Your Partner in the Profession | June 2019 • Vol. 88 • No. 6
Debt Among the Faithful
Churches, Lenders & Troubled Loans in Kansas
by Michael D. Fielding P 34
34 | Debt Among the Faithful
Churches, Lenders & Troubled Loans in Kansas
Michael D. Fielding
Cover Design and Photo by Ryan Purcell
Special Features 6 | Celebrating Service.............................................. 26 | Password Insecurity............................................. Recognizing two invaluable staffers......... Shelby Lopez
8 | 2nd Annual KBA Photography Contest Entry form and more
Lessons from a Personal Story.. Mark Bassingthwaighte
50 | Young Lawyers Take D.C.................................... ABA YLD Mid-Year Conference.............Lauren Hughes
24 | KALAP and the Kansas Task Force on Lawyer Well-being......................................Lou Clothier
Regular Features 11 | KBA President
Leaving Ripples......................................Sarah Warner
13 | YLS President
29 | Law Practice Management Tips and Tricks
eFiling Rejections: The Lambert Decision ..........................................................Larry Zimmerman
The Power of Young Lawyers................... Sarah Morse 54 | Law Students' Corner The Advantages of an Interdisciplinary Approach to .. 16 | Substance and Style Legal Education.......................................Jeff Carmody Some Science Supporting Style................. Pam Keller
18 | KBF President
56 | Members in the News
Ethics for Good............................... Amy Fellows Cline
58 | Obituaries
20 | CLEs
60 | Appellate Decisions
22 | The Diversity Corner
66 | Appellate Practice Reminders
Addressing Diversity and Inclusion On and Off ....... Campus, In Employment and in Life..........Brian Kong
Annual Attorney Registration for 2019 ...................................................... Douglas T. Shima
69 | Classified Advertisements
www.ksbar.org | June 2019 3
THE
JOURNAL
OF THE KANSAS BAR ASSOCIATION 2018-19
Journal Board of Editors Emily Grant (Topeka), chair, emily.grant@washburn.edu Sarah G. Briley (Wichita), sbriley@morrislaing.com Hon. David E. Bruns (Topeka), brunsd@kscourts.org Richard L. Budden (Kansas City), rbudden@sjblaw.com Boyd A. Byers (Wichita), bbyers@foulston.com Jennifer Cocking (Topeka), jcocking@capfed.com Connie S. Hamilton (Manhattan), jcham999@gmail.com Michael T. Jilka (Lawrence), mjilka@jilkalaw.com Lisa R. Jones (Ft. Myers, FL), ljones@fgcu.edu Hon. Janice Miller Karlin (Topeka), judge_karlin@ksb.uscourts.gov Casey R. Law (McPherson), claw@bwisecounsel.com Hon. Robert E. Nugent (Wichita), judge_nugent@ksb.uscourts.gov Professor John C. Peck (Lawrence), jpeck@ku.edu Rachael K. Pirner (Wichita), rkpirner@twgfirm.com Richard D. Ralls (Overland Park), rallslaw@turnkeymail.com Karen Renwick (Kansas City), krenwick@wrrsvlaw.com Teresa M. Schreffler (Wichita), tschreffler@gmail.com Richard H. Seaton Sr. (Manhattan), seatonlaw@sbcglobal.com Sarah B. Shattuck (Ashland), bootes@ucom.net Richard D. Smith (Topeka), rich.smith@ag.ks.gov Marty M. Snyder (Topeka), marty.snyder@ag.ks.gov Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@ksbar.org Catherine A. Walter (Topeka), cwalter@topeka.org Meg Wickham, Dir. of Communications & Member Svcs., mwickham@ksbar.org Issaku Yamaashi (Overland Park), iyamaashi@foulston.com Natalie Yoza (Topeka), nyoza@ksbor.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.
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The Journal of the Kansas Bar Association
Let your VOICE 2018-19 be Heard! KBA Officers & Board of Governors President Sarah E. Warner, sarah.warner@333legal.com President-elect Mira Mdivani, MMdivani@uslegalimmigration.com Vice President Charles E. Branson, cbranson@douglas-county.com Secretary-Treasurer Cheryl Whelan, cwhelan@ksbar.org Immediate Past President Gregory P. Goheen, ggoheen@mvplaw.com Young Lawyers Section President Sarah A. Morse, sarah.morse@fhlbtopeka.com District 1 Christi L. Bright, christi@thebrightfamilylawcenter.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Diana Toman, tomand@compassminerals.com District 2 Hon. Sally D. Pokorny, spokorny@douglas-county.com Hon. Bethany Roberts, broberts@douglascountyks.org District 3 Angela M. Meyer, angela@angelameyerlaw.com District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Vincent Cox, vcox@cavlem.com Terri J. Pemberton, terri@caferlaw.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, gaschwartz@schwartzparklaw.com District 11 Mark Dupree, mdupree@wycokck.org District 12 Alexander P. Aguilera, alex@sbhlaw.com Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Bruce A. Ney, bruce.ney@att.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Patricia A. Macke Dick, patty.macke.dick@renogov.org KBA Delegate to ABA House Rachael K. Pirner, rkpirner@twgfirm.com Natalie G. Haag, nhaag@capfed.com ABA State Delegate Linda S. Parks, parks@hitefanning.com YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com Executive Director Shelby L. Lopez, slopez@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.
www.ksbar.org | June 2019 5
2019 KBA Brown Bag Ethics Series 2 Hours of Ethics & Professionalism Available as an On-Demand Webinar or Live Program Live Dates: Tuesday, June 4, Morning Session 9:00 AM to 10:40 AM Tuesday, June 4, Afternoon Session 2:00 PM to 3:40 PM Tuesday, June 11, Morning Session 9:00 AM to 10:40 AM Tuesday, June 11, Afternoon Session 2:00 PM to 3:40 PM Thursday, June 27, Morning Session 9:00 AM to 10:40 AM Thursday, June 27, Afternoon Session 2:00 PM to 3:40 PM
For more information and to register visit www.ksbar.org,
or contact Amanda Kohlman at akohlman@ksbar.org or 785-861-8815 6
The Journal of the Kansas Bar Association
from the executive director
Celebrating Service by Shelby L. Lopez
Executive Director, KBA & KBF
Deana Mead
T
he Kansas Bar Association has enjoyed many successes over the years, and we recognize that growth and success of any organization depends largely on its people. I want to take this opportunity to personally thank two longtime KBA team members celebrating important milestones in the upcoming months, and recognize the important roles they have played and continue to play in helping us to achieve our goals. Deana Mead joined the KBA on June 7, 1999 and is celebrating 20 years of service. She has literally performed every job at the KBA at one point or another and is the “go to” person in the organization due to her institutional knowledge and “let’s get it done” attitude. Currently, Deana serves as the Associate Executive Director of the KBA, and self-proclaimed— though unofficial—president of the KBA chapter of the Bill Self Fan Club. Whether carrying out routine tasks related to office operations or coordinating fun events like Goat Yoga at the Annual Meeting (yes, that’s really happening), Deana is an energetic problem solver with a strong commitment to the mission of the KBA. I am grateful for her patience, attention to detail and dedication to getting the job done. Thanks for being the glue that holds the KBA together, Deana! Kathy Johnson has served as the Finance Administrator since joining the KBA in July of 1999 and is also celebrating 20 years of service. Kathy is the quiet, behind-the-scenes workhorse of our organization, providing administrative and
Kathy Johnson accounting support to the Finance Director. She performs a variety of duties and handles many situations with ease. Don’t be fooled by her low-key presence, though; Kathy has a wicked sense of humor and a great laugh. Kathy is an asset to the KBA, and I appreciate the initiative she shows to find new ways to solve problems. Thanks for staying with us through the years, Kathy! The success of our organization is a direct result of the efforts and dedication of these two outstanding people. On behalf of the KBA, it is with great pride and admiration that we congratulate them on this service anniversary milestone. They have been excellent representatives of the KBA since 1999, and we are very proud to have them on our team. When Deana and Kathy joined the KBA, gas was $1.22/ gallon, a postage stamp was 33 cents, and you could buy an entire pound of coffee for $3.41. (Does anyone even buy it that way anymore?) Internet Explorer had just released version 5, Harry Potter books were all the rage, My Space (remember that?) was officially introduced to the internet, Star Wars Phantom Menace were released at the box office and kids were collecting Pokemon cards. Much has changed in 20 years, but one thing remains the same: Deana and Kathy are both a pleasure to work with, and the KBA team genuinely hopes that they will remain with us for many years yet to come. Happy Work-iversary! n www.ksbar.org | June 2019 7
test
A d n n 2 n e u h al T
on
tograph o h P A y B C K
Photos & signed release to be submitted to: editor@ksbar.org All entries MUST be in by midnight, Sunday, Sept. 29, 2019
Theme:
What a Wonderful World Requirements: • Open to KBA member attorneys only • Photos must have been taken in the 2019 calendar year
or exotic, any kind, anywhere
• MUST be submitted in digital, hi-resolution format (300 dpi or better)
towers, macro or micro, anything man-made
• Photographers MUST complete personal info sheet AND sign and submit a release for photos submitted. • A maximum of one photo per category may be entered • Photographer will determine the category in which each photo will be judged.
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Categories: Amazing Animals - pets, domestic, indigenous
The Journal of the Kansas Bar Association
Spectacular Structures - buildings, bridges, Lavish Landscapes - at home or abroad, land, sea or city, the sweeping sights that make you gasp Memorable Moments - from the gaze of
a grandchild to a family graduation or wedding to a celebrity encounter or any moment that moved you
Arts and Athletics - bring to life your favorite sport, capture a breathtaking sculpture or dance, share your own achievements in sports and the arts
2019 Photography Contest Photograph Copyright Release Form I hereby grant to The Journal of the Kansas Bar Association (The Journal) full copyright to any portion of the photo images listed below that have been taken by me ____________________________________________ ________(Photographer’s full name, PRINTED) for use at the full discretion of the Editor of The Journal, at any time. (Such uses may include but are not limited to publication in The Journal, calendars, invitations, and/or websites, without any compensation to be given to me.) A photo credit will, however, be given wherever possible. Furthermore, I grant creative permission to alter the photograph(s). Permission is granted for the photographic images listed below: Photo Title:
FileName:
Format:
Category:
__________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ I further attest these images meet the requirements of the 2019 Photography Contest with respect to resolution and size. If they do not, I agree that the Editor of The Journal has the authority to reject the images for consideration in the contest or, time permitting, to return them so I can resubmit them in proper format. Photographer’s Contact Information: Name (PRINT):__________________________________________________ Email Address: ___________________________________________Cell Phone:__________________________ Photographer’s Signature:______________________________________________________________________ Date:_________________________________________ -- PLEASE COMPLETE PAGE TWO --
Personal Information for the 2019 2nd Annual KBA Photography Contest Full professional name: _______________________________________________________________________________ Preferred email address: ______________________________________________________________________________ Preferred USPS address: ______________________________________________________________________________ Street number and street name
_________________________________________________________________________________________________ City
State
Zip
Full name of the firm at which you are employed: _________________________________________________________________________________________________ Address of firm: ____________________________________________________________________________________ Street number and street name
_________________________________________________________________________________________________ City
State
Zip
How long you have been a Kansas lawyer?: __________________ From what law school did you graduate?: _________________________________________________________________ The name of your local paper and any other papers to which you’d like us to circulate a news release: _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________
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The Journal of the Kansas Bar Association
kba president
Leaving Ripples By Sarah Warner
Over the past twelve months, I’ve traveled around the state, talking with people about the work we do at the Kansas Bar Association. I’ve had ample windshield time to reflect on what we do for our state and profession—or more importantly, how our association makes us better: better lawyers, better professionals, better citizens, and better people. I’ve also had the opportunity to listen to countless audiobooks and albums. Most recently, as I’ve been reflecting on my overwhelming gratitude, one of my favorite songs to play on these drives (read: belt out singing as I drive down the highway) is “Ripple” by the Grateful Dead. Jerry Garcia’s lyrics echo over and over in my thoughts: If my words did glow with the gold of sunshine And my tunes were played on the harp unstrung Would you hear my voice come through the music Would you hold it near as it were your own? It’s a hand-me-down, the thoughts are broken Perhaps they’re better left unsung … This has been a whirlwind year. Last year’s Annual Meeting, when the Board of Governors elected me to lead the KBA, doesn’t seem like it was all that long ago. Yet I find myself in the last throes of leadership, writing my final column for the KBA Journal. The KBA is not merely a group that puts on high quality continuing legal education programming that spans the spectrum of legal practice. We don’t just publish the leading volumes on various aspects of Kansas law, or provide resources to lawyers looking to update and improve the management of their law practice. Nor are we solely an advocacy organization, providing insight to the legislature, judiciary, and other regu
latory bodies. We don’t merely provide a forum for attorneys to discuss and debate important legal questions, or serve as a voice in Kansas schools to discuss the justice system and the legal profession. Reach out your hand if your cup be empty If your cup is full may it be again Of course, we at the KBA do all of those things. In the past year, we have offered myriad opportunities for in-person CLE training, both on traditional areas of practice and on emerging questions such as religion and the law, or the federal/state conflicts arising with regard to various states’ changing drug laws. We have published updated manuals relating to wills and trusts and to title standards. We have stood up for funding proper salaries for Kansas judges and their staff, for keeping the doors to the federal government open, for various substantive changes in the law, for common-sense rules relating to pro bono representation and offering volunteer opportunities for in-house counsel, and for various changes to the Kansas court rules. We’ve been a voice in the process to develop an electronic case management system for Kansas and standardize practice in electronic filing. We continue to provide opportunities for grade school and high school students to interact with the judicial system, from our Law Wise publication to the young lawyers’ mock trial program. Let it be known there is a fountain That was not made by the hands of men In short, it’s been a busy year. But it’s my belief that none of those individual offerings—or even the combination of all of those endeavors—encapsulates who we are as an organization, or why we chose to become KBA members in the first place.
www.ksbar.org | June 2019 11
kba president
There is a road, no simple highway Between the dawn and the dark of night Instead, think back to when you first joined the KBA. Maybe a partner or mentor encouraged you to join. Maybe your firm required it. Or maybe you joined because you looked around and recognized that the KBA was home to Kansas’s best attorneys, and that’s where you wanted to be. After all, good lawyers care about their clients, cases, projects, and negotiations. Great lawyers understand that by representing their clients and performing their role, they are part of something much bigger than themselves. At the KBA, we want to help each of you be great. And we want to blaze a trail of greatness for the generations of lawyers who follow us. You who choose to lead must follow But if you fall you fall alone If you should stand then who’s to guide you? In this final column, I’d like to recognize just a few of the myriad people who have made this year possible for me. I’m grateful to our KBA staff. Our employees are excellent and dedicated individuals who care deeply about our organization and membership. This has not been an easy year for them, between having a young whippersnapper of a president and transitioning with an interim executive director (the marvelous Larry Hendricks) to our new director in December. The next time you call the KBA, attend an event (like our upcoming Annual Meeting), or visit the KBA offices, please make a point of thanking the people who keep the association humming. I’m grateful to our new director. Shelby Lopez is outstanding—I know she will not only continue the path we’ve charted, but also challenge us to consider what the profession will look like long after we’ve left it. I’m confident that Shelby’s organization and charisma are just what we need for our profession to not merely weather, but thrive, in a changing technological and sociological landscape. I’m grateful to our KBA officers and to my executive committee: Greg Goheen, Mira Mdivani, Charles Branson, Cheryl Whelan, Sarah Morse, Gary Ayers, Christi Bright, and Nancy Morales-Gonzales. Their help and advice were invaluable. On July 1, I turn over the reins, and I am so excited about Mira Mdivani’s year as president—Mira is the voice in my head who constantly challenges me, pushes me outside of my comfort zone and encourages me to take the next step. I can’t wait to see where she steers our organization. I’m grateful to our board members. You as KBA members have elected an inspiring group of leaders to serve on the Board of Governors. These people give significant time and energy to setting policy for our association because they care deeply for the cause of justice in our state. They understand that we are not merely practitioners, but stewards of a centuries-old 12
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profession, charged with safeguarding fairness in the years to come. On a more personal level, I am so grateful for our board’s commitment, and for their confidence in a 30-something lawyer from Lawrence who indicated a willingness to let her voice be heard. I am honored to have served with such excellent attorneys and judges, and to develop friendships that will endure throughout our lives. I’m grateful to everyone who serves on a committee or is a member of a KBA section. You are the heart of the organization and make what we do meaningful and relevant. I look forward to seeing you, and all of our members, at the KBA Annual Meeting this month in Topeka! I’m grateful to the attorneys and staff at my firm, and to my partner Todd Thompson (who two years ago led the Kansas Bar Foundation). Service at this level is not merely a personal sacrifice; it affects everyone around us—especially at a firm our size. When I talked with Todd about taking on the role of KBA President last June, he did not bat an eye and has been nothing but supportive of my involvement, at no small cost of time and availability on my part. Incredible. And I’m grateful to my husband, for encouraging me while understanding the sacrifice for our family—for attending events and for understanding my absence. For being a sounding board for ideas, for many late night discussions about important legal questions facing our profession, for brainstorming about new programs and opportunities, and for everything over the last year. Thank you, Brandon. I love you. If I knew the way I would take you home Ripple in still water When there is no pebble tossed, Nor wind to blow. Thank you to all of our members for your trust and confidence this year. Here’s to making ripples in our profession and our world in the years that come.
About the President Sarah E. Warner is an attorney at Thompson Warner, P.A., in Lawrence, and teaches Conflict of Laws and Appellate Practice at Washburn University School of Law. She and her husband Brandon (an administrative patent judge with the U.S. Patent and Trademark Office) call Lenexa home with their dog Kolbe, who is looking forward to increased belly-rub availability as a new president assumes the office in July. sarah.warner@333legal.com
young lawyers section
The Power of Young Lawyers By Sarah Morse
D
uring the 2018-2019 Kansas Bar Association membership year, I had the pleasure of serving as the President of the Young Lawyer Section of the KBA. I began the year by asking myself and the rest of the YLS board, “How can we best help and serve young lawyers?” After a year in this role, however, my perspective has changed, and I now encourage KBA members to ask yourselves, “How can young lawyers best help you?” In my interaction with the KBA YLS board and other KBA YLS members, I have been impressed time and time again with the ingenuity, work ethic and passion of my fellow young lawyers. At every turn they have worked to improve the KBA YLS activities and programs for everyone. And it should come as no surprise because young lawyers have been making an impression on the legal field for generations. Two individuals in particular stand out as young lawyers making a great and lasting impact in not just the legal field, but society at large: Fred D. Gray and Sarah Ragle Weddington. During the Montgomery Bus Boycott, Gray defended Rosa Parks against charges of disorderly conduct after she was arrested for refusing to give up her seat on a bus to a white person in Montgomery, Alabama.1 Gray, born in 1930, was
24 years old at the time.2 Mr. Gray also filed the petition that challenged the constitutionality of Alabama state laws mandating segregation on buses.3 Gray was 26 years old when the United States Supreme Court affirmed the Middle District of Alabama’s ruling that racial segregation on public transportation was unconstitutional.4 Weddington offers another example of a young lawyer making an impact. Weddington was only 26 when she argued Roe v. Wade before the United States Supreme Court5 and remains the youngest person ever to have argued a successful case at the Supreme Court.6 Weddington was later appointed by President Jimmy Carter as general counsel for the U.S. Department of Agriculture in 1977—at 32 years old.7 Weddington was the youngest person and first woman to serve as general counsel of a cabinet-level department.8 Undoubtedly, there are countless other young lawyers throughout history who have had a lasting impact on the practice of law and society. While not everyone has the opportunity to have as high-profile an impact as Gray and Weddington, smaller or less public influences are important in their own right, and collectively, can create as long-lasting an impact as seminal cases. www.ksbar.org | June 2019 13
young lawyers section
Locally, I have seen firsthand the power of young lawyers this year on the YLS board and how these less public impacts can collectively make a difference. This year, YLS board members have reenergized the state mock trial competitions for high school students by getting more volunteers involved and attracting new participants, and they have coordinated summer externships with judges for law students. These efforts have created a stronger experience for future lawyers. YLS board members are changing how YLS members communicate with the entire bar by developing content for a young lawyer-focused issue of The Journal that will be published later this year. The YLS has worked to establish a statewide network of volunteers to assist with legal matters in the event of a natural disaster to serve all Kansans, not just lawyers. The YLS has also organized mentorship events across the state and provided important CLE and networking opportunities. The YLS is even having an impact on a national scale as a board member has introduced amendments to the bylaws of the ABA Young Lawyers Section to allow more opportunities for lawyers to participate in the section by including those lawyers in their first ten years of practice, rather than the current five years. All of these tasks were accomplished while managing full-time practices, participating in state and federal court trials, and managing day-to-day life at home. Young lawyers can get it done. The YLS board members— Mitch Biebighauser, Kate Marples Simpson, Clayton Kerbs, Rick Davis, Whitney Casement, Lauren Hughes, Sarah Stula, Casey Walker, Bill Walberg, Stephen Netherton, Christine Campbell, Tyson Bramley, and Josh Decker—got it done. I guarantee there are other KBA young lawyers not listed here who have made an impact on the legal profession in Kansas over the past year. Reflecting on all that young lawyers have accomplished prompts me to think about all that young lawyers can accomplish in the future. Our profession is focused on precedent; that naturally tends towards reliance on experience which can only come with time. I do not discount or diminish the vital importance of experience in this field, but I encourage KBA
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members to also consider the value young lawyers can offer. A fresh perspective can often provide the break that is needed to succeed. So ask for a young lawyer’s analysis of the case, have them take the lead chair at trial, give them the opportunity to argue an important motion, or place them in a leadership role. You may just find the next youngest lawyer to successfully argue before a supreme court. n About the Author Sarah Morse serves as the Kansas Bar Association’s Young Lawyer Section President. She is Corporate Counsel at FHL Bank Topeka. Sarah received her bachelor’s degree in American History and Literature from Emory University and her law degree from Emory University School of Law in Atlanta, Georgia. Shortly after joining private practice in Topeka, Sarah became involved with the KBA YLS, and she looks forward to working with the engaged and enthusiastic YLS board members this year. In her free time, Sarah enjoys spending time with her family and pursuing more hobbies than is probably advisable. Sarah.Morse@fhlbtopeka.com 1. “Gray, Fred David, Sr.,” Available at: https://kinginstitute.stanford. edu/encyclopedia/gray-fred-david-sr. 2. “Rosa Parks’ attorney: ‘If the story would be told, I’d have to tell it,’” by Lee Rawles, August 20, 2013. Available at: http://www.abajournal. com/books/article/podcast_episode_024/. 3. “Gray, Fred David, Sr.,” Available at: https://kinginstitute.stanford. edu/encyclopedia/gray-fred-david-sr. 4. Id.; Gayle v. Browder, 352 U.S. 903 (1956). 5. “She Put the v in Roe v. Wade,” by David J. Garrow, September 27, 1992, The New York Times, available at: https://www.nytimes. com/1992/09/27/books/she-put-the-v-in-roe-v-wade.html. 6. “Sarah Weddington, Roe v. Wade attorney, on Trump’s threat to abortion rights,” by Rachel Cooke, March 12, 2017, The Guardian, available at: https://www.theguardian.com/world/2017/mar/12/sarahweddington-roe-v-wade-lawyer-legalise-abortion-america-donald-trump. 7. Martin L. Levy, Sarah Ragle Weddington, in Encyclopedia of American Civil Liberties, (Paul Finkelman ed., 2006.) 8. Id.
REBEIN BROTHERS W YY EE R TT R R II AA LL LL AA W R SS
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(620) 339 - 4105
• www.rbr3.com • dave@rbr3.com
www.ksbar.org | June 2019 15
substance and style
Some Science Supporting Style by Pam Keller
L
egal writing style advice is often based on time-honored, general principles about writing translated into a lawyer’s language.1 While concrete lawyer experience about “what works” supports many of these principles, more and more legal writing scholars are looking to science and empirical data to help us more precisely determine what is effective. This column presents a few time-honored principles and offers some science backing them up. The science helps us understand a little more about why some techniques work, and it may help you feel on firmer ground when you make drafting choices in your next brief. Write in a plain language style with relatively simple sentence structures A recent empirical study found that the “readability” of a brief positively affected summary judgment outcomes.2 When a moving party’s brief was more “readable” than the non-moving party’s brief, the moving party was more likely to succeed.3 In this study, briefs were considered more readable when they preferred simpler vocabulary to more difficult vocabulary, kept most sentences relatively short, used a logical 16
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and obvious organizational structure, and made explicit connections between paragraphs and sentences4 — all of which are traditional hallmarks of a plain language style. A lot more research is necessary to determine exactly why readability matters, but researchers hypothesize that the more readable brief increases the likelihood that the judge will understand the advocate’s view of the undisputed facts and their legal significance.5 Given the time pressure judges and law clerks are under to review hundreds of pages of materials when they decide a summary judgment motion, briefs that are easier to understand have an advantage. In a separate empirical study, another scholar similarly found that briefs with more well-written sentences, easier to read sentences, and less passive voice correlated significantly to win rate in the Ninth Circuit.6 In the Ninth Circuit, if you looked just at the writing clarity, you could predict whether a case would be reversed or affirmed at a rate better than chance.7 Clear writing, writing that was not muddled or confusing, again had the advantage.8
substance and style
Interestingly, this same study found that briefs to the United States Supreme Court were on the whole simpler and clearer.9 As compared to federal appellate and state trial court briefs, the U.S. Supreme Court briefs used shorter sentences, easier to read sentences, less passive voice, less legalese or jargon, and more active writing.10 One might expect that briefs to the Supreme Court would reflect more complex writing given that the issues to be decided are often complex. But the data shows the reverse: simplicity and clarity are the norm.11 So if you want to write like advocates writing to our nation’s highest court, write in a plain language style with simpler, active sentence structures. Use a familiar CRAC structure to your argument Organization matters if you want to persuade. Researchers have discovered that audiences tend to think that people who make organized arguments are more credible than people who make disorganized arguments.12 And because credible people tend to be more persuasive than non-credible people, you will be more persuasive if your arguments are organized.13 Researchers believe that audiences react more favorably to arguments that are organized in familiar forms than to arguments that are organized in unfamiliar forms.14 To the law-trained reader, CRAC or CREAC is a familiar form: State your preferred conclusion or the issue the judge has to decide, then state and explain the applicable law, then apply that law to your facts. Law-trained readers have come to expect this familiar organizational form, so adapt it in your writing if you want to persuade. Avoid intensifiers like very, clearly, and obviously New research supports the view that law-trained readers see intensifiers as a sign of weakness in an argument.15 Researchers examined hundreds of appellate briefs to determine whether using intensifiers had any significant impact on the parties’ success. They found that, in certain situations, using a high number of intensifiers actually correlated with a decreased chance of winning on appeal.16 These findings are consistent with my own experience as a law clerk and brief-writer in practice. Law-trained readers are skeptics, and intensifiers only enhance the law-trained reader’s tendency to doubt what you say. If it really were so clear or so obvious, clients probably wouldn’t pay you thousands of dollars to make the argument. Show your reader the answer is clear through the substance of your argument, not with intensifiers. Miscellaneous I am running out of space in this short column, so I’ll end with a few random research conclusions, some fun (as in fun for a legal writing professor) and some not so fun. As for the fun, “Baskerville” is the most credible font according to New York Times research, and it is apparently a statistically proven fact that “Comic Sans MS” is one of the least credible fonts. 17
Much less fun is research comparing briefs submitted by attorneys who had not been disciplined and attorneys who had been disciplined. This research showed the careless error rate of the disciplined attorneys was more than 50% higher than those attorneys who had never been disciplined (careless errors included incorrect subject-verb agreement, misuse of that/which and its/it’s, incorrect comma and semicolon usage, typos, and misspellings).18 The difference in writing was so noticeable that after a while the researchers could accurately guess whether a brief had been written by a disciplined or non-disciplined attorney without knowing the attorney’s status.19 I’ll have to leave you with that data and let you draw your own conclusions. n
About the Author Pamela Keller is a clinical professor at the University of Kansas School of Law. She directs the lawyering skills program, moot court, and the judicial field placement. Before teaching she practiced employment law with Ice Miller in Indianapolis and clerked for the Hon. John W. Lungstrum, U. S. District Court of Kansas. pkeller@ku.edu
1. Ted Becker, What We Still Don’t Know About What Persuades Judges – And Some Ways We Might Find Out, 22 Legal Writing 41, 41 (2018). 2. Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, 22 Legal Writing 61, 61 (2018). 3. Id. at 98. 4. Id. at 73-74. 5. Id. at 99–100. 6. John Campbell, Writing that Wins: An Empirical Study of Appellate Briefs, 46 Colo. Law., no. 3, Mar. 2017, at 85, 87–88. 7. Id. at 88. 8. Id. at 87. 9. Id. 10. Id. at 85, 87. 11. Id. at 87. 12. Catherine J. Cameron & Lance N. Long, The Science Behind the Art of Legal Writing 76 (2015). 13. Id. 14. Id. 15. Lance N. Long, Is There Any Science Behind the Art of Legal Writing?, 16 Wyo. L. Rev. 287, 296 (2016). 16. Id. 17. Cameron & Long, supra note 12, at 50–51. 18. Id. at 132–33. 19. Id. at 133.
www.ksbar.org | June 2019 17
kbf president
Ethics for Good — This summer, join in honoring the creators; participate for your own benefit! by Amy Fellows Cline
“Choices are made in brief seconds and paid for in the time that remains.” – Paolo Giordana, The Solitude of Prime Numbers: A Novel
F
or several years now, the co-creators of the Ethics for Good CLE Program have used this quote to kick off their annual ethics CLE sessions. While I agree with their assessment of this statement as the “best ethics quote” they’ve seen, it is also a fitting description of the resounding “butterfly effect” success of the choices these men made, as a result of a lunch conversation more than twenty years ago. During that fateful lunch, attorneys Mark Hinderks and Stan Davis, and then-Johnson County District Court Judge Steve Leben, were lamenting the “plethora of painfully poor and palpably putrid professional programs.”1 While we’ve all no doubt shared in those sentiments, these men decided to do something about it. The plan they hatched that day has not only vastly improved the options available to satisfy Kansas and Missouri attorneys’ annual two-hour ethics educational
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requirement, but it has raised more than $700,000 in donations to local charities. The Ethics for Good CLE program has been one of the Kansas Bar Foundation’s most lasting and fruitful partnerships. Each June, two live, two-hour CLE sessions are offered in the Kansas City area. Touted as “Ethics CLE meets humor, for good,” these seminars are attended annually by about 600 attorneys. In addition to Hinderks, Davis and Leben, the current presenters of the Ethics for Good educational program include Kansas City area attorneys Todd LaSala, Jim Griffin, Jacy Hurst, and Todd Ruskamp, as well as Kansas Court of Appeals Judge Melissa Standridge. The Kansas Bar Foundation sponsors the program and assists with marketing, reservations, invoicing and preparing materials.
kbf president
The Ethics for Good Program is the perfect intersection of philanthropy and professional development. Each year, the proceeds are donated to several charities, designated by the writers and presenters. Last year alone, nine organizations benefitted from over $42,000 in donations from this Program. This year, the selected charities include: • CASA (Johnson/Wyandotte Counties) • Safehome and Hope House (domestic violence programs) • Metropolitan Organization to Counter Sexual Assault • Kansas Bar Foundation • FosterAdopt Connect In addition, the proceeds from the EFG Program are used to fund annual scholarships at each of the KU, Washburn and UMKC Law Schools and the Johnson County Community College paralegal program. The goal of the co-presenters is to make sure their EFG programs contain real substance, presented with humor, as appropriate. Described as a “continuing legal education stage show,” the program provides both an educational and entertaining opportunity for Kansas and Missouri attorneys to earn their two hours of ethics credit each year. Reminiscent of bar shows, the presenters explore their flair for drama, while discussing ethics opinions from both Kansas and Missouri, as well as American Bar Association ethics advisory opinions. One year, they incorporated a Wizard of Oz theme, while the 10th anniversary session was closed out with the co-creators dancing in tuxes and Styrofoam top hats. The 2019 sessions are being held on June 26 (at the NelsonAtkins Museum of Art in Kansas City) and June 28 (at the Polsky Theatre in Overland Park), both scheduled for 2:304:10pm. The cost is $90, and you can register at https://www. ksbar.org/mpage/EthicsforGood. I encourage you to sign up
to—as noted in one of the program’s slogans—“Get Ethics. Do Good. Get the Funny.” In recognition of their 20-year commitment to serving the legal profession and funding charitable and educational projects, the Kansas Bar Foundation has selected the co-creators of the EFG Program as this year’s recipients of its Robert K. Weary award. This award was created in 2000 to recognize “lawyers or law firms for their exemplary service and commitment to the goals of the Kansas Bar Foundation.” The award will be presented at the Foundation’s Annual Dinner on June 20, 2019, which will be held at the Evel Knievel Museum in Topeka. I can think of no better venue to honor these daredevils who dreamed up a program that does so much good, both professionally and philanthropically. I hope you will join me this summer in thanking them for their service at this dinner and at their entertaining CLE program. Registrations for the Annual Dinner can be made at https://www.ksbar.org/ event/2019KBFAwardsDinner. n About the Author Amy Fellows Cline is a partner of the Wichita law firm of Triplett Woolf Garretson, LLC. She handles a wide variety of commercial litigation matters, including employment, oil and gas, construction and consumer protection disputes. Ms. Cline has significant experience appearing before courts across Kansas, as well as the Kansas Corporation Commission, Kansas Human Rights Commission, Kansas Department of Labor and U.S. Equal Employment Opportunity Commission. amycline@twgfirm.com 1. 2012 EFG Trailer https://youtu.be/HKAlz-Rgank.
www.ksbar.org | June 2019 19
June is Bustin’ Out the CLEs
Sign up for one today!
Live Programs:
JUNE 2019 Tuesday, June 4, 2019 Brown Bag Ethics Saturday, June 8, 2019 Legislative & Case Law Institute Tuesday, June 11, 2019 Brown Bag Ethics Friday, June 14, 2019 Legislative & Case Law Institute
JUNE 2019
Wednesday, June 26, 2019 Legislative & Case Law Institute June 26 Thursday, June 27, 2019 Brown Bag Ethics Friday, June 28, 2019 Legislative & Case Law Institute
Webinars:
Tuesday, June 4..........................Exit Row Ethics: What Rude Airline Travel Stories Teach About Attorney Ethics Thursday, June 6......................... Thou Shalt Not Lie, Cheat & Steal: The Ten Commandments of Legal Ethics Saturday, June 8......................... Legislative and Case Law Institute Debut Tuesday, June 11........................Loose Lips Sink Partnerships (and Client Too) Wednesday, June 12................... Legal Side of Blogging for Lawyers Thursday, June 13....................... Legal Writing - Storytelling Friday, June 14........................... Legislative & Case Law Institute Saturday, June 15....................... The 2019 Ethy Awards Monday, June 17........................Networking Professionally and Ethically Tuesday, June 18........................Staying Out of the News: How To Avoid Making the Techno-Ethical Mistakes that Put You on the Front Page Tuesday, June 18........................Don’t Be an Outlaw: The Ethycal Imperative to Follow the Law Monday, June 24........................Legislative & Case Law Institute Monday, June 24........................How to Avoid Potential Malpractice Pitfalls in the Cloud and in Everyday Law Office Monday, June 24........................Legal Ethics Is No Laughing Matter What Lawyer Jokes Say About Our Ethical Foibles Tuesday, June 25........................Discover Hidden and Undocumented Google Search Secrets Tuesday, June 25........................Why Twitter Is a Legal Ethics Disaster Tuesday, June 25........................Yelp, I’ve Fallen for Social Media and I Can’t LinkedOut Wednesday, June 26................... Advanced Google Search for Lawyers Wednesday, June 26................... Show Me The Ethics!: The Ethycal Way to Bill for Legal Services Wednesday, June 26................... The Ties That Bind Wednesday, June 26................... The Truth, The Whole Truth and Nothing But the Truth Thursday, June 27....................... Clear and Effective Communications With Clients, Colleagues and Staff Thursday, June 27....................... The 2019 Ethy Awards Thursday, June 27....................... Sue Unto Others As You Would Have Them Sue Unto You Thursday, June 27....................... Don’t Try This At Home: Why You Should Never Emulate TV Lawyers Thursday, June 27....................... The Passion of the Barrister: An Ethical Lawyer is a Happy Lawyer Thursday, June 27....................... It’s Not the Fruit, It’s the Root: Getting to the Bottom of Our Ethical Ills Friday, June 28........................... Legislative & Case Law Institute Friday, June 28........................... Changing Minds Inside and Out of the Courtroom Saturday, June 29....................... Legislative & Case Law Institute Saturday, June 29....................... Social Media as Investigative Research and Evidence Saturday, June 29....................... May It Displease the Court?: Keeping Your Head (and Your Law License) Saturday, June 29....................... Technical Fouls: Even Minor Ethics Violations Can Have Major Consequences Saturday, June 29....................... Yakety Yak! Do Call Back!: The Ethical Need for Prompt Client Communication Sunday, June 30.........................The Ethics of Social Media Research Sunday, June 30.........................The 2019 Ethy Awards
ON DEMAND ETHICS!
June On Demand.......................2019 Brown Bag Ethics Series: Ethics Theatre June On Demand.......................2019 Brown Bag Ethics Series: #METOO & Our Judiciary: ..................................................Enhancing Confidence in the System
20
To Register: www.ksbar.org/CLE
The Journal of the Kansas Bar Association
2019 KANSAS CHAPTER MEMBERS
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www.ksbar.org | June 2019 21
diversity corner
Addressing Diversity and Inclusion On and Off Campus, In Employment and in Life The
by Brian Kong
2 rsity 018 and Foru Inclusio n m
Dive Dea
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Mod n Ca erator: rla P ratt
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This F Ass all the o A the ciation, sian Am is a atto sue of D nd its s erican L r p a thes neys ac iversity onsors w Stud , ti e a e disc issues vely pa nd Inclu hope to nt rti . u a lear ssion, th Throug cipatin sion wit ddress h n h g statu ing exp e forum an ope in dea a pane li n e l furth s, proble rience il will pro and co ng with of ll v lu inclu ering th ms, and minati ide a va aborativ e de ng th luab e sion p o s le sible e cu in ou velop Date rr m s r so : ciety ent of d olution ent Plac Novem s iver . b e sity to Time : Room er 1, 20 an d 18 11 :1
4, 2:10 Co-s ~ 1:3 Law Sc hoo 0 pm Asso ponsors l Bu : c H ia ildin is ti Blac p g k La on, Was anic Am w Stu hbur eric n La an L d en t w a w Stu Asso Gay -S ciati traig dent on ht A llian c
B
orn in a country to be a foreigner, yet foreign to the nation that gave me heritage. My whole life, regardless of the country I was in, I always found myself on the outer rim of what was considered the community majority. Even today, “where are you really from?” and “Wow, your English is so good!” are still go-to awkward ice breakers. While I appreciate attempted flattery as much as the next guy, I still feel an acute awareness of otherness that follows me during these situations. It has in turn created my interest in diversity and inclusion in the community where I find myself. Naturally, I joined the Asian American Law Student Association (AALSA) in the first week at Washburn School of Law. I quickly realized that out of a student population of approximately 300, there were only three Asian-American students in the J.D. program. As I took the responsibility of the Vice-Presidency in my second year, our organization decided to play its minority card and create a platform to address an issue that, whether through discomfort or inundation, many avoid. We started with an idea of a collaborative forum where minority group speakers could freely discuss diversity and in22
The Journal of the Kansas Bar Association
e,
clusion barriers they had endured and confronted daily. This idea evolved into what is now the Diversity and Inclusion Forum hosted twice by AALSA, on November 1, 2018, and April 17, 2019. The main objective of the Diversity and Inclusion Forum is to promote awareness of diversity within our school and encourage inclusion within the workplace and communities. For decades—and more so over recent years—the issues of diversity and inclusion have become sensitive topics for many, including workplaces, educational settings, and our government. The lack of diversity and inclusion have stirred up dust in the lives of many and have settled to become frequently mentioned issues within our communities. The past couple of years, our society has experienced a rise in concern among minority groups, and tension has grown between the community and racial, gender, and religious minorities. Every semester, the AALSA and its sponsors hope to address these issues with a panel of judges and attorneys actively involved with them. Through open and collaborative discussion, the forum will provide a valuable learning experience, illuminating the
diversity corner
current status and problems and providing possible solutions to furthering the awareness of diversity and inclusion in our legal community. The purpose of the first Diversity and Inclusion Forum was to invite attorneys of color in private practice—from solopractitioners to mid-size and large-scale law firms—to enlighten law students about issues of diversity and inclusion and equip them with the tools to challenge the status quo. Four attorneys from Kansas City were on the panel: Patricia Konopka (Stinson Leonard Street LLP), Jason Plowman (Polsinelli PC), Ronald Nguyen (The Law Office of Ronald Nguyen, LLC), and Cecilia Nuby Brown (Nuby Law Firm). Moderated by Washburn University School of Law Dean Carla Pratt, the guest speakers shared their stories of overcoming implicit biases and discrimination as students during law school and as attorneys. They also spoke about how they confront diversity and microaggressions in their offices. The forum gathered more than 70 attendees ranging from law students, undergraduate students and faculty of Washburn University. The second Diversity and Inclusion Forum, held April 17, 2019, focused on the same issues, but within our courts and government offices. This time, six guest speakers filled the panel: Honorable Henry Green (Kansas Court of Appeals), Honorable Kathleen Lynch (29th Judicial District of Kansas), Eun Jin Kim (Research Attorney, Chambers of Justice Dan Biles), Mark A. Dupree (District Attorney, Wyandotte County), Marie A. Taylor (Associate General Counsel, University of Kansas), and Rachel Pickering (Assistant Solicitor General, Kansas Attorney General’s Office). This panel discussed the biases they faced as public servants—discrimination in the courtroom and their offices, and lack of diversity in our judiciary. Despite its proximity to finals, the forum drew more than 50 attendees, including more general attendees than students. We hope this signifies a growing interest in our forum,
within and outside of the university, and we look forward to attracting many more attendees in our future forums. As another semester comes to an end, and as the students disperse into their summer internships, AALSA goes into the summer bearing a heightened expectation for the next Diversity and Inclusion Forum. With growing support from the faculty, generous alumnae and alumni, and sponsorship from various associations, AALSA hopes to establish the Diversity and Inclusion Forum as a landmark bi-annual Washburn University School of Law event. *Special thank you to Eunice Peters, Jenny Bates, KBA Diversity Committee, and KWAA Minority Women in the Profession. n About the Author Brian Kong is a 2L student at the Washburn University School of Law. He was born in New York and spent most of his adolescence in Seoul, South Korea. He attended college in Toronto, Canada, received his Bachelor of Science from University of Maryland—University College, and has settled in Kansas with his family since 2014, when he was assigned to Fort Riley as a Paralegal Specialist with the U.S. Army Judge Advocate General’s Corps. He focuses his studies in transactional and intellectual property law. He also competed in the Jessup International Moot Court Competition and is the student fellow of the Robert J. Dole Center for Law and Government. brian.kong@washburn.edu
Editor’s Note: You may remember Brian’s name from the 2018 KBA Photography Contest. Brian’s photo entry, The Split, juxtaposed Topeka’s Equality House with the Phelps compound across the street. His entry won “The Law” division of the contest and came in third overall. It was featured on the cover of the Nov./Dec. 2018 issue of The Journal and received significant media attention for Brian.
www.ksbar.org | June 2019 23
kalap
KALAP and the Kansas Task Force on Lawyer Well-being by Louis M. Clothier
A
ll lawyers want to live a healthy, rewarding life. No one wants to suffer from addictions or be physically, mentally or spiritually ill. The Kansas Lawyers Assistance Program (KALAP) has historically provided help to Kansas attorneys needing assistance with issues, including physical or mental disabilities that result from disease, addiction, disorder, trauma, or age, and who may be experiencing difficulties performing his/her professional duties. But a more proactive, expansive approach to assisting lawyers is needed. I am excited to advise you that such an approach is in the process of implementation. In January 2019, the Kansas Task Force on Lawyer WellBeing was launched with the enthusiastic support of the Kansas Supreme Court. The task force is working to change the culture of the legal profession to proactively minimize the toxic aspects of the profession and to enhance the well-being of Kansas lawyers. If the legal culture can be modified to focus on lawyer well-being, the number of attorneys suffering from impairments can be decreased, the number of attorneys being disciplined can be reduced, and the public will benefit. The Kansas Task Force is working to implement recommendations to enhance lawyer well-being specified in the 2017 National Task Force Report: “The Path to Lawyer Well-being: Practical Recommendations for Positive Change.” The National Task Force was convened after the results of a 2016 American Bar Association and Hazelden Betty Ford Foundation study of 13,000 lawyers clearly demonstrated a profession in crisis. It found that between 21 and 36 percent qualify as problem drinkers, and that approximately 28 per-
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The Journal of the Kansas Bar Association
cent, 19 percent and 23 percent are struggling with some level of depression, anxiety and stress, respectively. The task force concluded that the sustainability and long-term health of the legal profession is in jeopardy when 20 to 30 percent of its members reported unhealthy behaviors or conditions.1 The report identified three reasons to take actions to improve the legal culture by working to enhance lawyers’ wellbeing: 1. Good for business, 2. Good for clients and 3. The right thing to do. The report defined “well-being” as a “continuous process in which lawyers strive for thriving in each dimension of their lives” focusing on the following “dimensions”: 1. Occupational—cultivating personal satisfaction, growth and enrichment in work. 2. Intellectual—engaging in continuous learning and the pursuit of creative or intellectually challenging activities that foster ongoing development, and monitoring cognitive wellness. 3. Spiritual—developing a sense of meaningfulness and purpose in all aspects of life. 4. Physical—striving for regular physical activity, proper diet and nutrition, sufficient sleep, minimizing use of addictive substances and seeking help for physical help when needed.
kalap
5. Social—developing a sense of connection with others, having a support network, and contributing to one’s social groups and communities. 6. Emotional—recognizing importance of emotions; developing ability to identify and manage emotions; seek help for mental health when needed.2 The National Report identified several groups with a stake in the well-being of lawyers. Those “stakeholders” are: 1. Judges 2. Regulators (Disciplinary Administrators) 3. Legal Employers 4. Law Schools 5. Bar Associations 6. Lawyers Professional Liability Carriers, and 7. Lawyers Assistance Programs3 The report made several recommendations specifying how each stakeholder can improve lawyer well-being. Each group is responsible to identify and implement activities consistent with those recommendations. The Kansas Task Force was organized to include all seven stakeholder groups proposed in the National Report. The task force is led by an executive committee. KALAP has agreed to administer and coordinate task force activities as may be directed by the executive committee. At the January 2019 statewide task force meeting, the stakeholders met and agreed Kansas Task Force Stakeholder Committee Chair Contacts: BAR ASSOCIATIONS Shelby Lopez slopez@ksbar.org 785-861-8834
LEGAL EMPLOYERS Ron Paschal ron.paschal@sedgwick.gov 316-660-9700
JUDICIAL Hon. Stephen D. Hill hills@kscourts.org 785-296-5410
LIABILITY CARRIERS/ RESPONDENTS COUNSEL
LAP Louis M. Clothier clothier@kscourts.org 785-368-8275
Peggy Wilson pwilson@mwcattorneys.com 816-382-1382 REGULATORS Penny Moylan moylanp@kscourts.org 785-435-8205
LAW SCHOOLS Leah Terranova leaht@ku.edu 785-864-4357 Interested in serving on a committee? Just call!
to form subcommittees, recruit attorneys to assist, and formulate primary goals to achieve the national report recommendations. In April 2019, another statewide meeting was held, and each stakeholder reported on subcommittee progress to date. At both meetings, the enthusiasm of all present was palpable. Kansas attorneys are clearly excited to begin the process of changing the legal culture to effectuate lawyer well-being. The next statewide stakeholder meeting is scheduled in July 2019. Culture shifts take time. However, the Kansas Task Force is focused on making a difference as soon as possible. Remember, enhancing lawyer well-being is good for business, and it is good for clients. Just as important, it is simply the right thing to do. Additional help is needed. To volunteer for one or more of the stakeholder subcommittees, please contact Ellen Bayless, KALAP Administrative Assistant, at 785-368-8275. You can make a difference. n About the Author Louis M. Clothier is the Executive Director of the Kansas Lawyers Assistance Program (KALAP). He also serves as an Executive Committee Member and LAP Chair for the Kansas Taskforce on Lawyer Well-being and is on the advisory panel for the Addiction and Recovery Conference sponsored by the Kansas Federal District Courts, scheduled in October 2019. He graduated from the Washburn University School of Law and practiced law in Leavenworth for 37 years prior to his appointment as Executive Director of KALAP. He is a former President of the Leavenworth Bar Association, Secretary of the Family Law Section of the Kansas Bar Association, and President of the Kansas School Attorneys Association. He is a member of the American, Kansas and Leavenworth County Bar Associations. clothier@kscourts.org 1. The Path to Lawyer Well-Being: Practical Recommendations for Positive Change: The Report of The National Task Force on Lawyer Well-Being at p. 7 2. Id. at p. 9 3. Id. at p. 14
Kansas Task Force Executive Committee Contacts: Louis Clothier clothier@kscourts.org 785-368-8275
Penny Moylan moylanp@kscourts.org 785-435-8205
Steve Grieb griebs@kscourts.org 785-296-4891
Shelley Sutton Shelley.Sutton@kscle.org 785-357-6510
Anne McDonald pamcdonaldkc@gmail.com 913-634-4219 www.ksbar.org | June 2019 25
Password Insecurity - Lessons from a Personal Story by Mark Bassingthwaighte
S
ometimes married couples see things differently and the only way to resolve the tension is by finally deciding to agree to disagree. That’s how things played out in our home for a number of years on the issue of passwords. My wife viewed my focus on computer security and passwords as something approaching mild paranoia. I, on the other hand, viewed her insistence on using one easily remembered password for everything in her life the equivalent of tattooing the phrase “victim here” on her forehead. The only way for us to move forward was to reach an accord. We agreed to disagree, and things were good, at least for a while. A few years later, after receiving an email from one of our sons, our accord began to crumble. I was informed that my
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wife’s email account had been hacked and was actively being used to send out spam email. Of course, I did what one normally does to remedy that situation and hoped all would be good. Sadly, it wasn’t to be. Our accord abruptly ended a few months later after we received written notice from a credit union on the opposite side of the country telling us that they were most displeased with my wife. Apparently, credit unions don’t like it when someone gets a new credit card, immediately maxes it out, and then fails to make any payments. Unfortunately, given that my wife wasn’t the one who applied for and received that credit card, we had a new problem. While this tale took a number of interesting twists and turns over the next few years, in the interest of time I will simply
password insecurity
share that as a result of the initial identity theft, a federal and an out-of-state tax return were also fraudulently filed in my wife’s name. I spent over three years working to get everything cleaned up; but the one thing I can’t do—and honestly, no one can—is ever get her identity back. That’s been taken and we’ll have to deal with the ramifications of that for the rest of our lives. Hopefully, it’s over; but only time will tell. Today things are different around here. My focus on computer security is viewed in a much different light by my wife, and I no longer worry about any unsightly tattoos on her forehead. Our state of marital bliss has been restored because this time around we’re both on the same page. Trust me, she gets it now. What’s more important, however, is do you? Again, understand this entire saga started with someone managing to figure out a password, a password that, unfortunately for my wife and me, opened all kinds of doors that would have remained locked had she not used one password for everything. I chose to share this story because I wanted to put a realworld spin on the problems that can arise when too little attention is given to the importance of passwords. Every one of us in our personal and professional lives needs to abide by some sort of password policy, formal or informal, in order to try and avoid becoming yet another victim of identity theft. And heaven help you if an identity theft occurs and it turns out to be the identity of one or more of your clients because someone got into your office network. So not good. With this tale of woe now told, it’s time to talk about how to avoid becoming a victim. I’ll start by identifying typical missteps. Here is a list of things no one should ever do. 1) Use the same password on multiple devices, apps, and websites. 2) Write down passwords on easily found sticky notes. 3) Believe that passwords like “qwerty”, “password”, “1234567”, or “letmein” are clever and acceptable. They aren’t. 4) Allow computer browsers to remember passwords. 5) Choose passwords based upon easily remembered information such as birth dates, anniversary dates, Social Security numbers, phone numbers, names of family members, pet names, and street
addresses. This kind of information just isn’t as confidential as you think due to events like the Equifax breach and widespread participation in the social media space. Knowing the common missteps, however, isn’t enough. Such practices should be prohibited in a formal firm-wide password policy that everyone at the firm must abide by. There can be no exceptions, period. Of course, policy provisions must also detail what to do. The most important provision of a password policy would be to mandate the use of strong passwords defined as follows. A password is strong if it is long, a minimum of 15 characters, and it should include a few numbers, special characters, and upper and lower-case letters if the device or application you wish to secure with a password will accept it. Additional provisions worth including would be requiring that every application and device in use have its own unique password, requiring that passwords in use with mission critical devices and applications (e.g. banking login credentials, firm VPN login) be changed every 6 months, forbidding the reuse of old passwords, and prohibiting the sharing of user ids and passwords with anyone. Finally, make enabling two-factor authentication for any device or application that allows it compulsory. Of course, a password policy like this creates a new problem, which is trying to keep track of all the complex passwords now mandated. I can share that between us, my wife and I have over 250 different passwords we need to keep track of in our personal and professional lives. I don’t know about you, but I sure can’t remember all of that information.
Fortunately, this problem can be easily managed by using a password manager such as RoboForm, LastPass, or Dashlane. (My wife agreed to commit to learning how to use a password manager shortly after her kerfuffle with the credit union and it has made a world of difference!) Such tools are often cloudbased software applications that allow users to conveniently store and manage all of their passwords. The data is encrypted and can only be accessed once a master password has been www.ksbar.org | June 2019 27
password insecurity
entered. Yes, users will still need to remember a long and dif- when compared to relying on easily remembered weak passficult to guess master password; but having to remember one words, using the same password on multiple devices or webis going to be far easier than trying to remember 250. And sites, allowing browsers to remember passwords, not changing again, no one should ever write down their master password. passwords and re-using old passwords, all of which is what so Everyone really must commit the master password to memory many do by default. n or find a way to store it in some other secure manner. One side note here because lawyers are sometimes hesitant About the Author to place passwords in the cloud: try to avoid allowing such a Mark Bassingthwaighte received his J.D. concern to become an excuse for not making any changes at from Drake University Law School in Iowa. He is a member of the State Bar of Montana all. As I see it, those of us who use password managers are far as well as the American Bar Association more secure than those who simply write everything down where he currently sits on the ABA Center on a piece of paper or on sticky notes that are always close for Professional Responsibility’s Conference at hand. Further, given the robust encryption in use, these Planning Committee. Mark writes and hosts applications are also going to be more secure than keeping a almost all of ALPS’s CLE webinars which are accredited in Kansas. list of passwords in an Excel or Word file. But here’s the real value. The use of a password manager provides robust security mbass@alpsnet.com
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law practice management tips and tricks
eFiling Rejections - The Lambert Decision by Larry Zimmerman
IN THE SUPREME COURT OF THE STATE OF KANSAS No. 117,344 JAYLENE LAMBERT, Individually, and as Administrator of the ESTATE OF STAN NOVAK, Appellants, v. JOHN E. PETERSON, M.D., BURREL C. GADDY JR., M.D., AHMED BAIG, M.D., JEFFREY BISSING, D.O., CHRISTOPHER WELCH, P.A., ERIK WESTLAKE, C.R.N.A., MICHAEL MANALO, M.D., KEN NORTON, M.D., HEALTHSOUTH MIDAMERICA REHABILITATION HOSPITAL, SHAWNEE MISSION MEDICAL CENTER, and MARY BURCH, PH.D., Appellees. SYLLABUS BY THE COURT A party responding to a motion to dismiss filed under K.S.A. 2018 Supp. 60-212 may respond with information outside the pleadings. But the responding party must then comply with the procedural requirements relating to summary judgment motions under K.S.A. 2018 Supp. 60-256. The responding party may not rely merely on allegations but must state specific facts and support those facts with citations to affidavits, declarations, or other materials allowed in the statute, rules, and caselaw relating to summary judgment procedure. Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed April 19, 2019. Affirmed. Jean Ann Uvodich, of Olathe, argued the cause and was on the brief for appellant. Jeff K. Brown, of Logan Logan & Watson, L.C., of Prairie Village, argued the cause and was on the brief for appellees Erik Westlake, Michael Manalo, and Ken Norton.
1
L
ambert v. Peterson, et al (No. 117,344) decided by the Kansas Supreme Court on April 19, 2019 is worth careful review by every efiling lawyer. Lambert highlights the dangers to litigants in an electronic filing system that discounts the actual pleadings filed in favor of immaterial metadata entered by filers to describe the pleading within eFlex. Lambert’s lawyer filed a medical malpractice petition on the last day of the statute of limitations. The following day, the clerk of the district court worked the filing queue and rejected the petition because the clerk did not accept how the data describing the petition (metadata) within eFlex was entered. The lawyer refiled the petition, changing the metadata, but that resulted in the petition being file-stamped one day past the statute of limitations. Lambert ultimately lost her claim to a motion to dismiss because of that late file stamp. Those facts admit Lambert’s lawyer to a large society of Kansas filers who routinely see legally-adequate pleadings rejected due to metadata issues. Under paper filing, Lambert’s
lawyer would have walked the petition to the courthouse for a file-stamped petition at the window. The clerks trained to enter metadata about the case would enter it. Rule 23(c) When efiling rolled out, it shifted that data entry task from clerks to lawyers. Now, a filing lawyer must know the law on behalf of the client and be able to ferret out the data entry policies of every county—unwritten policies that differ from court to court and which are usually discoverable only through trial and error. (Clerks may correct data entry issues but OJA recommendations and local rules tend toward rejection.) As I write this, the Kansas Supreme Court is accepting comment on proposed rules which include an effort to address the Lambert issue. Proposed Rule 23(c)(1) narrows clerk rejection reasons to the following: 1. the document is illegible or in a format that prevents it from being opened; www.ksbar.org | June 2019 29
law practice management tips and tricks
2. the document does not leave a margin sufficient to affix a file stamp…; 3. the document does not have the correct county designation, case number, or case caption; and 4. the applicable fee has not been paid or there is no poverty affidavit submitted with the document or already on file in the case. The change redirects clerk attention toward the document itself and away from the metadata in eFlex. Had this rule or focus been in place upon roll out, the Lambert rejection may not have occurred. Proposed Rule 23(c)(2) also speeds up the review process in the clerks’ offices. Clerks must process a document no more than four business hours after filing. Because Lambert’s petition was submitted at 11:56 AM, the lawyer would have had the rejection by 3:56 PM the same day leaving time to refile within the statute of limitations. A promise of efiling was that the clerk window would always be open to receive filings. However, the rejection process, and the seeming missing audit trail for those rejections, places a caveat on that promise.
mation we see on filing. It is also possible that there simply are no audit records or other digital trail left by documents that cannot survive a clerk rejection. Either way, the state of the court’s efiling system with respect to a pleading is, by nature, outside the pleadings—and that is significant. The Kansas Supreme Court notes, “Certainly, a party responding to a motion to dismiss can go outside the pleadings to raise facts supporting the party’s response to the motion. But to do so, the party must follow prescribed procedures. Specifically, ‘the motion must be treated as one of summary judgment under K.S.A. 60-256.’” It continued, “Instead, Lambert (or any other party responding to a motion to dismiss) must, ‘by affidavits or by declarations pursuant to K.S.A. 53-601… or as otherwise provided in this section, set out specific facts showing a genuine issue for trial.” If you have a time-sensitive document, start the filing process with eyes wide open toward how to prove by “affidavit, declaration, or testimony by a competent affiant, declarant, or witness based on personal knowledge setting forth facts that would be admissible into evidence” that the document was timely filed. Think about the checklists and business records your own staff can create which would prove filing. Pay attention to which clerks or other OJA staff might need to be subpoenaed to testify. The burden will be on you to prove you showed up at the clerk’s virtual window on time. n
Proposed Rule 23 would likely eliminate most of the scenarios in which a Lambert set of facts could bite a litigant. It does not eliminate the possibility, however. First, there are no remedies for non-compliance within the Rule; it serves as a best practices aspiration but does not provide filers any enforcement. Second, there is still room for a clerk rejection unrelated to the document. For example, a dispute over whether a party is fee exempt could still generate a clerk rejection. About the Author Proof of Filing Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct Because a clerk rejection can adversely impact a party’s professor, teaching law and technology at rights under statute, the counsel in Lambert is important. The Washburn University School of Law. He is one of district court and Kansas Supreme Court have not taken juthe founding members of the KBA Law Practice dicial notice of the system they maintain to see the content of Management Committee. the original, timely filing. In some cases, lawyers have been told that the courts do not have access to see the same infor- kslpm@larryzimmerman.com
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The Journal of the Kansas Bar Association
Debt Among the Faithful:
Churches, Lenders & Troubled Loans in Kansas Michael D. Fielding
I. Introduction1 In considering some of the grand cathedrals of Europe, Henry Adams once described a church door as the pons seclorum, or “the bridge of the ages.” In Adams’s estimation, it represented a point of connection between us and our ancestors, but Adams’s notion does not require a 900-year-old building to make its point. A great many churches— even those in the relatively young American Midwest—already have histories that span several generations. Indeed, part and parcel of a church’s mission is to convey the faith, to pass it on, not just to friends and neighbors, but across time as well, to succeeding generations. There is an intentional intergenerational aspect to churches. Many things are capable of traversing this space between past and present using the church door that Adams imagined as a figurative bridge, with religious conviction or faith being chief among them. But there are also more worldly things that get passed on. In pursuing their missions, many faith-based institutions borrow money to finance their activities, and those debts can outlive the generation that created them, impacting the next generation. As we all know, contexts and circumstances can change, and the faith community, like the rest of the world, is not immune to financial hardship. Furthermore, troubled church loans need not have an intergenerational quality; after all, loans, like milk, can sour quickly. The intersection of finance and faith-based institutions creates unique issues for Kansas’ commercial lenders. Both lenders and churches need to have a better understanding of these matters so they can successfully navigate the challenges of a troubled church loan. This article addresses key considerations in that regard. To begin, it is helpful to analyze the statistical data regarding religious participation in Kansas, as well as how churches fare when they file for bankruptcy. The article then discusses the unique boundaries that exist between religious institutions and civil courts. Knowing these rules is essential, as lenders inevitably must rely on the civil law when dealing with a troubled loan. From there, the article explores bankruptcy matters unique to churches. Finally, the article provides some practical guidance for lenders and churches who are wrestling with non-performing or troubled loans.
debt among the faithful
II.
Empirical Data – Churches & Troubled Loans
Religious Participation in Kansas To gauge the wisdom of a business endeavor, it is wise to explore the marketplace to understand what sort of demand exists for a product. That concept undoubtedly applies to entities that make loans to faith-based institutions. To begin, Kansas has a population of just more than 2.9 million.2 According to the Pew Research Center on Religion and Public Life, the vast majority of Kansans (88 percent) believe in God while 79 percent say that religion is important in their lives.3 Approximately 76 percent of Kansas adults identify as Christians.4 That figure is predominantly comprised of three major groups: Evangelical Protestants (31 percent); Mainline Protestants (24 percent); and Catholics (18 percent).5 Only 4% of Kansans are of non-Christian faiths, including Jewish, Muslim, Buddhist and Hindu. 6 Approximately 20 percent of Kansas adults are unaffiliated with any religion (i.e., religious “nones”),7 and, of this figure, only three percent consider themselves agnostic while two percent are atheist. 8 But despite the widespread religious affiliations of Kansans, the data also reveals a slow but discernable trend away from organized religion.9
Description
2007
2014
Absolute or fairly certain belief in God
91%
88%
Religion considered very or somewhat important in one’s life
86%
79%
Weekly attendance at religious services
48%
37%
Monthly/occasional attendance at religious services
30%
35%
Daily or weekly prayer
78%
74%
Weekly or monthly feeling of spiritual peace
66%
76%
Weekly or monthly scripture study
45%
44%
While the reasons for declining participation in organized religion are outside the scope of this article, both churches and lenders would be wise to consider the impact of these trends. This is not to say that organized religion is going the way of the Sony Walkman. After all, the data clearly reveals a
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sizeable portion of the population is very faithful in their religious participation.10 But the number of faithful parishioners relative to the general population is slowly dwindling. The decline in religious participation means churches will increasingly be faced with declining numbers and fewer donations. Less revenue, in turn, will have a range of implications. In its most benign effects, churches will increasingly be faced with cutting costs, reducing staff, or possibly consolidating eversmaller congregations. In its worst manifestation churches will seek bankruptcy protection to restructure their debts in an effort to continue serving their congregants. One should not extrapolate from current data trends that future declines will occur at the same pace as they have over the past few decades. While it is possible the trend could reverse itself, there is an equally strong—perhaps stronger—argument that those trends could accelerate, in which case church funding would face even more challenges. In other words, what may appear to be a financial storm on the distant horizon could actually come upon particular churches much faster than they expect. And, regardless of the level of church participation, there are macroeconomic considerations that must be weighed because anytime the U.S. economy slips into a recession, donations will decrease and put greater strain on religious institutions.
Churches, Troubled Loans & Bankruptcy Despite the plethora of different religious institutions in the United States, there is very little empirical analysis regarding how churches deal with troubled loans. However, the existing literature is nonetheless very informative. In 2013, Professor Pamela Foohey published an empirical study examining church bankruptcy filings between 2006 and 2011 in the United States, finding that during this time period over 500 faith-based institutions filed for Chapter 11 bankruptcy protection.11 These entities predominantly operated places of worship, but some also ran schools, food pantries, daycares, and halfway houses.12 Christian denominations comprised the vast majority of bankruptcy filings (93.4%) with the main operation type being a place of worship.13 Catholic diocesan bankruptcies accounted for less than 2% of the filings.14 The empirical evidence indicates that Christian congregationalist churches (e.g., churches governed by a local majority) are more likely to have financial troubles.15 Specifically, a large majority of the Christian church bankruptcy filings come from “Congregationalist denominations, such as Pentecostal churches and those of several Baptist sects.”16 Indeed, “certain Christian denominations [were] overrepresented in comparison to congregations nationwide.”17 These results are not surprising. “These congregations likely are not subject to broad governing bodies that may monitor their finances and provide assistance if necessary, potentially motivating their bankruptcy filings. Rather, they often are … on their own with fewer options when they encounter financial problems.”18
debt among the faithful
The data reveals that the vast majority of religious institutions that file for Chapter 11 do so because of challenges paying the mortgages on their real property.19 In other words, they file for Chapter 11 so that they can restructure their mortgage payments and retain their property.20 Additionally, a bankruptcy filing may be necessary to stop foreclosure on a daycare or school where the congregants send their children.21 Church debtors had assets with an average worth $2.8 million ($1.3 million median) with real property constituting $2.6 million ($1.2 million median) of that figure.22 Total debts averaged just over $2 million ($964,620 median) with debts secured by real property averaging $1.7 million ($810,890 median).23 Churches that file for bankruptcy tend to have very little unsecured debt.24 Surprisingly, 72 percent of the debtors were balance-sheet solvent when they filed for bankruptcy and 76% of the debtors qualified as small business debtors.25 Furthermore, the average years of operation was 23 (with a median of 15).26 Church bankruptcies are generally driven by two main factors: (1) inability to pay obligations due to reduced income and congregant job loss as well as refusal by banks to refinance and (2) dependency on key leaders who either make poor decisions or leave the church (moving away or death) causing, in turn, congregants to lose faith or stop attending the church.27 Notably, religious institutions that file for bankruptcy typically have operated for a long time under the direction of a key clergy leader.28 Furthermore, “the leaders of many of the smaller congregations lacked business acumen, even more so than owners of small businesses. Consequently, these organizations’ books and records often were in disarray, and their leaders generally were less sensitive to the business aspects of the churches, including not foreseeing and planning for the impact of the recession on the congregation’s giving.”29 What are a church’s odds of successfully emerging from Chapter 11? That answer depends on whether the religious institution is sufficiently strong to reorganize. Attorneys that have represented faith-based organizations in bankruptcy: [C]ommented that the institutions they represented typically waited long past when it would have been more effective to seek assistance, usually not coming to them until the “drop dead date” before a foreclosure sale. Most prevalently, attorneys attributed the delay to leaders’ desire to believe that their churches’ situations would miraculously improve despite declining contributions and other serious issues. Pastors seemed unrealistic about what they could do, sometimes “going by faith” and “thinking [that] a miracle is going to fall out of the sky.” They were ill prepared for ‘the inevitability of a filing, again perhaps because they had faith that things will work out.”30
The empirical evidence suggests that bankruptcy courts quickly dispose of non-viable religious institution filings.31 But the data also suggests that a large majority of faithbased institutions that confirm a Chapter 11 plan are able to obtain a final decree from the court which means it has been consummated.32 Comparing these results to nationwide Chapter 11 filings adds some perspective. For fiscal years 2008-2015 the statistics reveal that 47.3 percent of all Chapter 11 cases were dismissed, 19.2 percent were converted to another Chapter, and only 28.0 percent were confirmed.33 In a very similar manner, faith-based bankruptcy filings had a confirmation rate of 26.5 percent.34
III.
Boundaries Between Religious Institutions and Civil Courts
Before considering troubled church loans, it is first necessary to explore the ramifications of what civil courts can and cannot do with respect to religious institutions. Understanding the preexisting boundaries is essential to knowing when civil courts may or may not intervene in ecclesiastical matters.
General Kansas law has long recognized that “churches may become ‘bodies corporate’ with ‘the same power to make bylaws for the regulation of their affairs as other corporations.’”35 Just as corporations differ in how they manage their affairs, “‘different religious societies [also] exercise authority over their financial and property affairs in different ways.’”36 Kansas law permits governing church bodies authority to create not-forprofit corporations to be used for church-related purposes.37 A church’s standards extend to its members. “[A] person who voluntarily joins a church, and tacitly at least agrees to be bound by all rules and regulations of such church, cannot afterwards be allowed to wholly ignore and disregard such rules and regulations.”38 “[D]isgruntled church members may not bypass church procedures to contest decisions with which they are not pleased.”39 Rather, they can exercise their federal and state constitutional rights and freely attend or freely leave the church of their choice.40
When are church decisions binding on civil courts? Given the federal and Kansas constitutional protections for churches and the free exercise of religion, a critical issue is when are church matters immune or not immune from civil court review. Fortunately, Kansas courts have provided clear guidance to this question. It is well-settled that “civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.”41 Indeed, “the Constitution requires that civil courts accept their decisions as binding upon them.”42 This rule also applies to congregational churches.43 www.ksbar.org | June 2019 37
debt among the faithful
But churches are not completely immune from judicial scrutiny and intervention.44 While civil courts lack jurisdiction to meddle in the religious affairs of a church, “when church-related controversies involve civil or property rights, the civil courts will take jurisdiction and decide the merits of the case in order to assure regularity of business practices and the right of private use and ownership of property.”45 Furthermore, churches are not immune from tort liability,46 and they can be held liable for their own contracts.47 Surprisingly (and as will be shown hereafter), Kansas law provides different treatment to churches depending on whether they are hierarchical or congregationalist in nature. A hierarchical church is one which is organized with other churches with similar doctrine which have a common ruling body or ecclesiastical head.48 In contrast, congregational churches are locally governed by the majority. Congregational churches “are free to adopt constitutions, by-laws, and internal rules which will alter or regulate their proceedings, but even these must be enacted by majority vote. And in the absence of such voluntarily-adopted rules, each such congregation functions as a pure democracy.”49 Of course, congregational churches may combine and become hierarchical in nature. But once that occurs “the right of dominion, control and disposal of church property ... is governed by church law.”50 The Kansas Court of Appeals recently noted “that where a dispute over the control of church property arises out of a schism within a congregation that is affiliated with a hierarchical denomination and a decision regarding the issue has been made by the highest tribunal of that denomination to which the issue has been presented, civil courts are to accept the decision of the tribunal as binding.”51 Furthermore, the United States Supreme Court has determined that, even where a governing ecclesiastical body in another country determines who may use church property in the United States, a civil court cannot interfere with that decision even though it is suspected that the foreign governing ecclesiastical body is under the influence of a foreign country.52 So how do courts determine when the principle of hierarchical deference must be applied when a schism has occurred? The Kansas Court of Appeals recently articulated a test for doing so. Specifically, it provided: [C]ivil courts can apply the principle of hierarchical deference in such cases by answering the following straightforward questions from a purely secular perspective: • First, was the congregation affiliated with a hierarchical church body or denomination prior to the schism? • Second, does the hierarchical church body or denomination have its own rules and pro38
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cedures for the resolution of property disputes arising out of a schism? • Third, has there been a determination of the property dispute by the highest tribunal of the hierarchical church body or denomination to which the issue has been presented? If the answers to each of these questions is affirmative, then a civil court must accept the decision of the church tribunal as binding.53
Due process in congregationalist churches Congregationalist churches are required to provide due process to their parishioners. According to the Kansas Supreme Court, “in a congregational or nondenominational church… secular principles of law that are ‘applicable to public and private lay organizations and to civil governments as well’ should be applied.”54 “A congregational church member has a right under common-law principles to a fairly conducted meeting on the question of expulsion, and that includes reasonable notice, the right to attend and speak against the proposed action, and the right to an honest count of the vote. In the absence of church law or usage, a majority vote of the members present at a regular Sunday service prevails on expulsion. It does not require formal evidence, the right to counsel, or the right to present witnesses (unless church rules so require).”55 In short, “[i]f a congregational church provides a procedure for expulsion of a member, a good faith effort to follow that procedure must be made.”56
Judicial Intervention in church affairs The Kansas Supreme Court has long recognized two key distinctions in church affairs. The first distinction is “the church as a religious group devoted to worship, preaching, missionary service, education and the promotion of social welfare.”57 Civil courts do not intervene in this area.58 But churches do not operate in a vacuum and the Kansas Supreme Court has also recognized the second distinction of “the church as a business corporation owning real estate and making contracts.”59 When “civil or property rights [are involved] the civil courts will take jurisdiction and decide the merits of the case for themselves.”60 Why is this? “[C]ivil courts…take jurisdiction…‘to assure the regularity of business practices and the right of private use and ownership of property.’”61 “The property and financial affairs of churches must be the concern of secular authority in order to assure regularity of business practices and assure the right of citizens to have their gifts used as they direct. Government owes this assurance to citizens and this in no way hinders any citizen’s religious freedom.”62 But this judicial intervention is also somewhat tempered by the fact that the law “recognizes that different religious societies exercise authority over their financial and
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A local church, if it desires to remain independent of the influence of a parent church body, must maintain this independence in the important aspects of its operation, e.g., polity, name, finances. It cannot, as here, enter a binding relationship with a parent church which has provisions of implied trust in its constitution, bylaws, rules, and other documents pertaining to the control of property, yet deny the existence of such relationship. A local church cannot prosper from and enjoy the benefits afforded by a parent hierarchical church, participate in the functioning of that body, and then disclaim affiliation when the parent church acts contrary to the desires of the local church, so as to shield from equitable or contractual obligations the property acquired by the local church either before or during such affiliation.70 property affairs in different ways.”63 “Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.”64
Who controls the church’s property? Control of church property can become a very sore point of contention when splits arise within a church. The Kansas Supreme Court has recognized that, while a person may declare him or herself to be the spiritual leader of a congregation, the mere declaration does not automatically mean such person is vested to control the secular affairs of the church (e.g., control of property) but rather the legal control of the church’s property must be clearly acknowledged and agreed to by the congregation.65 Furthermore, just because a minister may be the sole legal trustee of the church does not mean that minister holds title to the property for his or her own benefit to the exclusion of other church members.66 Rather, the minister must continue to properly serve in the role of trustee as required by the law.67 With this concept in mind, it is no surprise that a “deed executed in favor of a trustee or trustees of an unincorporated church society creates a fiduciary relationship between said trustees and the congregation of the church, and the trustees hold said property for the benefit of the congregation. Any conveyance made by said trustees in violation of the fiduciary relationship and contrary to the purposes for which the trust was created is void.”68 It is well-settled that if a local church is affiliated with a hierarchical organization, then property conveyed to the local church is deemed to be held in trust for the benefit of the hierarchical organization, even if there is an absence of express trust language.69 Given this reality, the Kansas Court of Appeals has given clear guidance on what local churches must do if they want to maintain full control of their property and prevent it from being deemed to be held in trust for a hierarchical church. Specifically:
Kansas law recognizes reversionary rights to real estate conveyed to churches. For example, property may be conveyed to a church on condition that it be used for worship as provided by the church’s charter and such land will revert back in the event that it is no longer used as provided in the conveyance.71 If the church (or its trustees) control property outright, and it ceases to be used for its original intended purpose, then applicable church law will determine how the church may use or dispose of the property.72 In short, in resolving church property disputes the civil court may consider whether the original transfer of the land to the church had restrictions or not and whether the church itself is an independent congregation or one that is governed by a higher ecclesiastical authority.73
Factions and schisms Many critical challenges arise when there are factions or schisms within a church regarding control of property. These disputes rarely occur “in a secular vacuum….[D]isputes between factions over who has the right to control a local congregation’s property frequently arise out of an underlying disagreement regarding issues relating to theological or internal church polity.”74 Fortunately, Kansas law is clear as to who retains control of the property in these situations. “When a schism occurs in a church the all important question is which of the rival factions adheres to the fundamentals of the original tenets, beliefs, rules and practices of the organization and as against those who have departed therefrom the civil courts when called upon will award the church property to those who continue to adhere thereto.”75 In other words, those who depart the faith forfeit any right to the church’s property.76 This rule applies even when the seceders include the minister, one or more trustees or when the remaining faithful adherents are in the minority.77 In short, When a local religious organization has acquired property through the contributions and sacrifices of many members, past and present, all of whom have adhered www.ksbar.org | June 2019 39
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to certain doctrines regarded as fundamental to a particular national denomination, no faction may be permitted to divert the church property to another denomination or to the support of doctrines, usages, and practices basically opposed to those characteristic of the particular denomination.78 Given this unique interplay of the law, it is possible to have a situation where a trustee of church property is excommunicated from the congregation but such an action does not remove that person as trustee.79 Such a result would likely not be palatable to most congregations. Consequently, the practical takeaway is that trust provisions, reversionary clauses and other property-related matters should be drafted appropriately so as to avoid the need for judicial intervention in church affairs in the event of a schism or doctrinal dispute.80 “If a religious organization’s manner of holding property fails under neutral civil law to protect its internal view of property ownership, but such internal view could have been accommodated by civil law, the burden on the exercise of religion is caused not by the neutral law but by the religious organization’s own choice.”81
When a church dies From time to time participation in certain churches dwindles to the point where the church can no longer sustain itself or needs to “merge” with another entity of similar beliefs. To deal with these situations, the Kansas legislature has passed certain statutes which set forth to whom property of one particular denomination will be transferred.82 Of course, a transfer of a church’s assets to another entity will most likely constitute a default under the applicable loan documents. But is acceleration of the debt and foreclosure on the collateral the right result in that situation for the lender? The practical reality is that a transfer of the assets to and/or merger with another congregation provides an ideal opportunity for a lender to obtain a new and financially stronger guarantor of the loan such that it may continue properly performing.
IV.
Churches in Bankruptcy
With the backdrop of the church-civil court boundaries in mind, it becomes easier to understand how these issues play out in the context of a church bankruptcy filing.
Bankruptcy Court limitations
The Bankruptcy Code prohibits involuntary bankruptcy filings against nonprofit entities including religious institutions.83 It also prohibits a bankruptcy court from converting a nonprofit’s Chapter 11 proceeding to Chapter 7.84 However, this does not stop a Chapter 11 debtor from voluntarily converting its case to Chapter 7.85 The prohibition against civil court review of ecclesiastical decisions extends to the bankruptcy court. For example, 40
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when a clergy member is dismissed by the church for violating church law, the First Amendment’s ministerial exception will bar the claimant from asserting a claim for backpay due to alleged wrongIn ful termination.86 other words, the church’s decision to dismiss the clergy member will be deemed final and binding and prohibits allowance of his proof of claim. But the fact that a minister and other church officials hold important positions in the church does not make them immune from common-law liability for actions brought in bankruptcy court for prepetition breaches of their fiduciary duties (such as self-dealing, paying excessive salaries and bonuses, misusing church funds, etc.).87 As its name implies, the automatic stay immediately goes into effect upon the filing of a bankruptcy petition.88 It prohibits any actions to collect upon debts or exercise control of the debtor outside of the bankruptcy process.89 But in the context of religious entities, following the filing of a bankruptcy proceeding a separate religious proceeding which has been created to wrest away control of the debtor violates the automatic stay.90
Determining bankruptcy estate property A fundamental question in any bankruptcy proceeding is what property belongs to the debtor. The answer to this question is critical. If it is estate property, it must be administered in accordance with the Bankruptcy Code. If it is deemed not to belong to the debtor, then it is not estate property and will be subject to state law creditor remedies. By way of illustration, if a religious institution files for Chapter 11 and its place of worship is held in a trust separate from the corporate church structure, then that property will not be part of the bankruptcy estate and will be subject to the lender’s normal rights and remedies under state law. As can be seen from this scenario, analysis of state law becomes integral to evaluating what constitutes property of the estate. Section 541 of the Bankruptcy Code sets forth a very expansive definition determining what constitutes estate property. But does a bankruptcy court impermissibly cross the dividing line between church/state involvement when it determines what belongs to the church’s bankruptcy estate? The short answer is no. When a religious institution files
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for bankruptcy protection the court has the legal authority to determine what property is part of the bankrupt estate.91 Furthermore, “no First Amendment issue arises when a court resolves a church property dispute by relying on state statutes concerning the holding of religious property, the language in the relevant deeds, and the terms of corporate charters of religious organizations.”92 As noted above, Kansas law recognizes that donations to a local church that is part of a hierarchical organization are deemed to be held in trust for the benefit of the hierarchical entity.93 Similarly, in a bankruptcy proceeding, the fact that local members contribute to the local church does not prevent those funds from being used to pay claims against the debtor.94 In other words, those funds are deemed to be property of the estate. Applying bankruptcy law in this manner does not violate the Religious Freedom Restoration Act.95 While no cases have addressed it yet, this rationale would also likely be deemed applicable to the Kansas Preservation of Religious Freedom Act.96
Single-asset real estate and small-business Bankruptcy Code provisions As noted above, a large portion of church bankruptcy filings are primarily due to real property debt. Does that mean those cases should be classified as single-asset real estate cases (which are subject to more stringent standards under the Bankruptcy Code)? A “single asset real estate” case is one where “real property constituting a single property or project which generates substantially all of the gross income of a debtor who is not a family farmer, and on which no substantial business is being conducted by a debtor other than the business of operating the real property and activities incidental hereto.”97 Under this definition a church bankruptcy filing should not be classified as a single-asset real estate case. The church does not own the building simply to rent it and earn money. Rather, “[f ]aithbased institutions conduct ‘substantial business’ in their real property-that is, the ‘business’ of ministering—other than operating the property, and thus technically they are not” singleasset real estate entities.98 Similarly, church bankruptcy proceedings are not considered small-business bankruptcy filings for purposes of the Bankruptcy Code because a “small business debtor” is defined as one who engages in “commercial or business activities.”99 Clearly, a church, standing alone, does not qualify under this definition. As a practical matter, there are three key distinctions between a small-business bankruptcy filing and a church bankruptcy filing: First, they have operated on average three times longer than the average small business debtor. Second, they own assets of considerable value apart from their leaders’ ability to energize a congregation. In particular, they own real property worth millions of dollars….
Third, the nonprofit corporation owns those assets, and the corporation is the sole obligor on any secured debt encumbering the assets.100 However, if the church operates a daycare or educational facility, then a bankruptcy court could potentially, find that related entity may qualify as a small business case.
Chapter 11 reorganization considerations The research cited above plainly illustrates that some church bankruptcy filings are desperate “Hail Mary” attempts at saving the situation. These efforts generally fail. But there are religious institutions that are not dead on arrival at the bankruptcy court, but rather are capable of being resuscitated. When contemplating the likelihood of success, there are a few key elements which should be considered by both debtors and lenders. Absolute priority rule A practical problem that arises in nonprofit chapter 11 reorganizations is whether the Bankruptcy Code’s absolute priority rule applies when general unsecured creditors are not paid in full. In a nutshell, the absolute priority rule requires that higher priority classes must be paid in full before lower subordinate classes may receive any distribution.101 But the religious institutions are not-for-profit entities whose mission is not to maximize profits for their investors. Rather, those faith-based organizations have a different purpose. In a commercial bankruptcy proceeding if assets are insufficient to pay general unsecured creditors in full it is very possible to have a plan of reorganization which grants the general unsecured creditors stock in the reorganized entity. Those creditors, in turn, can direct the management. This, in turn, frequently results in new management being put in place. After all, many creditors who lost money with old management strongly prefer someone new who will hopefully better steer the ship. But that same scenario generally does not happen in nonprofit bankruptcy matters. The two Circuit Courts of Appeals that have addressed the absolute priority rule in the context of a not-for-profit entity have both held that the rule did not apply.102 One commentator noted: “The few courts that have decided absolute priority claims in nonprofit bankruptcies overall hold that the absolute priority rule is categorically satisfied by nonprofit entities, except in limited circumstances, even if the nonprofit had members and those members, along with the nonprofit’s managers and directors, retained control of the reorganized nonprofit.”103 This result likely surprises many bankruptcy practitioners. But the outcome is not so astonishing when one considers the general rule that a charitable “organization’s assets must be permanently dedicated to an exempt purpose. This means that if an organization dissolves, its assets must be distributed for an exempt purpose described in section 501(c)(3) [of the www.ksbar.org | June 2019 41
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Internal Revenue Code], or to the federal government or to a state or local government for a public purpose.”104 In a solvent bankruptcy of a for-profit-entity the bankruptcy distributions are made to shareholders. But such a result would never occur for a nonprofit whose assets must be maintained for a charitable purpose and not distributed to “owners.” As a corollary to this point “most courts have [also] held that the absolute priority rule does not prohibit [nonprofit officers, directors and members] from maintaining control of the reorganized debtor (at least in cases where the officers, directors and members do not hold any economic stake in the debtor).”105 Indeed, “unlike in a bankruptcy of a for-profit corporation, managers and directors of a reorganized nonprofit may often retain control of the nonprofit over the objection of an impaired class of creditors.”106 This, in turn, raises the question: can a church viably reorganize with existing management? In other words, is the plan feasible? Feasibility issues Unlike the boards of for-profit entities whose primary objective is to maximize profits, the board of a nonprofit entity has a duty to ensure that the organization accomplishes its stated purpose and mission.107 Because revenue generation is not the organization’s primary focus, this creates unique challenges when a religious institution seeks to reorganize in Chapter 11. To confirm a Chapter 11 plan a debtor must show that the plan is feasible.108 A plan of reorganization will be deemed feasible if “[c]onfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.”109 Stated differently, “‘feasibility’ relates to the financial viability of a debtor under a plan of reorganization.”110 To demonstrate that a Chapter 11 plan is feasible the debtor does not need to guarantee success, but rather only needs to show a “reasonable assurance of success.”111 The debtor has the burden of proving the feasibility of a plan by a preponderance of the evidence.112 How is this done? The plan will necessarily require payment of certain debts which means the church must show what revenues can reasonably be anticipated. Nonprofit funding generally falls into four broad categories: “[1] nonprofits that depend entirely on donations; [2] nonprofits that have a mixture of donations and revenue-generating business operations; [3] nonprofits that are entirely dependent on revenue-generating business operations; and [4] nonprofits that survive off of unique sources of funding, such as assessments of members.”113 To the extent 42
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that a church or an affiliated not-for-profit entity is eligible to receive funds from a governmental entity, the governmental entity cannot deny the application on the basis of religion.114 Similarly, a governmental entity cannot deny a church a grant simply because the church is in bankruptcy.115 As a practical matter, churches generally derive revenue through donations (although churches with related enterprises such as daycare or schools will also derive some income through these business-like endeavors). From a lender’s perspective donations are problematic when contemplating debtor-in-possession and/or post-confirmation financing for the church. This is because a congregant’s statement that he or she will donate some amount of money is simply a statement of an intent to make a future gift which lacks consideration to make it a binding, enforceable obligation. In reality the lender is hoping that there will be sufficiently large stream of donations to service the debt. Given the large reliance on donations, a church that hopes to viably reorganize in Chapter 11 needs to show what donations may legitimately be expected. A practical issue for religious institutions is how will they show what donations will come? Simply getting oral pledges that donations will come—particularly when the pledgor has questionable financial ability—likely will not cut it. But even if a prospective donor has the financial wherewithal to make necessary contributions, a debtor nonetheless cannot force a donation.116 Generally speaking, nonprofit entities “that have a proven record of year over year donations or revenue from business operations appear to have a greater chance of confirmation than those that do not.”117 But a stellar donation record also needs to be viewed from the perspective of the overall status of the economy. “[B]ecause nonprofits are often dependent on donor contributions to meet debt service and operating expenses, many nonprofits are particularly vulnerable to economic recession.”118 One very unique aspect to religious institution bankruptcies is “[c]ongregants [do] not necessarily behave like typical consumers.”119 Assuming that the church has a sufficiently large critical mass of members and assuming that they are properly motivated, a congregation has the ability to “just come up with” the money that is needed.120 In sharp contrast, if the parishioners are disillusioned by the situation (such as church mismanagement or improper deeds by a key pastor), they may simply abandon the church very quickly ending any hope of generating sufficient funds to reorganize.121
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Liquidation and Dissolution Whether in or out of bankruptcy the harsh reality is that some churches have incurred too much debt and do not have the wherewithal to repay it. Consequently, liquidation and dissolution are the only viable options. If the church pledged real property as collateral for a mortgage then the lender will be entitled to foreclose upon the property or enter into a deed-in-lieu of foreclosure. But even after the secured debt is satisfied the church may still have real or personal property. What becomes of that property in the event of dissolution or liquidation? As noted above, the general rule is that a charitable “organization’s assets must be permanently dedicated to an exempt purpose. This means that if an organization dissolves, its assets must be distributed for an exempt purpose described in section 501(c)(3) [of the Internal Revenue Code], or to the federal government or to a state or local government for a public purpose.”122 Stated differently, ““in the dissolution process [a] nonprofit cannot give any of its property away to individuals, including board members, other volunteers, employees or those served. The nonprofit can, however, sell its assets, as long as the individual or entity purchasing the asset is paying a reasonable amount, ideally the ‘fair market value.’”123 Federal bankruptcy law does not change these general rules. Any transfers of a nonprofit debtor’s property during bankruptcy must be in accordance with applicable non-bankruptcy law.124 In addition to legal restrictions, the distribution of assets from a charitable organization must also be done in a manner consistent with the organization’s bylaws or articles of incorporation.125 Thus, while applicable state and federal law would permit the distribution of Church A’s assets to Church B (where A and B are of diametrically different faiths), the governing bylaws or articles of incorporation must also be considered (which very well could require that the assets of Church A be transferred to another church of the same faith and sect as itself ).
V. Key Considerations for Troubled Loans The rules discussed above provide the framework under which troubled church loans are to be resolved. But simply knowing the rules is not enough. Rather, both churches and lenders need to have a good game plan in place if they hope to successfully emerge from the contest.
The psychology of filing for bankruptcy At first blush it may seem odd to consider the psychology of what drives bankruptcy filings. But the limited research on this topic is illuminating for both debtors and lenders as they wrestle with resolving a distressed church loan. To begin, it must be noted that “[r]eligious organizations are part of insular communities, and thus their leaders may presume that members and others will help during times of distress, causing leaders not to
see their institutions’ financial problems as legal problems.”126 The fact that faith-based leaders may not see their problems as legal is a critical insight because “[r]esearch shows that most legal conflicts are resolved outside of the legal system.”127 In other words, leaders of financially troubled religious institutions will initially be very opposed to seeking legal help to resolve their problems. Stated differently, the likelihood of bankruptcy filing at the beginning of the troubled loan is very low. Building upon her empirical research of faith-based Chapter 11 bankruptcy filings, Professor Foohey noted a psychological pattern that precedes church bankruptcy filings. Consistent with research regarding how individuals experience their justiciable problems, leaders initially chose to do nothing about their organization’s financial problem or to turn to self-help techniques, such as approaching creditors themselves. Only when creditors pushed for payment or when members or trusted contacts brought law to their attention did their thoughts and actions begin to change. Leaders then turned to other pastors, congregants, and friends to confirm that the situations were legal problems and to discuss concerns about what filing would say about themselves and their congregations. Leaders’ social networks also led them to attorneys, who discussed the benefits of reorganization. With this information, leaders rationalized their decisions to file, which allowed them to cope with their continued views of filing for bankruptcy as stigmatized and shameful.128 Significantly and “similar to how lower and moderate income individuals discuss their justiciable problems, [religious] leaders rarely mentioned concerns about the cost of filing under chapter 11 as a dominant factor in their decision to file.”129 This analysis provides lenders with greater ability to predict how a church-based institution will react to continued pressure once they are able to determine where they are in this “realization cycle.” “Even if religious organizations’ leaders understood that financially declaring bankruptcy represented the most viable remaining option, they still needed to decide that trying to reorganize was a socially and morally acceptable path for their congregation.”130 As one ecclesiastical leader so bluntly stated: “[B]ankruptcy from a spiritual standpoint is a no-no.”131 Pastors also may not seek bankruptcy because of their fear of the impact of the faith of their parishioners’, worries about donations drying up, or concerns about fears and rumors.132 “Leaders most often justified their churches’ [bankruptcy] filings by discussing how they did not want to lose buildings that their members had built themselves or to which their congregants had emotional ties….. Leaders also justified the filings by noting that their organizations were communitywww.ksbar.org | June 2019 43
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outreach driven and describing how the churches provided services to underserved populations.”133 “[T]he religious organization leaders’ journeys from financial distress to bankruptcy indicate that the leaders integrated their conceptions of themselves and their actions into their churches’ situations. Leaders spoke of what their churches’ financial problems and filings under chapter 11 meant for their own feelings of self-worth.”134 Unfortunately, a church leader’s decision to file for bankruptcy does not result in an immediate epiphany where they understand the situation with perfect clarity. Indeed, church leaders may have “unrealistic expectations about what chapter 11 [can] achieve for their organizations.”135 They may incorrectly assume that the filing will solve all their problems.136 They may also think that, without any effort on their part, God will miraculously provide a needed donor.137 They may not fully realize what needs to be done to cut expenses so as to survive financially.138
tively confirm that the people procuring the loan on the church’s behalf have the legal authority to consummate that transaction and bind the church When considering making (or restructuring) a loan, lenders would also be welladvised to take a very hard look at the individual congregation and its ability to attract members. How many people are actively involved with the church? What is known about their socio-economic background (i.e., their ability to donate)? What are the trends in weekly and monthly attendance? Is that attendance correlated with a single pastor? Or is the religious community more tied to the church as an organization? It is essential that lenders work with the church to identify these “micro” statistics given that the answers to these questions can have a big impact on how the loan performs—particularly when the church goes through a financially challenging time or when an economic recession hits the local area. While the potential downsides to a loan should be rigorously considered, the lender would also be wise to consider the upside to making the loan. For example, a loan made to a church in a low or moderate-income area may help satisfy requirements under the Community Reinvestment Act.140 It also raises the profile of the lender as being a “community player” who is truly committed to improving the area.
Faith and
Finance
Loan life cycle Troubled loans do not just happen in a vacuum. Rather, they are a result of several factors. By briefly considering key issues at various phases of the loan life cycle both lenders and religious institutions can become better prepared to successfully address a troubled loan. New loan When considering whether to make a new loan to a church, Kansas lenders would be wise to generally consider what has happened with other churches. “Compared to the asset, debt, and solvency characteristics of other Chapter 11 business debtors, the religious organization debtors tend to own much more and owe less.”139 This is a critical point. When making loans to churches and other religious-based institutions lenders cannot blindly rely on traditional small business models because the underlying dynamics of the borrowers are very distinct (most notably a business has the objective of maximizing profits while a nonprofit does not have that goal). When they are approached by a faith-based institution for a loan, lenders should approach the church with the same rigor that they would in evaluating whether to make a comparably sized loan. In doing this one key consideration is asking why the church needs the loan. Has the organization continued to operate with a persistent deficit? Is the loan being sought simply as a temporary means of postponing an inevitable demise? Topping off underlying structural problems with more debt only pushes an entity closer to the brink of bankruptcy. Also, if the lender is willing to make the loan, it should defini44
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Workout and forbearance agreement risks Workout situations pose unique challenges for Kansas lenders. One possible way to avoid a foreclosure is for the borrower (or a guarantor) to pledge additional collateral to secure the lender’s loan. But if the entity pledging the collateral is insolvent, such an action would constitute a constructively fraudulent conveyance under both the Bankruptcy Code and the Kansas Uniform Fraudulent Transfer Act.141 To illustrate this point, if a church has a subsidiary entity with unencumbered property and the church directs that, to save its own financial condition with its lender, the subsidiary grants a mortgage in the real property thereby rendering it insolvent, such an action would constitute a constructively fraudulent conveyance and the lender would risk having that mortgage set aside in the event the subsidiary were to file for bankruptcy. Thus, a short-term solution for the lender’s problem could ultimately be undone to the lender’s great dismay. Similarly, the fact that land is donated to a religious institution does not prevent it from being clawed back through bankruptcy avoidance powers following the subsequent bankruptcy filing of the transferor.142
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Any lender approaching a possible workout should start with some triage. Ask why the church is dealing with a troubled loan. Is there a recession that is impacting giving? Was the congregation tied to a particular pastor who left or committed an indiscretion? Did someone at the bank get a little too generous and loan too much money? Or did lack of fiscal discipline and good governance lead to the problem? The answers to these questions may identify the problem. It is critical to address the root problem rather than simply striking the weeds that grow out of that problem. The practical reality is that the longer a workout drags on the more likely a bankruptcy is to occur. Accordingly, whenever lenders prepare church forbearance agreements they would be well-advised to draft discrete and unmistakably clear benchmarks coupled with church concessions if those milestones are not met (the object, of course, being to avoid a bankruptcy filing). Bankruptcy or its alternatives There are several benefits that a religious institution may obtain from a bankruptcy filing. First, the automatic stay is immediately imposed providing critical breathing room for the debtor to reorganize its financial affairs.143 Additionally, the bankruptcy filing will stop the accrual of interest on unsecured debt.144 The debtor can reject burdensome executory contracts and unexpired leases.145 The debtor can also sell property free and clear of liens and encumbrances.146 The debtor can restructure its debts, including changing loan repayment terms.147 But bankruptcy is not necessarily a win for the debtor and a loss for the lender. Lenders also can avail themselves of key provisions of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure. For example, a bankruptcy petition means the debtor must file its bankruptcy schedules and statement of financial affairs fully disclosing its financial condition.148 The debtor has to appear at a mandatory meeting of creditors where it must answer under oath questions regarding its finances and ability to reorganize.149 Creditors may obtain documents and depositions from both the debtor and other third-parties on matters relating to the financial condition of the debtor.150 The debtor must provide its secured creditors with adequate protection against the diminution in value of their collateral during the pendency of the bankruptcy proceeding.151 The debtor cannot use cash collateral subject to a lender’s security interest without the lender’s consent or a court order.152 The debtor cannot incur additional debt without approval of the bankruptcy court.153 And ultimately, the debtor must either confirm a viable plan of reorganization, liquidate itself (either through Chapter 11 or a voluntary conversion to Chapter 7) or have its case dismissed when it will then be subject to the lender’s normal state law rights. In other words, a bankruptcy filing forces the religious institution to take substantive steps to address its financial condition. Fur
thermore, once a religious institution files for bankruptcy, it no longer fully controls its own destiny. While it can certainly try to steer where the ship goes, bankruptcy judges and other creditors can take steps that ultimately generate unintended results for the debtor. Of course, both lenders and churches may want to avoid bankruptcy for a variety of reasons. In those situations can a lender avail himself of Kansas receivership law? The short answer is yes. On their face, the Kansas receivership statutes do not bar the appointment of a receiver for a religious institution.154 Rather, in such a situation a civil court would simply need to follow the church-state boundaries delineated above. But the biggest practical danger with appointing a receiver is the impact such an act will have on the congregation. Receivers simply manage assets. They are not spiritual leaders. Divesting a spiritual leader of control of the church’s assets runs the risk of alienating church members and creating the impression that the world is overcoming the church. Of course, the opposite could also be true. Parishioners may dearly love the church they have attended for decades, but feel the current leadership is grossly mismanaging it. As such, appointment of a receiver may bring greater trust by preserving assets and simultaneously enabling the church to work through their internal governance structures for choosing leaders who will be supported by membership and will address the church’s fiscal problems in a responsible manner.
Who’s in charge?
Another practical problem when dealing with financially troubled churches is knowing who is in charge. Nondenominational and congregationalist churches are particularly at risk for troubled loans not only because they lack strong financial assistance from an overarching body, but also because their structures often have “ineffective internal governance.”155 Indeed, several attorneys who have represented financially troubled churches have struggled with knowing what exactly was the governing structure and who had the authority to make critical decisions such as whether to file for bankruptcy.156 This challenge may be particularly acute in congregationalist churches where the church body must be consulted.157 When an attorney begins representation of a religious institution—particularly a congregationalist denomination—it is essential that the attorney clearly identify at the beginning who’s in charge and who ultimately has the final say in making critical decisions. When there is no clear chain of command an attorney can find him or herself spending far too much time consulting with a cadre of non-professional volunteers wrestling amongst themselves trying to come to a consensus on matters crucial to the church’s debt problems. This puts the attorney in a very bad predicament—essential decisions must be made but because of the client inability to decide the attorney may be left making determinations that really should www.ksbar.org | June 2019 45
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be handled by the church’s governing body. In a similar vein, A major challenge for nonprofits—particularly smaller when lenders seek to resolve a troubled loan they too need nonprofits—is establishing good governance and oversight. to clearly establish who has the chain of command such that Smaller nonprofit organizations are often directed by volundispositive decisions can be made. Lenders and attorneys who teers who lack professional experience in corporate adminiswrestle with these issues would be well-advised to review gov- tration. The work required for nonprofits can also be time erning church documents and applicable law discussed above consuming. Because many of the positions are unpaid due to such that any negotiations that occur are done with the duly lack of funding, the volunteers often do not put in the necesauthorized church representatives. sary time to ensure that the organization is properly run and Questions of “control” or “authority” of a church are not monies are appropriately used for their intended purposes. just limited to legal authority. Rather, the parishioners—most Yet frequently these same people are the ones who are prone to of whom have no legal authority regarding the church—can remain in place following a chapter 11 reorganization. Lendhave a huge impact on what ultimately happens with the case. ers must be cognizant of this reality and use their leverage to One very unique issue about a church bankruptcy filing is insure that the organization appoints competent directors as that, unlike with a small business, the real property securing part of any reorganization (whether in or out of bankruptcy). the debt is emotionally valuable to the congregants—considered sacred by many.158 There may be very strong feelings on VI. Conclusion As long as there is both faith and a lack of resources, one can the part of parishioners to do whatever it takes to save their expect that there will be a continual supply of church loans. place of worship. Unlike other commercial properties, church But one lesson is abundantly clear: church loans cannot be buildings are typically unique, making them more difficult to treated like standard commercial loans. They are unique given 159 In other words, market sell in the event of a foreclosure. both the boundaries between civil courts and faith-based inforces wrest away a certain amount of leverage from the lendstitutions and the fact that these are non-profit entities largely er. Also, foreclosure on a church building—particularly in dependent on donations for their survival. By keeping these 160 a smaller community—runs the risk of negative publicity. fundamental dynamics in mind and properly anticipating the Indeed, when their church is threatened with severe financial issues that likely will arise, both lenders and faith-based instichallenges, pastors and other church members may begin to tutions can successfully navigate the challenges presented by 161 equate the lender with the devil. troubled church loans. Additionally, while it is true that a bankruptcy filing prevents a lender’s pre-petition security interest from attaching to property acquired post-petition by the estate,162 a potential About the Author sore spot for the religious institution will be learning that preMichael D. Fielding is a partner in the Kansas petition donations (such as tithes and offerings) may be subCity office of Husch Blackwell LLP and represents ject to the lender’s security interest.163 Learning that a lender clients dealing with troubled loans in and out of bankruptcy. Mr. Fielding is president and may use “sacred funds” to pay off debt may be troubling to founding member of the Religion Law Section of pastors and church parishioners who do not understand how the Kansas Bar Association. He is Board Certified the law works. To avoid the negative fallout from emotional in Business Bankruptcy by the American Board of bombs such as this, lenders should use good judgment when Certification. determining what or what not to liquidate to pay down debt. Michael.Fielding@huschblackwell.com
1. The views expressed herein are solely those of the author and do not necessarily reflect the views of Husch Blackwell LLP, the Kansas Bar Association, the Religion Law Section of the Kansas Bar Association or any other organization to which the author belongs. This article is intended for educational purposes only and should not be relied upon as legal or other professional advice.
2. United States Census Bureau website, https://www.census.gov/ quickfacts/ks (last visited December 8, 2015). 3. “Religious Landscape Study.” Pew Research Center, Washington, D.C. (May 12, 2015) http://www.pewforum.org/religious-landscapestudy/state/kansas/ (“Trends” tab, last visited December 8, 2018). 4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 46
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9. Id. 10. Id. 11. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 720 (2013). 12. Id. at 725. 13. Id. at 737, Table 2. 14. Id. at 731-32. The study “identified a total of 516 cases and 473 unique religious organization debtors.” Id. at 731. Seven of these cases were from a Catholic diocese. Id. 15. Id. at 737. 16. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 285 (Summer 2014). 17. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 725 (2013). 18. Id. at 737; see also Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 285 (Summer 2014) (“Similar to nondenomina-
debt among the faithful
tional churches, Congregationalist churches typically are not subject to an overarching denominational governing structure, particularly one to which they can turn for financial assistance.”) 19. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 726 (2013). 20. Id. at 726. 21. Id. at 744. 22. Id. at 738. In doing her analysis, Professor Foohey removed 19 cases from the dataset including seven cases involving Catholic dioceses and related entities. Id. at 731. 23. Id. at 738. 24. Id. at 741. 25. Id. at 739. 26. Id. at 738. 27. Id. at 727. 28. Id. at 726. 29. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 291 (Summer 2014). 30. Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches, 76 Ohio St. L.J. 1319, 1346 (2015) (citations omitted). 31. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 744-49 (2013). 32. Id at 753. 33. Ed Flynn, “Bankruptcy By the Numbers: Chapter 11 is for Individuals and Small Business?”, Am. Bankr. Inst. J., Dec. 2018, Vol. XXXVII, No. 12, p. 100. 34. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 747, Table 4 (2013). Table 4 notes there were 471 cases in the study of which 125 obtained a confirmed plan. 35. In re Will of Keys, 40 Kan. App. 2d 503, 515, 193 P.3d 490, 498 (2008) (citing K.S.A. 17–1701). 36. Id. (citing Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 423, 506 P.2d 1135, reh. denied 211 Kan. 927, 508 P.2d 849 (1973)). 37. K.S.A. § 17-1726. 38. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 640, 390 P.3d 581, 593 (2017) (Citing Venable v. Baptist Church, 25 Kan. 177, 182 (1881)). 39. Kennedy v. Gray, 248 Kan. 486, 492, 807 P.2d 670, 675 (1991). 40. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 637, 390 P.3d 581, 591 (2017). 41. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 637–38, 390 P.3d 581, 591 (2017) (citing Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976)); see also King v. Smith, 106 Kan. 624, 189 P. 147, 147–48 (1920). 42. Kennedy v. Gray, 248 Kan. 486, 493, 807 P.2d 670, 676 (1991) (citing Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 725, 96 S. Ct. 2372, 2387–88, 49 L. Ed. 2d 151 (1976)). 43. See Kennedy v. Gray, 248 Kan. 486, 494, 807 P.2d 670, 676 (1991) (“When the majority has spoken in a fairly-conducted congregational meeting held after proper notice to the membership, then the governing body of the church has expressed its will and, as in the case of an hierarchical church, its decision is constitutionally immune from judicial review.”). 44. Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 657 (10th Cir. 2002). 45. Church of God in Christ v. Bd. of Trustees of New Jerusalem Church of God in Christ, 26 Kan. App. 2d 569, 572–73, 992 P.2d 812, 815 (1999). 46. McAtee v. St. Paul’s Mission of Marysville, 190 Kan. 518, 376 P.2d 823 (1962). 47. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1244–45 (10th Cir. 2010). 48. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in
North America, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 120 (1952). 49. Kennedy v. Gray, 248 Kan. 486, 494, 807 P.2d 670, 676 (Kan. 1991) (citation omitted). 50. United Brethren, etc. v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, Syl. ¶ 1, 103 P.2d 877 (1940). 51. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 641–42, 390 P.3d 581, 594 (Kan. App. 2017). 52. Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960). 53. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 642, 390 P.3d 581, 594 (2017). 54. Id. at 53 Kan. App. 2d 641, 390 P.3d 593 (2017) (citing Kennedy v. Gray, 248 Kan. 486, 494, 807 P.2d 670, 676-77 (1991)). 55. Kennedy v. Gray, 248 Kan. 486, 495, 807 P.2d 670, 677 (1991). 56. Id. 57. Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422, 506 P.2d 1135, 1137, opinion adhered to on denial of reh’g, 211 Kan. 927, 508 P.2d 849 (1973). 58. Hughes v. Grossman, 166 Kan. 325, 330, 201 P.2d 670, 673–74 (1949). 59. Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422, 506 P.2d 1135, 1137, opinion adhered to on denial of reh’g, 211 Kan. 927, 508 P.2d 849 (1973). 60. Hughes v. Grossman, 166 Kan. 325, 330, 201 P.2d 670, 673–74 (1949). 61. In re Will of Keys, 40 Kan. App. 2d 503, 515–16, 193 P.3d 490, 498 (2008) (citation omitted). 62. Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422–23, 506 P.2d 1135, 1137–38, opinion adhered to on denial of reh’g, 211 Kan. 927, 508 P.2d 849 (1973). 63. Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422–23, 506 P.2d 1135, 1137–38, opinion adhered to on denial of reh’g, 211 Kan. 927, 508 P.2d 849 (1973). 64. Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 606, 21 L. Ed. 2d 658 (1969). 65. Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 423, 506 P.2d 1135, 1138, opinion adhered to on denial of reh’g, 211 Kan. 927, 508 P.2d 849 (1973). 66. Id at 211 Kan. 424; 506 P.2d 1138-39. 67. Id. at 211 Kan. 424, 506 P.2d 1139. 68. Id. at 211 Kan. 425, 506 P.2d 1140. 69. Church of God in Christ v. Bd. of Trustees of New Jerusalem Church of God in Christ, 26 Kan. App. 2d 569, 579, 992 P.2d 812, 818 (1999) (citation omitted); see also Church of God in Christ, Inc. v. Bd. of Trustees of Emmanuel Church of God in Christ, Wichita, 47 Kan. App. 2d 674, 687, 280 P.3d 795, 804 (2012). 70. Church of God in Christ v. Bd. of Trustees of New Jerusalem Church of God in Christ, 26 Kan. App. 2d 569, 580–81, 992 P.2d 812, 819 (App. 1999). 71. Miller v. Stoppel, 172 Kan. 391, 241 P.2d 488 (1952). 72. Bd. of Trustees of Kansas Annual Conference of Church of United Brethren in Christ v. Mount Carmel Cmty. Cemetery Ass’n, 152 Kan. 243, 103 P.2d 877, 877 (1940). 73. Watson v. Jones, I80 U.S. 679,20 L. Ed. 666, 13 Wall. 679 (1871). 74. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 639, 390 P.3d 581, 592 (2017). 75. Whipple v. Fehsenfeld, 173 Kan. 427, 432, 249 P.2d 638, 642 (1952) (citing Hughes v. Grossman, 166 Kan. 325, 201 P.2d 670, Syl. 4 (1949)); see also Simpson v. Mullineaux, 188 Kan. 139, 141, 360 P.2d 893, 895 (1961). 76. Simpson v. Mullineaux, 188 Kan. 139, 141, 360 P.2d 893, 895 (1961). 77. Hughes v. Grossman, 166 Kan. 325, 330, 201 P.2d 670, 674 (1949).
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78. Church of God in Christ v. Bd. of Trustees of New Jerusalem Church of God in Christ, 26 Kan. App. 2d 569, 572–73, 992 P.2d 812, 815 (1999); see also Church of God in Christ, Inc. v. Stone, 452 F. Supp. 612 (D. Kan. 1976); Jackson v. Jones, 130 Kan. 488, 491, 287 P. 603 (1930); Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 641, 390 P.3d 581, 593–94 (2017). 79. See e.g., Bouldin v. Alexander, 82 U.S. 131, 21 L. Ed. 69, 15 Wall. 131 (1872). 80. Jones v. Wolf, 443 U.S. 595, 603, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). 81. In re Roman Catholic Archbishop of Portland in Oregon, 335 B.R. 842, 862 (Bankr. D. Or. 2005). 82. See e.g., K.S.A. §§ 17-1732 – 1734 (German Baptist Brethren church); K.S.A. §§ 17-35 – 1737 (Church of the Nazarene); K.S.A. §§ 1737a – 1737c (Swedish evangelical mission association); K.S.A. §§ 17-1753 – 1755 (Free Methodist Church of North America); K.S.A. §§ 17-1756 – 1757 (Assembly of God Church). Fortunately, however, the merger or consolidation of charitable corporations or associations does not cause a lapse of any gift, devise or bequest that was made to one of the merging or consolidating entities. K.S.A. § 17-1738. 83. 11 U.S.C. § 303. 84. 11 U.S.C. § 1112(c). 85. 11 U.S.C. § 1112(a). 86. In re Archdiocese of Milwaukee, 515 B.R. 579 (Bankr. E.D. Wis. 2014). 87. In re Heritage Vill. Church & Missionary Fellowship, Inc., 92 B.R. 1000 (Bankr. D.S.C. 1988), subsequently aff’d, 944 F.2d 901 (4th Cir. 1991), and subsequently aff’d sub nom. New Heritage Acquisition Corp. v. Bakker, 944 F.2d 902 (4th Cir. 1991). 88. 11 U.S.C. § 362(a). 89. 11 U.S.C. § 362(a). 90. In re Congregation Birchos Yosef, 535 B.R. 629 (Bankr. S.D. N.Y. 2015). 91. In re Roman Catholic Archbishop of Portland in Oregon, 335 B.R. 842 (Bankr. D. Or. 2005). 92. Id at 854. Presumably such an action would also not violate the Kansas Constitution, Bill of Rights, § 7 which protects religious liberty. 93. Religious institutions are exempt from the Kansas Charitable Organizations and Solicitations Act. K.S.A. § 17-1759, et seq.; see also K.S.A. § 17-1762(k). 94. In re Roman Catholic Archbishop of Portland in Oregon, 335 B.R. 842 (Bankr. D. Or. 2005). 95. Id.; 42 U.S.C. § 2000bb–1(a). 96. K.S.A. § 60-5301, et seq. 97. 11 U.S.C. § 101(51B). 98. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 719, 769 (2013). 99. 11 U.S.C. § 101(51D). 100. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 772 (2013). 101. 11 U.S.C. § 1129(b)(2)(B)(ii); Bank of America National Trust and Savings Association v. 203 North LaSalle Street Partnership, 526 U.S. 434, 119 S. Ct. 1411 (1999); Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S. Ct. 963 (1988). 102. In re Gen. Teamsters, Warehousemen & Helpers Union, Local 890, 365 F.3d 869 (9th Cir. 2001); In re Wabash Valley Power Ass’n, 72 F.3d 1305 (7th Cir. 1995). To be certain, not all lower courts hold this way. See Amelia Rawls, “Applying the Absolute Priority Rule to Nonprofit Enterprises in Bankruptcy,” 118 Yale L.J. 1231, 1233-34 (2009) (discussing split in authority among lower courts). 103. Pamela Foohey, “Chapter 11 Reorganization and the Fair and Equitable Standard: How the Absolute Priority Rule Applies to All Nonprofit Entities,” 86 St. John’s L. Rev. 31, 59 (2012).
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104. Internal Revenue Service, https://www.irs.gov/charities-non-profits/charitable-organizations/charity-required-provisions-for-organizingdocuments (last visited December 10, 2018); see also Schedule N of Form 990; National Council of Nonprofits, https://www.councilofnonprofits. org/tools-resources/dissolving-nonprofit-corporation (last visited December 10, 2018). 105. Evan C. Hollander and Scott K. Brown, “Confirming a Plan of Reorganization for a Nonprofit Debtor,” Norton Annual Survey of Bankruptcy Law, 2016 Edition, p. 102. 106. Dana Yankowitz Elliott and Evan C. Hollander, “Navigating a Nonprofit Corporation through Bankruptcy,” Nonprofit Quarterly, April 29, 2014. 107. Id. 108. 11 U.S.C. § 1129(a)(11). 109. 11 U.S.C. § 1129(a)(11). 110. Evan C. Hollander and Scott K. Brown, “Confirming a Plan of Reorganization for a Nonprofit Debtor,” Norton Annual Survey of Bankruptcy Law, 2016 Edition, p. 108. 111. In re Gentry, 807 F.3d 1222, 1225 (10th Cir. 2015). 112. Id at 1226. 113. Evan C. Hollander and Scott K. Brown, “Confirming a Plan of Reorganization for a Nonprofit Debtor,” Norton Annual Survey of Bankruptcy Law, 2016 Edition, p. 110. 114. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 198 L. Ed. 2d 551 (2017) (A church’s free exercise rights are denied where a state denies on the basis of religion a church’s application for a state funding grant.) 115. 11 U.S.C. § 525. 116. 11 U.S.C. § 365(c)(2). 117. Evan C. Hollander and Scott K. Brown, “Confirming a Plan of Reorganization for a Nonprofit Debtor,” Norton Annual Survey of Bankruptcy Law, 2016 Edition, p. 110. 118. Id at 91. 119. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 297 (Summer 2014). 120. Id. 121. Id. 122. Internal Revenue Service, https://www.irs.gov/charities-non-profits/charitable-organizations/charity-required-provisions-for-organizingdocuments (last visited December 10, 2018); see also Schedule N of Form 990; National Council of Nonprofits, https://www.councilofnonprofits. org/tools-resources/dissolving-nonprofit-corporation (last visited December 10, 2018). 123. National Council of Nonprofits, https://www.councilofnonprofits.org/tools-resources/dissolving-nonprofit-corporation (last visited December 10, 2018). 124. 11 U.S.C. §§ 363(d)(1) and 1129(a)(16) ; see also Dana Yankowitz Elliott and Evan C. Hollander, “Navigating a Nonprofit Corporation through Bankruptcy,” Nonprofit Quarterly, April 29, 2014. 125. National Council of Nonprofits, https://www.councilofnonprofits.org/tools-resources/dissolving-nonprofit-corporation (last visited December 10, 2018). 126. Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches, 76 Ohio St. L.J. 1319, 1322 (2015). 127. Id at 1325. 128. Id at 1323-24. 129. Id. at 1361. 130. Id. at 1352. 131. Id. 132. Id. at 1349. 133. Id. at 1356. 134. Id. at 2362. 135. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr.
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L.J. 277, 297 (Summer 2014). 136. Id. 137. Id. at 298. 138. Id. 139. Pamela Foohey, Bankrupting the Faith, 78 Mo. L. Rev. 719, 719, 740 (2013). 140. 12 U.S.C. § 2901 et seq. 141. See 11 U.S.C. § 548; K.S.A. § 33-201 et seq. 142. In re Zarling, 70 B.R. 402 (Bankr. E.D. Wis. 1987) (conveyance of farm property to religious society was a constructively fraudulent conveyance). 143. 11 U.S.C. § 362(a). 144. 11 U.S.C. § 502(b)(2). 145. 11 U.S.C. § 365. 146. 11 U.S.C. § 363(f ). 147. 11 U.S.C. § 1129. 148. Fed. R. Bankr. P. 1007.
149. 11 U.S.C. § 341. 150. Fed. R. Bankr. P. 2004. 151. 11 U.S.C. § 361. 152. 11 U.S.C. § 363(b). 153. 11 U.S.C. § 364. 154. See K.S.A. §§ 16-1301 – 1305. 155. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 285 (Summer 2014). 156. Id. at 291-92. 157. Id. 158. Id. at 293. 159. Id. at 294. 160. Id. 161. Id. 162. 11 U.S.C. § 552(a). 163. Pamela Foohey, “When Churches Reorganize,” 88 Am. Bankr. L.J. 277, 295-96 (Summer 2014).
Congratulations to KBA President
Sarah E. Warner
Named to Ingram’s prestigious 40 Under Forty for 2019 “In Kansas, where state government has one of the lowest rates of attorney participation in elected leadership positions in history, lawyers entering the practice have a vested interest in guiding the development of policy for years to come.” Sarah E. Warner KANS
• • • • • • •
The Principal at Thompson Warner, at age 39. President of the Kansas Bar Association, at age 38. President of the Kansas Assn. of Defense Counsel (KADC). Board member of the Kansas Board for Discipline of Attorneys. J.D. from Ave Maria School of Law, in Michigan, Teaches at Washburn University School of Law. At her own litigation practice, Warner focuses on resolving state and federal constitutional claims, contract disputes, eminent domain issues, land use and real estate disputes, and bodily injury claims. • Gov. Laura Kelly’s nominee for the Kansas Court of Appeals.
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Young Lawyers Take D.C.: ABA YLD Mid-Year Conference by Lauren Hughes
Columnist Lauren Hughes stands in front of the White House.
T
he American Bar Association’s Young Lawyers Division held their Spring Conference in Washington D.C. May 2nd – 4th, 2019. As one who has the immense privilege of serving on the Board for the Kansas Bar Association’s Young Lawyers Section, I have long been privy to updates from these gatherings by our district representative, Rick Davis, and liaison, Joslyn Kusiak. In my two years of serving on the Board, the ABA as a whole has seemed almost mystical—an entity whose purpose I did not quite understand. I had never attended an ABA meeting before, nor did I know any attorneys from other states who were involved. When afforded the opportunity to be a representative from Kansas, I accepted the role and responsibility, but with admittedly less enthusiasm than I did my position on the Board of the YLS. My experiences at this conference forever shifted the way I view many aspects of the profession – the role of state bar associations, the importance of interconnectedness with attorneys from across the nation and the world, the tremendous value of community and conversation, and most notably, the significance of the ABA. 50
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As a group, we took part in several incredible opportunities. We were able to tour the Supreme Court and listen to Supreme Court Clerk Scott Harris. Young Lawyers from diverse backgrounds and cultures explored the hallowed halls of our nation’s highest court—to see firsthand where our laws and constitution are applied to the most controversial issues of our time. On this particular occasion, the Court had on display several exhibits regarding women in the judiciary—most notably a tribute to Justice Sandra Day O’Connor. Many young lawyers stood in awe, gazing at the portraits of the “greats” such as Justice Thurgood Marshall and Justice Oliver Wendell Holmes, both of whom are buried not too far away in Arlington Cemetery.
young lawyers take d.c.
We were able to learn about the building of an independent Court and the role that President Taft played in the selection of the architect, design, and construction of the building. Following this event, 75 young lawyers exited the Supreme Court of the United States of America in a torrential downpour, running along the streets of Washington D.C. looking for cover and waiting for Ubers in city traffic. Many of us piled into vehicles with attorneys we had never met and had a long car ride drenched from the rain to get to know one another. We were able to experience a “dine around” of local restaurants in the Georgetown area with smaller groups—time to sit around the table, commune around the culturally unifying act of sharing a meal, and talk about the pervasive issues facing our states, our countries, and simply navigating finding our place in the vast world of professionals. My dinner group consisted of attorneys from Texas, Oregon, England and the Netherlands. During this meal, we got to know one another in an impactful way – what life is like as a government attorney, a civil litigator, a solicitor. We discussed the cultural differences and perspectives regarding taxes, access to justice, legal education, poverty and gender equality within our countries and communities. And of course, we enjoyed the ever meaningful pop culture conversations spanning from soccer to Prince Harry and Meghan Markle’s baby. Concluding our meal and walking back to the hotel/conference center, the air of unity and of solidarity was strong. The ability to have real conversations with others in your profession—no matter the specific practice area— provides one with a sense that what you are doing on a daily basis has a much greater impact than meeting a contract deadline, winning a motion or signing an estate plan. Rather, each project that you complete as an attorney has an impact on our world
and truly makes a difference. Maybe that was the wine talking, but regardless, the sense of community as we left the restaurant lasted through the remainder of the conference. While there was excellent programming, such as a panel with “Politico” editor Carrie Budoff Brown and a discussion about the future of legal education and practice from “Above the Law” creLauren Hughes (right) KU L’16 with ator David Benjamin Ashley Akers (left) KU L’16 Lat, the highlight of the entire conference was a dinner and dance at the Library of Congress. The Young Lawyers were able to attend a presentation preceding the dinner by Law Librarian of Congress Linda Sanchez on a small fragment of the history of the library. We were able to gaze at the artwork around the hall and on the ceiling, reminiscent of the Sistine Chapel. Doing the electric slide across the floors of this sacred and historical institution is an experience I will never forget. For young lawyers who had flocked to D.C. for the ABA YLD conference, this event highlighted that the value of community is immeasurable. Meeting attorneys from Canada, the Netherlands, New Jersey, California, Texas (the list goes on), is not an everyday occurrence for a practitioner in the middle of Kansas. But more so, being able to connect with those who are right next door in Missouri and to build relationships with colleagues who face the same issues we do—issues surrounding inclusion, identity, involvement, access to justice—is invaluable. This meeting not only gave me a glimpse into what the ABA actually does, but that at its core, the ABA fosters a cohesive community of practitioners trying to make their communities and world a better place for those we serve. As a young attorney, knowing that you are a part of something so much larger than yourself, your problems, your clients, etc., that you are a member of a vast network of individuals who have hearts of servants, who are fighting every day for their communities and for justice around the world? It is empowering and inspiring. I came to Washington D.C. for my first ABA YLD conference with no clear sense of purpose, with no clear understandDistrict 22 Representatives with House of Delegates Chair William R. Bay – L to R – Steven Alan Ramsey, Jamie Davis, Wil- ing of the “why,” and left the meeting with friends that will liam R. Bay, Sheena Hamilton, Whittney Dunn, Rick Davis and last a lifetime. During this conference, the role of the ABA became abundantly clear in ways that I did not anticipate. The Lauren Hughes.
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young lawyers take d.c.
importance of a unified network in a world that is seemingly small was at the forefront of that clarity. I left Washington D.C. with a clearer purpose and picture of our profession, and with the desire to do better, to be better and to give more. n
About the Author
Final Dinner – Attorneys from Missouri, Chicago, Maryland, Canada, New Jersey, the Netherlands, England Montreal, Texas and Kansas gathering for one last dinner after completion of the conference.
Lauren Hughes is an associate attorney at Wise & Reber, L.C., McPherson, Kansas. Her practice concentrates on simple and complex estate and trust planning, administration of estates and trusts, business succession planning, and other wealth management areas. She received her Juris Doctor from the University of Kansas School of Law. Lauren is the President of the McPherson County Bar Association, a member of the Wichita Bar Association, Kansas Women Attorneys Association, American Bar Association and the Kansas Bar Association. Lauren is on the Board of the Kansas Bar Association’s Young Lawyers Section and serves as a co-editor for the YLS Forum. lhughes@bwisecounsel.com
https://klsprobono.org/
PRO BONO LEGAL SERVICES Law professionals in Kansas can participate in the pro bono community through clinics, posted projects, or by volunteering to take on specific cases displayed on the site. Opportunities are regularly updated by Pro Bono Coordinators in the 11 statewide KLS field offices.
Please check back often for new and exciting ways to put your skills, experience and training to good use by helping your fellow Kansans. 52
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law students' corner
The Advantages of an Interdisciplinary Approach to Legal Education by Jeff Carmody
K
U. Law allows students to take coursework outside the law school as long as it’s relevant to the student’s legal education. I took advantage of that opportunity for the fall of my 3L year and enrolled in POLS 810: American Politics, a graduate seminar that surveyed recent research on national institutions, electoral behavior and policy-making processes. It was one of the best decisions I have made in law school. First, it helped reconnect me to the broader university community. Law school can be an intense and insular experience. Because of that, it is easy to lose sight of all the other things going on at the university. But weekly strolls to the other side of campus to take a class with Ph.D. students reminded me that the law school is just one unit among many at the university. The university is a hive of scholars with diverse interests doing important research on all sorts of topics. And for that very reason, I am going to be very sad to finally leave it.
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Second—and this is why I emphatically recommend it— coursework outside the law school introduced me to the methods and theories used by people in other disciplines to tackle interesting questions about the law. That’s valuable, because once law school teaches you to think like a lawyer, it can be difficult to stop thinking that way. However, people without legal training can have really interesting things to say about the law, and it’s worth taking the time to listen. Consider the issue of judicial decision-making, for example. How do judges decide cases? What caused the majority author to go this way? Why did the dissenter go that way? What sources were most influential in their decisions? Of course, we ask those questions in law school all the time. But to answer them, we often rely on how we think justices should decide cases (e.g. being pragmatic). Or we depend on what the justices say they’re doing when they decide cases (e.g. “calling balls and strikes”). Since we’re usually just looking at
law students' corner
a relatively small number of cases that the casebook authors selected, it’s hard to be satisfied that in law school, we’re really capturing what judges do when they decide cases. Many political scientists, on the other hand, would approach these questions differently. To provide an account of how judges decide cases, these researchers use quantitative and qualitative data to craft systematic, peer-reviewed studies. They generate large data sets and use statistical analyses to measure correlations. They produce fascinating legal research using these methods. To take just one example from POLS 810, we read an article in which two political scientists examined cases of vote-switching at the U.S. Supreme Court. Using docket books kept by justices between 1969 and 1985, the researchers were able to record instances when a justice voted one way during the initial conference vote, but then switched their vote for the final, published opinion—which actually happens more than you may think: the mean for all justices was 7.5 percent. Individual justices varied, with Justice Black changing his vote nearly 15 percent of the time. Then, the researchers ran a regression analysis to see whether variables such as case complexity, landmark case status or a justice’s ideological placement were predictive of vote switching. Their conclusion: the data suggests that vote-switching was largely a function of a justice’s strategic policy calculations. What I found most interesting about that study wasn’t the substantive conclusion that U.S. Supreme Court justices are political actors. Instead, it was that creative data collection methods and statistical analyses of the data allow researchers to study the issue systematically and empirically. It’s one thing to state, as people often do, that the Court is a political institution. It’s quite another to have data that shows a statistically significant correlation between a justice’s decision to change votes and the individual’s political ideology. I was convinced that these empirical techniques were useful for legal analysis, and that I needed to add them to my tool bag. So that’s what I’ve done during my final semester at KU Law. I checked the faculty’s CVs and learned that Professor Corey Rayburn Yung had published empirical legal research focused on the federal courts. He agreed to oversee the inde-
pendent study I proposed: generating and analyzing a large dataset of Kansas Supreme Court decisions. Without going into too much detail, here’s what I’ve done: I spent much of the semester learning some coding so I could write a program to analyze the text of the Court’s opinions and collect the desired data. I finally have a stable version. Once the data is collected, the program uses case numbers to search the Case Inquiry System for the Kansas Appellate Courts and download each case docket. Finally, it analyzes the docket and collects some data available only from that source. My goal here is twofold: first, I want to see if the amount of time between a case’s oral argument and its published opinion is affected by the case type, the author or various measures that could reasonably be proxies for case complexity (e.g. number of Lexis Headnotes, length of the syllabus and number of docket entries); the second—and more important— goal of my independent study is to get comfortable with the sorts of programming and statistical analyses that empirical legal scholars use so frequently. Beyond those benefits, I’ve also just generally found this project really exciting and engaging—I’m developing a whole new skillset while doing interesting and original research on the Kansas Supreme Court. That never would have happened had I not taken the opportunity to collaborate with people in other graduate departments at the university. So, if you like to learn, if you want a new perspective on the law, if you want to expand your legal toolkit, or if you just want to get out of Green Hall for a little, find an interesting course outside the law school and enroll in it. n About the Author Jeff Carmody is a 3L from Lawrence, Kansas. He received his B.A. in philosophy and linguistics from the University of Kansas. Before law school, Jeff worked at the Lawrence Public Library. Pending bar passage, he will work as a research attorney at the Kansas Court of Appeals.
j.pirtle.carmody@gmail.com
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Members in the News
NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service. If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: editor@ksbar.org
New Positions Mark Burghart was confirmed by the Kansas Senate as Kansas Secretary of Revenue on March 26, 2019. Secretary Burghart, a lifelong Kansan, is a graduate of the University of Kansas. He earned his law degree from the Washburn University School of Law and his Masters of Laws in Taxation from the University of Missouri at Kansas City. Secretary Burghart has more than 35 years of experience combined between private and public service in tax law. He served the Department of Revenue as its first severance tax attorney and as General Council. Morgan Hammes passed the Kansas Bar exam and has joined the law firm of Foulston Siefkin LLP in Wichita where she will practice Employment and Labor Law. Hammes earned her J.D. from Washburn University School of Law. During law school, she served as a judicial extern to the Honorable K. Gary Sebelius and as a staff writer for the Washburn Law Journal. Burton Harding has been hired to serve as a part-time city attorney for Fort Scott, Kan. He succeeds long-time city attorney Bob Farmer, who resigned in March. Assistant County Attorney Tiana McElroy was recently hired as the city prosecutor. Crystal Howard joined Husch Blackwell in Kansas City, as a partner in its Tax practice group and its Financial Services 56
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& Capital Markets industry team. Howard received her Juris Doctor and her Master of Laws in Taxation from the University of Missouri-Kansas City School of Law. There, she was a Case Note and Review Editor for “The Urban Lawyer” and was a member of the “UMKC Law Review.” Igers Vangjeli has joined Cordell & Cordell, the nation’s largest domestic litigation firm focusing on representing men in family law cases. He will office at 4200 Little Blue Parkway, Suite 550, Independence, MO 64057. Vangjeli is a member of the Missouri, Kansas and Johnson County Bar Associations; he earned his juris doctor and LL.M in U.S. Legal Studies from the University of Connecticut School of Law. Before joining Cordell & Cordell, Vangjeli practiced family law. Matthew B. Sondergard has joined Arthur-Green Law Firm of Manhattan as an associate. Originally from Wichita, Sondergard earned his juris doctor from the University of Kansas School of Law. He will maintain a general civil practice. Justin Wilson has officially joined the Montgomery Co. attorney’s office as an assistant county attorney. Wilson is originally from Chautauqua Co., a former Marine, and played semi-pro rugby in Australia. He earned his Juris Doctor from Syracuse University, where he was president of the Federalist Society and a member of the nationally ranked Syracuse University National Trial Team. Wilson began his career as an appellate attorney in the Las Vegas, Nev., District Attorney’s office.
members in the news
New Locations and Names Travis D. Hanson with Foulston Siefkin LLP has relocated his offices from Wichita to Foulston Siefkin’s Overland Park location: 32 Corporate Woods, 9225 Indian Creek Parkway, Suite 600, Overland Park, KS 66210; Tel. 913-253-2132; thanson@foulston.com The Law Firm of James M. Milliken, Chartered in St. Francis, Kan., in June will change its name to Milliken Reyelts, P.A. Lauren Reyelts, who purchased the firm from Mr. Milliken, wanted to honor his name for the 47 and a half years of work he invested in his law office. Reyelts began working with Milliken in 2015, and purchased the firm in 2017. June marks the 50th year the firm has been in existence; the anniversary and the name change will be celebrated with a barbeque for the community on June 7th. Stinson Leonard Street LLP announced at the end of April that it was changing its name to Stinson LLP. It also introduced a new brand and logo, and was launching a new website—www.stinson.com. This new take on the firm comes in the wake of the 2014 merger of Stinson Morrison Hecker and Leonard, Street and Deinard. The firm engages with clients ranging from individuals to privately held enterprises to national companies and international public corporations. Stinson has nearly 500 attorneys in 13 U.S. cities.
Notables The Hayden High School Mock Trial Team had the opportunity to go to the National High School Mock Trial competition from May 16-19 in Athens, Ga. This was the first year the Topeka Catholic high school fielded a mock trial team. The Independent School in Wichita actually won the state competition but was unable to make the trip to nationals, giving second place Hayden the chance to attend and represent Kansas. The team that went to nationals included Alejandro Calderon, Alexa Scheer, Charlie Roeder, Dom D’Attilio, Brett Funk and Thomas Doyle. Their faculty coach is Travis Lamb; their two Washburn University law student coaches are Caleb Soliday and Michaela Webb. Ross Hollander of Joseph, Hollander & Craft LLC has been ranked among the state’s top labor and employment lawyers by “Chambers USA 2019.” This is the 11th consecutive year Hollander has received the top ranking from Chambers USA. A founding member of the firm, Hollander received his J.D. from the University of Kansas School of Law. While employment litigation dominates his practice, Hollander has extensive litigation experience in other areas. He focuses on defense of employment claims under state and federal statutes and regulations. Kendra Lewison, Riley County assistant county attorney, recently gave a presentation at Ft. Riley on alcohol-related offenses to soldiers from the 2nd Armored Brigade Combat Team, 1st Infantry Division. By making soldiers aware of the
local and state laws, officials hope to educate the military men and women and help them make wise choices. Dan Monnat of Monnat & Spurrier, Chartered in Wichita was ranked as one of Kansas’ top litigators in white-collar crime and government investigations. Monnat, who received his J.D. from Greighton University School of Law and also graduated from Gerry Spence’s Trial Lawyer’s College, has practiced criminal Law, white-collar criminal law and appellate law in Wichita for nearly 45 years. He was also named by Super Lawyers® as one of the Top 10 Lawyers in Missouri and Kansas. A number of Stinson LLP attorneys and practice groups were recognized by the Chambers USA Guide. The Guide is an annual list ranking leading firms and lawyers in an extensive range of practice areas. Inclusion is based on submissions from law firms, interviews with clients and lawyers, and Chambers’ own database resources. The publication assesses key qualities in the legal field, including technical legal ability, professional conduct, client service, commercial astuteness, diligence and commitment. Kansas and Kansas City practice groups earning recognition were: Corporate/M&A – Kansas; Corporate/M&A – Kansas City & Surrounds (Band 1 Recognition); Labor & Employment – Kansas; Labor & Employment – Kansas City & Surrounds; Litigation: General Commercial – Kansas; Litigation: General Commercial – Kansas City & Surrounds (Band 1 Recognition); Real Estate – Kansas City & Surrounds (Band 1 Recognition). The following Stinson attorneys recognized by Chambers USA as leaders in their practice areas and geographic region includes the following: Jack Marvin, Corporate/M&A; Real Estate (Band 1 Recognition); Jarrod Kieffer, Litigation: General Commercial; Robert Overman, Labor & Employment (Band 1 Recognition); Lynn Preheim, Litigation: General Commercial; Stephanie Scheck, Labor & Employment (Band 1 Recognition). Sarah Warner has been nominated by Gov. Laura Kelly to fill a Kansas Court of Appeals vacancy created by the retirement of Judge Patrick McAnany. Warner worked for Kansas Supreme Court Chief Justice Robert Davis for several years before joining the Lawrence law firm of Thompson Warner P.A. She became a partner in that firm in 2014. Warner received her J.D. from Ave Maria School of Law in Ann Arbor, Mich. She has served as President of the Kansas Bar Association for 2018-19; her term will conclude in June. Correction: In response to last issue’s Notables item regarding Maria DeGeer: Research showed Jennie Mitchell Kellogg was first woman admitted to Kansas Supreme Court on Feb. 3, 1881. Ida Tillotson admitted to Graham County Bar May 1886. Marie DeGreer was admitted to the state bar May 7, 1886 – she did become the first female member of the statewide bar association (KBA) in 1887.
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Obituaries Hal Eugene Des Jardins(2/6/1935 - 1-3-2019) Hal Eugene Des Jardins, attorney at law, died January 3, 2019 at 83 years of age at his home in Park Rapids, Minnesota. Hal was born in Kirwin, Kan., on February 6, 1935 to Mayo and Opal Des Jardins. He graduated from Clay Center High School as a football standout then attended Washburn University in Topeka, Kan., graduating in only three years. He continued on to Washburn Law School, working as a butcher to defray costs. From this skill, he gained a lifelong passion for grilling succulent meats for his family every Sunday. He met his wife, former beauty queen, Sheila “Dutch” Kerbs in college, they married and started a family. Hal graduated from Washburn Law School and was admitted to the Kansas Bar in 1959 with a BA, a wife, three kids and another on the way! A true patriot, he served as a Captain in the United States Air Force and JAG Corps. Hal personified the image of justice with a brilliant legal mind, depth of character, tremendous command of the English language and great personal presence. A witty raconteur, suave and debonair, he was his own highest praise.. a sport! Holding a deep respect for the truth, he practiced law in Topeka, Kan., for sixty years with the help of Cleonia Carver and Chriss Davenport. Although he thought the world of his team, he was not above pranks on his favorite proteges, Doug Wells & Paul Post. He was extraordinarily gifted and honed his craft tirelessly, never resting on his laurels, despising mediocrity- always striving for the best possible outcome for his clients, friends and family. Listening hard, narrowing his dark eyes, he would squint into the distance, take a hard puff of his smoke, and mull the situation. When he spoke with his deep, soothing resonant voice, he not only had an answer for you, but you felt the burden lifted. He was a skilled cartoonist and could capture your essence quickly in few strokes much to our dismay! He worked hard and played hard, taking his family of four children, wife, grandparents, dogs, and neighbor kids on wonderful vacations to Texas, Florida, Wisconsin, Hawaii and his favorite place, our Big Mantrap Lake cabin in Park Rapids, Minn. An avid muskie fisherman, he spent 50 years trying to outwit the big game fish—one of his few failures! For the past three years he lived in Minnesota with his daughter Jill and family. They had fun with their dogs, fishing and casino gambling. But as his health deteriorated, he was ready to join his wife,”Dutch”who he missed greatly, and his daughter Coco Dupree. His remaining children will forever miss him, Denese Jokela, Jill Miller, Peter (Tenisha) Des Jardins; grandchildren and great-grandchildren, Ryan (Leah)Miller, Cody (Priscilla) Miller, Megan (Jay) Harris, Parker Des Jar58
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dins, (Kylie), Courtney Brown (Quaid), Peyton Jokela, seven great-grandchildren and Uncle Bully. An open memorial gathering honoring his life was held on Saturday, May 18th from 1-5pm at the Dillon House,
Ronald Frank Evans (11/9/1957 - 5/3/2019) Ronald Frank Evans would not have wanted this obituary, as he would not have wanted the attention. But he has been overruled by his unexpected death at age 61 on May 3, 2019, at his home in Lakin, Kansas. And thus we honor Ron, a thoughtful, kind misanthrope, a sharp, smart wit, and a poignantly funny observer of life. Ron will be deeply missed by his colleagues, his lifelong friends, and, above all, his children. Ron loved his daughter Bailey Evans of Brooklyn, New York, and his son Ryland Evans of Portland, Oregon without measure or reservation. He gave them a steady and humorous world view. He also loved his faithful dogs, especially Gus. Ron was a polymath who read and absorbed everything. He was Google long before there was a Google—he knew movies, sports, books, law, politics, and music, his true passion. Ron was also a public defender for over 30 years, and the national authority on the McDougall v. MacDoogal legal doctrine. He defended thousands of people who were in trouble but too poor to hire a lawyer, and whose lives often weighed in the balance. He mentored and influenced many young lawyers who still strive to emulate his skills. Ron was the long-time chief of the Kansas Death Penalty Defense Unit in Topeka, Kansas, and, since 2015, the chief attorney for the Western Regional Public Defender in Garden City, Kansas. Ron was born in Okemah, Oklahoma on November 9, 1957, to Frank Elijah Evans and Jewell Dean Evans. He grew up in Stillwater, Oklahoma and graduated from Oklahoma State University. He earned his law degree from the University of Oklahoma in 1982, and began practicing law at the Oklahoma County Public Defender in Oklahoma City, Oklahoma. He moved to Austin, Texas in 1997 and then Topeka, Kansas in 1999. Ron was preceded in death by his father Frank Evans. In addition to his children, Ron is survived by their mother (and his former wife), Melody Brannon, by his mother, Jewell Evans of Stillwater, Oklahoma, and by his brother Rick Evans and family of Tulsa, Oklahoma.
obituaries
Private visitation for the family was May 6, 2019, in Garden City, Kansas, at Garnand Funeral Home. Friends and colleagues in the Garden City area gathered to remember Ron on Thursday, May 16 at Samy’s Spirits and Steakhouse. Memorial donations may be made to the Music Health Alliance and MusiCares, both of which help musicians and songwriters in need of financial help or medical care: http://www. musichealthalliance.com/donate-to-heal/ and https://www. grammy.com/musicares/donations.
James W. Sloan(1927 - 2019) James W. Sloan, 91, of Topeka, passed away Thursday, April 18, 2019. Jim was born December 30, 1927 in Hoxie, Kan., the son of Floyd A. and Gladys Wilburma (Gallogly) Sloan. He graduated from Topeka High School in 1945. He received his Bachelor of Arts degree from Washburn University in 1950 and his Juris Doctorate from Washburn Law School in 1952. He joined the law firm of Sloan, Hamilton & Sloan (now Sloan, Eisenbarth, Glassman, McEntire & Jarboe L.L.C), where he was a partner from 1955 until his retirement in 2008. He was a member of the Topeka Bar Association, the Kansas Bar Association and the American Bar Association. In 1996, he was named as honorary president of the Topeka Bar Association. He served on the Board of Directors of Topeka Civic Theater, Inc. where he was president in 1955 and elected to their Hall of Fame in 1991. In 2009 he received an Honorary Doctorate of Humane Letters from Washburn University. Jim was Chairman of the Shawnee County Democratic Central Committee from 1961 to 1966 and was a Presidential Elector in 1964. He served as a Member of the Board
of Friends of the Topeka-Shawnee County Public Library and its Foundation. He was also a Member of the Board of Kansas Children’s Service League and was Chairman of the Topeka Advisory Council of the Kansas Children’s Service League in 1996 and a Member of its Foundation. He has also been a Member of the Topeka Salvation Army Advisory Board since 1981. Jim has served as Treasurer of the Alpha Delta Alumni Association since 1957. He is a Trustee of the Washburn Endowment Association and is on the Board of Directors of the Ichabod Club and Washburn University Alumni Association. In 1998, Jim received the Distinguished Service Award from the Washburn Alumni Association and the Person of the Year Award from the Ichabod Club. He was named Alpha Delta Outstanding Alumnus of the year in 1968. Jim established the James W. Sloan Law Scholarship at Washburn University. With other members of his law firm, they established the Sloan, Listrom, Eisenbarth, Sloan & Glassman Scholarship at the Washburn University School of Law. Jim also established the James W. Sloan Scholarship Fund for Golf, James W. Sloan Men’s Tennis Scholarship and the Jeanne Bowman Wohlberg Drama Scholarship. He was preceded in death by his parents. Survivors include his two sisters, Mary Harkness and Patricia Ann Lusk. A memorial service was held Friday, April 26, 2019 at Trinity Presbyterian Church, 4746 SW 21st Topeka, KS 66604. Memorial contributions may be made to the Washburn University Foundation 1729 SW MacVicar Ave. Topeka, KS 66604 or the Alpha Delta Fraternity at Washburn University, PO Box 1383 Topeka, KS 66601.
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Appellate Decisions All opinion digests are available on the KBA website at www.ksbar.org/digests. 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 communication services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org
Kansas State Supreme Court Attorney Discipline ORDER OF SUSPENSION IN RE KEVIN T. CURE NO. 120,518—MAY 10, 2019
FACTS: A hearing panel determined that Cure violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(d) (misconduct that adversely reflects on the lawyer’s fitness to practice law); and Supreme Court Rule 203(c)(1) (failure to report felony charge). The complaint was filed after Cure had four DUI convictions and appeared in court under the influence. HEARING PANEL: The panel noted Cure’s multiple convictions as well as his conduct which directly affected clients. The panel considered both aggravating and mitigating factors, which included Cure’s alcoholism. The disciplinary administrator recommended an indefinite term of suspension. Cure asked that he be placed on probation. The hearing panel recommended an 18-month suspension, with Cure required to undergo a Rule 219 hearing prior to the consideration of a petition for reinstatement. HELD: Cure filed no exceptions to the hearing panel’s report. The court found that Cure has made significant strides towards changing his circumstances. But his ethical violations were serious. For that reason, a majority of the court agreed with the panel’s recommendation of an 18-month suspension. A minority of the court would have imposed lesser discipline. ORDER OF SUSPENSION IN RE DAVID E. HERRON, II NO. 119,726—MAY 10, 2019
FACTS: A hearing panel determined that Herron violated KRPC 1.6 (confidentiality); 3.3(a)(1) and (d) (candor toward tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in
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conduct prejudicial to the administration of justice). Charges arose after Herron told law enforcement that his client told him that she was faking urine tests in order to hide positive results. There was also an issue with a different client when Herron allegedly lied to the court about opposing counsel’s willingness to reargue an issue after a bench warrant was issued. Herron was fired and his former employer filed a disciplinary complaint. HEARING PANEL: The hearing panel found several instances where Herron lied to the district court. The hearing panel found a number of aggravating factors, including the submission of false evidence during the disciplinary process. The disciplinary administrator recommended disbarment. The hearing panel recommended that Herron be suspended for 30 days. HELD: Herron disputed the hearing panel’s findings. After considering Herron’s arguments, the court adopted most of the hearing panel’s report, but found that some actions flagged by the hearing panel as misconduct were within the realm of appropriate representation. A majority of the court concluded that a 60-day suspension was appropriate discipline. A minority of the court would have imposed a longer suspension. ORDER OF DISBARMENT IN RE JOHN S. SUTHERLAND NO. 8,791—MAY 2, 2019
FACTS: In a letter signed April 23, 2019, John S. Sutherland voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Sutherland was facing a disciplinary complaint connected with his convictions for mail fraud and making a false statement. HELD: The Court accepts the surrender of Sutherland’s license and he is disbarred.
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Civil DOUBLE JEOPARDY—HABEAS CORPUS IN RE PETITION FOR HABEAS CORPUS BY BOWMAN ORIGINAL ACTION—WRIT IS GRANTED NO. 119,270—MAY 17, 2019
FACTS: Bowman was charged with rape, aggravated criminal sodomy, and intimidation of a witness after he allegedly sexually abused his three-year-old granddaughter. At trial, witnesses testified about what the child told them and the tape of a 911 call was introduced. The child was called to testify by closed-circuit television with a comfort aide next to her. But despite repeated prompting, the child would not respond when questioned about whether she would tell the truth, and she would not take the witness oath. When it became apparent that the child was not going to take the oath, the district court asked for guidance on how to address the hearsay issue that was now present. The district court granted the State’s motion for mistrial and the jury was dismissed. Bowman later moved to have the case dismissed with prejudice since jeopardy had attached. The district court found that manifest necessity warranted allowing the State to try Bowman for a second time. Bowman sought original review of that decision. ISSUES: (1) Original jurisdiction; (2) mistrial; (3) double jeopardy HELD: The court may take jurisdiction over this matter under K.S.A. 60-1501 in order to address the double jeopardy claim. All analysis is based on statutory language rather than constitutional provisions. The child’s failure to take the oath made the trial more difficult for the State, but it did not make the trial physically impossible. Jurors could have been instructed to ignore testimony that was now hearsay and jurors knew that counsel’s arguments were not evidence. And the prosecutor knew that relying on a young child’s testimony could be risky, yet chose to introduce hearsay evidence before attempting to have the child take the oath. In the absence of any statutory authority, the district court judge abused its discretion by granting a mistrial. Jeopardy clearly attached in Bowman’s first trial. The child’s refusal to take the witness oath did not render a verdict “impossible”, as required by the double jeopardy statute, which means that the district court erred by finding that a second trial was permissible. Bowman’s criminal case must be dismissed, and he must be released from confinement. DISSENT: (Luckert, J., joined by Nuss, C.J. and Stegall, J.) The district court did not abuse its discretion by declaring a mistrial. The prosecutor’s comments made it impossible for Bowman to receive a fair trial. Because of this fact, a second prosecution is not barred by double jeopardy.
STATUTES: K.S.A. 2018 Supp. 21-5110, -5110(a)(3)(C), -5110(f ), 60-1501, -1501(a); K.S.A. 22-3423, -3423(1)(a), -3423(1)(c), 60-418, -460(a), -460(dd) DRAM SHOP LAW—TORTS KUDLACIK V. JOHNNY’S SHAWNEE, INC. JOHNSON DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 115,869—MAY 10, 2019
FACTS: Kudlacik was gravely injured by Smith, who was intoxicated after spending the evening drinking at Johnny’s Shawnee and Barley’s Bar. Kudlacik sued Johnny’s, claiming that bartenders continued to serve Smith even after they knew or should have known that he was intoxicated to an extent that he was a danger to others. Johnny’s moved to dismiss on grounds that Kansas does not recognize a cause of action for a third-party to sue dispensers of alcoholic beverages for harm done to the third party. Kudlacik appealed and the Court of Appeals summarily affirmed. The Supreme Court granted Kudlacik’s petition for review. ISSUES: (1) Existence of negligence claim; (2) aiding and abetting HELD: Kansas has repeatedly refused to impose a dram shop liability. Kudlacik’s arguments that the current rule is outdated and bad public policy have merits, but not enough to change the status quo. There is no duty of care that runs from tavern owners to third-parties injured by tavern patrons after they have left the premises. Aiding and abetting claims exist only under narrow circumstances which are not applicable here. STATUTES: No statutes cited. QUO WARRANTO—STATUTORY INTERPRETATION STATE V. KELLY ORIGINAL ACTION—QUO WARRANTO GRANTED NO. 121,061—MAY 10, 2019
FACTS: A vacancy on the Kansas Court of Appeals was created by the retirement of Judge Patrick McAnany on January 14, 2019. As required by statute, 60 days later, Governor Kelly nominated Judge Jeffry Jack to fill the vacancy. It is undisputed that the nomination was made and accepted within the statutory time frame. On March 18, 2019, Judge Jack sent a letter informing the Senate that he was withdrawing his name from consideration at the governor’s request. The following day, Governor Kelly communicated this withdrawal to the Senate Majority Leader. In that same communication, Governor Kelly told the Senate Majority Leader that she would make a new appointment within 60 days. This prompted a discussion between the Governor, the Attorney General, and the Senate President about what could be done to fill the vacancy. Acting on a request from the Attorney General, the State filed this quo warranto action in an attempt to determine who holds
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the appointing authority. After the action was filed, Governor Kelly appointed a different attorney to fill the vacancy. ISSUES: (1) Senate’s capacity to be sued; (2) authority to appoint replacement judge HELD: A quo warranto action demands that an individual or corporation show by what authority it has engaged in a challenged action—in this case, the action being challenged is Governor Kelly’s second nomination. Although the Senate participated in this action and did not object to service, there is no authority giving the Senate President unilateral power to enter the Senate into litigation. There was no chamber resolution or authorization from the coordinating council directing action in this matter. The Senate has not engaged in any allegedly unauthorized action. Under these circumstances, the Senate is not a proper party to this action, and it is dismissed. K.S.A. 2018 Supp. 20-3020 governs appointments to the Court of Appeals. That statute provides that appointments are effective at the time they are made and does not contain any language for withdrawing a nomination. The parties rely on K.S.A. 75-4315b. But it is inapplicable for several reasons. First, Judge Jack withdrew his own name from consideration. More importantly, K.S.A. 2018 Supp. 20-3020(b) establishes different rules regarding the vote process. There is no statutory provision for a nominee to be withdrawn. This silence in the statute is an indication that the Legislature did not intend to provide this power, especially because the prior Court of Appeals appointment statutes did address the ability to withdraw a nominee from consideration. The only way for Judge Jack’s nomination to be closed is for the Senate to vote. Because his nomination was still active at the time the second candidate was named, the second nomination is a legal nullity and is treated as though it never happened. STATUTES: Kansas Constitution Article III, section 3, section 18; K.S.A. 2018 Supp. 20-3020, -3020(a), -3020(b), 46-1222a(a), -1222a(f ); K.S.A. 60-1202(l), 75-4315b EQUAL PROTECTION—KANSAS CONSTITUTION HODES & NAUSER, MDS V. SCHMIDT SHAWNEE DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 114,153—APRIL 26, 2019
FACTS: Senate Bill 95 bans the most common type of second-trimester abortion, referred to in medical terms as Dilation and Evacuation (D&E). Doctors Hodes and Nauser, who perform both regular abortions and D&Es, sought to temporarily enjoin SB 95 on grounds that it violates sections 1 and 2 of the Kansas Constitution Bill of Rights. The State objected, arguing both that the Kansas Constitution does not provide a right to abortion or, in the alternative, that SB 95 is not unduly burdensome. The district court agreed with the doctors and issued the temporary injunction. The State immediately
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appealed and the Kansas Court of Appeals, sitting en banc, affirmed the district court by splitting 6-1-7. The State’s petition for review was granted. ISSUES: (1) Establishing a constitutional right; (2) level of scrutiny HELD: Sections 1 and 2 of the Kansas Constitution Bill of Rights have much the same effect as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, but the Kansas Supreme Court has the right to interpret the amendments more expansively than do federal courts who interpret the corresponding federal provisions. Section 1 of the Kansas Constitution Bill of Rights acknowledges rights that are distinct from and broader than the United States Constitution. This includes the right to personal autonomy and, in turn, the right of a woman to make her own decisions regarding her body, health, and family formation. The State may encroach on these natural rights only with a compelling justification. The fundamental right implicated here demands that strict scrutiny be used to evaluate the proposed legislation; the court rejects the Casey standard of “undue burden.” Even though the district court used an undue burden standard the error is harmless. The district court correctly issued the temporary injunction because the doctors proved that they are substantially likely to prevail on their claim that SB 95 does not promote a compelling government interest. CONCURRENCE: (Biles, J.) The correct result was reached, including the findings on the meaning of section 1 of the Kansas Constitution. But the strict scrutiny established by the majority offers little guidance for application or how to differentiate from the undue burden standard. DISSENT: (Stegall, J.) The majority’s decision fundamentally alters the structure of our government. Section 1 of the Kansas Constitution Bill of Rights is a guarantee of the right of republican self-government. Instead of using a strict scrutiny analysis as relates to a fundamental right, the proper standard is “rational basis with bite.” The linchpin of the analysis is questioning what Kansas citizens have authorized the legislature to do on their behalf. Here, the analysis would question whether SB 95 is reasonably related to the furtherance or protection of the common welfare. STATUTES: Kansas Constitution Bill of Rights, sections 1 and 2
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Criminal CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— SENTENCES—STATUTES STATE V. BROOK NEMAHA DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 115,657—MAY 10, 2019
FACTS: Brook entered a no contest plea to sexual exploitation of a child in 2013. Sentence imposed included 36-month prison term suspended for 36 months’ probation, and 2 years postrelease supervision. When Brook committed another crime, district court revoked probation and imposed the original sentence, correcting the postrelease term from two-year to a lifetime term as required for a sexually violent crime. Brook appealed, arguing the postrelease term could not be corrected as an illegal sentence, citing K.S.A. 2018 Supp. 22-3717(d)(3) and K.S.A. 2013 Supp. 22-3717(d)(1). He also claimed lifetime postrelease supervision is cruel and unusual punishment. Court of Appeals affirmed in unpublished opinion. Review granted. ISSUES: (1) K.S.A. 2018 Supp. 22-3717(d)(3); (2) K.S.A. 2013 Supp. 22-3717(d)(1); (3) Constitutional claim HELD: Book’s statutory arguments are rejected. Imposition of an underlying prison term after a probation violation is not equivalent to “incarceration for a supervision violation,” thus a period of postrelease supervision term may be modified while serving the underlying prison sentence after probation revocation. The original sentence was illegal because the two-year postrelease term did not conform to applicable statutory requirements, thus it was subject to later correction. Brook’s categorical constitutional challenge to lifetime postrelease supervision is defeated by State v. Williams, 298 Kan. 1075 (2014). State v. Dull, 302 Kan. 32 (2015), applicable to juvenile offenders, is distinguished and not expanded. STATUTES: K.S.A. 2018 Supp. 22-3504(1), -3717, -3717(d)(1), -3717(d)(1)(D), -3717(d)(3); K.S.A. 2013 Supp. 22-3717(d)(1)(D), -3717(d)(1)(G); K.S.A. 22-3504 CRIMINAL PROCEDURE—MOTIONS—SENTENCES STATE V. EDWARDS SEDGWICK DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED NO. 117,305—MAY 10, 2019
FACTS: Criminal charges filed against Edwards, including two counts of capital murder. District court appointed two experienced public defenders. Edwards filed a pro se motion for appointment of new counsel, claiming pressure to accept a plea deal. District court denied the motion. He eventually entered a guilty plea to two counts of felony mur-
der, aggravated burglary and aggravated robbery. Two weeks later, he filed a pro se motion to withdraw his plea, alleging pleas resulted from attorney manipulation and lies, and that he engaged in sexual encounters with one of the public defenders. Hearing held with new appointed counsel. District court applied factors in State v. Edgar, 281 Kan. 30 (2006), finding: overwhelming evidence supported the competency of Edwards’ attorneys; Edwards was not misled, coerced, mistreated, or unfairly taken advantage of; and the allegations of sexual misconduct were not credible. At sentencing, district court imposed lifetime postrelease supervision for the felonymurder convictions and orally waived payment of the BIDS administrative fee, but journal entry assessed a $100 BIDS fee. Edwards appealed claiming district court erred in denying motion to withdraw plea. He also claimed district court lacked authority to order lifetime postrelease supervision, and the journal entry must be corrected to show district court’s waiver of the BIDS administrative fee. ISSUES: (1) Lifetime postrelease supervision; (2) waiver of BIDS administrative fee; (3) motion to withdraw plea HELD: State concedes that sentence for off-grid first-degree felony murder should have ordered lifetime parole instead of lifetime postrelease supervision. The judge’s oral pronouncement is controlling. Any journal entry variance from a judge’s oral pronouncement during sentencing is a clerical error that may be corrected at any time. District court is ordered to correct the journal entry to properly reflect the waiver of BIDS fees. Edwards relies exclusively on second Edgar factor to claim he was coerced into taking his plea, but evidence of his dissatisfaction with counsel is insufficient to establish good cause to withdraw a guilty plea. Edwards also objected to district court’s comments regarding plea offers by State in a co-defendant’s case. However, district court expressly confined itself to Edgar factors when deciding Edwards’ motion, and no abuse of district court’s discretion is shown. Edwards’ motion to withdraw his guilty plea is affirmed. STATUTE: K.S.A. 2018 Supp. 22-3210(d)(1), -3504(2), -3601(b)(3) APPELLATE PROCEDURE—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURISDICTION SENTENCES—STATUTES STATE V. GARCIA-GARCIA MONTGOMERY DISTRICT COURT—CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, CASE REMANDED NO. 116,648—MAY 10, 2019
FACTS: Garcia-Garcia was involved in a high-speed chase in Oklahoma, with shots fired from Garcia-Garcia’s car. After entering Kansas, he obtained a ride from Shafer, who felt
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threatened by a gun and was able to escape. Garcia-Garcia then obtained ride with Henderson, who was injured when officer Grimes stopped Henderson’s truck and exchanged gunfire with Garcia-Garcia. Prior to trial, district court denied a motion in limine to bar evidence about Garcia-Garcia’s criminal acts in Oklahoma. Jury convicted Garcia-Garcia of attempted capital murder of Grimes, kidnapping of Shafer, and interference with law enforcement. Sentence imposed included hard 25 life sentence with consecutive presumptive sentences for the remaining offenses. Garcia-Garcia appealed: (1) challenging relevancy and prejudice of evidence about his Oklahoma criminal acts, (2) claiming prosecutor error in voir dire and closing argument; (3) alleging district court should have given unrequested jury instruction on attempted kidnapping because overwhelming evidence that Shafer escaped; and (4) arguing district court erroneously imposed BIDS fees as a percentage of attorney fees without knowing the exact amount. Supplemental briefing ordered on the notice appeal, which was titled to the Kansas Court of Appeals instead of the Kansas Supreme Court. ISSUES: (1) Appellate jurisdiction; (2) evidence of Oklahoma crimes; (3) prosecutorial error; (4) lesser included offense instruction; (5) BIDS fee assessment HELD: Kansas Supreme Court’s jurisdiction under K.S.A. 2016 Supp. 22-3601(b)(3) and (b)(4) is examined, holding the court has jurisdiction despite the misdirected notice of appeal. Under facts in case, no abuse of district court’s discretion to find evidence of the Oklahoma criminal acts was not unduly prejudicial. Garcia-Garcia did not preserve his challenge to relevancy of the Oklahoma evidence. Prosecutor’s voir dire explanation of reasonable doubt did not alter or lower the State’s burden. Prosecutor’s suggestion during closing argument that Garcia-Garcia had a duty to act in defense of officers was harmless error in this case. By showing his gun, Garcia-Garcia gained sufficient control over Shafer to complete the crime of kidnapping. An instruction on lesser included offense of attempted kidnapping was not factually appropriate. Court reviews the newly raised BIDS issue. Under State v. Robinson, 281 Kan. 538 (2006), district court’s failure to fulfill its statutory duty to consider the defendant’s finan-
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cial resources and burden created by the attorney fees before granting a partial waiver was reversible error. Attorney fees assessment is vacated and case remanded for reconsideration of Garcia-Garcia’s obligation. STATUTES: K.S.A. 2017 Supp. 21-5109(b)(3). -5301(a), -5401(a)(5), -5408(a)(2), -6620(a)(2)(A), 60-455, -455(b), -2103(b); K.S.A. 2016 Supp. 22-3601(b), -3601(b)(3), -3601(b)(4)(G); K.S.A. 2015 Supp. 21-5401(c), -6620(a)(2) (A); K.S.A. 22-4513, 60-404, -455 CRIMINAL LAW—CRIMINAL PROCEDURE SENTENCES STATE V. MOORE WYANDOTTE DISTRICT COURT—SENTENCE VACATED IN PART AND CASE REMANDED NO. 117,275—MAY 10, 2019
FACTS: Moore and Warren were tried together and convicted of premeditated first-degree murder, intentional second-degree murder, and attempted premeditated first-degree murder. Hard 50 life sentences were imposed for the off-grid premeditated murder convictions. In Moore’s case, gridbox sentences of 195 months and 155 months were imposed, with all of Moore’s sentences to run concurrent. Convictions in both cases were affirmed on appeal, but hard 50 sentences were vacated due to Alleyne v. United States, 570 U.S. 99 (2013). On remand, the district court imposed hard 25 sentences for first-degree murder convictions, modified the duration and concurrent nature of the on-grid convictions, and ordered all sentences to run consecutive instead of concurrent. Moore appealed. ISSUE: (1) Sentencing on remand HELD: Applying the controlling holding in State v. Warren, 307 Kan. 609 (2018), district court on remand erred by changing life sentence from “running concurrent with,” to “consecutive to,” Moore’s sentences for his two non-vacated on-grid crimes, and by modifying the two non-vacated, ongrid sentences in length and sequence. Sentence vacated in part and case remanded for resentencing to reinstate Moore’s original 195-month and 155-month concurrent grid sentences, to run concurrent with the new hard 25 sentence. STATUTE: K.S.A. 2018 Supp. 21-6801 et seq., 22-3601(b)(3)
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Kansas Court of Appeals Civil PARENTAL RIGHTS IN RE K.H. SHAWNEE DISTRICT COURT—REVERSED AND REMANDED NO. 120,239—MAY 17, 2019
FACTS: The Mother’s children were removed from her care after allegations of physical abuse. Mother appeared at all hearings during the reintegration process. Ultimately, the State moved to terminate Mother’s parental rights, in part because she was recently incarcerated. At the termination hearing, Mother did not appear in person but did appear through her court-appointed attorney. The district court recessed for 10 minutes in order to allow Mother to attend, but when she did not come to court, the district court granted the State’s motion for default judgment. Mother moved to reconsider, but her motion was denied; and Mother appealed. ISSUE: (1) Ability to enter default judgment HELD: There is statutory authority for a parental termination hearing where counsel attends in lieu of the parent appearing personally. If the parent does not appear, the State may proceed by proffer if there is no objection from the parent’s counsel. If there is, the State must present evidence to the court in support of termination. The district court failed to follow this statutory procedure. Because of that failure, the record on appeal does not contain any evidence in support of termination. The case must be remanded to the district court for further proceedings. STATUTE: K.S.A. 2018 Supp. 38-2248(f ), -2249(a), -2266(a), -2269(a), -2269(b), -2269(c), -2269(g)(1), -2267(d), -2234(a)(8), 60-255 DRIVER’S LICENSE—STATUTORY CONSTRUCTION JARVIS V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—AFFIRMED NO. 119,116—MAY 10, 2019
FACTS: Officer Hirsch stopped Jarvis on suspicion of DUI. Officer Hirsch read the implied consent advisories to Jarvis, who refused to take a breath test. This resulted in the administrative suspension of Jarvis’ driver’s license. Jarvis requested an administrative hearing but the suspension was upheld. Jarvis then sought judicial review, claiming that the officer lacked reasonable suspicion to initiate the stop. After hearing testimony and reviewing the evidence—including video of the traffic stop—the district court reversed the suspension. In so holding, the district court found that Officer Hirsch’s testimony was not credible. The Department of Revenue appealed. ISSUES: (1) Reasonable suspicion for the car stop; (2) effect of 2016 amendment to K.S.A. 8-1020(p); (3) good faith exception
HELD: Appellate courts are unable to review a lower court’s factual findings regarding witness credibility, and the district court found that Officer Hirsch’s testimony was not credible. Legislative history shows that the 2016 amendment to K.S.A. 8-1020(p) was designed to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in a driver’s license suspension case. In this case, the district court’s ruling was not based on an application of the exclusionary rule. The district court did not suppress evidence but rather set aside the suspension of Jarvis’ license finding that the plain language of K.S.A. 2018 Supp. 8-1020(p) justified reversal of the suspension. The issue of application of the good faith exception was not raised below. As such, it will not be reviewed for the first time on appeal. Even if the court were to address it on the merits, it would not be a winning argument, since the reversal of Jarvis’ suspension was not based on the exclusionary rule. STATUTES: K.S.A. 2018 Supp. 8-1020(p); K.S.A. 8-1020(h)(2) JURISDICTION—STANDING—TRUSTS IN RE ESTATE OF MOUCHAGUE JOHNSON DISTRICT COURT—APPEAL DISMISSED NO. 118,287—MAY 3, 2019
FACTS: Mouchague died in 2012. Terry Diehl was appointed as executor of her estate. The sole beneficiary of the estate of Mouchague’s trust. Leonard and Patricia Kowalski have an 80 percent equitable interest in the trust as beneficiaries, but neither Leonard nor Patricia serve as a trustee. In her role as executor, Diehl moved for attorney fees for costs incurred in a quiet title action. The district court in this probate action awarded Diehl fees not only for the quiet title action but also for a prior appeal in which the Kowalskis challenged another attorney fee award. The Kowalskis appealed. ISSUES: (1) Standing; (2) actions by the trustee; (3) appellate attorney fees HELD: The Kowalskis are aggrieved here because Diehl has been awarded fees out of estate funds, which leaves less money to eventually pass on to the Kowalskis. But neither Kowalski is a beneficiary of Mouchague’s will—the only beneficiary is the trust. The Kowalskis lack standing to pursue an action on their own behalf when the appropriate party would be the trustee. But an exception would allow them to pursue this action if they could prove that the trustee failed to protect their interests as beneficiaries. The Kowalskis failed to prove that the trustee improperly failed to protect their interests in trust property. In light of this absence of proof, only the trustee has standing to appeal. Documents provided to the court show that Diehl is entitled to appellate attorney fees. But the motion failed to include the detailed affidavit that is required by Rule 7.07(b)(2). In the absence of that required affidavit, the motion for fees is denied. www.ksbar.org | June 2019 65
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STATUTES: Kansas Constitution, Article 3, § 1; K.S.A. 58a-816(24), -1001(a), 59-1717, -2224 BANKS—CONSUMER PROTECTION COMMUNITY FIRST NATIONAL BANK V. NICHOLS WABAUNSEE DISTRICT COURT—AFFIRMED NO. 118,981—MAY 10, 2019
FACTS: Sarah Grace and Kurtis Nichols obtained two home loans from Community First National Bank. When the Nicholses failed to make payments, the bank filed this foreclosure action. The Nicholses filed several counterclaims alleging violations of the Kansas Consumer Protection Act. The bank filed a motion for partial summary judgment arguing that it was not subject to the KCPA. The district court granted that motion, dismissed the rest of the Nicholses’ counterclaims, and granted the Bank’s motion for foreclosure. The Nicholses appealed. ISSUES: (1) Applicability of the KCPA; (2) application of payments; (3) fraud in applying credit; (4) ability to charge late fees; (5) accrual of interest during deferral period HELD: The plain text of the KCPA states that banks are not included in the definition of “supplier” if the bank is subject to state or federal regulation related to disposition of repossessed collateral. This holding is in line with Kansas federal courts and gives meaning to the plain language of the statute. The mortgage contract is clear about how interest is accrued but silent on how payments should be applied. The district court erred by finding that the contract was unambiguous. However, any error was harmless, as the amount owed by the Nicholses was ultimately correct. The Nicholses’ claims about fraud are unsupported by the record on appeal. The evidence supports the district court’s findings that any errors in late fee calculation were unintentional and minimal. The deferral agreement clearly deferred payments but did not stop interest accrual. STATUTES: K.S.A. 2018 Supp. 50-624(1), -626, -627; K.S.A. 16a-2-103(2)(a), -502(l), -5-201(3), -5-201(4), -5201(7) ADVERSE POSSESSION—EASEMENTS CENTRAL KANSAS CONSERVANCY, INC. V. SIDES MCPHERSON DISTRICT COURT AFFIRMED IN PART—REVERSED IN PART REMANDED WITH DIRECTIONS NO. 119,605—MAY 17, 2019
FACTS: In 1997, Union Pacific Railroad and the Central Kansas Conservancy entered into a line donation contract where Union Pacific gave the Conservancy a quitclaim deed to its easement rights for over 12 miles of railroad corridor. With that deed, the Conservancy obtained the right to develop a recreational trail on the easement. Part of the trail runs through the Sideses’ land. In 2015, the Conservancy petitioned the district court for quiet title and an injunction concerning its trail use easement. It claimed that the Sideses attempted to block access to the easement with fencing and equipment in the roadway. The Sideses admitted that fact, but claimed that these actions constituted adverse possession 66
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of the Conservancy’s ownership interest or, in the alternative, that they had a prescriptive easement on the land. The parties filed competing summary judgment motions and the district court granted the Conservancy’s motion and denied the Sideses’. The district court eventually granted the Conservancy’s request for an injunction which required the Sideses to allow the Conservancy to have access to the easement property. The order further discussed the erection of a fence that would keep the Sideses’ cattle from straying. The Sideses appealed. ISSUES: (1) Jurisdiction; (2) adverse possession and prescriptive easement; (3) application of time limit; (4) fencing HELD: The Conservancy’s original petition brought claims of quiet title, injunction, and damages. A decision on that petition could not be final until all three claims were addressed. There was a gap in time before the district court held a hearing and issued a decision on the injunction, and the decision was not final until that ruling was issued. Some real property cannot be adversely possessed or obtained by prescriptive easement, including property that is meant for public use. The Conservancy’s trial use easement is meant for public use, which prevents the Sideses from obtaining rights through either adverse possession or prescriptive easement. The Conservancy’s right to develop a trail arose before the KRTA went into effect, which means the district court properly ruled that the two-year time limit did not apply. And even if it did, the Sideses’ only remedy would be to require the Conservancy to complete the trail—there is no remedy that would allow the property to revert to the Sideses. The district court violated the plain language of the statute when it ordered the Sideses to pay for half of the cost of fencing. The Conservancy must install barbed wire and electric fencing along the railroad corridor. The Conservancy may enter the Sideses’ property when constructing a fence. STATUTES: 16 U.S.C. § 1247(d); K.S.A. 2018 Supp. 58-3215; K.S.A. 58-3212, -3213, -3213(a)(3), -3213(c), -3213(d), 60-503, -509
Criminal CRIMINAL LAW—CRIMINAL PROCEDURE SENTENCES—STATUTES STATE V. POLLMAN FINNEY DISTRICT COURT—SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING NO. 118,672—MAY 10. 2019
FACTS: Pollman was charged in 2011 with discharging a firearm at an occupied vehicle, and two counts of criminal damage to property. Pursuant to plea agreement he entered no-contest plea to amended charge of discharge of firearm at an unoccupied vehicle—a crime that did not exist—and State dismissed the two criminal damage counts. District court accepted the plea, categorized the nonexistent offense as a severity level 8 person felony, ordered $4000+ in restitution, imposed a 10-month prison term, and granted 18-month probation. Pollman was charged and convicted in 2017 on a drug possession charge. Sentencing court scored the non-
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existent 2011 offense as a person felony. Pollman appealed the 2017 sentence, arguing that rule of lenity or by treating the 2011 conviction as an unclassified crime, the 2011 crime should be scored as a nonperson misdemeanor. In supplemental briefing on appellate court questioning the validity of the 2011 conviction, Pollman argued the 2011 conviction for a noncriminal act was invalid or void for purpose of his criminal history. ISSUES: (1) Use of nonexistent offense in criminal history score; (2) scoring the nonexistent offense for purposes of criminal history HELD: Pollman’s 2011 conviction for discharging firearm at an unoccupied vehicle stands. He forfeited right to attack an underlying infirmity in the charge to which he pleaded, as established by cited cases in Kansas and other jurisdictions. Other nonexistent or hypothetical crimes are discussed. Factors in Spencer v. State, 24 Kan. App. 2d 125 (1997), aff’d on other grounds 264 Kan. 4 (1998), for pleading to a nonexistent crime are satisfied. Pollman pleaded to a nonexistent crime as part of a plea agreement. He was initially brought into court on a valid pleading that alleged only crimes defined by Kansas Legislature. He received a beneficial plea agreement. And he voluntarily and knowingly entered into the plea agreement. Pollman’s 2011 conviction is not among the exclusive statutory exceptions to general rule that requires all convictions are to be counted. The 2011 conviction was a verified conviction. By nature of penalty imposed, it was a felony, and this unclassified felony should have been scored as a nonperson crime. The rule of lenity does not apply because criminal code guides how to classify unclassified, omitted, or unranked convictions. Pollman’s 2017 sentence is vacated and remanded for resentencing to score the 2011 offense as a nonperson felony rather than a person felony. DISSENT (Atcheson, J.): Dissents from majority’s result and reasoning. District court’s acceptance of Pollman’s plea created a common-law crime existing by judicial declaration rather than legislative enactment. This is contrary to Kansas Criminal Code; it ignores controlling Kansas Supreme Court precedent; and almost certainly violates Kansas Constitution’s separation of powers. Majority’s broad endorsement of plea agreements and convictions for common-law crimes is unjustified. Plea bargaining in Kansas does not contemplate common-law crimes. Majority misapplied judicial reasoning by analogy. Cases cited by majority are distinguished as resulting in convictions for statutory crimes, unlike Pollman’s 2011 conviction for an offense not in the Kansas Criminal Code. Future problems in plea bargaining are envisioned, and the majority failed to consider collateral consequences apart from scoring criminal histories. STATUTES: K.S.A. 2018 Supp. 2-2449(a), 8-2118(c), 21-5210, -5301,-5302, -5813, -6308, -6613, -6614, 224902(c), -4902(c)(16), -4902(c)(18), 47-830(e); K.S.A. 2016 Supp. 21-5102, -5102(a), -5102(d), -5103(a), -6602(a)(4), -6806(c), -6807(c)(1)-(3), -6810(c), -6810(d), -6810(d)(1),
-6810(d)(6), -6810(d)(9), -6813(b)(5); K.S.A. 2011 Supp. 22-4902(e)(2); K.S.A. 2010 Supp. 21-4217(a)(1), -4217(a) (2), 22-3502; K.S.A. 8-1534(d), 21-3102, -3105, -3720, -3720(b)(2), -4219, -4219(b), -5301(c)(1), 22-3504, -4901 et seq., 60-1507, 65-6615(a)(2) CONSTITUTIONAL LAW—CRIMINAL LAW EVIDENCE—STATUTES STATE V. WARNKE DICKINSON DISTRICT COURT—REVERSED NO. 118,738—MAY 3, 2019
FACTS: Auto driven by Warnke collided with horse-drawn open two-wheeled buggy traveling on K-43, resulting in death of horse and injuries to the two boys in the buggy. Some evidence that Warnke may have been on her cell phone right before the accident. Jury found Warnke guilty of felony reckless aggravated battery and misdemeanor criminal damage to property. Warnke also convicted on two traffic infraction charges tried to the court. On appeal Warnke challenged the sufficiency of the evidence supporting her convictions, arguing the record contains at most evidence of inattentive driving, and no evidence she acted knowingly. She also argued the phrase “can be inflicted” in the aggravated battery statute is unconstitutionally vague. ISSUES: (1) Aggravated battery; (2) misdemeanor criminal damage to property; (3) constitutionality of K.S.A. 2018 Supp. 21-5413(b)(2)(B) HELD: Reckless aggravated battery statute, requiring a showing of reckless conduct, is contrasted with vehicular homicide statute which does not require proof of reckless or intentional misconduct. Speaking on a cell phone while driving is not a violation of Kansas traffic laws. In this case, Warnke clearly was at fault for failing her common-law duty to keep a proper lookout of the road ahead, but her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery. Convictions on those two charges are reversed. Warnke was aware that she was talking on cell phone as she drove down the highway, but evidence does not support that she was aware that talking on cell phone while driving was reasonably certain to cause her collision with the buggy. Conviction for criminal damage to property is reversed. Warnke’s constitutional claim is dismissed as moot. STATUTES: K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(i), -5202(j), -5406, -5406(a), -5406(c), -5413(b)(2), -5813(a)(1), -5813(c)(3); K.S.A. 2016 Supp. 8-15,111, 215413(b)(2)(A), -5413(b)(2)(B), -5813(a)(1), -5813(c)(3); K.S.A. 21-3405
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Appellate Practice Reminders From the Appellate Court Clerk's Office Annual Attorney Registration for 2019 By now you have already received a hard copy of your annual attorney registration. You have also received emails concerning Online Annual Attorney Registration. Rule 208 has drastically changed. Online Registration has finally come to Kansas and it’s here to stay. It is optional in 2019 and 2020, but will be mandatory for 2021 and beyond. More information is available on the Kansas Supreme Court Website at the Attorney Registration Office link. Your Registration is due June 30. LET ME REPEAT THAT: YOUR ANNUAL ATTORNEY REGISTRATION IS DUE JUNE 30. A late fee will automatically be assessed for registration forms and fees received after June 30 and for all online registrations completed after June 30. THE LATE FEE CHANGES ALSO APPLY TO YOUR ANNUAL CLE REGISTRATION. The annual CLE fee is due by June 30. A CLE fee postmarked on or after July 1 must be accompanied by the late fee. The Future of Online Registration is here! For questions about registration issues contact the Office of the Clerk of the Appellate Courts, Kansas Attorney Registration, registration@kscourts.org or (785) 296-8409. We are here to help.
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The Journal of the Kansas Bar Association
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Positions Available Advocate – Disability Crime Victims Unit Help obtain justice for victims of crime with disabilities. Advocate sought by Disability Rights Center of Kansas to advocate for crime victims with disabilities. 40 hour a week position, yearly pay is approx $32K, but depends on experience. Paralegals encouraged to apply. Great benefits. Employer-paid BCBS health insurance, KPERS retirement, etc. Questions? Need an alternative format? Contact DRC: 1-877776-1541 for info@drckansas.org. Get the full job description & application at www. drckansas.org/about-us/jobapp Attorney Position Available. Arn, Mullins, Unruh, Kuhn & Wilson LLP, established Wichita law firm seeks associate and/ or lateral hire. Minimum two (2) years’ experience in Civil, Family, Litigation and General Practice. Attractive benefits, including health insurance, 401(k), disability/life insurance. Please forward resume, introductory letter and writing sample(s) to: Kris J. Kuhn (kkuhn@arnmullins.com). Attorney Position Available. Young, Bogle, McCausland, Wells & Blanchard, a downtown Wichita law firm seeks associate or lateral hire. At least three years’ experience in civil litigation/general practice and must be admitted to the Kansas Bar. Equal opportunity employer. Competitive benefits, including health insurance. Email resume, introductory letter, writing sample, and salary requirements to Paul McCausland, p.mccausland@youngboglelaw.com. Litigation attorney position available at a small, downtown Wichita firm with colorful personalities and fun working environment. Requirements: minimum 2 years civil litigation experience, Kansas license, strong customer service skills, and excellent research and writing ability. Preference will be given to attorneys with additional experience in bankruptcy, business or transactional matters. We offer a very competitive salary and full benefits package. Applicants should send a resume, cover letter, salary history, list of references, and writing sample to laura@eronlaw.net. All inquiries will be held in confidence, except for contacting listed references. Crow & Associates, Leavenworth, seeks associate attorney. Benefits include health/ dental insurance. Salary negotiable. Send resume to mikecrow@crowlegal.com
Evans & Dixon, LLC seeks to hire an attorney with strong transactional expertise for our Overland Park office. We offer a rewarding work environment with a commitment to creating long-term relationships with our clients by providing excellent service. Email cover letter and resume to lhauf-vitale@ evans-dixon.com
Wichita Law Firm Seeks Associate Attorney Downtown Wichita law firm seeks to hire an associate attorney to work on all aspects of family law cases. The associate may be given an opportunity to develop a practice outside of the family law area. Interested candidates are asked to send their resume and cover letter to tlegrand@slwlc.com.
Legal Secretary – Goodell, Stratton, Edmonds & Palmer, LLP has an opportunity for an experienced legal secretary. The legal secretary will perform necessary legal functions by providing administrative support to professional legal staff. For detailed information regarding the position, contact gsep@ gseplaw.com. Goodell, Stratton, Edmonds & Palmer, LLP offers a competitive compensation and benefit package commiserate with level of experience including health, dental and life insurance, 401k, Profit Sharing, paid vacation and sick leave. Resumes may be sent to: Managing Partner, Goodell, Stratton, Edmonds & Palmer, LLP, 515 South Kansas Ave., Suite 100, Topeka, KS 66603 or email to: gsep@gseplaw.com Overland Park/Corporate Woods Law Firm. Jones & McCoy, P.A. seeking experienced associate attorney with 3+ years of civil litigation experience in business, estates and trust, family law, personal injury and other civil matters. Must have Kansas and Missouri licenses. Great opportunity for the right person to learn and grow their practice. Please send cover letter and resume to brant@jones-mccoy.com. Part-Time Legal Assistant. A private law firm in Topeka has an immediate opening for a qualified Legal Assistant processing collections. Experience in general office administration required and legal office experience is preferred. Only applicants meeting specific criteria will be considered; please contact for duties and requirements. Please send resume and cover letter for consideration to the attn. of Alisia at info@probascolaw.com or via fax (785) 233-2384. Wanted. Lawyer with a minimum of 3 years’ experience practice in estate and business law with a desire to become the owner of a central Kansas firm that has a very predictable gross revenue. The firm limits its practice to estate planning, probate, trust settlement and business planning. Please send your resume to kslawyerrecruit2019@ gmail.com.
Attorney Services Appeals. Experienced trial and appellate attorney available for state and federal appellate case referrals. Licensed before state courts of Kansas and Colorado, U.S. Supreme Court, and various circuit courts of appeals including the Tenth Circuit Court of Appeals. Listed, Who’s Who in American Law. Work featured in The New York Times and The Washington Post. Author of numerous legal articles and Am. Jur. Trials treatise on constitutional tort law. Trial perspective at the appellate court level. Reasonable rates, fee arrangements. Contact John B. Roesler, Attorney at Law, PO Box 604, Lawrence, Kansas 66044, (303) 929-2244, jroesler@lawyer.com. Contract brief writing. Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 40 cases before the Kansas Court of Appeals and 15 briefs before the Tenth Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or email to learn more. Jennifer Hill, (316) 263-5851 or email jhill@mcdonaldtinker.com. Contract brief writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions. Attorney has briefed numerous appeals in both the Kansas and federal appellate courts. Contact me if you need a quality brief. Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com. Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com. Need Experienced Help Meeting a Deadline? Have an experienced attorney (25+ yrs.), with superior writing skills, successful track record, and excellent work history (small and large firm), assist you on a contract basis. Available to prepare Dispositive www.ksbar.org | June 2019 69
classified advertisements
Motions, other motions, trial court and appellate Briefs, pleadings, probate/estate planning documents; also available to assist with Research, discovery requests and responses. Quality work; flexible. Experience includes litigation, wills/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact me at m-ksmolaw@outlook.com to discuss. QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 856-1628 or email cgb@barnhillatlaw.com. Security Expert Witness. Board Certified Protection Professional and former Senior Police Commander providing forensic consulting to both plaintiff and defense counsel in all areas/venues of security negligence. A comprehensive CV, impeccable reputation and both criminal and civil experience equate to expert litigation support. Michael S. D’Angelo, CPP. Secure Direction Consulting, LLC. www.securedirection.net. (786) 444-1109. expert@securedirection.net Social Security Disability Services. Your clients that are dealing with serious injuries or illness may have a claim for Social Security disability. We have lots of experience, get good results, and we are ready to help and to augment your reputation. If you have questions, let’s talk. Our practice is limited to Social Security disability. We can travel anywhere in Kansas, Missouri, Nebraska or Colorado. Contact: Pat Donahue at Western Law (785) 832-8521 or phd@wpa-legal.org. Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.
Office Space Available Large Office Space now available at One Hallbrook Place in Leawood, KS. Two conference rooms, kitchen, high-speed internet, postage services, copier/fax all included. For more information or to schedule a viewing, contact Bryson Cloon at (913) 323-4500 70
The Journal of the Kansas Bar Association
Leawood Law Office. Two partner-size offices and interior office available for sublease. Conference room, phone system, internet, high-speed copier/printer, and lunchroom also available. Plenty of surface parking. In a great area in south Leawood— bright and modern space on second floor of bank building. Also willing to consider work-sharing arrangements. Contact Paul Snyder (913) 685-3900 or psnyder@snyderlawfirmllc.com. Manhattan Office Space for Rent. Located in the Colony Square office building in downtown Manhattan. One minute from the Riley County Courthouse. The available space consists of two offices and an area for a secretary/paralegal. Large reception area and kitchen. High speed internet. Open to either office sharing or “Of Counsel” arrangement. For more information, all 785-5399300 or email to office@jrlclaw.com Office Space Available on Ward Parkway in south Kansas City, Missouri. This is a great location for attorneys licensed in MO & KS. Large suite with 12 offices with two conferences rooms. There are 3 available offices. Full services provided, including phones answered, internet, supplies, and copier. Contact Kevin Hoop at 816-519-9600 or khoop@kevinhooplaw.com. Office for Lease, Corporate Woods. Approximately 300 sf office space available within a working law firm. Convenient location to meet with clients, with access to conference rooms if needed. Comes with all the amenities of a working law firm; witnesses, notaries, fax/copy machine, internet, phone, etc. On the top floor of a building with a fantastic view. Please contact Tim Winkler at 913-890-4428 or tim@kcelderlaw.com. Ottawa, KS Office Space for Rent- 950 sq. ft. for business office. Reception area, conference room, 4 private rooms, loft area for storage, kitchenette, back storage area, restroom. $600/month Please call (785) 8930494 for more information. The location is 110 W 3rd St, Ottawa, Kansas. Pictures available upon request. Overland Park Law Office. Two offices available at SW corner of 119th & Quivira. Cubicle space available for paralegal. Use of large conference room and storage space included. Open to either office share or ‘Of Counsel’ arrangement. Contact Whitney at web@ caldwellandmoll.com or 913-451-6444. Professional Office Space for lease. The available space consists of one to two offices and an administrative staff bay, in a larger office building. No cost use of reception area, conference rooms, and high-speed internet. Located in southwest Topeka. Competitive rent. For more information, call 785-2355367 or write Law Office, P.O. Box 67689, Topeka, KS 66667.
Seeking Office Space: Bilingual Immigration attorney with over 10 years of experience, looking to rent a conference room or office once or twice a month in Garden City, Kansas. No services needed other than a place to meet clients. We have served the immigrant community in Western Kansas for 9 years and have an ample client base. Our office is a great source of referrals for a family or criminal attorney as we only practice immigration. Please reply to: erika.juradograham@gmail.com. WYCO Office Suite Available at 134 N. Nettleton, Bonner Springs, KS 66012. 1100-2000 sf. Waiting area, receptionist area, break room, conference room, large and small offices, private parking, ADA Accessible. 1.25/sf/mo. Utilities included. For more information, call (913) 422-1620.
Other One of a kind walnut 4x8 conference table/desk/Board of Directors table. Four drawers each side and embossed leather top. Priced to sell $575 by retiring lawyer. Topeka location. 785.766.2084. Retiring due to injuries. I have a complete set of Kansas Reports and Kansas Appellate Reports—$1000 OBO. Will deliver in the Topeka area. Contact Robert E. Keeshan, Esq., Topeka, KS (785) 554-6187.
Miscellaneous Services David P. Mudrick, Mediator AV-rated; over 30 years’ experience in employment & labor cases; Past President, Employment Law section of KBA (2016-18); Selected for Best Lawyers in America ©: Labor LawManagement/2019; Topeka Labor Law - Management Lawyer of the Year; Litigation -Labor and Employment; Employment Law - Management; Approved by State of Kansas as Civil Mediator; Former corporate counsel in charge of litigation & claims, including personal injury, contract, & discrimination claims. Henson, Hutton, Mudrick, Gragson, & Vogelsberg, L.L.P.; (785) 232-2200, ex. 208; dmudrick@hhmglaw.com
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A TRADITION OF SUCCESS
Scott E. Nutter Matthew E. Birch Lynn R. Johnson
816-474-0004 www.sjblaw.com
Victor A. Bergman
David R. Morantz
OUR EXPERIENCE PAYS We have a long history of success inside and outside
2600 Grand Boulevard, Suite 550 Kansas City, MO 64108
the courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.
The choice of a lawyer is an important decision and should not be based solely on advertisements.
