March 2020 Journal

Your Partner in the Profession | March 2020 • Vol. 89 • No. 3

Dedications and Vacations in Kansas

by Jeff A. VanZandt P7

Resting in Pieces - Part II:

Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan P 20

7| Dedications and Vacations in Kansans

by Jeff A. VanZandt

20| Resting in Pieces: Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan

Cover Design by Ryan Purcell

Special Features 7 | Dedications and Vacations in Kansas...................................................Jeff A. VanZandt 41 | Five Steps to a Forever Home...............................................................Madison Hatten

Regular Features 11 | KBA/KBF Interim Executive Director

45 | Law Practice Management Tips and Tricks

14 | The Diversity Corner

50 | Members in the News

Feels Like Home Again, Only Better... Karla Whitaker Become the Best Version of Yourself - for You and ... for Your Clients........................ Margaret J. DiSilvestro

16 | KBF President

Digital Notetaking Alternatives.......Larry Zimmerman

52 | Obituaries 53 | Appellate Decisions

KSCDV’s Know Your Rights: an Invaluable Tool in ... the Fight for Victims of Domestic and Sexual Abuse. ........................................................ Susan G. Saidian

59 | Appellate Practice Reminders

18 | March CLEs

60 | Advertising Directory NEW

Why Darlin’! Beat the Cold with a CLE!

Fleeting or Forever........................ Douglas T. Shima

61 | Classified Advertisements

38 | Substance and Style

Two Minutes in Heaven: the United States Supreme .

Court’s New Non-Interruption Rule and the Future .. of Oral Argument............................. Jeffrey D. Jackson

www.ksbar.org | March 2020 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION

2019-20

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 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 Jennifer Salva (Kansas City), jenniferhsalva@gmail.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@ksbar.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

Let your VOICE 2019-20 be Heard!

KBA Officers & Board of Governors President Mira Mdivani, MMdivani@uslegalimmigration.com President-elect Charles E. Branson, cbranson@douglas-county.com Vice President Cheryl Whelan, cwhelan@ksbar.org Secretary-Treasurer Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Immediate Past President Hon. Sarah E. Warner, warners@kscourts.org Young Lawyers Section President Mitch Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Diana Toman, dianatoman@gmail.com District 2 Bethany Roberts, broberts@barberemerson.com 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, tpemberton@cox.net District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com 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 Bruce A. Ney, bruce.ney@att.com John M. Shoemaker, johnshoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com

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.

KDJA Representative Hon. James R. Fleetwood, jfleetwo@dc19.org

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.

YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com

KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric Rosenblad, rosenblade@klsinc.org ABA State Delegate Linda S. Parks, parks@hitefanning.com

Interim Executive Director Karla Whitaker, kwhitaker@ksbar.org

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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

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

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6

The Journal of the Kansas Bar Association

Dedications and Vacations in Kansas

by Jeff A. VanZandt

Introduction

I

apologize to those who thought they would be reading about a five-star resort in Bali, where the CLE is free, the SPF is 100 and all drinks have little umbrellas in them. Rather, this article will cover Kansas law relating to the dedication of lands for public use and a municipality’s vacation of the public interest in a street or alley.

A dedication of land occurs when the owner of an interest in land transfers to the public the right of use of the land for a public purpose. Dedications are commonly made for highways, streets, alleys and parks, though they can be for other things, such as museums or courthouses. The governing body is generally responsible for the development and maintenance of the dedicated land in return for the dedication. This article will conclude that the law in Kansas holds that the interest transferred in a dedication is in the nature of an easement. If the governing body determines that it no longer needs the dedicated land, it has the statutory authority to vacate the dedicated property.

Among the reasons for a city to vacate a street or alley may be that it has not been used, it is difficult and expensive to maintain, there are potential liabilities, the city wishes to narrow the street, or it is located so close to a major intersection that it is a traffic hazard.

The multiple statutory means for a city to vacate a street or alley will be explored, and the way the vacation process is conducted and how the adjoining property owners are affected after the vacation will be reviewed.

The vacation process can depend in part on any local regulation by the planning commission or governing body, and those procedures should be followed to perfect a vacation.

Dedications A dedication is the giving of an interest in land by an owner of the property for public use, and the acceptance by the proper public authority. Land may be dedicated for the public use by either a statutory or common law dedication.1 A statutory dedication is one made under K.S.A 12-752. Under the statute, a plat

dedications and vacations

dedicates land for public use (such as for streets or alleys).

The dedication takes effect only after the plat has been properly approved (typically by a planning commission) and the dedication has been accepted by the governing body of the responsible governmental entity. K.S.A. 12-752(c) states that “[t]he governing body shall accept or refuse the dedication of land for public purposes within 30 days after the first meeting of the governing body following the date of the submission of the plat to the clerk thereof.”2 Subsection (h) of this statute further states that “[t]he register of deeds shall not file any plat until such plat shall bear the endorsement heretofore provided and the land dedicated for public purposes has been accepted by the governing body.”

A common law dedication is accomplished expressly by deed or impliedly, as by conduct that manifests an intention to devote property to public use.3 As with statutory dedications, a common law dedication takes effect only when the governing body accepts it.

The Kansas Supreme Court in Kratina v. Board of Commissioners discussed the need for an acceptance of a dedication of a road (there, an implied dedication). The court said, “Although we would agree that no ‘formal acceptance’ by the public authorities is necessary, we do believe some sort of action by them indicating acceptance is required. Otherwise there would be ‘cast upon an unwilling public the duty to maintain’.”4 In effect, under K.S.A. 12-753, the plat is the offer, and the plat’s approval by the governing body is the acceptance. The dedication is then perfected upon filing of the plat with the Register of Deeds.

Whether the governing body has accepted the dedication may not be so clear when the dedication has been made by a deed. The offer is clear because the attempt to dedicate is stated or implied in the deed. But, if the governing body does not formally accept the dedication (such as by resolution), it may be unclear whether the dedication was accepted and thus whether the attempted dedication to the public ever took effect.

For example, a citizen may call wanting to know why the city has not taken care of a dedicated street or alley. A review of your municipal records may show that no formal action was taken to approve the dedication. (Sometimes there is no way to prove that the municipality was even made aware of the attempted dedication.) If no affirmative action has been taken by the municipality, and the city wants the area dedicated for its intended purpose, then it is recommended that the governing body accept the dedication by ordinance.

But words of acceptance are not always required. A city may accept a dedication by its actions. Further, the dedication offer need not be express. The Kansas Supreme Court in Kasper v. Miller5 held that a park within a residential area that 8

The Journal of the Kansas Bar Association

was never formally dedicated to the public, but was maintained by the city using public funds for more than 15 years, had been dedicated by estoppel.

The dedication must be for the benefit of the public in general. It may not be to one or a limited number of persons, or for the exclusive use of one or a limited number of persons.

The Kansas Court of Appeals’ opinion in Wagon Wheel Landowner’s Association case involved what rights, if any, property owners in a subdivision have in unplatted areas of that subdivision. The court held that the property owners hold only a temporary license or permit to use the facilities in the subdivision and that is the limit of their interest in the unplatted areas of the subdivision.6 If the plat dedication merely states “for the use of the public,” to whom does the dedication transfer the interest in the land? To answer this question, one must look to K.S.A. 12406. This statute reads, in part: Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses in the city, in trust for and for the uses therein named expressed, or intended, and for no other use or purpose.

K.S.A. 12-406 must be read in conjunction with K.S.A. 12-406a, which says, “the fee to any parcel of land intended for public use, which is vested with the county in which the land is situated, is thereupon transferred and conveyed to the city to be held in trust for the uses therein named, expressed or intended and for no other such uses.”7 Although I cannot find a Kansas case on this issue, it would follow that if land originally dedicated to the county was then brought into a city by means of a valid annexation of the dedicated land, then the title to the land would pass by statute from the county to the city.

The next question is what type of interest is obtained by the public entity from the dedication. The Kansas Court of Appeals in J & S Building Company, Inc. v. The Columbian Title & Trust Company8 stated the common law principle is that a dedication conveys an easement interest in the street or alley.

The court stated that “at common law the dedication of a street or highway for public use does not operate to divest the owner of the adjoining land from the roadway, and the public acquires only an easement.”9 Upon vacation of the street or highway, the burden of the easement is lifted and the full enjoyment of the fee is restored to the abutting owners. Ownership of a tract adjoining a street or highway is presumed to extend to the center of the roadway and such ownership passes with the conveyance of the adjoining tract. These rules were recognized and applied by the Kansas Supreme Court in Bowers v. Atchison, T. & S.F. Rly. Co.10

dedications and vacations

Vacations A city of the first class may vacate a street or alley by ordinance under K.S.A. 13-443, which reads in part: The governing body of the city shall have the power to open, widen, extend or otherwise improve any street, avenue, alley or lane, and also to vacate and close any street, avenue, alley or land or portion thereof. . . .

When any street, avenue, alley or lane is vacated it shall revert to the owners of land thereto adjoining on each side, in proportion to the frontage of such land, except in cases where such street, avenue, alley or lane may have been taken for public use in a different proportion, in which case it shall revert to the adjoining land in the same proportion as it was taken from it.

(See also, K.S.A. 14-423a11 relating to cities of the second class, and K.S.A. 15-42712 for cities of the third class.)

The second way a city may proceed to vacate a street or alley is under K.S.A. 12-504 and -505.13 Pursuant to K.S.A. 12504, any of the following parties who desire to have a street or alley vacated can file a petition with the local planning commission, or governing body if there is no planning commission, for its consideration. Those parties are: a) the owner or owners of a townsite or part of a townsite;14 b) the governing body where the street or alley is located; c) the owner or owners of the lands adjoining on both sides of any street, alley or public reservation such as, but not limited to, public easements, dedicated building setback lines, access control, or a part thereof, in any city or any addition thereto; or d) anyone who desires to exclude any farming lands or unplatted tracts, or any addition or part of an addition to be vacated hereunder, from the boundaries of the city wherein situated.

Following the filing of the petition to vacate, the governing body of such city shall be responsible for giving public notice of the hearing of the petition by publication for two consecutive weeks in the official city newspaper prior to the hearing date. In this notice the city clerk prays for the vacation to occur regardless of who filed the petition.

K.S.A. 12-504 also covers the notice that is required prior to the hearing for the vacation of the street or alley. It states that when a city or the owner or owners of the lands adjoining both sides of the street or alley seek to vacate a street or alley, proper notice of such filing must be published in the official newspaper at least once 20 days before the date of the hearing.

K.S.A. 12-505 states that, whether it is the planning commission or the governing body hearing the case, it must, in order to enact the vacation, find the following: (1) due and legal notice was given by publication; (2) no private rights will be injured or endangered by such vacation or exclusion; (3) the public will suffer no loss or inconvenience; and (4) in justice to the petitioner or petitioners the prayer of the petitioner ought to be granted.

Although the four findings required in K.S.A. 12-505 are not specifically stated as requirements in K.S.A. 13-443, it would be in the city’s best interest to make these findings in its ordinance.

Another substantial difference between a city’s vacation of a street or alley by way of an ordinance under K.S.A. 13443 and under K.S.A. 12-505 is in the ability of an owner or adjoining owner of property alongside the street or alley to object to the vacation. K.S.A. 12-505(b) states: “[t]he petition shall not be granted if a written objection thereto is filed with the city clerk, at the time of or before the hearing, by any owner or adjoining owner who would be a proper party to the petition but has not joined therein.” The next sentence states further that “[w]hen only a portion of a street, alley or public reservation is proposed to be vacated, the petition shall not be granted if a written objection is filed with the clerk of the governing body by any owner of lands which adjoin the portion to be vacated.” Note that in the first sentence any owner or adjoining owner can file the objection, whereas in the second sentence only an owner of land that adjoins the portion to be vacated can file an objection. Therefore, an owner of property adjoining a street or alley, but not adjoining the portion of the street or alley sought to be vacated, lacks standing to veto the proposal by filing a written objection.

Under K.S.A. 12-504, the proper parties for filing vacation petitions are “the owner or owners of the lands adjoining on both sides of any street [or] alley [.]” What happens if a culde-sac or a dead-end street is the subject of the vacation? The Kansas Court of Appeals in Garber Enterprises, Inc. v. City of Lawrence15 clarified this confusing language. The Garber court held that “the statute was intended to give veto power to any property holder significantly affected by the vacation of an adjacent street.”16 It would appear that, to stop the vacation, a landowner would only need to state that he or she “objects” with no further reason needing to be given. If this objection is timely made, then the vacation procedure comes to an immediate end.

Remember that these objection provisions in K.S.A. 12505 are not included in K.S.A. 13-443, which applies to cities of the first class. Under the latter statute, one objecting to the proposed vacation must show on appeal that the city’s action was arbitrary and capricious.17 There is no requirement that the governing body state a declaration of necessity, either by resolution or by the ordinance itself. From the passage of the ordinance the necessity or expediency is implied and will be presumed in the absence of evidence to the contrary.18 Finally, a street or alley may be vacated under K.S.A. 12512b. This statute states in part that a street or alley “shall be vacated both as to use and as to title without any further proceedings upon the filing and recording in accordance with the provisions of K.S.A. 12-433, and amendments thereto, of any plat or replat duly executed in accordance with law and embraced by the earlier plat, or part thereof or street, alwww.ksbar.org | March 2020 9

dedications and vacations

ley or other public reservation. Streets, alleys or other public reservations which may be vacated shall revert, as provided in K.S.A. 12-506.”19 After the Vacation K.S.A 13-443 states that “[w]hen any street, avenue, alley or lane is vacated it shall revert to the owners of land thereto adjoining on each side, in proportion to the frontage of such land, except in cases where such street, avenue, alley or lane may have been taken for public use in a different proportion, in which case it shall revert to the adjoining land in the same proportion as was taken from it.” See also K.S.A. 12-506. The Kansas Supreme Court in City of Belleville v. Hallowell20 held that, upon the vacation of a street, the interest in said street passed to the adjacent lot-owners in proportion to their frontage.

Conclusion In summary, Kansas follows the common law principle that, when land is dedicated to the public, the relevant governmental entity receives only an easement, not a fee simple.

In order for the dedication to be valid, it must be accepted by the governing body.

A city may choose to vacate a street or alley under the provisions of K.S.A. 13-443 or K.S.A. 12-505; the only difference appears to be in whether an adjacent property owner can veto the proposed vacation simply by objecting. The city can also consent to the vacation through the replatting of the land under K.S.A. 12-512b. Finally, once the vacation is complete, the ownership of the land shall revert to the owners of the real estate immediately abutting thereon according to the frontage of such real estate. n

About the Author Jeff A. VanZandt is an Assistant City Attorney for the City of Wichita, Kansas. Prior to joining the City’s Law Department, he operated his firm of VanZandt & Associates, Chtd., in Wichita, Kansas focusing in the practice areas of real estate, bankruptcy, probate, commercial and business law matters. Mr. VanZandt earned his B.S. degree in finance and general business with an emphasis in banking from Missouri State University and his J.D. degree from the University of Missouri at Kansas City. He is also a graduate from FDIC Banking School in Washington, D.C. He is a member of the Kansas, Missouri and Wichita Bar Associations. Mr. VanZandt has lectured before business and professional groups on corporate, real estate law, foreclosure, bankruptcy and insurance law. jvanzandt@wichita.gov 10

The Journal of the Kansas Bar Association

1. See City of Kechi V. Decker, 230 Kan. 315, 318, 634 P.2d 1099 (1981).

2. K.S.A. 12-752(c) further states that the governing body may defer action or grant an additional 30 days for the purpose of allowing for modification to comply with the requirements established by the governing body.

3. Id. at 318, citing C.J.S. Dedication Secs. 14, 15; 23 Am. Jur.2d Dedication Sec. 3.

4. Kratina v. Board of Commissioners, 219 Kan. 499, 506, 548 P.2d 1232 (1976). See also, Moore v. City of Lawrence, 232 Kan. 353, 358, 654 P.2d 445 (1982).

5. Kasper v. Miller, 159 Kan. 488, 156 P.2d 550 (1945).

6. Wagon Wheel Landowner’s Ass’n. v. Wallace, 17 Kan. App. 2d 395, 838 P.2.d 361 (1992).

7. Prior to the enactment of this statute in 1984, title to all dedicated properties went to the county to be held in trust. Further, by statute any vacation of dedicated land was subject to the public authority’s right to re-occupy the vacated land without having to pay condemnation damages; that rule was also eliminated by the 1984 statutory changes.

8. J & S Building Company, Inc. v. The Columbian Title & Trust Company, 1 Kan. App. 2d 228, Syl. para. #2, 563 P.2d 1086 (1977).

9. 23 Am. Jur. 2d, Dedication Sec. 57, p. 50; 26 C.J.S., Dedication Sec. 50, p. 522.

10. Bowers v. Atchison, T. & S.F. Rly. Co., 119 Kan. 202, 237 Pac. 913 (1925).

11. K.S.A.-423a. states “Any vacation ordinance authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have such reasonableness determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city.

12. K.S.A. 15-427 states “The council shall have power to open, widen, extend or otherwise improve any street, avenue, alley, or lane; to create, open and improve any new street, avenue, alley, or lane; and also to annul, vacate or discontinue the same, whenever deemed necessary or expedient: Provided, That all damages sustained by the citizens of the city, or the owners of the property therein, shall be ascertained in the manner provided by law: And provided further, That whenever any street, avenue, alley, or lane shall be vacated, the same shall revert to the owners of real estate, except in cases where such street, avenue, alley or lane shall have been taken and appropriated to public use in a different proportion, in which case it shall revert to adjacent lots of real estate in proportion as it was taken from them.

“Immediately after an ordinance opening, widening, extending or vacating any street, avenue, alley or lane shall become effective, the clerk of the city shall file a copy thereof which has been certified by him or her as a true and correct copy in the office of the county clerk and in the office of the register of deeds and the county clerk shall enter the same in the transfer records of his or her office and the register of deeds shall record the same in the deed records of the county and no fee shall be charged by the county clerk or register of deed for such entering or recording.”

13. For a county’s vacating a street, see K.S.A. 58-2613. On vacating a road in the county, see K.S.A. 68-101, et seq.

14. Black’s Law Dictionary, 6th Edition, defines “townsite” as a “[p] ortion of public domain segregated by proper authority and procedure as a site for a town.” The filing of a townsite plat was often the first legal act in the establishment of the town or community. On vacating a townsite plat or a portion thereof, see K.S.A. 58-2613. 15. Garber Enterprises, Inc. v. City of Lawrence, 14 Kan. App. 2d 656, 798 P.2d 946 (1990).

16. Id., Syl. para. #3.

17. See Babb v. City of Wichita, 175 Kan. 148, 151, 259 P.2d 581 (1953).

18. See Kinney v. The Reno Community High School, 130 Kan. 610, 611, 287 Pac. 258 (1930).

19. K.S.A. 12-506 states, “The streets, alleys or other public reservations which may be so vacated shall revert to the owners of the real estate immediately abutting thereon, according to the frontage of such real estate thereon: Provided, That all lands so reverting shall revert to the owners of abutting lands holding the same by title derived directly or indirectly from the owners of said lands from which said street or alley or public reservation was originally platted.”

20. City of Belleville v. Hallowell, 41 Kan. 192, 195 (1889).

from the interim executive director

Feels Like Home Again

by Karla Whitaker, Interim Executive Director KBA/KBF

I

t is with great pleasure and pride that I write to you as the Interim Executive Director of the Kansas Bar Association. After working for the Association throughout the 1990s, I must say that it’s great to be home. The KBA has always been an important part of the Kansas legal landscape, and I’m glad to help serve its ongoing mission.

Many things have changed since those days in the 90s.

The KBA facilities have doubled in size since I last worked in the building. Efforts have increased significantly to increase diversity and provide greater inclusion in the Kansas legal profession. The Association now hosts a variety of lawrelated groups in the Robert L. Gernon Law Center, serving as a hub for activity and a place to gather for lawyers near and far. Technology has changed how law is practiced and how the courts operate. The KBA has responded with law practice management services and programs delivered through evolving technologies. CLE programs and publications are delivered in new ways that make access to information faster and easier. Political landscapes have changed and lawyers have

united to defend the court system and the administration of justice in a variety of ways. The Kansas Bar Foundation’s mission has grown as well, evidenced through its strong scholarship program for law students.

Much has remained the same. I see the same commitment to professionalism and the administration of justice that helped shape the Association those many years ago. Many Kansas lawyers who were volunteering their time in the 90s are still participating in the life of the KBA through committees and sections. Young lawyers who were getting their start in practice are now sitting on the bench. I see today’s young lawyers approaching the practice with enthusiasm albeit with an increasing amount of educational debt. The public’s need for legal services remains great as well, and the ongoing work to provide law-related education to Kansans of all ages remains strong. Our legislative services program continues to provide information to lawmakers and advocate for issues of concern to our members.

www.ksbar.org | March 2020 11

The KBA has evolved with the practice of law in Kansas and is looking ahead to anticipate and serve the future needs of our members. Our inaugural Leadership Institute next month, for example, has created a structure for identifying young lawyers and local bar association leaders with an interest in serving the KBA now and for years to come. This leadership training session will feature presentations by current and past bar leaders and an opportunity to network with other lawyers and judges from across the state.

While our work in all of these areas continues and our planning for the future is underway, the KBA has embarked on a search for the new executive director. The application process began early in March and the Search Committee is now reviewing applications. We hope to have our new director on board by mid-year and I look forward to working with the team during this transition.

In the meantime, I am eager to reconnect with many of you during my time here and working with those involved in our board, committee and section work. I look forward to seeing many of you at the Annual Meeting, set for June 10-12 at the Hyatt Regency in Wichita. We will gather to celebrate the voting rights provided in the Constitution and will hear important remarks from Governor Laura Kelly and our new Chief Justice Marla Luckert. The festivities will, of course, include a day of golf, two days of CLE programming, and the

always-popular Bar Show. I encourage you to schedule time to participate in this signature annual event for all Kansas lawyers.

I also encourage you to reach out to me with suggestions, questions and offers to get involved. I welcome your input and invite your participation in the KBA. n

Kansas Bar Foundation Donors & Scholars Reception Thursday, April 9, 2020 5-7 p.m.

Robert L. Gernon Law Center Kansas Bar Foundation 1200 SW Harrison St., Topeka Please join us as we recognize donors and scholars with a welcome address by Justice Evelyn Z. Wilson, Kansas Supreme Court Justice and KBF past president.

Heavy hors d’oeuvre and hosted bar provided.

RSVP by April 2: awoods@ksbar.org 12

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Founding Partner Kirk C. Stange of Stange Law Firm, PC is Proud to Present a National Webinar Accredited to Kansas Attorneys on April 8, 2020 for the National Business Institute.

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The CLE is titled “Divorce Attorney’s Guide to Taxes.”

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June 10th - 12th Hyatt • Wichita, KS

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www.ksbar.org | March 2020 13

the diversity corner

Become the Best Version of Yourself for you and for your clients

by Margaret J. Disilvestro

I

had a law school classmate who knew exactly the type of law he wanted to practice when he graduated. His certainty meant this legal unicorn took only the classes that pertained to his chosen practice area. No fluff. No, “this sounds interesting,” detours for him, no sir. For the rest of us mere mortals, however, law school is a time of exploration and theory-testing to figure out which career path we believe best melds our skills and aspirations.

The U.S. Department of Education estimates that nearly one-third of first-time college students change their major at least once before graduation.1 While the Bureau of Labor Statistics does not attempt to track data regarding the average number of career changes for American adults,2 it logically follows that the trend continues beyond the collegiate experience. This author wonders whether the academic gymnastics could be attributed to the reality that few twenty-somethings can predict where they will be or what they will be doing in ten, twenty, or forty years.

There is a consensus, though, that job changes are on the rise, correlating to the increased presence of millennials in the workforce.3 LinkedIn reviewed the data of a sample of its users and found the number of companies its users reported working for in the first five years following graduation increased

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from 1.6 for users who graduated between 1986 and 1990 to 2.85 for users who graduated between 2006 and 2010.4 This same turnover is seen in the legal industry as larger firms grapple with the brain-drain happening as young talent leaves for smaller and mid-sized firms which offer more flexibility to their attorneys.5 For me, as for many others in my class, the search for my perfect career continued well past my days in Green Hall. I seem to ascribe to the Forrest Gump method when charting my employment trajectory.6 “Life is like a box of chocolates,” and so too is the career of this Peter Pan among you who is still trying to figure out how she wants to use the education she slogged her way through one outline at a time.

Before 1L year, I knew without a doubt that I wanted to be a “business lawyer,”—whatever I thought that meant—and I got my business bachelor’s degree to prepare for it. After two meaningful internships at the Sedgwick and Douglas County District Attorneys’ Offices though, I was headed for a career in criminal prosecution, no question about it.

By the time I graduated and passed the bar exam, howeverI was working at Textron Aviation Inc. drafting and negotiating private plane sales and trade-in contracts and taking

the diversity corner

classes at night to get my private pilot’s license. I didn’t grow up wanting to fly, but when your company offers to subsidize your pilot’s license, you take them up on it.

As I approached the two-year mark on this career foray, I got restless again. I contemplated what I was “missing” and how I could break up the repetitive pattern that I found myself in. Initially, I tried volunteering. I am proud to say I have kept the commitments I made during that time to Junior League of Wichita and the United Way’s Read to Succeed program. Both do incredible work in my community and are a great conduit to focus our collective energy to create lasting change.

Still craving a different challenge from 8-5, I looked back through my rose-colored glasses at my days in the fast-paced District Attorney’s Offices and decided the courtroom was where I would find that pep to put back in my step. Any experienced litigator will tell you the life of a trial attorney is a challenge for a multitude of reasons.

The concept of planning ahead and controlling your own calendar goes out the window the minute you step into this arena. Even if you are able to convince your client or opposing counsel that a certain pace is appropriate for the case or that certain dates should be work-free (ex: major holidays), you are competing for the attention of a judge who has three cases scheduled for every available court minute and may want to handle your case at a different pace than you do.

There is also the reality that client expectations don’t always mesh well with having a personal life. The issues that brought them into your office can’t be planned to occur around your social calendar. Trying to explain to a client who is fighting to get more time with their children that you can’t try their case on a certain day because you will be chaperoning your own child’s school field trip is a difficult conversation which some practitioners avoid by simply skipping the field trip.

At the risk of sounding like a naïve millennial, I think this is a mistake. Part of my rationale in making my most recent career change to the private practice/law firm life was that it gave me the flexibility to make those decisions for myself.

While I still work most weekends and my clients are no less demanding than the private plane purchasers of my prior career, my firm gives me the autonomy to manage my caseload so that I can be present for the big moments in life…when the judges allow it that is.

If I could give some advice to those hot on my heels coming out of law school, it would be: go to the field trip/anniversary dinner/doctor’s appointment and keep trying on careers until you find one that lets you do that. Be present for yourself so that your clients get the best version of you when you are representing them. n ,

1. U.S. DEP’T OF EDUC., NAT’L CENTER FOR EDUC. STAT., BEGINNING POSTSECONDARY STUDENTS LONGITUDINAL STUDY (BPS:12/14) (2017), https://nces.ed.gov/pubs2018/2018434.pdf.

2. Frequently Asked Questions, BUREAU OF LABOR STAT., https://www. bls.gov/nls/nlsfaqs.htm#anch43 (last modified Jan. 18, 2020) (discussing the difficulty in defining a “career change” as one of the main roadblocks to tracking this data with any degree of accuracy).

3. Guy Berger, Will This Year’s College Grads Job-Hop More Than Previous Grads?, LINKEDIN (Apr. 12, 2016) https://blog.linkedin. com/2016/04/12/will-this-year_s-college-grads-job-hop-more-thanprevious-grads.

4. Id. 5. Turnover High At Many Firms Despite Greater Pay, Benefits, LAW360 (Oct. 17, 2017, 8:08 PM) https://www.law360.com/articles/975882/ turnover-high-at-many-firms-despite-greater-pay-benefits.

6. FOrREST GUMP (Paramount Pictures 1994).

About the Author Margaret J. DiSilvestro is an associate attorney with Stinson, Lasswell & Wilson, L.C. Her practice concentrates in family law. She received her JD from the University of Kansas. Margaret is involved in several organizations such the Junior League of Wichita and the Wichita Bar Association.

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kbf president’s column

KSCDV’s Know Your Rights: an invaluable tool in the fight for victims of domestic and sexual abuse

by Susan G. Saidian

O

ne of the organizations that received grant funds from the Kansas Bar Foundation IOLTA program in 2019 is the Kansas Coalition Against Sexual and Domestic Violence (KCSDV). This coalition was officially formed in 1982 as a way to allow direct service programs around the state to work together to strengthen services available to victims of domestic and sexual assault statewide. From the KCSDV website: “As an organization, KCSDV 1) trains professionals across the state on providing an effective and informed response to victims of sexual and domestic violence; 2) collaborates on public policy with partners and lawmakers; and 3) increases awareness about sexual and domestic violence.”

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KCSDV has 26 coalition member programs that provide direct advocacy services to victims throughout the state of Kansas. KCSDV assists these direct advocacy service programs through support and guidance on best practices for all issues related to running a non-profit and providing the best advocacy possible for each survivor who walks through the door. Additionally, KCSDV provides training, support and guidance to these direct advocacy service programs on issues related to developing effective programming, leadership, and working with other professionals in an effort to reach the best possible outcome for victims. KCSDV also advocates for legislation that supports these organizations and the victims they serve.

kbf president’s column

In 2019, KCSDV applied for and received a Kansas Bar Foundation grant of $7,565 for the preparation and publication of “Know Your Rights: A Guide for Survivors of Sexual Violence in Kansas.” This comprehensive 31-page guide contains information on the availability of advocacy services, and information about protection orders, and victims’ rights regarding rent, employment, and financial matters. The booklet also provides essential information regarding procedures during the sexual assault medical forensic examination, understanding privacy rights, reporting to law enforcement, eligibility for certain visas—especially for immigrant victims of abuse, understanding the procedure to obtain compensation from the Crime Victims’ Compensation Board, and an introduction to the Kansas Crime Victims’ Bill of Rights. This information is valuable to victims of sexual violence so they can have the necessary information they need at their fingertips to make informed decisions as they move forward following the assault(s). With that in mind, one guide is placed in each Sexual Assault Evidence Collection Kit for the nurse to provide to a sexual assault victim following a sexual assault in Kansas.

The booklet, in English and Spanish, is available at https://www.ksbar.org/know-your-rights.

Thank you KCSDV, for preparing this invaluable resource.

If you have a question about this resource, please contact the Kansas Coalition Against Sexual and Domestic Violence at www.kscdv.org or 785-232-9784. n

About the Author Susan G. Saidian attended Millsaps College and Washburn University, obtaining her bachelor’s degree in 1982. She graduated from Washburn University School of Law in 1988. She spent most of her years in private practice in the area of bankruptcy, working for both consumer and business debtors and creditors. Although she found all areas rewarding, she particularly enjoyed her work for consumer debtors. She is a member of the American Bar Association, Kansas Bar Association, Wichita Bar Association, Kansas Women Attorneys Association, and has served on the board of CASA of Sedgwick County. She has also served on the Kansas Bar Foundation’s IOLTA Committee. She is now in-house counsel at Line Medical, and lives in Wichita with her husband, David. sgsaidian@gmail.com

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www.ksbar.org | March 2020 17

To Register: www.ksbar.org/CLE

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Education Law

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www.ksbar.org | March 2020 19

n i g n i t s e R Why Family Harmony is a Frequent Casualty of Most Estate Plans

by Tim O’Sullivan 20

The Journal of the Kansas Bar Association

e i P

s e c

Part 2: Planning Bequests to Children of Farms and Closely Held Businesses This land is your land, this land is my land…

Woody Guthrie As the initial estate planning consideration involving a farm or other closely held business, a parent must determine whether the closely held business should be maintained following the parent’s death or whether market conditions and family considerations discussed below militate in favor of selling the business before or after the parent’s death. If it is determined that the business is to be continued by family members following the parent’s death and a business succession plan put in place, a parent must carefully consider which family members will receive business interests, how the business is to be maintained, when and how family members should receive the business interest, and how the estate is to be divided among family members, particularly if there are family members who are not active in the business.

In the decision-making process, it is of first importance that parents fully understand that closely held business interests are difficult to maintain from generation to generation. The stress on family harmony in the transition of the ownership of a family farm or business can adversely impact business operations due to the conflicting values and needs of a family versus a business. The focus on family values tends to be inward, whereas the focus of a business mandates a focus on external factors in the marketplace.

Compensation in a successful business tends to be based upon performance and skill level, whereas the family tends to desire equality of remuneration irrespective of these factors. Such predilections need to be carefully addressed if the success of the business succession plan is to be enhanced and family harmony preserved in the process.

Part of the tension placed on family harmony when transferring a business to descendants is also due to emotional and psychological considerations. The older generation’s natural reluctance to “turn over the reins” of the business needs to be addressed. For

resting in pieces — part 2

business succession to be successful, the succeeding generation should gain practical experience in business operations prior to the death of the older generation. Additionally, sibling rivalries should be observed in the operational phases of the business by the parent so that they can be properly considered and addressed in the parent’s estate planning and business succession plan.

Improper or inattentive estate planning in the area of business succession can not only increase the risk of failure of a business succession plan, it can destroy family harmony and greatly increase operational costs. The prominent issues which frequently arise in this context are the orderly transition of the management of the farm or closely held business to a child or children and the division of the estate between or among children who are active in the business with those who are not. From the outset, a parent must appreciate that there is a substantial risk of disagreements that will arise between active and non-active children (hereinafter also referenced as “active” and “passive” family members, respectively) regarding business decisions if both classes succeed to the ownership of a closely held business enterprise. This aspect results in an extremely high incidence of family disharmony, often leading to resentment, arguments, and not all that infrequently, costly litigation.

Although active children can be given voting control of the enterprise for continuity of business management purposes, from a family harmony standpoint this serves to aggravate such tensions. The selection of a few family members to manage a business places risks on family harmony greater than that of naming children as financial fiduciaries of a parent’s estate. The former situation, however perilous it may be to family harmony, is transitory in nature and does not place sibling fiduciaries in an on-going superior economic position.

Passive owners may “second guess” aspects of such management decisions, including the salaries of active owners and the amount of cash in the enterprise which should be distributed to them versus the amount to be retained for future business needs. In addition to disagreements among themselves in management decisions, active family members may overvalue their contributions to the business enterprise, their merited compensation, and view passive family members as being unappreciative of their efforts in the business. In short, neither faction is likely to be totally objective, and are often far from objective, about their respective positions and how they are viewed by the other faction.

With such axioms in mind, one of the most perplexing issues attendant to a parent’s transfer of an ownership interest in a closely held business to family members lies in the distribution of estate assets between active and passive family members. Frequently, active children are given a greater share of the total proportionate value of the estate, usually in the form of business interests, in consideration of their ef22

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forts. This disparity may be due to a parental view that such children have received below market compensation for their efforts during the parent’s lifetime or that their expertise or creativity has enhanced the value of the business enterprise. It also may be simply due to a child choosing to stay on the farm or in the family business enterprise. In such situation, if in conversations with clients it appears such child was paid the same approximate amount as would be paid to a third party possessed of the same experience, did not add significant economic value to the family enterprise than would otherwise have been expected from another individual performing the same duties, and did not give up better economic opportunities to assist a parent in the enterprise, it would be advisable for their estate planning counsel to inquire of the client the basis for such additional allocation to ensure that such decision was well thought out in the face of an apparent lack of economic undergirding.

Whatever the rationale for such additional allocation, it is at high risk of triggering resentment and disharmony between the active children receiving such additional allocation and passive children receiving a lesser share of the estate. Passive children tend to be less than objective in their assessments of the merits of any such additional share allocation and, as noted above, active children tend to overvalue their contributions to the business enterprise and feel they should be so compensated simply for assisting a parent in its management irrespective of any accompanying economic benefits. One way to help mollify such a situation is to place the parental reasons for such additional allocation in the testamentary instrument, preferably in a revocable trust, rather than a will, due to the former not being a matter of public record. An even better way is to avoid it altogether by adequately compensating active children for their efforts during the parents’ lifetime to avoid such disparity in the allocation of the parent’s estate.

Even if such allocation of business interests between active and passive children is proportional based on their respective percentage ownership interests in the business, the fact that active children have a controlling voting interest will substantially increase the personal value of their proportional interests over the proportional interests of passive children. It can also increase their fair market value as well, dependent upon whether the active children alone have voting interests, their percentage voting interest, and most particularly if an active child has a controlling voting interest in the enterprise. This realization also can result in significant additional family disharmony and dissension, for parents are unlikely to increase the proportional interests in the business interests going to passive family members in consideration of such increased value.

Because active and passive children owning a closely held business are at a very high risk of incurring family disharmony, a strategy to avoid such problems, yet provide for equal shares

resting in pieces — part 2

of the estate passing among children, is to include provisions designed to balance out the equal shares of the non-business assets passing to passive children with the equal shares of the business interests passing to active family members. Nonetheless, a serious problem is presented if there are insufficient non-business assets to equalize shares of the estate going to passive children. Here, one such approach is for the parent to require active family members receiving a business interest to purchase any business interest in excess of their shares that otherwise would have been allocated to passive children, perhaps under a prescribed installment purchase method with a reasonably small interest rate so as to ease any economic burden that would otherwise by be imposed on active children.

Another more family-harmony-friendly strategy not putting active and passive children into such debtor/creditor relationship is for the parent to purchase a life insurance policy on the parent, if economically feasible and not prohibited by the parent’s current state of health, to provide both estate liquidity and sufficient assets to balance the shares of the estate such that the business assets may all pass to the active children.

In situations when it is determined that there is no foregoing viable alternative but for a parent to give business interests to both active and passive family members in satisfaction of their proportionate shares, parents must first select a method of providing for the management of such business assets by active family members. If the business is not already an entity, the parents would typically form a limited liability company with perhaps both voting and non-voting interests to hold the business assets. If it is already in an entity such as a limited liability company or corporation that does not have voting and non-voting interests, the entity could be recapitalized to create such interests. Passive family members may be given “put” rights such that a dissatisfied passive family member could compel the business entity (or perhaps at the option of the entity, active family members on a pro rata basis) to purchase their ownership interests in the entity, often also on an installment basis, perhaps secured by the entity or the active owners’ interests in the business. Perhaps also, the purchase price may take into account a prescribed lack of marketability and lack of control discount which reduces the purchase price of the passive owners’ interest in the enterprise from its otherwise pro rata fair market value. Such discount is normally appropriate, both given that the exercise of such put right places an economic burden on the active family members, such interests have a lack of marketability and fractional ownership interests in an enterprise having a fair market value significantly less than their pro rata interest in the underlying business would otherwise dictate.

However, unless the implementation of the foregoing strategies leaves passive family members with no interest in the business, it is likely only to reduce the frequency and severity of disagreements between active and passive family mem-

bers. It is highly unlikely to totally extinguish them. Thus, it may also be desirable to include provisions in the governing testamentary instrument mandating mediation and binding arbitration of all disputes involving family member owners of the business enterprise. Such non-judicial proceedings are private and not a matter of public record, are typically faster in resolving such disputes, tend to be far less family-harmonydestructive and less adversarial than judicial proceedings, and can be less costly as well.

Provisions implementing “put option” strategies and mandating mediation and binding arbitration of business disputes between or among family member owners are best placed in the provisions of the governing instruments of the partnership, limited liability company or corporation owning the farm or other business enterprise.

It should go without saying that without proper comprehensive business succession planning in this most sensitive family situation, irreparable and costly family schisms are a frequent result.

Addressing Gifts and Loans to Children We make a living by what we get. We make a life by what we give.

Winston Churchill Another estate planning aspect causing frequent disagreements among family members and the fiduciary of a parent’s estate is the determination of whether a lifetime transfer by a parent to a child was intended to be an outright gift for the purpose of benefiting the life of a child or simply a loan.

In the absence of provisions in the testamentary instrument specifically addressing this issue and the presence of ancillary instruments such as promissory notes documenting parental intent, family members and estate fiduciaries will often disagree on the amount of the transfer, whether the transfer was a loan or gift, the terms of any loan transfer (e.g., payment and interest terms), and whether the parent intended the gift or loan to have an effect on the child’s share of the parent’s estate, notwithstanding the absence of any authority for inter

www.ksbar.org | March 2020 23

resting in pieces — part 2

vivos gifts having any legal effect on dispositions under the testamentary instrument and loans being a part of the estate when legally unenforceable. One child’s characterization of a parental transfer as a gift is often another child’s characterization of the same transaction as a loan. Consequently, in the absence of provisions in the testamentary instrument addressing the issue or written evidence of the nature of the transaction, there can be fractious family disagreements, substantial legal expenses, and a skewing of the intended estate plan in the event the eventual legal resolution of the transaction should fail to comport with the decedent’s actual intent regarding the transaction.

With respect to parental transfers that are clearly gifts or resolved as same, discord can sometimes arise when prior gifts are unaddressed in the testamentary instrument. Children can take umbrage when the shares of a parent’s estate passing to their siblings under the testamentary instrument fail to consider substantial unequal prior gifts passing to them which either have occurred or which children believe may have occurred. Although prior gifts to estate beneficiaries do not normally legally affect the disposition of the donor’s estate unless clearly stated in the testamentary instrument that they were intended as advancements, other children may argue that such legal outcome is unfair, could not have comported with the parent’s intent and its omission was an oversight by the parent or an error by the attorney drafting the instrument.

Thus, it is beneficial from a family harmony perspective for the parent to state in the testamentary instrument whether any gifts the parent may have made to a child are to be considered in determining such child’s share of the estate. If such is the case, which normally comports with the parental intent, such provision would be generic in nature, not referencing any specific gifts, only stating that any gifts the parent may have made to a beneficiary of the estate are not to be considered in the division of the estate.

Conversely, if prior gifts to a child are to be taken into consideration in determining the child’s share of the parent’s estate, the parent should state in the testamentary instrument that a specific gift or an amount representing a total of such gifts to a child should be treated as an advancement against a child’s share of the estate (possibly with an interest component to take into account inflation and time value of money). Going forward, the parent could also provide in the testamentary instrument that any future transfers to a child by check which are noted thereon as gifts similarly are to be considered as advancements.

By so addressing any parental gifts in the testamentary instrument, parents can avoid family acrimony and potential litigation, notwithstanding the weakness of the position, on the issue of whether parental gifts were intended as advancements against a child’s share of the estate. Absent a standard practice of addressing this issue in the estate planning pro24

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cess, it is typically overlooked by estate planning attorneys.

With respect to loans, verbal loans to children tend to result in much greater family disharmony than the issue of whether parental gifts should be treated as advancements. The promissee, i.e., the child receiving the loan, as above noted, will often contend that the transaction was a gift, not a loan. Such child’s siblings will often contend to the contrary. In short, one child’s gift can be another child’s loan. There are also issues frequently surrounding the amount of the loan and whether any interest on the loan was intended or nonetheless legally chargeable. Verbal loans are also more likely than written obligations to have become legally unenforceable due to having a shorter statute of limitations, i.e., three versus five years. K.S.A. §§58a-511(1); 58a-512(1).

Consequently, as a general rule the testamentary instrument normally should generically forgive any verbal loans, specifically providing that any such loans are not to be taken into account under the dispositive provisions of the testamentary instrument. If there are any outstanding verbal loans at the time of execution of the testamentary instrument which the client desires to be considered in determining a child’s share of the estate as to any outstanding balance, such loans should be reduced to promissory notes, which can be simple demand notes, having the parent or the trustee of the parent’s revocable trust as promissee. Normally, when requested by a parent, children will execute a promissory note as evidence of a prior verbal loan due to parental disfavor or potential adverse consequences in the parent’s testamentary disposition to them should they decline. In the unusual circumstance when a child should refuse to do so or a parent does not wish to confront a child to whom money has been lent, assuming the parent does not want to include testamentary provisions reducing such child’s share as a result of such child refusing to execute a promissory note, the amount owing could be specifically forgiven in the testamentary instrument at death and a specific amount in its stead treated as an advancement against such child’s share of the estate.

With respect to written loans to a child, assuming they comport with parental intent, the provisions of the instrument should provide that any loans evidenced by a written instrument are to be fully taken into account in determining the promissor’s share of the trust estate at their full unpaid balance and allocated to such beneficiary in satisfaction thereof up to the full amount of such share. Further, the provisions of the instrument should additionally provide that such consequences will ensue irrespective of whether the note is legally enforceable at the time of its disposition (e.g., the statute of limitations has run on the note) and place the burden is on the promissor child in establishing any prior payments. The client would then be best advised not to make any future loans to children that the client wants taken into account in determining the child’s share of the estate unless

resting in pieces — part 2

similarly evidenced by a promissory note.

Such statements of parental intent regarding verbal and written loans in the testamentary instrument and the use of promissory notes when loans are to be considered in determining a child’s share of the estate can reduce strains on family harmony, lessen administrative costs and legal fees, and avoid a distortion in the intended estate plan should the legal treatment of loans to family members be inconsistent with actual parental intent. As with the treatment of prior gifts, this issue likely does not commonly arise in estate planning conferences and even less frequently receives proactive treatment in the testamentary instrument.

Gift-giving itself can also serve as a basis of family disharmony during a parent’s lifetime. Parents may wish to make gifts to their descendants yearly to reduce the size of their taxable estate, to satisfy an economic need of a child or other descendant, or merely for their sheer personal satisfaction in seeing a descendant’s enjoyment of the gift. Regardless of motive, when parents give money to both children and grandchildren, it is difficult to devise a method perceived to be fair and equitable by descendants. For example, gifts or distributions made outright to all descendants (children and grandchildren) on an equal per capita basis designed to maximize the benefit of the annual gift tax exclusion for federal estate tax purposes frequently results in a family unit consisting of a child and such child’s descendants receiving a greater amount than other family units having a lesser number of descendants.

If the parent wishes to have a cumulative equal distribution among family units considering both lifetime gifts and postdeath transfers under their testamentary instrument, adjustments can be made to achieve this goal under its provisions.

In the event of any such adjustments, the provisions of such instrument should also state the rationale therefore for family harmony purposes. However, either method of eventual distribution of the estate (equal amounts of the estate to each child or equally to each child with cumulative gifts to family units being treated as an advancement against each child’s share of the estate) may leave a child feeling that such child or

such child’s family cumulatively was being unfairly penalized by a parent merely due to having more or less descendants than a sibling.

There are other potential family harmony drawbacks to making outright gifts to children. Depending on the size of the gift, a parent may experience more than minor disappointment should there be unwise or excessive expenditures of the gifted property or its management by the donee. A parent also may become dismayed by the lack of appreciation of the gift by a donee or a child’s expectancy that such gifts are of a routine nature.

Gifting substantial amounts for other than medical or educational purposes also can have a negative impact on personal ambition, and financial independence may be adversely affected by such outright gifts. As a rule, descendants that receive significant gifts in their formative and early adult years tend to be less financially responsible, underachieve, and possess less self-esteem than those that financially achieve on their own initiative. A parent can become quite disenchanted with a child’s lack of ambition fostered by such gifts. Two books which trenchantly discuss this dynamic are The Millionaire Next Door, authored by Thomas J. Stanley, Ph.D. and William B. Danko, Ph.D. and Estate Planning for the Healthy Wealthy Family, authored by Stanley D. Neeleman, J.D., Carla B. Garrity, Ph.D., and Mitchell A. Baris, Ph.D. Also, should the parent ever cease or significantly reduce periodic gifts to a child or grandchild, particularly if the donee has come to financially rely on such gifts, the donee may become resentful or pressure for their continuance. This risk is increased by a periodic routine pattern of gifting which can create an enhanced air of expectancy (e.g., gifts made in a specific amount every Christmas). The child may begin to feel entitled to the gift, perhaps even having incurred expenditures in anticipation of its receipt. Finally, a pattern of gifting may also lead a donee to consider the inheritance of the donor’s assets as an entitlement, often leading to unwise expenditures in reliance thereof. Such an expectancy can heighten intra-family tensions and disharmony during the donor’s lifetime, as well as following the donor’s death.

Rather than make a substantial outright gift (or series of gifts) to a child or other descendant and potentially present such adverse consequences, including family disharmony, it thus may be advisable for a parent to instead make such gift in trust for the benefit of the donee. In a properly drafted trust, although the specifics are well beyond the scope of this article, governmental benefits such as Medicaid can be maximized for beneficiaries, assets protected against creditors and beneficiary mismanagement, and a “sprinkle clause” can be included to allow trust income distributed to beneficiaries to be taxed at their income tax brackets. This option also is often not considered sufficiently in the estate planning process.

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Many of the foregoing factors applying to lifetime gifts are equally applicable to outright bequests under the testamentary instrument. Large bequests liberally benefiting children or grandchildren in early adulthood can similarly stifle maturational development, personal ambition, and achievement of financial independence. As with lifetime gifts, leaving such bequests in a properly structured trust can obviate these undesirable tendencies and consequences.

The loaning of money by a parent to a child can likewise foster family disharmony during a parent’s lifetime. Adverse consequences can quickly arise if the child breaches the agreement. Not surprisingly, such loans are frequently in default.

This may occur because the child lacks the ability to repay the loan or the child views its obligation under a loan from a parent far less seriously than it would with a commercial loan.

Parents can quickly become dismayed and feel they are being taken advantage of when children fail to timely make loan payments having no rational basis for a default.

Addressing a Child’s Potential Claim for Parental Care It is not all that uncommon for family disharmony to also result from disagreements surrounding whether a child who assisted with the elder care of a parent in a non-fiduciary capacity (not as a trustee of a revocable trust or agent under a power of attorney) should be compensated by the parent’s estate. With respect to fiduciary services, for clarification of parental intent purposes, the governing instrument should specify whether payment for such fiduciary services was intended, notwithstanding that such services were otherwise entitled to be compensated under the law, particularly for services authorized thereunder when the parent was not under a disability, and the manner in which payments are to be determined outside of a trusteeship, e.g., in the same manner as a guardian or conservator with respect to services as an agent or attorney in fact under a health care or financial power of attorney, respectively.

In many circumstances, a child has spent considerable time in a non-fiduciary capacity caring for a parent (e.g., providing transportation, assisting in household care, cooking meals, paying bills, etc.), often in-residence with a parent. Following the parent’s death, in the absence of a specific bequest in the testamentary instrument in consideration for such care, the child may claim that the parent intended for the child to be compensated for such care, that the parent owed the child a specific amount for such care, that the parent promised to provide for a bequest under the testamentary instrument for such care, that the child is otherwise entitled to be compensated for such care from the parent’s estate, and sometimes even that fairness demands that the child should be allocated a greater amount of the estate than otherwise provided thereunder in consideration therefor or their siblings should simply agree to such greater share. Such assertions sometimes even 26

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manifest themselves in a legal claim for compensation against the parent’s estate. Even in the absence of a legal claim, considerable strain can be placed on family harmony resulting simply from such assertions, with the child seeking compensation often considered by siblings to be motivated strictly by greed and such child in turn considering such siblings to be quite unappreciative of the care such child provided their parent.

To avoid such a family imbroglio, if a parent intends to prefer such child in appreciation of such care, the parent should preferably make transfers to the child during the parent’s lifetime outside the observation of such child’s siblings and note such purpose in the parent’s records that such transfers were strictly gifts to benefit the child and not intended as wages or compensation (to rebut any implication that such payments were taxable in nature). If this is not financially feasible, the parent may provide for an additional bequest to the child in the testamentary instrument in consideration of such care, noting preferably under the provisions of the parent’s testamentary instrument, as opposed to under a separate writing, the reason for such additional bequest.

In the vast majority of situations in which the parent would not want a child to be compensated over and above any compensation paid, or gift made, by the parent during lifetime, the parent should generically state in the provisions of the testamentary instrument that in the absence of a written agreement so providing, it was the parent’s assumption that any such care or services not provided by a child in a formal fiduciary capacity were made purely out of generosity and affection, not in anticipation of any economic benefit.

Nonetheless, in order to create a chilling effect against any possible claim of such nature by such a child against the estate, the provision would further provide that should any beneficiary (i.e., intentionally not singling out children) make a claim against the probate estate of the decedent for any care or service the beneficiary may have provided to the parent, any amount actually allowed on such claim would result in

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a “dollar for dollar” reduction of the beneficiary’s share that would otherwise have been the case in the absence of such claim. Such beneficiary would also be out legal fees expended in pursuit of the claim and such claim in that context would likely be considered compensation subject to income taxation. In short, such provisions should result in a “poison pill” in the event a child makes such a claim, for whether such child prevails or not, such child will have received a net diminished share of a parent’s estate than would otherwise have been the case in the absence thereof.

As noted above, while a parent may want to avoid a caregiver child’s bringing a claim against the estate, the parent may still want to give a specific bequest to such child in the testamentary instrument in appreciation for that care. In that event, the parent’s bequest should indicate such was the reason for such bequest and such decision was the parent’s alone.

Otherwise, a caregiver child is more likely to be blamed by a sibling for having influenced such parent to make the bequest and the Internal Revenue Service might conceivably take the position in any audit of the caregiver’s income tax return that the parent and child had an agreement that such bequest was meant to be in lieu of compensation during the parent’s life.

Minimizing Adverse Effect of Intended Disparity in Children’s Shares Children have no legal right in any state to inherit property from a parent. Lawmakers have long decided that as children normally have had no role in the accumulation of assets in a parent’s estate (other than, of course, diminishing it by parental support during their formative years), they should have no inherent right in its disposition. Consequently, viewed objectively, children should be appreciative as to any amount they receive under a parent’s estate plan as purely a gift. However, this expectation often proves to be unrealistic under concrete circumstances. Thus, if a parent is conferring unequal monetary or economic benefits between or among children under the parent’s estate plan, the impact upon family harmony engendered by such disparate treatment should be considered.

Notwithstanding being devoid of an inheritance right to a parent’s estate, children nonetheless often view it as an entitlement right, or at its most basic level, that a parent simply “owes it to me.” As with the appointment of a child as fiduciary of a parent’s estate, they also tend to view what they receive in relation to siblings as their parents’ last full measure of their merit as a child. Thus, should parents provide for an unequal economic benefit among children under their estate plan, to ameliorate any resulting family disharmony, it is normally advisable for the parent to provide in the testamentary instrument the reason for such disparity and unequivocally state that the decision was the parent’s alone.

By not leaving such rationale in doubt, such statement may

help reduce, albeit probably not totally avoid, a disaffected sibling’s feelings of resentment. For example, if the parent states his or her desire to give a child a larger bequest due to a greater economic need than other children, such intention should be so expressed, although unless perhaps if it was due to a disability, other children may nonetheless view this as a penalty for their personal ambition and success. If such greater benefit to a child is due to the child having been of much greater assistance or comfort to the parent, as discussed above, such intent should also be delineated.

On the other hand, there certainly are converse situations where a parent does not wish to make a bequest to an estranged or disaffected child due to such circumstances as a perceived failure in ambition, unacceptable lifestyle, or a poor or detached relationship with the parent. In that situation, a parent may be inclined to threaten to disinherit such child absent a substantial change toward more desired behavior.

However, such threatening is unlikely to produce a positive change in the child’s behavior. Instead, the relationship between the child and the parent, as well as with such child’s siblings, is more likely to become even more hardened as a result and the disparate treatment of the child will be the last enduring memory such child will have of the child’s parent.

Nonetheless, even such acknowledgement by the parent is understandably not likely to dissuade a parent from disinheriting such child held in disfavor as being undeserving.

If the only reason for reducing a child’s share is the parent’s belief that such bequest would be imprudently managed by the child, which is often the case, parents often choose to simply reduce the child’s share or totally disinherit the child. In doing so, they frequently have failed to consider the normally better alternative, both from a family harmony and property management perspective, of making a bequest of an amount in trust for the benefit of the child to ensure that the money will be distributed to the child by the trustee, in the trustee’s discretion, to satisfy specific health, education, maintenance and support needs of the child after considering the child’s other resources, including even the child’s ability to engage in gainful employment prior to attainment of a certain age (e.g., 65). Moreover, the trust provisions can provide incentives for desirable changes in the child’s behavior (e.g., very conservative for maintenance and support needs prior to reaching a certain age, providing for “matching provisions” for the child’s earned income, or a bequest upon attaining a college degree). For family harmony reasons, a competent third party, such as a corporate trustee, rather than another family member, would best be named to serve as trustee of such trust, even more so if the family member to be so named holds a remainder interest in the trust upon the child’s death.

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is having one child’s share being held in trust and managed by a third party trustee), the parent should consider strategies which minimize both family disharmony and an unwarranted challenge by the adversely affected child or children.

First, as noted above, the rationale for doing so should either be included in the testamentary instrument or in a separate written statement signed by the parent. If a revocable trust is chosen as the primary testamentary instrument, the statement should be included therein, for revocable trusts, as opposed to wills, do not have to be filed of public record. Such clear and unambiguous statement should assist in rebutting any claim by a child that such disparity was inadvertent, a mistake, or did not reflect the true intent of the parent. Moreover, the parent should additionally state that such decision was not influenced by any other person to militate against any undue influence allegation.

Second, the parent may include an in terrorem or “no contest” provision in the testamentary instrument, providing that certain legal challenges by a child to provisions of the instrument would result in a lapsing of the child’s share under the testamentary instrument. Their efficacy is beyond the scope of this article. However, such provision could only be effective if the bequest to the child is large enough such that the child is unwilling to risk such a lapse. In any event, such provisions should be narrowly drafted to accomplish the client’s objectives. For example, if the goal is to create a substantial disincentive to a child challenging the child’s share of the estate or the manner in which it is being distributed to such beneficiary (e.g., in trust rather than outright to be managed by a third party trustee for an extended period and possibly for the lifetime of the child), such provisions should not extend to any other matters, such as seeking a judicial resolution of ambiguities in the instrument or challenging a fiduciary’s fees or any other action in the administration of the estate.

Unfortunately, such provisions are typically overbroad and used routinely as a singular “one size fits all” elixir in avoiding family disharmony. Used in that capacity, they are not well served. They are designed only to dissuade specious challenges to the estate plan in the foregoing limited types of situations and serve no general purpose in furthering family harmony in the administration of the estate. To the contrary, when they incorporate overbroad language in their application and are utilized to also apply to administrative decision-making, they serve to both exacerbate family disharmony when a child is serving as financial fiduciary and can distort the intended estate plan by stultifying legitimate challenges in the administration of the estate.

Avoiding Unintended Disparity in Children’s Shares There are also frequent situations in which a child may inadvertently receive an amount by virtue of a parent’s death in excess of that intended by a parent. For example, property 28

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a parent owns in joint tenancy with a child or with respect to which a child is named the primary beneficiary passes to such surviving child as joint tenant or beneficiary outside the provisions of the parent’s testamentary instrument. This typically results in the child who is the surviving joint tenant or beneficiary on an asset receiving amounts in addition to the child’s share of the parent’s estate.

This may simply result from parents not understanding that their testamentary instrument does not govern joint tenancy or beneficiary property (unless the beneficiary was the revocable trust or estate of the parent), a quite common misunderstanding. There are numerous other situations prone to this result. A parent may name each child as a beneficiary on separate accounts or assets of relatively equal value, without realizing that a child would be disinherited if the account was cashed in, a circumstance which may occur should the parent subsequently incur a disability and money is needed for the parent’s care. Another example is a child who is named as a beneficiary on an asset which has all children named as beneficiaries predeceasing the parent, with the asset, in the absence of also having named contingent beneficiaries, devolving to the other children listed as beneficiaries, thereby disinheriting the predeceased child’s descendants in the process. It may further result from a child being named as a joint tenant on a parent’s account for the sole purpose of assisting the parent in the payment of bills, without the parent realizing that the account would pass outright to the child upon the parent’s death and not under the provisions of the parent’s testamentary instrument. Finally, it may occur simply due to the parent’s not properly changing beneficiary designations or joint tenancy ownership after executing their testamentary instrument to comport with their estate plan or having passed away prior to their effectuation.

When any joint tenancy or beneficiary designation property passes outside the provisions of a testamentary instrument to a child, issues of parental intent and a potential resultant distortion of the estate plan can create substantial family disharmony as well as administrative and legal costs due to challenges by disenfranchised children. The child benefiting from such succession in ownership is likely to argue that such succession was intended by the parent, e.g., to benefit them for having cared for, or attended to the needs of, the parent. The other children, most stringently if the parent’s testamentary instrument provided for the children to receive equal shares of the estate, are likely to argue that such disposition was not intended and thus the joint tenancy or beneficiary asset should be considered an asset governed like all other parental assets under the provisions of the parent’s testamentary instrument.

Absent evidence of a constructive trust, the surviving joint tenant or beneficiary so receiving property outside the testamentary instrument clearly has the legal upper hand, as the beneficiary designation or survivorship property right of joint

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tenancy would obviously otherwise govern the disposition of the subject property. Whatever the legal consequence, family harmony, as well as preservation of the value of the estate, are likely casualties.

To avoid an unintended consequence and family disharmony whatever the parental intent, such intent should be expressed in the testamentary instrument. Thus, if the intent of the parent is that all property in which the parent has ownership passes upon the death of the parent as provided under the delineated shares of their testamentary instrument, which is normally the case, its provisions should provide that any property passing outside its provisions to a beneficiary of the estate, whether by joint tenancy or beneficiary designation, is to be treated as an “advancement” against the joint tenant’s or beneficiary’s share of the estate in the same manner it would have been treated had it been held in the estate of the parent at the time of the parent’s death and passed to them as part of their share of the estate. In the less common converse situation where the parent does not intend for joint tenancy or beneficiary designation property to be considered in determining a beneficiary’s share of the estate, the testamentary instrument provisions would provide, in conformity with the normal legal consequence, that any property, or perhaps only specific property, passing outside its provisions through joint tenancy or by beneficiary designation to a beneficiary is not to be given any consideration in determining a beneficiary’s share of the estate.

Consideration of Mediation and Arbitration Provisions An ounce of mediation is worth a pound of arbitration and a ton of litigation.

Joseph Grynbaum Conflict is inevitable, but combat is optional.

Max Lucado The inclusion of mediation and arbitration provisions in the testamentary instrument can avoid publicly litigating family disputes, particularly disruptive if the estate and controversy involves a family business, and thus greatly assist in preserving family harmony. While binding mediation and arbitration provisions in testamentary instruments are not advisable in every circumstance, they unquestionably are worthy of consideration in issues and controversies involving a family member on each side of an estate issue. Due to adverse effects on both privacy and family harmony, such litigation can be even more deleterious in the estate planning context than it is in business contexts which frequently include such provisions. Yet, mediation and arbitration provisions in testamentary instruments are quite rare.

As mediation and arbitration must normally be by agreement of the parties, unless such provisions are statutorily authorized to be enforceable, it can be questionable whether

they are enforceable. There has been a split among the relatively few appellate courts, none in Kansas, that have looked at the issue of their common law enforceability when included under provisions of a testamentary instrument. The better argument would appear to be that by accepting an interest in the estate, the beneficiary impliedly has contractually accepted the enforceability of such conditions as well. Moreover, a descendant has no legal right to a share of the parent’s estate and a parent should be able to place conditions on a receipt of a child’s share of the estate. Further, mediation and arbitration provisions advance desirable public policy goals of preserving family harmony and reducing public expenditures in the judicial process. Such factors buttress the legal position that such provisions should be legally enforceable notwithstanding the absence of any statutory authority for their enforcement.

Fortunately, Kansas is one of a minority of states that now statutorily recognize the enforcement of mediation and arbitration provisions in revocable trusts. K.S.A. §58a-205. Nonetheless, to further enhance their enforceability, particularly with regard to such provisions in wills in which they have not been similarly statutorily sanctioned, a specific provision should be included in a revocable trust that mandates mediation of disputes involving family members, which normally have a high success rate, followed by binding arbitration if mediation should fail to settle the dispute. A Special Trustee or Trust Protector could be authorized under the provisions of a revocable trust, as generally sanctioned by provisions of the Kansas Uniform Trust Code, to amend the trust provisions to reduce a non-consenting beneficiary’s share of the trust estate by a certain percentage (e.g., say one-third), in the event a beneficiary should knowingly ignore such provision and institute a judicial resolution of the issue. K.S.A. §58a-808(c). Such authority would also best be extended to the selection of the mediator and arbitrator(s), and the number of mediators, if the parties cannot agree, as well as any www.ksbar.org | March 2020 29

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procedural rules to be applied in any such proceedings to the extent not otherwise dictated under the provisions of the testamentary instrument.

The alternative dispute resolution (or ADR) approach is less formal and contentious, can be much less costly, normally achieves a faster result, and avoids the subject matter and proceeding being of public record. It is particularly valuable as a required alternative in resolving family disputes in the administration of trusts and estates due to its assuaging effect on potential family disharmony. The potential downside is that an arbitrator’s decision constitutes a binding and final resolution of the issue and there are few grounds for appeal. Picking a knowledgeable and experienced mediator or arbitrator is key, e.g., a highly knowledgeable, reputable and experienced estate planning attorney. It also is typically wise to exclude contested matters involving a family member and a professional third party, such as a corporate fiduciary, except at the option of a affected family members. A non-judicial procedure in many such circumstances tends to favor a third party that typically would prefer that a contested matter not be of public record.

Whether to Advise Children of the Estate Plan It’s not me who can’t keep a secret. It’s the people I tell that can’t.

Abraham Lincoln The considerations involved in a parent’s decision whether to advise a child or children of the estate plan extend far beyond whether children will subsequently inform aspects of the plan to others the parent does not want to know, such as another child, in-laws or grandchildren. It is much more dependent upon the specifics of the estate plan, the particular family situation involved, a proper evaluation of the benefits and detriments in making such disclosure, and most particularly, its impact on family harmony.

For estates holding farms and closely held businesses which are passing to children, it is normally advisable to involve children in the business succession part of the estate plan.

As discussed above, this allows family harmony issues to be appropriately discussed and effectively tested while the parent is living. In the absence thereof, there would be no opportunity for parents to make appropriate adjustments to the estate plan. It also minimizes the risk of crafting a business succession plan based on certain assumptions about children’s strengths and weaknesses that might prove to be incorrect.

However, despite advice to the contrary disseminated “on line” and rendered by many financial and other professionals, including a large segment of estate planning attorneys, the author believes for the reasons discussed below a parent is nor-

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mally ill-advised in disclosing the estate plan to children in almost all other situations. Rather than “clearing the air” and “avoiding surprises,” the oft-purveyed aphorism for such disclosure, for a legion of reasons it will almost certainly instead carry with it an immediate and severe risk to family harmony.

First, children are usually ill-suited by their background and experience, normally not even having a comprehensive estate plan themselves, to be able to analyze, understand or appreciate the elements of their parent’s estate plan. Nor, typically possessed of at least some semblance of emotional conflicts of interest with siblings, along with the impact of family dynamics, sibling rivalries, and potential financial conflicts of interest regarding their desired or expected share of their parent’s estate, can children be expected to be objective in evaluating a parent’s estate plan in any material respect.

Moving to the substance of such disclosure, if a parent is going outside the family for a financial fiduciary to administer the estate due to family harmony considerations, a child may question parental motives in so doing, greatly underestimate the family harmony risk in having a child serve in such capacity, greatly overestimate the cost of a third party administering the estate, grossly understate the burden such role places on a child, incorrectly view the administration of the estate as a family member, and thus lean toward cajoling or pressuring parents that a child should be appointed as financial fiduciary.

This usually engenders a disagreement among siblings as to which child should serve in such capacity.

The better strategy is to include a provision in the testamentary instrument, as discussed infra, providing that the parent: (a) was not going outside the family for a financial fiduciary due to any concern that a child could not properly manage the administration of the estate, but strictly due to family harmony being the parent’s most important goal; (b) did not want to take any risk in that regard by naming a child to serve in such capacity; (c) did not wish to impose a burden upon a child in serving in such capacity, including taking time away from the job or personal or family life in fulfilling their duties with respect thereto; and (d) did not want to have to choose which child or children to serve in such capacity. Absent such provision, children are also likely to conclude that the failure of a parent to name any of them as a financial fiduciary was based on mistrust.

Alternatively, if a parent has chosen instead to name a specific child or children to serve in a fiduciary capacity, disclosure of such decision may immediately result in discontent among, if not blatant jealousy by, other children.

A parent’s decision to give more of the parent’s estate to one child in recognition of such child’s contribution to the farm or other business enterprise, or due to a greater economic need, is often unappreciated by other children, sometimes even if the economic need relates to a disability. Should the estate

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plan include a significant charitable bequest, children may object, concluding in essence that “charity begins at home.”

Also, it is not an isolated instance in which children even inquire about intentionally omitted aspects of their estate or estate plan in the disclosure, including the size of the parent’s estate.

Further, by choosing to discuss an estate plan with children, a parent may enhance a child’s feeling of entitlement to the parent’s assets. Following such disclosure, a child may request “a part of my inheritance” during the parent’s lifetime, when “I can enjoy and use it.” Additionally, such disclosure often inadvertently opens the door to a full panoply of “pressured requests” by children to make changes in the parent’s estate plan, often designed, as one might expect, to benefit themselves, which suggestions typically contravene the interests of other children, all the while placing considerable stress on family harmony. Occasionally, even in-laws have been known to have the temerity to make impertinent inquiries, such as inquiring as to any provisions for them in the estate plan or their net worth. If the assets of the parent’s estate plan are significant, such disclosure may change a child’s spending and saving habits, perhaps becoming less prudent, relying instead on their future “inheritance” for retirement funds, notwithstanding a surviving parent may live well beyond a child’s attainment of retirement age with no certainty as to the nature or value of their assets or testamentary intent at that time.

Also, married children frequently express a desire that should they predecease a parent, they would prefer “their share” to alternatively pass to their spouse. This desire runs contrary to that of most all parents. As estate planning attorneys well know, parents normally desire for a predeceased child’s share to pass instead to the predeceased child’s children, or if none, to their other children. They have the obvious concern that if a deceased child’s share passes to an inlaw, it is likely to be to the substantial economic detriment of such child’s descendants. For in addition to expenditures of such assets by an in-law, such assets are exposed to the creditor claims of such spouse and possible distribution to, or subject to the divorce or inheritance claim of, a subsequent spouse or pressure of a subsequent spouse to also provide for their children. Nor do parents normally want to incur additional attorney fees in providing for a distribution to a child’s spouse under their estate plan in the highly unlikely event a child should predecease them. Finally, parents tend to be of the view that it is the responsibility of their child, not them, to provide for a son-in-law or daughter-in-law. Nonetheless, the pressure exerted upon a parent by a child to make such provision can cause significant family disharmony should a parent decline to do so. Such disharmony would then tend to extend to the affected in-law, even sometimes resulting in the withholding of contact with their grandchildren in the subject family.

Children also may pressure a parent to prefer the child over other children regarding the shares of their estates due to a provincial view that they are “more deserving” or a sibling “doesn’t need the assets” due to being of greater wealth.

Further, knowledge of a parent’s desire to protect assets from mismanagement by a child or undesirable spousal influences by retaining assets in trust for them with third party trust administration can be expected to result in an immediate estrangement with the affected child.

In the event assets are being left in trust for the benefit of a child solely to protect trust assets from the claims of third parties (e.g., estate taxes, spousal and creditor claims), with the child serving as sole trustee, the disclosure of even this aspect of the estate plan can adversely affect family harmony, although typically to a considerably lesser degree. Once again, this can be the subject of considerable consternation by an in-law if informed of such aspect. A child simply may not fully appreciate that the plan was devised solely for the purpose of protecting the child from third party claims or minimizing taxes. The child may suspect ulterior motives or feel they do not have unfettered access to trust funds. The child may even disagree that such protection is necessary and thus desire an outright distribution. Should a child inform their spouse of the intended asset protection benefits in the event of a divorce, the risk of such potential disharmony is likely to be even greater with the child’s spouse, with the aforesaid possible additional adverse ramifications.

At its core, there can be a considerable disparity betweenand thus incompatibility with-the estate planning goals held by a parent with those of a child. Should the parents’ goals surface during the parent’s lifetime through a disclosure of the parent’s estate plan, disharmony may not only result between a child and parent, and among children, but also between a parent and son-in-law or daughter-in-law. Moreover, any resultant disharmony occasioned by such disclosure will arise during the parents’ lifetime, causing undue anxiety to the parent and among children, possibly instilling in a parent a diminished view of a dissenting child, and create an already deleterious environment regarding family harmony that could well extend beyond a parent’s death.

When the parent’s disclosure of the estate plan results in a disagreement with children as to elements of the plan, the parent is faced with the choice of either changing the plan to satisfy a dissenting child and possibly disenfranchising other children in the process, or retaining the current plan which is congruent with the parent’s goals and which the parent has determined is in the children’s best interests. If the latter route is chosen, the disagreeing children may forever hold their parent in disfavor for “not respecting” their wishes. If more than one child has inconsistent desires with respect to making changes in the estate plan, e.g., two children each wishing to serve as sole trustee instead of a corporate trustee, the Continued on Page 34

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problem is compounded, for even if a parent was otherwise amenable to changing the plan, the wishes of both children are incapable of being satisfied.

A final significant drawback to informing children of the estate plan is that it can put parents in an almost untenable position should they later amend the estate plan in a manner significantly affecting a child’s interest, e.g., changing the financial fiduciaries so as to alter the role of children in such capacities, changing the shares of the estate passing to children or grandchildren, changing the terms of trusts that are to hold assets for children, etc. What does the parent do then?

Does the parent tell children of the change or simply remain silent? If the former route is taken, disapproval and resultant family disharmony may be the immediate reaction by a disaffected child, both against the parent and siblings. If the latter route is chosen, children only learning of such change following the parent’s death may forever hold their parent in disfavor, viewing such change as a parental betrayal greatly intensified by the parent’s silence. They may also suspect such change was wrought by an advantaged sibling’s influence on a parent.

The bottom line is that in circumstances when the children are in agreement with the plan, no benefit to family harmony was achieved by advising them. If family-harmony-friendly strategies and provisions have been included in the estate plan, the risk of family disharmony in the administration of an estate likely will have been already reduced to the maximum extent possible, with little to no possible benefit in having discourse with children concerning its elements. Should a child inquire of parents as to their estate plan, parents need only state that they have a comprehensive plan designed to minimize taxes and administrative costs and provide for an equitable distribution among the beneficiaries of their estate.

Should any additional unwanted invasive inquiries be made, parents should simply state that family harmony is their most important goal and that no beneficial purpose would be served by any further disclosure.

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In short, the above frequently voiced well-worn “feel good” adage of consultants and a large segment of estate planners that such disclosure will further family harmony by “avoiding surprises” and “clearing the air” is normally without merit except under family business succession plans. The surprises that such disclosure is intended to avoid are more than elusive, with the parent being put at high risk of being unpleasantly surprised.

Moreover, the “clear air” that existed prior to such disclosure can quickly become miasmic as a result of such disclosure.

Such rationale simply will not sustain objective scrutiny in realistic, modern day family settings, if it ever did.

In family situations involving children from a prior marriage and a surviving parent who has remarried, children from the prior marriage are often concerned that assets accumulated during the marriage of their parents will be dissipated in favor of a stepparent or the stepparent’s children.

This concern is frequently so strong that children are unable to accept the parent’s spouse as a member of the family, thereby creating a strain in the parent-child relationship.

Such situation calls for a slight variance from the foregoing disclosure recommendations. If a parent has entered into a premarital agreement prior to the marriage, or the stepparent has consented to the parent’s estate plan, a simple and brief statement to children stating the interests of the deceased parent have been preserved and protected in the parent’s estate plan and that the parent desires for children to be accepting of the parent’s spouse should suffice to minimize family disharmony resulting from this aspect as much as feasible under the circumstances. Any further explanation of the estate plan would normally be undesirable for the same reasons discussed above regarding its potentially negative impact upon family harmony, only to be emotionally exacerbated by the presence of a new spouse of a parent.

In the circumstance where a child is named as a health care agent, it is normally advisable that such child be informed and given a copy of the health care power of attorney, as well as a copy of the living will. Health care decisions can be time sensitive, and assuming the health care power of attorney is effective immediately, this procedure avoids any undue delay should the child be called upon to make a health care decision for a parent.

If a child is named a financial fiduciary under the testamentary instrument or durable power of attorney, such disclosure would only atypically be time sensitive. Consequently, there is normally no compelling temporal need for prior disclosure to a child of any aspects of the plan governing asset management, only a means of timely access to the subject instruments when the time arises for their implementation.

In sum, the considerations listed above warrant a careful assessment by the parent of any benefits to be derived by the disclosure of their estate plan to their children when juxtaposed with its substantial risks to family harmony. If the above family harmony provisions are incorporated in testa-

resting in pieces — part 2

mentary instruments and appropriate strategies addressed in the estate plan, the vast majority of family harmony risks will already have been properly attenuated to the extent feasible so as to be of minimal risk. If they have not, no disclosure of the estate plan is likely to have any significant beneficial effect on their reduction, while at the same time carrying a significant risk of family disharmony in such effort while a parent is living, which may well endure following the passing of the parent. Further, as discussed above, such disclosure also risks non-objective unsophisticated children placing pressures on a parent to revise the parent’s desired estate plan in their favor, which revisions are likely not only to be antithetical to their parents’ desires, but also often to the desires of their siblings as well.

In the majority of situations in which an informed parent would be expected to conclude that the clear and present risks of such disclosure outweigh any potential benefit, the far better option is to reduce to writing for post-death disclosure the factors the parent considered when creating the estate plan, best by their inclusion in the above-noted “personal declaration” provision in the testamentary instrument in the manner discussed in the subsequent section. Such post-death disclosure should foster in children an understanding of the parent’s goals under the estate plan without parents having to incur the significant risk to family harmony that would attend the disclosure of their estate plan during their lifetime.

Even when a parent determines it to be inadvisable to inform a child of the parent’s estate plan during lifetime (other than perhaps a child being named as health care agent), in the absence of any other close advisor it may nonetheless be desirable to list a child as an additional signatory (and being so advised by the parent) on the parent’s safe deposit box. This permits the child to gain access to important estate planning documents upon a parent’s disability or death (or if such parent’s spouse is the first named fiduciary, in such circumstance if the parent’s spouse is likewise disabled or deceased).

In the situation when a parent has named a third-party financial fiduciary, that child would typically be the child named as health care agent. The child would be instructed to gain access to the safe deposit box when the parent, or both parents, as the case may be, are unable to manage the parent’s finances due to a mental disability or has died and to follow the directions in the sealed envelope with the child’s name on it. The written directions in the envelope would indicate the identity of third-party fiduciary administering the parent’s estate to whom or which the original estate planning documents in the additional large sealed manila envelope in the safe deposit box are to be delivered. In the alternative situation when a child is named financial agent, the instructions for the child would be to open the envelope in the safe deposit box addressed to the child and secure immediate legal advice as to the child’s duties as financial fiduciary in the manage

ment of the estate under the provisions of the original estate planning documents in the box.

In either case, the note would also inform the child of the law firm that drafted the documents and that such firm has electronic copies of the executed estate planning documents to preclude any possibility that the child might choose to destroy the existing estate planning documents should the envelope be opened and the child determine its provisions were not as the child desired. In keeping with the foregoing discussion, absent a business succession plan, for family harmony reasons in neither situation would the child need to be advised beforehand of any aspect of the estate plan, including the name of the financial fiduciary.

Prior to concluding discussion of whether children should be advised of the estate plan, another family harmony aspect related thereto is worth mentioning. In addition to the estate planning advantages of revocable trusts discussed above being more adept than wills in several respects in their ability to incorporate certain family harmony strategies, unlike wills, neither the provisions of the trust nor the assets it holds are a matter of record. Particularly with respect to married couples leaving their assets either outright or in trust for their spouse upon their death for asset management protection and tax purposes, doing so under a testamentary trust created under a will, due to its public record aspect, will unavoidably result in children having access to information about the assets in the probate estate of the predeceased spouse and the terms of the planned disposition of the remaining trust assets upon the death of the surviving parent among children. This obviously can compromise family harmony during the lifetime of the surviving spouse as a result of such indirect disclosure.

Conversely, under provisions of the Kansas Uniform Trust Code, all otherwise statutorily required notices of the revocable trust provisions and accountings of its administration to current and remainder beneficiaries are automatically waived if there are no current and remainder beneficiaries of assets left in trust by the predeceased spouse for the benefit of the surviving spouse other than the surviving spouse and descendants of the surviving spouse. K.S.A. § 58a-813(d). Further, even if there are other remainder beneficiaries, such as a charity or stepchild, such notices can be specifically waived in the instrument. K.S.A. §58a-105(b). The same is true with respect to sub-trusts created for children. Id. Because revocable trusts and the assets in the trust estate are not a matter of public record, children cannot do an “end around” such waivers as they can with the public record aspect of wills and accompanying inventory of the estate, thus preserving the privacy of the estate plan and its underlying assets from undesired access by trust beneficiaries until the death of a surviving spouse.

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Evolution of the Author’s Practice in Addressing Family Harmony Issues Having previously revised prior long-standing approaches in counseling clients regarding the choice of a financial fiduciary, approximately two decades ago the author’s firm turned its attention to pursuing other root causes of most family disharmony in the estate planning process outlined above that experience had demonstrated, and then developed strategies that hopefully remedied them. Structural changes to estate planning instruments were then designed and implemented to emphasize family harmony as an over-arching estate planning goal and to minimize factors deleterious to its maintenance following a parent’s disability or death, some of which, as discussed herein, also served to preserve the integrity of dispositive provisions as well. In that process, it was determined that revocable trusts, as opposed to wills, were clearly the preferred testamentary instrument, for in addition to its advantages in many other respects, as opposed to wills it was the more facile instrument in utilizing such strategies (e.g., the incorporation of fiduciary discharger provisions, efficacy in including mediation and arbitrations provisions, not being a matter of public record, etc.).

Toward that end, in the first article of the trust instrument following an initial “family declaration” paragraph listing family members and their birthdates, the second paragraph sets out the primacy of the family harmony goal, followed by preserving the integrity of the intended disposition of the estate, and the reduction of taxes and administrative costs, further noting that the subsequent paragraphs that follow in such initial article are supportive of furthering those three noted goals. Subsequent titled paragraphs then incorporate the above-discussed strategies and provisions that appropriately address them, including the treatment of gifts and loans; in terrorem clauses; the entitlement of children serving as a fiduciary to compensation; the reasons for appointing a non-family member as a subsequent fiduciary of the revocable trust; compensation issues relating to non-fiduciary services provided to a parent by a trust beneficiary; the treatment and effect of property passing to a beneficiary outside the provisions of the trust instrument on such beneficiary’s share of the trust estate; the reason for any disparity in children’s trust shares; and mediation and arbitration provisions. Other provisions in subsequent articles of the testamentary instrument address the other family harmony strategies addressed herein, including the distribution of tangible personal property, “trustee dischargers” and children serving as trustee having the authority to name a successor corporate trustee and resign.

The comprehensive implementation of the foregoing salutary strategies and inclusion of protective provisions in testamentary instruments, in conjunction with appropriate client

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counseling, has resulted in reducing family disharmony in the estate planning process and the administration of trusts and estates of the firm’s clients in multi-child families by an estimated eighty percent from that which heretofore had occurred in their absence. At the same time, it has reduced the severity of such family disharmony in a significant percentage of the balance of such situations.

Conclusion For every complex problem there is an answer that is clear, simple and wrong.

H. L. Mencken There is nothing like the death of a moneyed member of the family to show people as they really are, virtuous or conniving, generous or grasping.

Jesse Dukinminier and Stanley M. Johanson (1972)

Most estate planners know full well that the myriad of complex estate planning issues presented in the estate planning process is not amenable to a simple solution. Nonetheless, notwithstanding the high priority most clients would place on maintaining family harmony in that process, estate planning attorneys traditionally have oversimplified, overlooked or otherwise minimized this aspect. Instead, the focus has been almost entirely on factors relating to the proper disposition of their property upon their death and the achievement of ancillary goals, such as minimizing taxes, asset protection, governmental resource planning and using trusts in the management of assets for beneficiaries, leaving most of the family harmony enhancing strategies discussed herein either totally lacking in consideration or addressed little more than perfunctorily.

Although such other estate planning facets are certainly important and are at the technical heart of the estate planning process, the all too frequent detritus from such failure has been a high incidence of significant family disharmony following the death or disability of a parent, substantial attorney fees and other administration costs being incurred resolving or addressing otherwise mostly avoidable contentious matters in the administration of the estate, and damages to the integrity of the estate plan resulting from a skewed distribution of their clients’ estates from that intended by parents. In short, when such adverse circumstances arise, there will have been a fundamental failure in the preservation of this most valued of intangible family assets, as well as collaterally damaging other important facets and goals of clients in what may have otherwise been in all other respects a well-devised estate plan. Given that the vast majority of such highly adverse consequences is avoidable in the estate planning process and the accompanying inclusion of appropriate provisions in the testamentary instrument, it should be safe to opine that estate planning processes and the es-

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tate plans that devolve therefrom which fail to adequately address and protect this important estate planning facet are unquestionably flawed.

Excepting individuals who do not engage an estate planning attorney in their estate planning, there appears to be little doubt but that a clear majority of the family disharmony in the estate planning process is occasioned by errors of omission, not of commission, by estate planning counsel.

Estate planning attorneys have been long-standing unwitting protagonists in such disharmony due to our collective failure to implement a more comprehensive holistic approach to the estate planning process by practicing “preventive legal medicine” regarding the preservation of family harmony in the estate planning process in much the same way holistic approaches to health matters have evolved in the medical field.

It is thus long past time for a sea change in the colle­­ctive focus of our profession on this issue. The author submits there is every reason to conclude that estate planning attorneys who incorporate the family harmony enhancing strategies discussed herein in their practices will achieve positive

results consonant with those of the author’s firm. As a welcome incident thereto, they should also find their clients to be highly appreciative of their attorney’s considered emphasis throughout the estate planning process on this preeminent family value. n About the Author Timothy O’Sullivan is a partner in Foulston Siefkin LLP in Wichita. He graduated from ­­­Washburn University School of Law in 1975 and received an LL.M. in Taxation from the University of Missouri-Kansas City School of Law in 1982.

Tim is a Past President of the KBA Real Property, Probate and Trust Section, the KBA Tax Section, and the Kansas Chapter of the National Academy of Elder Law Attorneys. He has also served as an adjunct professor in estate planning at the University of Miami School of Law and the University of Missouri-Kansas City School of Law, and at Washburn University School of Law for the past 25 years. tosullivan@foulston.com

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substance and style

Two Minutes in Heaven: The United States Supreme Court’s New Non-Interruption Rule and the Future of Oral Argument

by Jeffrey D. Jackson

S

omething new happened to oral argument before the United States Supreme Court this term. Litigants before the Court found themselves in the unusual position of enjoying a two minute grace period in their argument before justices begin to pose questions. The change was instigated by the Court itself, and announced in the new edition of the booklet the Court prepares for litigants.1 Under the new guidelines: The Court generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument. The white light on the lectern will illuminate briefly at the end of this period to signal the start of questioning.

Where argument is divided and counsel represents an amicus or an additional party, the white light will illuminate after one minute.2

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The decision by the Justices to essentially muzzle themselves for the first two minutes of argument comes during a time when commentators have noted that the Court has been asking considerably more questions, and asking them sooner, than ever before.3 A study conducted by SCOTUSblog on the October 2018 term reflected that in 33 cases during that term, party’s counsel spoke for 30 seconds or less to open an argument before a justice began with questions, and the average amount of speaking time for introductory remarks across the 2018 term was just over 54 seconds.4 Only five attorneys crossed the two-minute threshold during the term before receiving their first questions from the Court.5 Although the United States Supreme Court is an extreme example, there is no denying that the time allotted to oral argument, and the time litigants actually get a chance to speak at that oral argument, has been on the decline.6 During the 1970s, oral argument in the Federal Courts of Appeal was generally set at 30 minutes a side,7 and from the 1920s to

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1970, United States Supreme Court arguments were routinely set at two hours.8 Now, the United States Supreme Court allots only a half-hour per side, and most Federal Courts of Appeal allow no more than fifteen minutes.9 Kansas state courts have also followed this trend. In 1988, the Kansas Court of Appeals reduced oral argument in most cases from 30 to 15 minutes per side.10 The Kansas Supreme Court followed suit in 1997.11 The reduction may not necessarily be a bad thing. Our tradition of oral argument in appellate hearings began at a time when oral argument was the primary way in which judges gathered information about the case at hand.12 However, today, written briefs provide the majority of the information, and appellate courts have many more resources to aid the judges and justices in their decision-making process. By the time of the hearing, a typical judge will have not only read all of the filings by the party, but will also have the benefit of a memorandum prepared by his or her law clerks on all of the points of law presented in the appeal. As a result, the time that attorneys used to inform judges about their case is no longer needed.

At the same time, because judges have more resources and are much better informed about the case, they have had more time to drill down to the main issues that trouble them, and to formulate questions regarding those issues. This means that they are more likely to ask questions than in the past when such information was not available until the hearing. To the extent that this preparation allows judges to hone in on the issues on which the case will turn, it seems the reduction in time of argument and number of questions is warranted.

However, there is something to be said for allowing litigants some time to actually present their cases without interruption. Oral argument serves purposes other than simply helping judges make decisions. It also provides public visibility of the court system in action, and is often the only part of the appellate process that takes place in the public eye.13 Very few news reports are generated based on briefs being filed, but hearings on important cases are routinely reported. Oral argument is an essential part of maintaining judicial legitimacy.

Oral argument also provides the parties with an opportunity to state their case to the actual decision-makers in a faceto-face manner that cannot be accomplished simply through written submissions.14 It gives litigants the satisfaction of knowing that their arguments have been made to the court.

The danger of limiting oral argument, or of judges immediately asking questions from the beginning of oral argument, is that the parties may feel that the judges have not given them a fair hearing. Even when oral argument makes little difference in the outcome of a case, parties deserve to feel that they have been heard.

With this in mind, it might be asked whether Kansas courts could benefit from adopting an official two minute rule. On the one hand, the need for such a rule does not appear to be as acute for Kansas appellate courts. At least from anecdotal observation, the Kansas Supreme Court and the various panels of the Kansas Court of Appeals generally allow parties at least a little time to talk about their case before beginning questioning. Whether this is a factor of a greater sense of the importance of allowing the parties their say or simply of our general Midwestern cordiality is difficult to determine. In any event, the criticisms levied at the United States Supreme Court’s conduct at oral argument do not appear to apply with the same force in Kansas.

However, there might be some benefit, both to the courts and to litigants, in adopting such an official rule. Having an official two-minute period for the parties to present their argument might reinforce what has long been taught as best practice in advocacy books and articles: The ability to state the essence and importance of the case within the first two minutes. The literature on advocacy has long-recognized the importance of the first two minutes.15 Virtually every guide to oral argument reinforces the ability to state the main points of the case in the opening.16 However, in actual practice, very few litigants seem to follow this advice. Having an official two-minute period where the litigant is encouraged to formulate what is essentially an “elevator pitch� laying out the main points of his or her position might well result in better argument preparation and focus.17 Whether or not courts formally adopt a period of enforced non-questioning, an appellate attorney would be wise to act as though one is in force. The attorney should figure out how to distill his or her case down to two minutes in a manner that will communicate to the court what the attorney is asking for and why that request should be granted. The opening should not only set out the issue for the court to decide, but also include a sentence or two setting out the law on the issue and how the facts fit with the law. For example, an opening statement for an argument that a non-compete clause is void for lack of consideration might look like the following:18 Your honors, as you know, covenants not to compete, like any other contract, must be supported by consideration. There was no consideration here. First, the noncompete contract here was not signed at the beginning of the employment. Rather, it was signed four months after employment had already begun. Therefore, it must be supported by some kind of consideration that is independent of the initial employment contract. And there was none here. Mr. Hernandez did not receive a promotion, a raise, or access to confidential information in exchange for signing this agreement. Nor did Mr. Hernandez receive any additional training or any promise of continued employment for a specified pewww.ksbar.org | March 2020 39

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riod of time. In short, he received no benefit the day after signing the agreement that he did not have the day before.

Finally, although continued employment itself can sometimes serve as valid consideration for a covenant not to compete, this can only happen in situations where the continued employment allows the employee to receive other compensation, responsibilities, or rewards that he would not have received absent that continued employment. Mr. Hernandez received none of these things in the three months he remained employed by the company after signing the agreement. His job remained essentially unchanged. Because the agreement was not signed until four months after the beginning of employment, and because Mr. Hernandez did not receive any additional benefits for signing the agreement, nor any additional benefits during the time he remained employed after signing the agreement, the covenant is void for lack of consideration.

In just two minutes, this opening has neatly given the court not only the points to be argued, but also a roadmap of the argument itself. Now the attorney can delve deeper into the arguments and also answer questions, secure that court knows where he or she is going and the essential points on which the case will turn.

Ultimately, the future of the two minute rule in the United States Supreme Court is unclear.19 However, whether or not the formal rule lasts, or spreads to other courts, it serves as an important reminder for appellate counsel: The first two minutes are vital and shouldn’t be wasted. n

About the Author Jeffrey D. Jackson is a professor of law at Washburn University School of Law, where he teaches Legal Analyses, Research and Writing, Constitutional Law, Constitutional History, and Comparative Constitutional Law. He received his B.B.A. in economics from Washburn University in 1989, his J.D. from Washburn Law in 1992, and his LL.M. in constitutional law from Georgetown University Law Center in 2003. While at Washburn, Jackson was assistant editor for the Washburn Law Journal and currently serves on the Kansas Judicial Council Death Penalty Advisory Committee. jeffrey.jackson@washburn.edu

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1. UNITED STATES SUPREME COURT, GUIDE FOR COUNSEL IN CASEs TO BE ARGUED BEFORE THE SUPREME COURT OF THE UNITED STATES, OCTOBER TERM 2019, https://www.supremecourt.gov/casehand/ Guide%20for%20Counsel%202019_rev10_3_19.pdf.

2. Id. at 7.

3. See Ephrat Livni, U.S. Supreme Court Justices talk an awful lot during oral arguments, Oct. 16, 2019, QUARTZ, at 2, https://qz.com/1736305/ us-supreme-court-justices-talk-an-awful-lot-during-oral-arguments/ 4. Adam Feldman, Empirical SCOTUS: Is oral argument talking time all it’s cut out to be?, Oct. 21, 2019, SCOTUSBLOG, https://www.scotusblog.com/2019/10/empirical-scotus-is-oral-argument-talking-timeall-its-cut-out-to-be/.

5. Id. 6. See David R. Cleveland & Steven Wisotsky, The Decline of Oral Argument in the Federal Courts of Appeal: A Modest Proposal for Reform, 13 J. APP. PRAC. & PROCESS 119, 119-21 (2012).

7. Id. at 119.

8. CLARE CUSHMAN, COURTWATCHERS: EYEWITNESS ACCOUNTS IN SUPREME COURT HISTORY 126 (2011).

9. See Cleveland & Wisotsky, supra note 6, at 120.

10. See REPORT OF RULES ADOPTED BY THE SUPREME COURT OF THE STATE OF KANSAS, Rule 7.02 (1988).

11. See REPORT OF RULES ADOPTED BY THE SUPREME COURT OF THE STATE OF KANSAS, Rule 7.01(e) (1997).

12. Tonya Jacobi & Matthew Sag, The New Oral Argument: Justices as Advocates, 94 NOTRE DAME L. REV. 1161, 1167 (2019).

13. See Cleveland & Wisotsky, supra note 6, at 138-39.

14. See id.

15. See, e.g., Frederick Bernays Wiener, Oral Advocacy, 62 HARV. L. REV. 56, 63 (1948) (noting the need to “lodge the major points of the case in the court’s mind in the critical first two minutes of argument”).

16. See, e.g., David C. Frederick, Supreme Court and Appellate Advocacy 63-67 (2nd ed. 2010) (discussing the importance of the opening).

17. See Tony Mauro, Say Your Piece, Supreme Court Advocates. But Only for Two Minutes, Oct. 4, 2019, THE NATIONAL LAW JOURNAL, https://www.law.com/nationallawjournal/2019/10/04/say-your-piecesupreme-court-advocates-but-only-for-two-minutes/. Mauro quotes Attorney John Elwood of the D.C. firm Arnold & Porter’s post on social media that: “’Given the increased specialization of the #SCOTUS bar, I expect this opening precis to be the most exquisitely crafted persuasive prose the advocate has written since their college application essay—or their previous #SCOTUS argument.’”

18. The facts I use for this opening are taken from Access Organics, Inc. v. Hernandez, 175 P.3d 899 (Mont. 2008). It is one of the cases that I use in my first year Legal Analysis, Research and Writing class to teach memo writing and brief preparation.

19. Indeed, Justice Sotomayor became the first Justice to violate the rule on October 16, a mere 13 days after the guidance was issued. See Kimberly Strawbridge Robinson, Justice Sotomayor First – and Second – Justice to Break “Quiet Time” Rule, Oct. 16, 2019, Bloomberg Law, https:// news.bloomberglaw.com/corporate-law/sotomayor-first-and-second-justice-to-break-quiet-time-rule?campaign=5713C1BA-F042-11E9-B9C5EB1B50017A06&utm_medium=lawdesk&utm_source=twitter. However, there have not been reported violations since then. See Amy Howe, A look back at 2019: A tale of two terms?, Dec. 20, 2019, SCOTUSBLOG, https://www.scotusblog.com/2019/12/a-look-back-at-2019-atale-of-two-terms/.

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Five Steps To A Forever Home

by Madison Hatten

I

t is estimated that on any given day, more than 7,500 children in Kansas are in foster care.1 And the plight of these foster children is heart-rending. Some report that foster children who never find a permanent family are six times more likely to abuse substances, and forty-three percent will be homeless at some point in their lives.2 The flaws in the foster care system are so great, that in December 2019, The Kansas City Star published a six-part series titled “Throwaway Kids” that examined what happens to children who age out of foster care, concluding that “by nearly every measure, states are failing in their role as parent to America’s most vulnerable children.”3 Kansas attorneys can help these powerless children, albeit in a small way, by completing adoption hearings for children in need of care—children who are longing for permanent placement with loving families in stable homes.4 Following are the steps to perform a foster care adoption hearing in Kansas: 1. Child in Need of Care (“CINC”) Proceedings When a child comes into the custody of the Kansas Department for Children and Families (“DCF”), Child Welfare Case Management Providers work with the child and fam-

ily in an effort to allow the child to return home. When a child cannot return home, parental rights may be terminated by the court or voluntarily relinquished. Under Kansas law, termination can occur in conjunction with the filing of an adoption or separately in a termination proceeding under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2112, et seq., or under the Revised Kansas Code for Care of Children, K.S.A. 38-2201, et seq.

In a CINC proceeding, “any party or interested party may request that either or both parents be found unfit and the parental rights of either or both parents be terminated or a permanent custodian be appointed.” K.S.A. 38-2266. If parental rights are terminated, or if the birth parents voluntarily relinquish parental rights, the child may then be adopted. The court shall enter one of the following orders: (1) An order granting custody of the child, for adoption proceedings, to the secretary or a corporation organized under the laws of the state of Kansas authorized to care for and surrender children for adoption as provided in K.S.A. 38-112 et seq., and amendments thereto. The person, secretary or corporation shall have authority to place the child in a family home, and give consent for the legal adoption of www.ksbar.org | March 2020 41

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the child which shall be the only consent required to authorize the entry of an order or decree of adoption.

(2) An order granting custody of the child to proposed adoptive parents and consenting to the adoption of the child by the proposed adoptive parents.

K.S.A. 38-2270 If the court enters an order under subparagraph (1), DCF then has the right to place the child for adoption. DCF contracts with various agencies who place children for adoption, including KVC Health Systems,5 TFI Family Services,6 Cornerstones of Care,7 and Saint Francis Community Services.8 If an attorney is interested in performing adoptions, the attorney can provide his or her information to these agencies. The agencies can provide that information to proposed adoptive parents, who then select legal counsel. Other times, proposed adoptive parents may contact an attorney directly. When an adoption is ready to proceed, DCF provides an “adoption packet” with documents needed to prepare the pleadings and that serve as exhibits to a Petition for Adoption.

2. Prepare and File Adoption Pleadings Once the adoption packet is received from DCF, the following pleadings must be prepared: a.

Petition for Adoption and Accompanying Exhibits

The Petition contains important factual information regarding the adoption.9 The Kansas statute mandates that the Petition for Adoption state the following information: (1) The name, residence and address of the petitioner; (2) the suitability of the petitioner to assume the relationship; (3) the name of the child, the date, time and place of the child’s birth, and the present address or whereabouts of the child; (4) the places where the child has lived during the last five years; (5) the names and present addresses of the persons with whom the child has lived during that period; (6) whether the party has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any; (7) whether the party knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; 42

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(8) whether the party knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons; (9) whether one or both parents are living and the name, date of birth, residence and address of those living, so far as known to the petitioner; (10) the facts relied upon as eliminating the necessity for the consent or relinquishment, if the consent or relinquishment of either or both parents is not obtained; (11) whether the interstate compact on placement of children, K.S.A. 38-1201 et seq., and amendments thereto, and the Indian child welfare act, 25 U.S.C. § 1901 et seq., have been or will be complied with prior to the hearing.

K.S.A. 59-2128 Exhibits to the Petition for Adoption may include the following:10 • Termination of parents’ rights • Consent of DCF to adoption • Birth certificate of child • Consent of child to adoption (if child is 14 years or older) • Medical/genetic information of child and birth mother/ father • Affidavit regarding medical/genetic information (if needed) • Affidavit of non-Indian heritage (or if necessary compliance with Indian Child Welfare Act) • Home study of adoptive family • Child social history • Kansas Bureau of Investigation report • Child Abuse and Neglect Central Registry report b. Accounting of Expenses

The Accounting of Expenses itemizes the money paid to facilitate the adoption. Such expenses may include attorney fees and expenses, child placing agency fees, social worker fees, actual medical expenses of the mother attributable to pregnancy and birth, actual medical expenses of the child, and reasonable living expenses of the mother incurred during or as a result of the pregnancy.11 For foster care adoptions, the expenses most often simply include attorney fees and any court filing fee.

In Kansas, DCF administers the Adoption Assistance program, provided to “families adopting children with special service, support and/or resource needs.”12 A child may qualify for “non-recurring adoption expenses”—“a reimbursement

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of up to $2,000 for expenses directly related to the process of adopting a child with special needs, such as attorney fees and pre-placement visits.”13 Under DCF guidelines, the maximum amount for attorney fees is $900. At Shook, Hardy & Bacon, L.L.P. the fees are donated to the Kansas Foster and Adoptive Children Scholarship Fund, which provides scholarships to students who are or who have been in foster care in Kansas, including foster children who have been adopted.14 c.

File Pleadings with Court

After the Petition and Accounting of Expenses are prepared and signed, they should be filed with the district court.

Next, the court will set a hearing date. Once a date is selected and the Order for Hearing is prepared and entered, the attorney must notify all interested parties, which would typically only be DCF at this point. If DCF provides a waiver of notice with its consent to adopt, the Order of Hearing can show that notice is waived, and therefore no Affidavit of Mailing is required. Regardless, the case manager should be notified in a child in need of care case, and the case manager should also let the district attorney and guardian ad litem know the hearing date and time. If DCF does not provide a waiver of notice with its consent to adopt, the attorney should complete an “Affidavit of Mailing.” A copy of the Order should be sent to DCF, and a courtesy copy sent to the case manager, the guardian ad litem, and the state attorney involved in the child in need of care proceedings. The affidavit should then be filed with the court.

The attorney is then ready to contact the proposed adoptive parent(s) and notify him/her/them when and where the adoption hearing will be held and what to expect during the proceeding.

3. Prepare for Hearing In preparation for the hearing, the attorney should prepare both a Decree of Adoption and Report of Adoption. The Decree generally reiterates the allegations from the Petition – e.g., that the Petition is true and correct, that the parental rights of the biological parents have been terminated, that DCF consents to the adoption, and that jurisdiction is proper. The Report15 is a form created and required by the state.16 Finally, during the hearing a brief, informal examination of the proposed adoptive parent(s) is appropriate. The attorney may wish to prepare an outline in advance. Sample questions for the witness examination could include the following: • You are here today asking the Court to grant the adoption of [child]?

• Before you signed the Petition for Adoption under oath, you reviewed the Petition?

• Everything as stated in the Petition is true and correct?

• You understand that if the Court grants this adoption,

you will have the same rights and responsibilities as if you were the birth parent?17 • Understanding that, you are asking that the Court grant this adoption?

• And you are also asking that the Court change the child’s name to [new name]?

4. Complete Adoption Hearing Now for the very best part, helping a foster child with being placed in a forever home. Adoption hearings are typically brief and informal. The proposed adoptive parent(s) and adopted child(ren) sit at counsel table, with any other immediate family members (i.e., other siblings). The judge typically suspends the rules of decorum, allowing for guests to move around the courtroom for photographs during the hearing.

The case is called, appearances are made by the attorney, case manager, and guardian ad litem (if present), and the judge will ask if there are any witnesses. If two proposed adoptive parents, call both. The first parent can answer, inter alia, the questions outlined above. The second parent (if applicable) can simply agree with the testimony of his or her partner. If the adopted child is over the age of 14, that child must testify that he or she consents to the adoption. K.S.A. 59-2129.

The judge will usually ask if there are additional documents or evidence in support of the adoption, at which time the Decree and Report of Adoption should be presented to the court. Consider asking the adoptive child to approach the bench with these documents if the child is willing and not too shy – this adds to the fun!

It is good practice to conclude the testimony by suggesting that “based on the verified Petition, the documents, the testimony of the witnesses, and the other evidence submitted to the court, we ask that the court grant this adoption.”

Typically the judge will then provide the court’s findings and statement about the adoption and then grant the adoption, indicating that the court has reviewed all relevant documents, listened to the testimony, and has determined that the adoption is in the best interest of the child(ren).18 A thunderous round of applause is usually welcomed and encouraged!

The judge may then ask the child(ren) to come to the bench to also sign the Decree of Adoption with the child’s new name and to pose for photographs – a joyous memento of a happy court hearing.

5. Post-Adoption Tasks Various district courts have different procedures following the hearing. In Johnson County, after the Decree and Report of Adoption are signed by the judge, these documents must be presented to the Probate Clerk. The Clerk will then make www.ksbar.org | March 2020 43

feature

certified copies of the Decree. Two copies of the Decree are About the Author usually given to the adoptive parents, a copy is given to the Madison Hatten, with Gene Balloun, manages case manager if the case manager is present, and the attorney the Kansas Foster Adoption Program at Shook, will retain a copy for the file.

Hardy & Bacon, LLP. She has personally handled 23 adoption hearings for 42 children. Madison While every adoption is unique and special, the above steps earned her law degree at the University of outline what generally needs to be done to complete a foster Missouri–Columbia School of Law. She was care adoption hearing in Kansas. Hopefully this information recognized with the KBA’s Pro Bono Publico will empower and encourage you to take time from your evAward in 2017 and was a member of the KCMBA Bar Leadership Academy in 2016. eryday practice of law to help a child in need. n mhatten@shb.com

1. Foster Care, KVC KANSAS, https://kansas.kvc.org/services/fostercare/ (last visited Dec. 19, 2019).

2. See FOSTERADOPT CONNECT, https://www.fosteradopt.org/ (last visited Dec. 19, 2019).

3. See Laura Bauer & Judy L. Thomas, ‘We are sending more foster kids to prison than college,’ THE KANSAS CITY STAR, Dec. 15, 2019 available at https://www.kansascity.com/news/special-reports/article238206754. html; Judy L. Thomas & Laura Bauer, As U.S. spends billions on foster care, families are pulled apart and forgotten, THE KANSAS CITY STAR, Dec. 15, 2019 available at https://www.kansascity.com/news/special-reports/ article238243099.html; Eric Adler, Frequent moves don’t just harm foster kids’ emotions – they hurt their brains, THE KANSAS CITY STAR, Dec. 15, 2019 available at https://www.kansascity.com/news/special-reports/article238204784.html; Laura Bauer & Judy L. Thomas, Graduation rate of 35 percent? Many foster children ‘robbed of a good education,’ THE KANSAS CITY STAR Dec. 15, 2019 available at https://www.kansascity.com/news/ special-reports/article238246264.html; Laura Bauer & Judy L. Thomas, Aging out: Thousands of foster youth graduate to the streets every year, THE KANSAS CITY STAR, Dec. 15, 2019 available at https://www.kansascity. com/news/special-reports/article238226224.html; Judy L. Thomas & Laura Bauer, ‘The state that neglected me as a kid is the same state that wants to kill me,’ THE KANSAS CITY STAR, Dec. 15, 2019 available at https:// www.kansascity.com/news/special-reports/article238280638.html.

4. Generally speaking, there are two types of adoptions: (1) private adoptions and (2) adoptions arising from foster care. This article focuses only on the adoptions of children out of the foster care system.

5. KVC HEALTH SYSTEMS, https://www.kvc.org/ (last visited Dec. 19, 2019).

6. TFI FAMILY SERVICES, INC., https://tfifamily.org/ (last visited Dec. 19, 2019).

7. CORNERSTONES OF CARE, https://cornerstonesofcare.org/ (last visited Dec. 19, 2019).

8. SAINT FRANCIS COMMUNITY SERVICES, https://sfcsstl.org/ (last visited Dec. 19, 2019).

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9. Note that a separate Petition for Adoption must be filed for each child if the adoption involves multiple children.

10. See also K.S.A. 59-2130.

11. See K.S.A. 59-2121.

12. See Adoption Assistance: A Resource for Families Adopting Children with Special Needs, KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES http://www.dcf.ks.gov/services/PPS/Documents/PPM_Forms/Appendices/Appendix_6B.pdf (last visited Dec. 19, 2019).

13. Id. 14. See Kansas Foster and Adoptive Children Scholarship Fund, GREATER KANSAS CITY COMMUNITY FOUNDATION, https://www.growyourgiving. org/scholarships/kansas-foster-and-adoptive-children-scholarship-fund (last visited Dec. 20, 2019). If you are interested in supporting the Kansas Foster and Adoptive Children Scholarship Fund, please contact Madison Hatten at mhatten@shb.com. Shook, Hardy & Bacon, L.L.P. has partnered with many Kansas attorneys in completing these adoptions, and is happy to help in any way.

15. See K.S.A. 59-2119 (“The district court shall report the adoption to the state registrar of vital statistics.”).

16. See Report of Adoption, http://www.kdheks.gov/vital/download/report_of_adoption.pdf. Other forms related to adoptions may be found at http://www.kansasjudicialcouncil.org/legal-forms/child-need-care.

17. See K.S.A. 59-2118 (“When adopted, a person shall be entitled to the same personal and property rights as a birth child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a birth parent and be subject to all the liabilities of that relationship.”).

18. See K.S.A. 59-2134 ((a) Upon the hearing of the petition, the court shall consider the assessment and all evidence, including evidence relating to determination of whether or not the court should exercise its jurisdiction, offered by any party in interest. If the adoption is granted, the court shall enter a final decree of adoption, which terminates parental rights if not previously terminated.).

law practice management tips and tricks

Digital Notetaking Alternatives

by Larry Zimmerman

I

n the rulebook for the first edition of Star Wars: The Roleplaying Game (1987) it was clear that “…there is no paper in the Star Wars universe….” Many lawyers and judges want their offices to adhere to a similar paperless rule and are endlessly curious about technology and processes for digitizing their handwritten notes into a computerized database.

There are, of course, many routes to this goal.

Laptop The most common note-taking device observed in undergraduate studies and law schools is simply the laptop. Classrooms are a clatter of keyboards and a wall of screens between professor and student. That certainly is the shortest distance between the note and digital entry into a case management system. This approach leverages existing technology and minimizes steps to go paperless but there are some potential issues. First, some studies indicate that typed notes do not cement in memory as readily as handwritten notes do. Second, not every client or judge wants to see and hear a laptop during a meeting or hearing and can be unfavorably distracted by the blatant intrusion of technology.

Paper + Phone This one does not necessarily reduce paper usage but that is OK. Many still prefer pen and paper because it is ubiquitous and it works. Users indicate that the spatial memory of writing something and knowing where something is recorded in a notebook speeds retrieval and recollection. Users of this approach simply take a phone picture later of each page (or scan it at the office) for retention. An array of apps exist which can translate your handwriting to searchable text (OCR) and assist in automatically tagging and filing scans.

Tablet + OneNote/Evernote Tablets (e.g. Apple iPad and Microsoft Surface) are powerful notetaking devices that handle handwritten note taking.

Notes are natively digital so importing into case management software is trivial. Unlike paper, tablet note taking can be a multimedia affair with pictures, audio, and video incorporated into notes seamlessly and effortlessly. The feel of writing on a glass screen is not for everyone, however, and I have seen more than one note keeper lose track in a meeting as a glitch happened and the scramble to fix it took priority over recording content. www.ksbar.org | March 2020 45

law practice management tips and tricks

Rocketbook Everlast Reusable Notebook My daughter has just started with this product. The notebook is comprised of a sort of write-and-wipe board with a QR code in the lower corner. Notes are recorded with a medium tip pen and each page is labeled with a particular folder or matter name. Take a phone picture of the notes when finished and your phone uses the QR code and your label to deskew and focus the picture then upload the image to your desired folder in your preferred cloud service. It is reusable, fast, and cheap ($30-50).

XP-PEN Note Plus Smart Pad This specialized folio transfers your handwritten notes on real paper directly to your phone/tablet in real time. This approach preserves the benefits of paper but also creates an automatic digital backup of whatever you have written. You can send a copy immediately to other meeting participants or your case management system. Included software also can do OCR to make your handwritten notes text-searchable. I have not tried it personally, but find it a very interesting—especially at the $90 price point.

location on specialized paper and digitize notes for transfer to phone or computer. It is definitely a product you should try before you buy, however. The size of the pen did not work for me, prompting writer’s cramp and always irritating me with its balance. Other users gush about it, preferring the thicker barrel and weightier feel. Some models can also record audio and allow you to connect those audio clips to your notes. Always remember the special paper though – the pen will not work without it. Pricing runs from around $120-150.

There are likely options I have missed in my quick view of a crowded field. The options cited represent well-established approaches with close to ten years of implementation and iteration behind them. Before getting too excited about any particular paperless (or less-paper) approach, be sure to test drive the product and process thoroughly. Notetaking is a highly individualized experience and finding a system that matches your memory and tactile preferences as well as accommodating the needs and concerns of those around you (clients especially) is more important than technology for technology’s sake. And remember, 2017’s Star Wars: The Last Jedi showed a neatly stacked bookshelf with bound paper volumes in Luke Skywalker’s possession. n

Sony Digital Paper System This is, in my opinion, the best digital-only notetaking system. It is an electronic tablet but instead of a glass screen it uses a large e-ink display. E-ink displays have a look and feel that very closely approximates paper with terrific battery life.

The stylus is very pen-like and the system is one of the few that incorporates security via notes encryption. There are a few other offerings like the Sony but I found it the most responsive and reliable. It is not cheap at around $400.

About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee.

Livescribe Pens This is another mixed paper and digital solution. The electronic brains are inside the bulky pens. They read the pen tip

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The Journal of the Kansas Bar Association

2020 KBA Family Law CLE

Friday, April 24th • Lawrence, KS Registration Type

Price

KBA Member ............................................$300 Family Law Section Member ....................$280 Young Lawyer Member ............................$290 Non-Member ............................................$350 Paralegal ..................................................$200

Register at: www.ksbar.org/event/Fam2020

Topics Presented: Cyber Security Steven Bradley

Child Support Guidelines Hon. Thomas E. Foster Bradley Software & Practice Tips Randy Spivey; Angela Meyer; Jody Meyer Judges Panel Hon. Daniel D. Creitz; Hon. Laura Lewis; Hon. Mary Mattivi; Hon. Keven O’Grady Legislative Update Ronald Nelson; Joe Molina Domestic Violence/PFA Sarah Rust-Martin; Madeline Dickerson Ethics Sarah Carmody; Steve Henry

Thanks to our sponsors!

Questions?

Amanda Wright, CLE Director awright@ksbar.org

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www.ksbar.org | March 2020 47

Ethics CLE meets humor, for good!

Sponsored by Pending 2.0 CLE credit hours, including 2.0 E&P credit hours in Kansas & Missouri

Where Does the Money Go? Our designated charities for 2020 are: • CASA (Johnson/Wyandotte Counties) • Safehome and Hope House (domestic violence programs) • Metropolitan Organization to Counter Sexual Assault (MOCSA) • Kansas Bar Foundation • FosterAdopt Connect • In addition, we will fund Ethics for Good scholarships to each of the KU, Washburn and UMKC law schools and the Johnson County Community College paralegal program.

How Do We Sign Up for this Amazing, Funny and Informative Program?

For a mere $90, you get both the ethics and the good, the entire Ethics for Good – now in its 21st year!

To register for this program, complete the form below or register online at:

www.ksbar.org/EthicsforGood Wednesday, June 24, 2020, 2:30 – 4:10 p.m.*

Who Are these Intrepid Presenters?

Polsky Theatre, JCCC Carlsen Center 12345 College Blvd. (College & Quivira) Overland Park, Kan.

Stan Davis, Ethics for Good Elder Statesman Jim Griffin, Scharnhorst Ast Kennard Griffin, P.C. Mark Hinderks, Stinson LLP Todd LaSala, Stinson LLP Hon. Steve Leben, Kansas Court of Appeals Jacy Hurst, Kutak Rock LLP Todd Ruskamp, Shook, Hardy & Bacon L.L.P. Hon. Melissa Standridge, Kansas Court of Appeals

*Reception afterward sponsored by the JCCC Foundation

Friday, June 26, 2020, 2:30 – 4:10 p.m.

The Nelson-Atkins Museum of Art, Atkins Auditorium 4525 Oak St. Parking: $10 museum non-member Kansas City, Mo.

parking fee; carpooling encouraged

Contact Deana Mead, KBA Associate Executive Director at: dmead@ksbar.org* (Email) • 785-861-8839 (D) • 785-234-3813 (F) * Please mark the date you will be attending:

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*The Kansas Bar Foundation does not accept credit card information via email or fax. You may submit your form via email or fax without credit card information and then contact Deana Mead at 785-861-8839 to provide your credit card info.

48

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SIGN UP TODAY!

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continuing education credits and gain knowledge and relationships that will help you better serve your clients and your company.

Thursday, April 23 and Friday, April 24, 2020 Overland Park Convention Center • Overland Park, KS

Presented in cooperation with the University of Missouri Kansas City School of Law

2020 Symposium Chairperson: Shellie A. Billau, Midwest Trust Company

Hear from leading experts, including: Prof. Sam Donaldson

Lauren Wolven

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For details visit KCEPS.org, or call 816-235-1648

AND MANY MORE!

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Do you write poetry?

Care to share?

• Seeking original works from our members to celebrate National Poetry Month in April 2020 • Selected poems will be shared in the April 2020 issue of The Journal of the KBA • A special substantive piece on Poetry in the Law will appear in that issue of The Journal.

Please send submissions to: editor@ksbar.org Deadline: March 27, 2020

I decided that it was not wisdom that enabled poets to write their poet��, but a kind of instinct or inspiration, such as you find in seers and prophets who deliver all their sublime messages without knowing in the least what they mean.

-- Socrates

www.ksbar.org | March 2020 49

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

N

E

W

New Positions Judge Richard Anderson of the Shawnee County District Court has been named chief judge of the 3rd Judicial District which is composed solely of Shawnee County. The appointment is run through Dec. 31, 2021. Anderson succeeds Judge Evelyn Wilson who was sworn in as a justice of the Kansas Supreme Court in January. Anderson was a Shawnee County District Court Judge since 1999; he earned his law degree from Washburn Law School.

Dylan Avery has joined the Patterson Legal Group, L.C..

He attended the University of Kansas and Washburn University and earned his law degree from Washburn University School of Law. His focus with the firm is Personal Injury, and he may expand into Workers Comp.

Brandon Chapman has joined Lathrop Gage LLP as an associate in the firm’s KCMO office. He will be on the Environmental and Tort team, focusing on defending corporate clients in mass tort, toxic tort, product liability and environmental litigation matters. He received his J.D. from the University of Arkansas School of Law and was formerly a District Court judicial extern and as a legal extern for Walmart Legal Operations.

David J. Kim (partner) and Michael Grigsby (attorney) have joined the Kansas City office of Stinson LLP. Both focus their efforts on transactional matters, including finance, mergers and acquisitions. Kim, a native of Kansas City has 50

The Journal of the Kansas Bar Association

S

!!!

been heavily involved in the region’s economic development and growth, both in his corporate law practice and, uniquely, as a successful entrepreneur in both the retail and real estate sectors. He has been recognized annually by Super Lawyers for 10 years and is a founding member of the Asian American Bar Association of Kansas City. Grigsby, who is fluent in Cantonese, supports domestic and international transactions and corporate compliance matters, bringing with him significant experience in data privacy issues and regulation Steve Leben, Kansas Court of Appeals Judge since 2007, is leaving the bench to become a visiting professor at the UMKC School of Law. He has been teaching part time at the University of Kansas School of Law since 2007. Before his appointment to the Court of Appeals, he served 14 years as a district court judge in Johnson County. Leben won the William H. Rehnquest Award for Judicial Excellence from the National Center for State Courts and the Chief Richard Wi. Holmes Award of Merit from the American Judges Association for his efforts to promote procedural fairness in courts throughout the U.S. Devin Lowell, a graduate of Concordia High School and the University of Kansas, has been hired as an instructor at the Tulane University School of Law Environment Law Clinic. Lowell earned his law degree from Tulane Law. As an attorney, he worked on complex litigation ranging from environmental and toxic tort cases to class-action and product liability cases.

members in the news

Noah Nash has joined Lathrop Gage LLP as an associate in the KCMO office. He will be part of the Insurance Recovery and Counseling team and gained experience in that area as a Lathrop Gage summer associate working on insurance recovery matters, mass tort claims, environmental litigation, campaign finance and class action lawsuits. Nash previously worked as a catastrophe claims adjustor for a large insurance carrier.

Rachel L. Pickering was appointed in August of last year to fill the vacancy created by the retirement of Judge Mark Braun. Before being appointed to the post by Gov. Laura Kelly, Pickering was an Assistant Solicitor General for the Kansas Attorney General, primarily handling criminal appeals.

She spent more than 13 years in government practice but her career began with handling intellectual property matters at Hovey Williams in Kansas City. Pickering earned her juris doctor from University of Missouri-Columbia School of Law. Garrett Pratt has been hired as an associate with Lathrop Gage LLP where he will work with the Tax and Employee Benefits team. Pratt will focus on advising clients on federal income tax and employee benefits matters, and the tax ramifications of various business transactions. He received his L.L.M. in Taxation from UMKC School of Law after earning his J.D. with a concentration in Transactional Tax Law from the University of Missouri School of Law in Columbia, Mo. Regine Thompson, a Scandia, Kan. lawyer for 22 years was unanimously elected to fill the vacancy for magistrate judge left by Starla Nelson. Nelson returned to private practice in Belleville. Thompson and her patent attorney husband Jeff have practiced in Scandia since 1997. She served on staff for U.S. Senator Orrin Hatch and received her law degree from George Washington University School of Law in Washington, D.C. WallaceSaunders elected the following partners who cover a wide array of practice areas: Katie O’Shea, Kelvin Fisher Tad Kardis, Leo Logan, Penny Calhoun. Robyn Butler was elected as an equity shareholder.

Timothy R. Woods, a Dodge City lawyer, has been selected by the 25th Judicial District Nominating Committee to fill a magistrate judge vacancy in Finney County. The 25th is composed of Finney, Greeley, Hamilton, Kearny, Scott and Wichita counties. The vacancy was created when Christopher Sanders succeeded District Judge Michael Quint.

Woods will have to stand for a retention vote in the next general election; if retained, he will serve a 4-year term.

nue address. Fifteen Topeka lawyers and staff will move to the new location by early summer 2020. The firm is headquartered in Wichita, with offices in Topeka and Kansas City. It employs nearly 90 lawyers statewide and offers a wide range of legal expertise.

Jon A. Blongewicz has changed his official address to: Jon A. Blongewicz, Attorney at Law, P.A., 10990 Quivira Road, Suite 200; Overland Park, KS 66210. Ph: 913.335.1339. Fax: 913.491.6398. blongewicz@leawoodattorneys.com

Notables

Kelvin Fisher has been chosen by Wallace Saunders in Overland Park to be a member of the 2020 class of Fellows.

As such, he will participate in a landmark program created by the Leadership Council on Legal Diversity to identify, train and advance the next generation of leaders in the legal profession. The LCLD is a growing organization of more than 320 corporate chief legal officers and law firm managing partners who are personally committed to creating a more diverse and inclusive legal profession. It has trained more than 1,600 mid-career attorneys since 2011; the Fellows Program is one it its most important initiatives.

Judge G. Joseph Pierron, Jr., the longest-tenured judge to serve on the Kansas Court of Appeals, will retire April 3, 2020. Pierron joined the court in 1990. He has written 392 published opinion and has heard thousands of appeals. When Pierron joined the Court of Appeals, there were 10 judges; there are now 14. He credited the nonjudicial staff for making the court as efficient and effective as it is. Pierron graduated from Rockhurst College in KCMO and received his law degree from the University of Kansas School of Law. He served 11 years as a Johnson County prosecutor and then eight years as a Johnson County district judge before ascending to the court of appeals. Pierron was known for his presentations on the U.S. Constitution, for which he enlisted “Spike the Wonder Dog” to help illustrate a case that involved a drug-sniffing dog and the way it worked through the system.

Stinson LLP has been recognized for a score of 100 in the 2020 Corporate Equality Index (CE) for its workplace protections, domestic partner benefits, inclusive health care benefits and public engagement in the LGBTQ community for the third consecutive year. Stinson joins leading U.S. businesses in supporting the LGBTQ community who earned top marks this year from the Human Rights Campaign Foundation. The firm’s initiatives are lead by Ann Jenrette-Thomas, chief diversity and inclusion officer.

New Location Foulston Siefkin LLP, Kansas’s largest law firm, plans to relocate its Topeka office from 534 S. Kansas Ave. to 824 S. Kansas Ave., placing the office above Brew Bank. The 100-year-old law firm has always maintained a Kansas Ave

www.ksbar.org | March 2020 51

Obituaries

Stanley Allan Lehman (4/29/1938 - 11/3/2019) Stanley Allan Lehman died Sunday, Nov. 3, 2019. He was born in Abilene, Kansas, on April 29, 1938.

Stan was active all his life — high school sports, journalism, American Civilization studies at the University of Kansas, chairman of the Kansas Relays. At KU he earned a Bachelor’s degree in 1960 and entered law school before transferring to the University of Arizona where he was licensed to practice in 1963.

Stan then moved to California, working as an intern with an organization promoting good government in Los Angeles and as an intern with a training program focused on securing employment of minority people. He was licensed to practice law in California in 1965 and then returned to Phoenix where he helped found the Maricopa County Young Lawyers Association and served as its president.

Additionally, he was active in the city’s Forward Goals Committee and served as a member on the Arizona State Child Migrant Education Committee. In June 1968 he married Kathreen Hock and moved to Prescott to practice law in 1971.

In 1993, after serving as a city attorney and prosecutor in the Verde Valley, Stan moved to Bisbee to work as a public defender attorney. He worked in that office as a felony defense

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attorney and later represented children and parents in child dependency proceedings. In one of the few trials of that kind in Cochise County, Stan obtained a verdict denying severance of his client’s parental rights. He married Anne Williams in 2003 and they spent many happy years traveling before and after retiring from the practice of law in 2008.

Stan’s community involvement was active and continuous throughout a legal career that spanned more than fifty years.

In Prescott he led a referendum legal battle to assure community control over subdivision zoning, taking those issues to the Arizona Supreme Court and winning. He was Chairman of the Yavapai Community Hospital, was on the advisory board of the Prescott Samaritan Village Retirement Home, the Prescott Frontier Days and Phoenix Rodeo committee and was president of the Yavapai County Easter Seal Society.

Stan also enjoyed being an Arizona Ranger, had considerable success as a short story writer and made popular presentations to the Arizona Historical Society.

Stan was predeceased by his wife Anne, and is survived by his son Ryan, daughter Lara, grandson Zavier and sisters Carolyn and Virginia.

He was much loved and will be sorely missed by his community and family. A memorial service was held in Bisbee, Arizona on Dec. 10th at the Copper Queen Hotel.

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 Civil

INSURANCE WILLIAMS V. GEICO GENERAL INSURANCE COMPANY SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED NO. 117,149—JANUARY 21, 2020

FACTS: Williams was insured by GEICO at the time he was injured in an automobile accident. His injuries required surgery and physical rehabilitation. While he recovered, Williams’s treating physicians specified that Williams would be unable to perform household tasks such as lawn care, shoveling, cooking or cleaning. Williams was married, but he and his wife, Mary, had separate schedules and finances, and Williams generally took care of his own meals, laundry, and cleaning. Williams and Mary agreed that, for $25 per day, she would cook, do laundry, administer medication, drive, and assist Williams with hygiene needs. Williams wanted his insurance to pay for this expense, and he filed a claim for personal injury protection (PIP) substitution benefits available to him under his policy. GEICO refused to pay, arguing that Mary had a legal duty to care for her spouse and provide replacement services. Williams filed suit and the district court agreed with him, ruling that the law does not exclude an injured person’s spouse from being compensated for substitution services. GEICO appealed and the Court of Appeals reversed the district court, agreeing with GEICO that married persons cannot be compensated for substitution services.

The Supreme Court granted Williams’s petition for review.

ISSUE: (1) Ability of a spouse to be compensated for substitution services HELD: K.S.A. 40-3103(w) does not specifically preclude a spouse from providing substitution services, so the only relevant inquiry is whether Williams incurred an obligation to pay Mary for the substitution services that she provided.

The facts specific to this case show that Williams incurred an obligation to pay Mary by entering into a contract with her to perform specific services for him that she would not have otherwise performed. The district court correctly ruled that

GEICO must pay for Mary’s expenses.

STATUTE: K.S.A. 40-3103(w)

Criminal APPELLATE PROCEDURE—CRIMINAL LAW—JURIES— JURY INSTRUCTIONS STATE V. BOESCHLING RENO DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 116,757—FEBRUARY 14, 2020

FACTS: Boeschling convicted in jury trial on charges of nonresidential burglary, theft of a pickup, and unlawful possession of a firearm. On appeal he argued the district court’s response to jury’s mid-deliberation question about whether nullification can be applied to the firearms charge was reversible error. He also claimed error in the jury instruction defining the elements of burglary, and in the instruction that cautioned the jury about accomplice testimony. Court of appeals affirmed in unpublished opinion. Boeschling’s petition for review granted.

ISSUES: (1) Jury nullification; (2) jury instruction—burglary; (3) jury instruction—accomplice testimony HELD: State’s preservation challenge is not properly before the court because State failed to argue lack of preservation to Court of appeals, and failed to cross-petition the panel’s opinion. District judge’s response—“You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case.”—to jury’s nullification question was not error. The response did not amount to affirmative misinformation, imply that nullification did not apply, or amount to a warning that nullification would violate the jurors’ oaths.

District court judge erred by adding a culpable mental state of “knowingly” to the burglary instruction that otherwise included the correct mens rea of “intent to commit a theft.”

No clear reversible error resulted in this case because the erroneous wording added to rather than subtracted from State’s burden of proof.

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State v. Anthony, 242 Kan. 493 (1988), is still good law. A district court judge may instruct a jury to view an accomplice’s testimony with caution even when that testimony is favorable to a criminal defendant. The accomplice instruction in this case was both legally and factually appropriate.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), 22-3414(3), 60-247(d); K.S.A. 2015 Supp. 21-5807(a)(2) APPEALS—CRIMINAL LAW—EVIDENCE—STATUTES STATE V. DOWNING RENO DISTRICT COURT—REVERSED; COURT OF APPEALS—AFFIRMED NO. 116,629—JANUARY 24, 2020

FACTS: Downing appealed his burglary conviction that was based for taking items from a rural farmhouse. Court of appeals reversed in unpublished opinion, based on building owner’s testimony that no one lived there when the crime occurred, and owner had no plans to live there or rent it out.

Downing’s petition for review granted.

ISSUE: (1) Burglary—proof of a dwelling HELD: Kansas Supreme Court has not previously considered whether the farmhouse qualified as a dwelling as defined

by K.S.A. 2018 Supp. 21-5111(k) when facts indicate it was not being used for such purposes when the crime occurred, and owner had no current plans to use or rent it out even if he preferred to do so. Circumstances identified in court of appeals cases on this issue were examined, finding definition and burglary statutes support a present-intent requirement to distinguish between a dwelling and a non-dwelling structure.

Absent proof the place burgled was used as a human habitation, home or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. Here, State failed to prove the farmhouse was a dwelling. District court is reversed and court of appeals is affirmed. State’s backup position that panel should have remanded for resentencing on lesser included crime of burglary of a structure is not considered because this alternative argument was not presented below.

STATUTES: K.S.A. 2018 Supp. 21-5111(k), -5807(a)(1), -5807(a)(2); K.S.A. 20-3018(b), 60-2101(b)

and newly discovered evidence District court denied the motion. Eight days later, Newman filed motion to vacate his plea due to ineffective assistance of counsel. District court denied that motion, finding defense counsel was more credible than Newman. Sentence imposed included lifetime postrelease supervision for the first-degree murder conviction. Newman appealed the denials of his motions to withdraw his pleas, and the imposition of lifetime postrelease supervision.

ISSUES: (1) Withdrawal of guilty pleas; (2) sentencing HELD: District court’s denial of both motions is affirmed.

No abuse of discretion shown in district court’s conclusion that Newman’s plea was fairly and understandingly made.

And appellate court will not reassess district court’s credibility findings.

Parties correctly agreed that district court erred in ordering lifetime postrelease supervision on the first-degree murder conviction. That portion of Newman’s sentence is vacated.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(1); K.S.A. 2010 Supp. 22-3717(b)(2); K.S.A. 21-3401, -4706, -4706(c) APPEALS—CONSTITUTIONAL LAW—MOTIONS— SENTENCES STATE V. PETERSON GEARY DISTRICT COURT—AFFIRMED NO. 119,314—FEBRUARY 14, 2020

FACTS: Peterson filed 2007 no contest plea to first-degree murder. Ten years later he filed motion to correct an illegal sentence, arguing his hard 25 life sentence was disproportionate in violation of federal and state constitutional protections against cruel and unusual punishment. District court issued a nunc pro tunc order, agreeing that lifetime postrelease supervision should not have been imposed, but rejected Peterson’s constitutional claims. Peterson appealed, challenging the constitutionality of his hard 25 sentence.

ISSUE: (1) Motion to correct illegal sentence—Constitutional challenge HELD: Merits of Peterson’s constitutional arguments are not considered. A motion to correct an illegal sentence cannot raise claims that a sentence is unconstitutional.

STATUTES: None

CRIMINAL PROCEDURE—MOTIONS—SENTENCES STATE V. NEWMAN SHAWNEE DISTRICT COURT—AFFIRMED IN PART AND VACATED IN PART NO. 118,608—FEBRUARY 14, 2020

CONSTITUTIONAL LAW—APPEALS— APPELLATE PROCEDURE— CRIMINAL PROCEDURE—JURISDICTION—STATUTES STATE V. SMITH SEDGWICK DISTRICT COURT—COURT OF APPEALS DISMISSAL OF THE APPEAL IS AFFIRMED NO. 115,321—JANUARY 31, 2020

FACTS: Newman entered guilty plea to first-degree felony murder and attempted second-degree intentional murder.

Prior to sentencing he moved to withdraw his please, citing emotional distress due in part to his mother’s hospitalization,

FACTS: In two separate cases, Smith pleaded guilty to refusing to submit to a test to determine presence of alcohol or drugs. Court of appeals consolidated Smith’s direct appeals. Relying on State v. Ryce, 303 Kan 899 (2016), decided

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while the consolidated appeal was pending, Smith argued the district court lacked jurisdiction to render the criminal judgments. In response, State argued the court of appeals lacked jurisdiction to consider a direct appeal from a guilty plea.

Court of appeals dismissed Smith’s appeal for lack of subject matter jurisdiction without considering the merits of his Ryce claim.

ISSUE: (1) Appellate jurisdiction HELD: Court of appeals did not err when it dismissed Smith’s appeal for lack of jurisdiction. K.S.A. 22-3602 is interpreted to resolve ambiguity, finding K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Smith’s convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction. If he had still been serving his sentence, Smith could have filed a motion under K.S.A. 60-1507 to seek relief. He can also file a motion to withdraw his plea, and if denied, court of appeals has jurisdiction to consider an appeal from that denial.

STATUTES: K.S.A. 2018 Supp. 22-3601(a), -3602(a), 60-1507(a); K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp.

8-1025; K.S.A. 20-3001, 22-3210(d)(2), -3504, -3601, -3602, -3602(a), 60-1507, -1507; K.S.A. 62-1701 (Corrick) CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. WILLLIAMS SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED COURT OF APPEALS—AFFIRMED IN PART, REVERSED IN PART NO. 115,119—JANUARY 24, 2020

ed for a new trail. On remand Williams again convicted of unintentional second-degree murder. He appealed, arguing in part his statutory speedy trial rights were violated at his first trial which invalidated all proceedings thereafter. In unpublished opinion Court of appeals found the doctrine of res judicata barred the speedy trial claim. After Williams’ petition for review was granted he raised supplemental claim that under State v. Wetrich, 307 Kan. 552 (2018), district court erroneously compared Williams’ 1980 Mississippi felony conviction for unnatural intercourse to Kansas’ crime of aggravated criminal sodomy, erroneously scoring the out-of-state crime as person felony.

ISSUES: (1) Speedy trial; (2) sentencing—scoring out-ofstate conviction HELD: Court of appeals is affirmed as right for the wrong reason. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for first time an alleged statutory speedy trial violation that occurred during the first trial. Even if Williams’ speedy trial claim in his first trial is assumed correct, plain statutory language makes clear the statutory speedy trial clock in a case resets and starts over as soon as an appellate court issues a mandate to reverse the first conviction.

Williams’ is entitled to the benefit of a change in the law while his case is pending on direct appeal. Wetrich changed the law governing Williams’ sentence, but even though Wetrich did not render that sentence illegal, it did render Williams’ sentence erroneous. Williams’ sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 21-6811(e)(3)(B); K.S.A. 2018 Supp. 22-3504, -3504(1); K.S.A. 2015 Supp. 21-6811(e) (3); K.S.A. 2010 Supp. 21-3506; K.S.A. 22-3402(1), -3402(6)

FACTS: Williams convicted of unintentional second-degree murder in 2011. Court of appeals reversed and remand-

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appellate decisions

Kansas Court of Appeals Civil IMMUNITY—KANSAS TORT CLAIMS ACT—NEGLIGENCE ESTATE OF RANDOLPH V. CITY OF WICHITA SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 118,842—JANUARY 21, 2020

FACTS: Icarus Randolph was 26 years old and had a history of significant mental illness. Randolph lived with his mother. As family members gathered at the home for a holiday cookout, Randolph was out of sorts to the extent that family members became concerned for his welfare. Concluding that he needed to be emergently admitted to a mental health facility, Randolph’s family called the police. Officer Snyder was the lead officer who responded, and he was dismissive of the family’s concerns. Randolph’s agitation increased and he came into the yard, carrying a knife at his side. Officer Snyder Tasered Randolph, which had no effect on his movements. As Randolph continued to walk. Officer Snyder drew his weapon and shot Randolph four times. He did not survive. Randolph’s estate and the relatives who witnessed the scene filed suit against Officer Snyder, the other officer, and the City of Wichita. After extensive litigation, the district court granted all defendants’ motions for summary judgment. The Randolph estate appealed.

ISSUES: (1) Viability of pre-shooting negligence claims; (2) estate’s claim for liability for conduct after Randolph came outside; (3) viability of negligent use of force claim; (4) family members’ claims HELD: Officer Snyder’s refusal to call an ambulance or otherwise assist Randolph and his family was a discretionary function, which means his conduct is immune from liability under the Kansas Tort Claims Act. The officer’s decision-making was reasonable, even if he was brusque or rude. Evidence shows that Randolph was unaware of what was happening in his front yard, even after Officer Snyder drew his gun. Randolph’s inability to appreciate fear means Officer Snyder could not be liable for tortious assault. But there are disputed issues of material fact regarding whether Officer Snyder committed a tortious battery by both Tasing and shooting Randolph, calling in to question Officer Snyder’s claim that he was entitled to self-defense privilege. There is no other immunity in the KTCA that warrants summary judgment at this stage of the estate’s tortious battery claims.

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Although it is unclear, it appears that Kansas law does allow for the tort of negligent use of force. But that tort would not be appropriate here, where Officer Snyder’s actions were very much intentional. There was no negligence to support a tort of negligent use of force. The district court erred by granting summary judgment on Randolph’s mother’s claim of tortious assault because there were disputed material facts. The district court also erred by granting summary judgment on family members’ claims of tortious assault based on Officer Snyder’s use of a handgun. Randolph’s family must be given the chance to present evidence and allow the district court to determine whether Officer Snyder is entitled to a KTCA immunity or the privilege of self-defense.

STATUTES: K.S.A. 2018 Supp. 21-5221(a), -5222, -5222(b), -5227, -5230, -5231(a), 60-1901(a); K.S.A. 60-514(b), 75-6103(a), -6104, -6104(d), -6104(e), -6104(i), -6104(n) SEXUALLY VIOLENT PREDATORS IN RE CARE AND TREATMENT OF JONES WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED NO. 120,309—FEBRUARY 7, 2020

FACTS: Jones was convicted of rape in 2005. As the end of his prison sentence neared, the State filed a motion seeking to have Jones civilly committed under the Kansas Sexually Violent Predator Act. As part of its petition, the State designated Dr. Sutherland as an expert witness. In that capacity, Dr. Sutherland recommended civil commitment because Jones presented an unmanageable risk of reoffending. Based on this evidence, the district court found probable cause to believe that Jones was a sexually violent predator. Larned State Hospital hired Dr. Flesher as an expert witness for Jones. It was Dr. Flesher’s opinion that Jones did not meet the criteria for designation as a sexually violent predator. Given the split between the experts, the district court elected to hear testimony from Dr. Flesher. After hearing that testimony, the district court ordered Jones released and dismissed the case. The State appeals.

ISSUE: (1) Whether the district court erred by granting summary judgment to Jones HELD: There was no procedural or statutory bar that would prevent the district court from considering a motion for summary judgment after the probable cause determination was made. In this case, summary judgment was improper because there was evidence to support the State’s claim that Jones should be civilly committed. Where there were oppos-

appellate decisions

ing expert witness positions, summary judgment was inappropriate.

STATUTE: K.S.A. 2018 Supp. 59-29a04(a), -29a04(g), 60-212, -212(d), -256 TORT CLAIMS ACT HENDERSON V. MONTGOMERY COUNTY BOARD OF COMMISSIONERS MONTGOMERY DISTRICT COURT—AFFIRMED NO. 120,369—FEBRUARY 7, 2020

FACTS: Henderson picked up Garcia, who was hitchhiking. Unbeknownst to Henderson, Garcia was fleeing authorities after shooting a police officer in Oklahoma. Once law enforcement located Garcia, a chase ensued. Henderson attempted to let Garcia out of his truck, but Garcia exited shooting. Deputy Grimes returned fire, and Henderson was hit in the neck. He sued both Deputy Grimes and the Montgomery County Board of Commissioners for negligence.

Both defendants moved for summary judgment, claiming that the public duty doctrine prevented any liability for either defendant. They also claimed that they were entitled to immunity under the discretionary function exemption to the Kansas Tort Claims Act. The district court granted summary judgment on both claims, and Henderson appeals.

ISSUES: (1) Application of the public duty doctrine; (2) application of the discretionary function exception to the KTCA HELD: Instead of determining whether a special duty applied, the court assumes without deciding that a duty existed.

The discretionary function exception is still good law. Guidelines for law enforcement on how to handle a felony high-risk stop are not mandatory and are instead best practice suggestions. All of the decisions made by Deputy Grimes were discretionary. For that reason, the discretionary function exception applies to excuse him and the Board from liability.

STATUTE: K.S.A. 75-6103(a), -6104, -6104(e), -6104(n) SALES TAX—UTILITIES IN RE TAX APPEAL OF SOUTHWESTERN BELL TELEPHONE CO., L.L.C. BOARD OF TAX APPEALS—AFFIRMED NO. 120,167—JANUARY 24, 2020

FACTS: Southwestern Bell (Bell) operates transmission and switching equipment to create telecommunication signals. Because the equipment runs continuously, it generates a great deal of heat. If the equipment overheats, it quits working. In order to avoid this, Bell has a dedicated HVAC system in areas where the equipment is located as part of the effort to keep the equipment cool and operational. Electricity that is “consumed in” providing telecommunication services is exempt from sales tax under Kansas statute. Bell sought sales

tax refunds for all electricity used. The Kansas Department of Revenue approved a sales tax refund for electricity used to directly power equipment but denied a refund for electricity which powered the HVAC units, reasoning that these units merely maintained the switching and transmission equipment. The Kansas Board of Tax Appeals disagreed, holding that the electricity which powered the HVAC units was essential to the production of telecommunication services. The Department of Revenue appeals.

ISSUE: (1) Tax liability on HVAC equipment HELD: The HVAC units and the transmission and switching equipment form a system that makes Bell’s telecommunication services possible. Under the plain language of the tax statutes, the HVAC system is “essential or necessary” to the production of telecommunication services. This essential nature makes the electricity used to power the HVAC units exempt from sales tax. The Department of Revenue’s arguments to the contrary go to public policy rationales, and those must be raised with the Kansas Legislature.

STATUTE: K.S.A. 2018 Supp. 79-3602(dd)(2), -3602(dd) (B), -3602(pp), -3606(n)

Criminal CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—FOURTH AMENDMENT—STATUTES STATE V. ARCEO-ROJAS GEARY DISTRICT COURT—AFFIRMED NO. 119,266—FEBRUARY 7, 2020

FACTS: Officer stopped Arceo-Rojas for driving too long in left lane and unsafe lane change, and after completing the traffic stop detained Arceo-Rojas until a K-9 unit arrived. K-9 alert led to discovery of 54 pounds of individually packaged bags of marijuana. Arceo-Rojas arrested and charged with drug offenses. She filed motion to suppress, arguing the officer had no reasonable suspicion to stop her and later detain her for purpose of a drug sniff. District court denied the motion, finding the officer had reasonable and articulable suspicion that Arceo-Rojas was staying in left lane in violation of K.S.A. 8-1522, and that she failed to maintain a safe distance between her car and the car behind her when she changed lanes. Arceo-Rojas convicted in bench trial as charged. She appealed, alleging district court erred in denying motion to suppress.

ISSUES: (1) Traffic stop; (2) extension of traffic stop HELD: K.S.A. 2018 Supp. 8-1522(c) is interpreted. “Overtaking and passing another vehicle” phrase in the statute shows a legislative intent to keep multilane roads and high-

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ways open for passing. Under facts in this case, officer had reasonable suspicion that Arceo-Rojas was driving in left lane without meeting any of the four statutory exceptions. Accordingly, the traffic stop was justified and no need to address whether officer also had reasonable suspicion that Arceo-Rojas committed an unsafe lane change in violation of K.S.A. 2018 Supp. 8-1522(a), or whether officer made a “reasonable mistake” of law when he stopped Arceo-Rojas based on holding in Heien v. North Carolina, 574 U.S. 54 (2014).

Arceo-Rojas’ comparison to State v. DeMarco, 263 Kan. 727 (1998), is not persuasive. Under totality of the circumstances (1) Arceo-Rojas’ implausible and inconsistent travel plans, (2) use of a strong but dissipating masking odor consistent with being sprayed as officer stopped the car, (3) vehicle rented in the name of a third party, and (4) a large black duffel bag in back of the car—gave officer grounds for reasonable suspicion for both the initial traffic stop and extending the stop. District court’s denial of the motion to suppress is affirmed.

DISSENT (Arnold-Burger, C.J.): Would reverse district court’s ruling and suppress all evidence obtained after the traffic stop, at a minimum, and certainly after Arceo-Rojas was given a warning ticket and told she was free to leave.

Initial stop was unlawful. K.S.A. 2018 Supp. 8-1522(c) does not state how long a person may drive in the left lane before committing a violation, and a person of reasonable caution would not interpret Arceo-Rojas’ driving as a violation of the statute. Also, officer had no reasonable and articulable suspicion to detain Arceo-Rojas while waiting for drug dog to arrive and circle the car. The four factors cited by district court and the majority are criticized, finding none support a finding of reasonable suspicion either together or separately.

Case highlights the problem with the introduction of and the overreliance on profiles of drug courier activity. Traits of a drug-courier profile as asserted by federal agents are listed, and absence in this case is noted of factors indicated by Kansas law enforcement officers as linked to highway drug trafficking. Agrees with Justice Rosen’s concurrence in State v.

Schooler, 308 Kan. 333 (2018), on danger of “using the promise of freedom” to circumvent a driver’s constitutional rights.

STATUTES: K.S.A. 2018 Supp. 8-1522, -1522(a), -1522(c), -1522(c)(1); K.S.A. 2016 Supp. 8-1522(c); K.S.A. 60-404 APPELLATE PROCEDURE—CONSTITUTIONAL LAW— EVIDENCE—FOURTH AMENDMENT STATE V. MCKENNA RENO DISTRICT COURT—AFFIRMED NO. 119,431—JANUARY 31, 2020

FACTS: Officer checked on a sleeping or unconscious woman (McKenna) in driver’s seat in a parked car, and then arrested her on an outstanding warrant which was discovered once officer obtained McKenna’s name and ran a warrants 58

The Journal of the Kansas Bar Association

check. McKenna charged with possession of methamphetamine and possession of a stimulant, based on evidence found in her clothing during booking. McKenna filed motion to suppress, arguing the officer unconstitutionally detained her without reasonable suspicion she was committing a crime.

District court denied the motion, finding officer’s actions were justified as a welfare check. McKenna appealed the denial of her motion to suppress. Parties submitted supplemental briefing on issue of whether the public safety stop exceeded its lawful scope when officer asked for McKenna’s name and ran a warrants check.

ISSUE: (1) Public safety stop HELD: Under circumstances of this case, officer did not exceed scope of a public safety stop by asking for McKenna’s name, getting a verbal response, and checking that name locally for warrants. Three-part test in State v. Gonzales, 36 Kan. App. 2d 446 (2006), is satisfied in this case. Record shows officer’s actions were motivated by a desire to render aid or assistance rather than to investigate criminal activity.

STATUTE: K.S.A. 22-2402(1) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— MOTIONS—STATUTES STATE V. TERNING CHAUTAUQUA DISTRICT COURT—AFFIRMED NO. 119,904—FEBRUARY 7, 2020

FACTS: Terning entered 2008 no contest plea to aggravated kidnapping and rape. Consecutive 165-month prison terms imposed, plus 36 months postrelese supervision. Kansas appellate courts summariiy dismissed Terning’s direct appeal, but mandate not issued until May 2017. That same month Terning filed motion to correct an illegal sentence, arguing he should have received lifetime postrelease supervision. State filed similar motion. Five months later Terning filed motion to withdraw his plea, arguing his plea was not knowing and voluntary because he was never informed of lifetime post-release supervision. District court denied motion to withdraw plea. Terning appealed.

ISSUE: (1) Withdrawal of guilty plea after sentencing HELD: Under circumstances in this case, district court did not abuse its discretion in finding Terning failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though district court did not strictly comply with K.S.A. 22-3210 at the plea hearing, record supports district court’s finding that Terning’s plea was knowingly and understandingly made. Different conclusion reached in State v.

Metzger, (Kan. App. 2017)(unpublished opinion), rev. denied 307 Kan. 992 (2018), is distinguished. Even though Terning was unaware of lifetime postrelease supervision period when he pleaded, he was informed that he potentially faced a period

appellate practice reminders

of incarceration longer than his natural life, regardless of any postrelease term. And by pleading no contest to both charges he avoided an upward departure that could have resulted in an even longer prison sentence.

DISSENT (Standridge, J.): Would hold the district court erred as a matter of law in its legal conclusion that Terning failed to show manifest injustice to withdraw his plea. District court failed to advise Terning of the maximum penalty upon his no contest plea, which is a clear statutory violation of K.S.A. 2018 Supp. 22-3210(a)(2) and a due process constitutional violation. Strongly disagrees with majority’s adoption of new analytical framework which provides that due process is not violated by failure to advise a criminal defendant of

applicability of a lifetime postrelease supervisory period if the combined prison sentences assigned to the defendant are not meaningfully different from life in prison. Metzger sets forth a better analytical framework. Application of factors in State v. Edgar, 281 Kan. 30 (2006), and State v. Moses, 280 Kan. 939 (2006), to facts in this case tips balance in favor of finding manifest injustice under K.S.A. 2018 Supp. 22-3210(d) (2).

STATUTES: K.S.A. 2018 Supp. 22-3210(a)(2), -3210(d), -3210(d)(1), -3210(d)(2), -3717(d)(1)(G); K.S.A. 2007 Supp.

75-5217(c)-(d); K.S.A. 2006 Supp. 22-3717(d)(1)(G), -3717(d) (2)(A); K.S.A. 21-4720(b)(2), -4720(b)(5), 22-3210, -3504

Appellate Practice Reminders From the Appellate Court Clerk's Office

Fleeting or Forever The spoken word is fleeting. The written word lasts forever. How do you want to be remembered?

Not long ago, I was venting to a colleague about the grammatical shortcomings of a recently filed appellate brief. The conversation quickly turned to a reminiscing moment of the good ol’ days of running to the federal courthouse to put a brief in the drop box before the stroke of midnight to beat the filing deadline. What followed was the inevitable result of extreme embarrassment of a hurriedly prepared brief seemingly bursting with typos and errors much to the amazement of a federal judge.

It seems like attorneys are never caught up. We are always under the gun for the next project or client.

I’ve preached before in my Appellate Practice Tips to Proofread, Proofread, Proofread. In November 2016, I begged – “Profread, Proofreed, Prufread. Many motions arrive in the appellate clerk’s office with the wrong court or the wrong case number designated. Some attorneys even try to docket cases in the wrong court. The clerk will make some corrections in the interest of moving the filing along, but that kind of error creates a poor first impression as judges begin to read the document. Proofread carefully.”

Lately we’ve seen a rash of instanter motions with more than the normal amount of typos in the briefs. Not necessarily anything substantive, but extra characters or missing punctuation or whatever. Even better, we’ve even seen uploads of what is quite obviously a draft of the brief. I’m waiting for the brief that actually comes through with the “DRAFT” watermark peeking through. That isn’t something that would necessarily cause us to stop a brief—although the courts might halt the proceedings if they are sure it’s a draft. I’m confident that the errors and draft documents are not how you want to represent yourself to the court. My theory is that attorneys rely too heavily on the SpellCheck crutch or other tools, or that proofreading doesn’t work as well when you’re looking at a computer screen. My suggestion is always to print it out and proofread from paper.

For questions about these or other appellate procedures and practices, Call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.

www.ksbar.org | March 2020 59

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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.

Crow & Associates, Leavenworth, We are expanding our 4-lawyer firm. Opportunity for attorneys in family law, personal injury or estate/probate. Send email to Mike Crow at mikecrow@crowlegal.com or call (913) 682-0166.

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 INTRUST Bank N.A. seeks an individual that holds a law degree with emphasis in Estate Planning. Trust Advisor is responsible for the administration and growth of comprehensive, integrated, multigenerational high level trust and wealth accounts. Uses advanced knowledge to exercise judgment and perform responsibilities which have a significant effect on the bank. Establishes work processes for self and monitors progress to ensure completion of goals as defined by their manager. This level requires the Trust Advisor to be capable of administering multiple account relationships with revenue exceeding $1.5 Million. Apply at intrustbank.com/careers.

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.

Shepherd Elder Law Group, LLC is seeking experienced Estate Planning/Elder Law attorney to join its growing practice in Overland Park, KS. Qualified candidate will be able to demonstrate strong dedication to elder, estate planning and special needs law and a passion for helping people.

Requirements: • J.D. from an ABA accredited law school.

• Licensed in Kansas and/or Missouri or immediately eligible for admission by Uniform Bar Examination Score or by reciprocal admission.

• Minimum of five-years experience.

• Strong organizational skills.

• Self-motivated to meet deadlines under pressure.

• Firm and client confidentiality required.

Please email resume and cover letter to grace@shepherdelderlaw.com.

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.

Wichita Bar Association is seeking an Executive Director, responsible for the operation and financial management of the WBA, the Sedgwick County Law Library, the Sedgwick County Law Center, the

Wichita Bar Foundation, and the Wesley E. Brown Inn of Court. Oversees staff, member relations, CLE. Handles financial reports, payroll and board minutes.

Works closely with boards and responsible for carrying out programs. Experience and leadership skills required. For detailed information, see Career Opportunities at wichitabar.org 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.

Workers Compensation Administrative Law Judge. The Kansas Department of Labor is accepting applications for a Workers Compensation Administrative Law Judge position in Topeka. Applicants are required to be an attorney regularly admitted to practice law in the State of Kansas, have at least 5 years’ experience as an attorney and must have at least one year of experience practicing law in the area of workers compensation. To apply, please go to www.jobs. ks.gov Job ID Number 193714.

Attorney Services Contract brief and motion writing; research. Experienced attorney (25+ yrs.), with superior writing skills, successful track record, and excellent work history (small and large firm), available to assist on a contract basis preparing dispositive motions, other motions, trial court and appellate briefs, pleadings, probate/estate planning documents; also available to assist with legal research. Quality work; flexible.

Experience includes litigation, will/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at paulaamcmullen@gmail.com, or (913) 940-4521 to discuss.

Contract brief and motion writing; research. Experienced attorney with superior writing skills, successful track record, and excellent work history (small and large firm), available to assist on a contract basis preparing dispositive motions, other motions, trial court and appellate briefs, pleadwww.ksbar.org | March 2020 61

classified advertisements

ings, probate/estate planning documents; also available to assist with legal research.

Quality work; flexible. Experience includes litigation, wills/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at paulaamcmullen@ gmail.com, or (913) 940-4521 to discuss.

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.

David P. Mudrick, Topeka, is now practicing as Mudrick Arbitration & Mediation, LLC • 785-554-1570 • dmmudrick@hotmail.com Mudrick is AV-rated with over 35 years’ experience in employment and labor law. He is approved by the State of Kansas as a Civil Mediator and Teacher Due Process Hearing Officer. Mudrick is past president of KBA Employment Law Section. Named 2019 Labor Law Management Topeka Lawyer of the year and 2020 Employment Law Management Topeka Lawyer of the Year. Selected for Best Lawyers in America in Labor Law Management, Labor and Employment Litigation.

Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com.

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) 8561628 or email cgb@barnhill-morse.law.

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 62

The Journal of the Kansas Bar Association

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.

WANTED: Due to retirement, candidate needed for Sumner County Attorney. Experience preferred. Financial backing and community support is present. Contact Mike Brown at 316-777-1186 or elderlawks@gmail.com.

Office Space Available 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 816-5199600 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) 893-0494 for more information. The location is 110 W 3rd St, Ottawa, Kansas. Pictures available upon request.

Overland Park- Offices for Rent. Law offices located in Old Downtown Overland Park, in remodeled historic building. Includes: free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voicemail, and high speed internet access. The offices are in walking distance of coffee shops, restaurants and retail stores.

More than fifteen highly respected attorneys in an office-sharing/networking arrangement. For more information contact James Shetlar at 913-648-3220.

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 Due to retirement, will sell complete set of Kansas Reports and Kansas Appellate Reports. Price negotiable. Will deliver in KC area. Call 620-215-0236 or email: danielfmeara2@gmail.com 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.

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Lawyer Referral Service [LRS] is a good source for a steady flow of persons seeking assistance with the “...kinds of cases I handle. The benefits of working with LRS far exceed the costs of enrollment. It is the most effective use of advertising budget I can imagine. ” ~ Joseph Seiwert, Snider & Seiwert LLC, Wichita

For more information about the KBA Lawyer Referral Service program, visit www.ksbar.org/LRS or call 785-234-5696

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A TRADITION OF SUCCESS

Scott E. Nutter Matthew E. Birch Lynn R. Johnson

816-474-0004 www.sjblaw.com

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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.