: 85 Republicans/40 Democrats About the Author Joseph N. Molina III serves as the director of legislative services for the Kansas Bar Association.

Prior to joining the KBA, he was chief legal counsel for the Topeka Metropolitan Transit Authority and served as assistant attorney general, acting as chief of the Kansas No-Call Act. Molina earned a B.A. in political science, philosophy, and economics from Eastern Oregon University and a J.D. from Washburn University School of Law. jmolina@ksbar.org

www.ksbar.org | February 2018 53

Members in the News Correction from Nov/Dec, 2017 Issue of the Journal: Judge John Bukaty, Jr. is still in Kansas City, KS, NOT in Wichita as indicated. The Journal regrets the error.

New Positions Remington S. Dalke was selected by the Rice County Republican Central Committee to fill out the term of county attorney, a move made necessary by the resignation of Republican Scott E. McPherson. (see McPherson’s listing below….) Dalke was a staff attorney for St. Francis Community Services and before that was a staff attorney for the Kansas Department of Children and Families.

Preston A. Drobeck has become a partner in the law firm of Berkowitz, Cook, Gondring & Driskell, LLC. Effective Jan. 1 of this year, the firm name became Berkowitz, Cook, Gondring, Driskell and Drobeck, LLC. Drobeck has been with the firm since his graduation from the University of Missouri– Kansas City School of Law. Concordia attorney Justin Ferrell was named to fill the Republic County Attorney vacancy resulting from the resignation of previous county attorney Marlea James. His term will be for one year; the position will be on the ballot in the 2018 midterm election. Ferrell will continue his current position as a prosecutor for the City of Concordia.

Stephen McAllister, previously Kansas’ solicitor general, was confirmed unanimously by the U.S. Senate for the position of U.S. Attorney in Kansas. McAllister succeeded acting-U.S. Attorney Tom Beall.

Scott E. McPherson of Sterling was appointed by the Governor to serve as a district judge in the 20th District which covers Barton, Ellsworth, Rice, Russell and Stafford counties. He succeeds Ron Svaty who retired Oct. 1, 2017. McPherson, a product of the University of Kansas School of Law, has been Rice County Attorney since 2007; he was previously assistant county attorney in Barton Co., and an assistant district attorney in Douglas Co. 54

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Eli O’Brien, previously with the Sedgwick County Public Defender’s Office, has joined Monnat & Spurrier, Chartered as an associate. A graduate of the Washburn University School of Law, O’Brien’s practice will focus on defending those facing serious felony accusations.

Bethany Roberts, a Lawrence attorney who specializes in domestic cases, has been appointed by the Douglas County Commission as a judge pro tem with the Douglas County District Court. Pro tem judges are hired locally rather than appointed by the state, and are restricted in the types of cases they hear. Following her graduation from The University of Kansas School of Law, Roberts was the managing attorney with Kansas Legal Services.

Cynthia J. Sheppeard joined Goodell Stratton Edmonds & Palmer as a partner effective Jan. 1 of this year. She’s been Special Counsel since she and her previous practice, Weathers, Riley & Sheppeard, LLP, joined the firm. A Washburn University School of Law graduate, Sheppeard has an active litigation practice that includes employment law, product liability, premises liability and other areas.

Jacqueline Spradling, a veteran prosecutor, was elected Bourbon County attorney by the members of the Bourbon County Republican Central Committee. Spradling’s career has included eight years as chief deputy district attorney in Shawnee Co., in charge of all homicide prosecutions and chief of the Cold Case Homicide Unit. Most recently, she has been an assistant county attorney in Allen County. Spradling succeeds Justin Meeks in the Bourbon Co. position.

Katy Tompkins has become a partner in the McDonald Tinker Law Firm of Wichita. A native of Atwood, Kan., Tompkins earned her law degree from the Washburn University School of Law. Her practice focuses on civil litigation. She joined the law firm in 2012 as an associate.

members in the news

New Locations The new office of Adams Jones Law Firm, P.A. opened late last year at 112 N. Star in El Dorado. When the office opened, it was planned for Jason Reed, shareholder attorney, to staff the office part-time until business increases. Adams Jones, based in Wichita, handles probate, estate planning, real estate transactions and general business transactions.

Notables Stephen Ariagno and Kurt Kerns of the Warrior Lawyers were recognized by the Missouri and Kansas 2017 edition of Super Lawyers. It is the 11th year they have earned this recognition.

McPherson County Attorney Greg Benefiel was covered by the McPherson News for discussing the significant backlog of cases that had accumulated in the office before he came aboard three months ago. He specified that while he had not yet begun working through them, he is hopeful that with a third prosecutor being hired and with hoped-for case management software, they will be successful in working through the backlog over time.

Gary Austerman, Michael Morris and David Steed of Klenda Austerman have been recognized in the Missouri & Kansas 2017 edition of Super Lawyers. Aaron Good, Chasity Helm and Eric Lomas were also recognized as Rising Stars.

Stephen Blaylock, Charles Harris, Jeffrey Lowe, Lynn Ward and Michael Wilson, fellows of the American Academy of Matrimonial Lawyers, have been recognized by the Missouri & Kansas edition of Super Lawyers. Matthew Olson and Laura Poschen were also recognized as Rising Stars.

Joe Dickinson, Harvey County Chief District Judge, was appointed to the Chief Judges Council which provides the Supreme Court with “ground-level perspective on issues facing Kansas courts,” announced Chief Justice Lawton Nuss.

Nuss also appointed 17th Judicial District Chief Judge Preston Pratt and reappointed Chief Judges Kim W. Cudney, R. Wayne Lampson and Nicholas M. St. Peter to the sevenmember council. Also on the council are Reno County Chief Judge Patricia Macke Dick and Chief Judge David A. Ricke of the 13th Judicial District.

Robert L. Farmer, a partner in the firm of Nuss & Farmer PA in Fort Scott, has joined The Expert Network, an invitationonly service for distinguished professionals. He was selected for this honor based on peer reviews and ratings in addition to dozens of recognitions and achievements throughout his career. Farmer received his Juris Doctorate from The University of Kansas School of Law and has spent 45 years in service to the law.

Cameron & Herrman P.A. of Wichita has been named a 2017 10-Best Family Law Firm for Client Satisfaction by The American Institute of Family Law Attorneys.

Van Hampton was reappointed by the Kansas Supreme Court to serve as chief judge of the 16th Judicial District—a 2-year term ending on Dec. 31, 2019. He has been a district court judge since 1995, presiding over cases in Ford, Gray, Mead, Clark, Comanche and Kiowa counties. He is a graduate of Oral Roberts University School of Law; he also earned a degree in agricultural law from the University of Arkansas.

Tom Harris, an attorney in private practice in Valley Center, has been appointed to serve on the board of the Newton Medical Center.

Allison Maxwell Hibler has been accepted as a member of the law firm of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC. Hibler joined the firm as a law clerk while still a law student at Washburn University School of Law and accepted a permanent position upon graduation. Her practice focuses exclusively on family and divorce law.

2018 officers of the Kansas Association of Defense Counsel (KADC) are William Townsley, Fleeson, Gooing, Coulson & Kitch, LLC, President; Zach Chaffee-McClure, Shook, Hardy & Bacon, LLP, President-Elect; Shannon Wead, Foulston Siefkin, LLP, Secretary; Lora Jennings, Martin, Pringle, Oliver, Wallace & Bauer, LLP, Treasurer; Sarah Warner, Thompson, Ramsdell, Qualseth & Warner, PA, Past-President; Mark Katz, Coronado Katz, LLC, DRI Representative.

Judge Steve Leben of the Kansas Court of Appeals received the 2017 Chief Justice Richard W. Holmes Award of Merit, the American Judges Association’s highest award for contributions to the judiciary. Leben was recognized for his national work promoting procedural fairness in court, as co-author of AJA white papers on procedural fairness and the mental aspects of judging, and as longtime editor of Court Review, the AJA’s quarterly journal. The award was named for Kansas Supreme Court Chief Justice Richard Holmes who received the AJA’s Award of Merit in 1992. It was renamed in his honor in 2000, a year after Holmes passed away.

Martin Pringle Attorneys at Law, a Wichita firm, is a 7-time Finalist in the Wichita Business Journal’s Best Places to Work competition. The WBJ then uses the information for its Book of Lists which provides readers with more than 1,000 of the top area companies in their fields, by ranking.

Ryan K. Meyer has been named a member at Fleeson, Gooing, Coulson & Kitch, L.L.C. He has been an associate at the firm since 2012 and previously served as law clerk to the Hon. J. Thomas Marten of the United States District Court for the District of Kansas.

William R. Mott was reappointed by the Kansas Supreme Court to serves as chief judge of the 30th Judicial District through Dec. 31, 2019. Mott, a Wellington native, earned his law degree at the Washburn University School of Law. He has been a district judge in the 30th since 2007, presiding over cases primarily in Sumner County.

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Obituaries

Chad Neswick and Chapman Williams, as law students at The University of Kansas School of Law, worked with the Project for Innocence to help vacate the robbery conviction of Richard Jones who was subsequently released from prison.

They worked under the supervision of Alice Craig, supervising attorney for the University’s Project for Innocence.

Kansas Supreme Court Chief Justice Lawton Nuss had the opportunity in late 2017 to address some 35 U.S. Army personnel in Kuwait by way of video link from the Supreme Court’s conference room at the Kansas Judicial Center. Nuss agreed to lead the ethics discussion at the request of Maj. Gen. Victor Braden of the 35th Infantry Division. Nuss spoke on the need for military law practitioners to observe and remain committed to the oaths they have taken. Nuss, a Marine Corps veteran, offered his comments as part of a continuing legal education conference for military law practitioners.

Kansas Supreme Court Justice Eric Rosen was honored late last year with the Smiling Bull Award, presented by the Leavenworth County Bar Association as part of its 70th Leavenworth County Bar Institute. The award is given annually to an individual who has made a noteworthy contribution to the legal community. Rosen was recognized for his career of giving back to those in need. He was lauded by Chief Justice Nuss as a justice who is both intelligent and compassionate; Nuss added that Rosen is always “my sounding board when I need one.”

John Sherman (partner at Sherman, Hoffman & Hipp) and Roger Peterson (partner at Peterson & Kasper, LLC), were recognized by their local paper for the fact that they have each served the Ellsworth community for 40 years.

Tai J. Vokins and Krystal L. Vokins have joined the law firm of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC. Both will practice primarily in the firm’s Lawrence office. Mr. Vokins focuses his practice on consumer protection, primarily in litigation. Ms. Vokins has worked as a research attorney but also has experience in civil litigation, consumer protection and child-in-need-of-care matters. n 56

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Donald L. Burnett (July 1, 1934 December 18, 2017) Surrounded by his loving family, Donald Lowrey Burnett I, 83, went onto greener pastures, December 18, 2017. As a native son to one of Larned’s founding families, Don was born in the Dust Bowl days to Don E. Burnett and Helen Burnett. With his solid roots and keen mind, he was a life-long learner, quietly lending his expertise to numerous professional and civic projects. As a community leader, husband, father and grandfather, Don’s faith and value system permeated all aspects his life. He was a man of character, respected for his fine-mind, fairness and integrity.

It was noted that Don was a formidable competitor on the golf course. As a decades-long City Golf Champion, he hit a three-iron higher and farther than any home-spun tall tale. To this date, his children only beat him a total of four times on the golf course, an accomplishment he denied until his last breath. Known affectionately in his inner circle as Whiplash Willie, Don could be found circling the table, dishing out patriotic and political commentary, history, or KU Jayhawk basketball stats with his signature dry wit. Don is survived by his devoted wife of 50 years, Deanne Burnett, Larned, Kansas. Other survivors include: daughter: Georgia (Monte) Martin, Dallas, Texas; son: Lowrey (Nikki) Burnett, Denver, Colorado; son: Brooks (Teresa) Burnett, Manhattan, Kansas; son: Jim Burnett, Gunnison, Colorado; four grandchildren: Luke, Holt and Elle Martin, Dallas, Texas; Kennedy Burnett, Manhattan, Kansas. Following his passing, Don was privately placed in the beloved Pawnee County soil with his immediate family surrounding him.

A Memorial Service celebrating Don's life was held January 13th, at First Presbyterian Church, Larned, Kansas.

With Don’s love of education and history, memorials in lieu

obituaries

of flowers may be given to The Jordaan Foundation, Inc. or to the Santa Fe Trail Center Museum. To send, mail c/o Beckwith Mortuary. P.O. Box 477, Larned, KS 67550. Personal condolences may be left with www.beckwithmortuary.com *Don L. Burnett’s Education and Professional Background: Don attended The University of Kansas and was a member of the Phi Gamma Delta fraternity. After earning his Bachelor Degree, followed by the Juris Doctor degree at KU Law, Don returned to Larned to practice law with Maurice Wildgen and Glee Smith at Wildgen & Smith.

Though partners in the law firm changed over his 59 years of practice (i.e Smith, Burnett & Larson; Smith, Burnett, Larson & Butler; Smith & Burnett, LLC), Don continued to serve his clients through the firm of Smith, Burnett and Hagerman, LLC until his retirement in December 2017. *A Partial list of Don L. Burnett’s Past Civic and Community Leadership Involvement: President: The Jordaan Foundation, Inc.; Of Council: The Fort Larned Historical Society; Trustee: Pawnee County Law Library; President: Pawnee County Bar Association; Member: American Bar Association; Member: Kansas Bar Association; Member: Southwest Kansas Bar Association; Journal Council Sub-Committee on Mental Hospital Admission Laws; Board of Editors; Kansas Bar Journal; President: Larned Chamber of Commerce; President and Honorary Member: Larned Rotary Club; Chairman: Larned Rotary; Student Loan Fund Trustee and Elder and Sunday School Teacher: First Presbyterian Church of Larned, Kansas; Board Member: St. Joseph Memorial Hospital; Board Member: Larned Community Hospital; Committee Member: Larned Masonic Lodge; Board Member: Larned Country Club; Volunteer: Larned Junior Golf

ed his legal education at Washburn. He then entered as a commissioned officer as a U.S. Marine and completed two tours in Vietnam as a JAG officer. He continued to support the Marine activities as once a Marine always a Marine.

After Vietnam, he began his civilian legal career in Cimarron, Kansas, in 1969 and was elected county attorney for Gray County in 1971. He became 16th judicial circuit judge in 1977 and retired in 2001.

He married his sunshine Sheila Preedy on February 19, 2011 and relocated to Meade, Kansas, and attended the Emmanuel Mennonite Church.

He was a member of the American Quarter Horse Association, National Cutting Horse Association, VFW, and the Southwest Kansas Bar Association. He was an active member of the Dodge City community in various civic organizations including New Chance and the Dodge City Round Up Arena.

Throughout his life he had enjoyed the outdoors. His love of horses continued with success in showing and breeding Quarter horses. Hunting was a passion from elk in Colorado, wild pigs in Texas, alligators in Florida, to the big game in South Africa. He always was on the lookout to help someone better themselves. A great friend, father, son, uncle, brother, and husband.

Semper Fidelis Funeral services were held Friday, December 8, 2017, at the Emmanuel Mennonite Church, Meade. Visitation was held. at Fidler-Orme-Bachman Mortuary. Interment followed the service in the Kansas Veterans Cemetery at Ft. Dodge.

In lieu of flowers the family welcomed memorials to the Micalah Preedy Education Fund in care of the funeral home.

Personal condolences may be given to the family at www. fidlerormebachmanmortuary.com. n

Jay Don Reynolds (October 3, 1940 - November 27, 2017) Jay Don Reynolds, was born in Avard, Oklahoma, on October 3, 1940, and died in Meade County, Kansas, on November 27, 2017, with his wife, Sheila by his side.

He is preceded in death by his parents, Cordilla (Olive) Reynolds and H.H. Reynolds; his brother Richard Reynolds, sister Patsy; and his son Christopher Reynolds. He is survived by his sons, Kansas Mark Reynolds of Dodge City, Kansas, and Chad Reynolds of Salem, Oregon; his stepchildren, Rona Kramer of Cimarron, Darin Riedlinger, and Micalah Preedy of Meade; sister, Joan Owens of Oregon; nephews Eric Owens of Oregon, and Dirk Reynolds of Oklahoma; nieces Reta Lindsley of Washington, Deeana Printz of Oregon.

He graduated from Coldwater High School and attended Northwestern Oklahoma State University. He then complet

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KBA LIBRARY

Don’t leave the office without it!

All KBA Handbooks are now available as eBooks through Casemaker!

Visit https://go.ksbar.org/CasemakerLibraJA2017 for more information.

Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org

Supreme Court Attorney Discipline ORDER OF DISBARMENT IN THE MATTER OF THEODORE R. HOEFLE NO. 22,228—JANUARY 16, 2018

FACTS: In a letter signed December 29, 2017, Theodore R. Hoefle voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary complaint was pending against Hoefle. The complaint alleged that Hoefle violated Kansas Rule of Professional Conduct 8.4 (misconduct) by failing to correct a false insurance claim and failing to correct false information in a police report.

HELD: The court found that the surrender should be accepted. Hoefle is disbarred.

ONE YEAR SUSPENSION IN THE MATTER OF DANIEL HART PHILLIPS NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client.

During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted.

At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

Civil APPEALS—APPELLATE PROCEDURE—ATTORNEY AND CLIENT—HABEAS CORPUS—JURISDICTION— POST-CONVICTION REMEDIES MUNDY V. STATE LYON DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 112,131—JANUARY 19, 2018

FACTS: Mundy was found guilty of making a false claim to the Medicaid program and obstructing a Medicaid fraud investigation. Sentence imposed included a suspended prison term, probation, and payment of restitution and costs. While on probation Mundy filed a pro se 60-1507 motion, alleging, in part, ineffective assistance of trial attorney. District court appointed counsel. After reviewing the record, the district court summarily denied the 60-1507 motion, finding Mundy failed to show that trial counsel’s representation was not objectively reasonable, and that Mundy failed to plead sufficient facts for an evidentiary hearing. 60-1507 counsel filed notice of appeal. Appellate counsel appointed. Mundy argued, in part, that her release from probation did not deprive courts of jurisdiction, that 60-1507 counsel was ineffective by filing only a bare notice of appeal, and that district court’s summary denial of the 60-1507 motion denied her due process by not following procedural options in Lujan v. State, 270 Kan. 163 (2000). In an unpublished opinion, the Court of Appeals agreed that Mundy’s release from probation did not deprive courts of jurisdiction, found no jurisdiction to consider claim raised for first time on appeal that 60-1507 counsel was ineffective because issue was not included in the notice of appeal, and affirmed the district court’s summary denial of the 601507 motion. Mundy’s petition for review was granted.

ISSUES: (1) Jurisdiction, (2) notice of appeal, (3) ineffective assistance of 60-1507 counsel, (4) adjudication of a 60-1507 motion HELD: Issue of first impression for Kansas Supreme Court.

A Kansas court obtains jurisdiction over a 60-1507 motion if it is filed while a movant is in custody, and jurisdiction is not lost if the movant’s custody ends before judgment on the motion becomes final. Adopting the standard applied in habeas context, Mundy’s release from probation did not render her appeal moot because she still faced obligation to pay restitution and costs. www.ksbar.org | February 2018 59

appellate decisions

Court of Appeals erred in concluding it lacked jurisdiction to determine Mundy’s ineffective assistance of 60-1507 counsel claim. Panel’s approach effectively took away the availability of a proceeding under State v. Van Cleave, 239 Kan. 117 (1986). A notice of appeal stating the appeal is being taken from trial court’s decisions is sufficiently broad to give an appellate court jurisdiction to hear a claim that counsel appointed to handle 60-1507 proceeding was ineffective, even when the claim is raised for first time on appeal.

The claim of ineffective assistance of 60-1507 counsel is not reached or decided. Mundy was entitled to effective assistance of 60-1507 appointed counsel, but the record is insufficient to resolve that issue. Mundy never requested a Van Cleave remand and Supreme Court declines to sua sponte order a remand in this case.

K.S.A 2016 Supp. 60-1507 and Kansas Supreme Court Rule 183 are interpreted. Nothing in Lujan prevents a district court from concluding without a hearing—even after counsel has been appointed - that the motions, files, and records of a case conclusively show that the movant is entitled to no relief. In this case, Mundy’s 60-1507 motion did not merit an evidentiary hearing and the district court did not err in summarily dismissing the motion.

STATUTES: K.S.A. 2016 Supp. 60-1507, -1507(a), -1507(b), -2103, -2103(b); K.S.A. 21-3846(a)(1), -3849, 22-4506(b), 60-2101(b)

Criminal CONSTITUTIONAL LAW—CRIMES AND PUNISHMENT—SENTENCING—STATUTES STATE V. KINDER WYANDOTTE DISTRICT COURT—REVERSED COURT OF APPEALS—REVERSED NO. 112,844—JANUARY 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a pre60

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sumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES: K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1) (C); K.S.A. 20-3018(b) CRIMINAL LAW—FRAUD AND DECEIT—STATUTES STATE V. WARD JOHNSON DISTRICT COURT—REVERSED COURT OF APPEALS—AFFIRMED NO. 111,640—JANUARY 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank.

State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES: (1) Theft by deception, (2) making false information HELD: On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a) (2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 213711; K.S.A. 21-3711 (Ensley 1988); K.S.A. 1970 Supp. 213710, -3711; G.S. 1923, 21-601 through 637

appellate decisions

Court of Appeals Civil MOOTNESS—PROTECTION FROM STALKING KERRY G. V. STACY C. HARVEY DISTRICT COURT—REVERSED AND VACATED NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp.

60-3107(e)(1) HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance.

Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary.

Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a) (1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); and K.S.A. 53-601

ACQUIESCENCE—DEBTORS— JUDGMENTS—MOOTNESS SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC WYANDOTTE DISTRICT COURT—APPEAL DISMISSED NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment.

The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; K.S.A. 9-1206, 60-721

Criminal CONSTITUTIONAL LAW —CRIMINAL LAW—EVIDENCE —FOURTH AMENDMENT—SEARCH AND SEIZURE STATE V. BANNON SEDGWICK DISTRICT COURT—AFFIRMED NO. 112,212 - JANUARY 12, 2018 www.ksbar.org | February 2018 61

appellate decisions

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTE: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

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CRIMINAL LAW—EVIDENCE—STATUTES STATE V. BRAZZLE RILEY DISTRICT COURT—AFFIRMED NO. 116,649—JANUARY 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine, and possession of oxycodone based on gray pills identified by an officer using www.drugs.com. District court allowed state to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the state failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury instruction, (3) sufficiency of the evidence – possession of a controlled substance, (4) proof of prescription HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness.

Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706 A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone,

appellate decisions

and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); and K.S.A. 60-455, 65-4101 et seq.

Appellate Practice Reminders From the Appellate Court Clerk's Office Get a Cause

Criminal CONSTITUTIONAL LAW—DUE PROCESS—CRIMINAL LAW—CRIMINAL PROCEDURE—STATUTES STATE V. OWENS WYANDOTTE DISTRICT COURT—REVERSED AND VACATED NO. 116,979—JANUARY 12, 2018

FACTS: Owens convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 224905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due process HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f ), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Every now and then, it is necessary to clear up any number of misconceptions in the APW (that's appellate practice world.) If one of the appellate courts sends out a show cause order, your briefing clock is still running. Nothing whatsoever about that show cause order stops the briefing schedule. Sometimes attorneys assume that everything under the heavens shuts down on briefing until the show cause is resolved. Not so (remember what your mother told you if you assume something….). You should continue listening to the ticking of your internal briefing clock because if the alarm is about to go off, and you're coming up on a deadline, you better make sure to file a motion for time if you need it. #I'mgonnacomplywithRule5.02. That said, the courts are not callous enough, yes, the courts are not callous enough to understand that responding to the show cause order takes time, and the need to respond could justify an extension of time. If you truly believe that resolving the show cause process will be so burdensome as to make briefing impossible, then the proper action is to file a motion to stay.

For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts.

(785) 296-3229, Douglas T. Shima, Clerk.

www.ksbar.org | February 2018 63

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Kennedy Berkley Yarnevich & Williamson, Chtd. seeks an attorney with at least five years’ experience in domestic and civil litigation practice. Please send introductory letter and resume for consideration to lherbic@kenberk.com.

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