July/August 2020_Journal

Your Partner in the Profession | July/August 2020 • Vol. 89 • No. 6

Cigarettes and Tobacco Sale and Use Case: City Home Rule Prevails

by Mike Heim P. 26

Kansas Child Support 2020: Seeing the Future of Child Support with Open Eyes

by Bethany Roberts and Casey E. Forsyth P. 36

Mira Mdivani KBA Immediate Past President

Charles E. Branson KBA President 2020-2021

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26 | Cigarette and Tobacco Sale and Use Case: City Home Rule Prevails

by Mike Heim 36 | Kansas Child Support 2020: Seeing the Future of Child Support with Open Eyes

by Bethany Roberts and Casey E. Forsyth Cover Design by Ryan Purcell

Special Features 11 | Kansas Bar Foundation Fellows Recognition (as of June 2020)....................................

19 | DIVERSITY CORNER: Is the Legal Profession Finally Ready for the Institutional Change Necessary to Yield Greater Diversity?....................................................Carla D. Pratt 22 | The 2020 Department for Children and Families Series: Babies in the River................................................................................Shanelle Dupree 47 | Authorized by Law: Ex Parte Contact with Government Officials Represented by Counsel.... J. Nick Badgerow 53 | 2020 Legislative Overview.............................................................. Joseph N. Molina III

Regular Features 6 | From the Executive Director of the KBA/KBF

64 | Law Practice Management Tips and Tricks

7 | From the President of the KBA

66 | Law Students’ Corner

Getting to Know Each Other................ Stacey Harden It’s an Adventure!.......................... Charles E. Branson

9 | From the President of the KBF

Please Hug the KBF Mission........................Scott Hill

45 | Summer CLE

Meet Your CLE Requirements Online

59 | Substance and Style

I Want to Talk About ME.........................Emily Grant 63 Hi, Dear, Good Morning: Email Salutations in the 2020s.................................... Gillian Chadwick

61 | A Nostalgic Touch

He’s BACK!

What Are You Doing to Fight for Social Justice?........ .............................................................. Matt Keenan

The Court During Crisis.................. Larry Zimmerman

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70 71 73 87

Traveling Down an Unpaved Road: My Experience ... as a First Generation College Graduate.... John Goodyear Respecting the Role of Dissent: A Call to Law Students......................... Desiree´ Smith

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

Reinstatement of Deadlines and Time Limits— Appellate Style........................................Doug Shima

88 | Advertising Directory 89 | Classified Advertisements www.ksbar.org | July/August 2020 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION

2020-21

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 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 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 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.

President Charles E. Branson, CBranson@ksbar.org President-elect Cheryl Whelan, cwhelan@ksbar.org Vice President Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Secretary-Treasurer Laura Ice, lauraice@textronfinancial.com Immediate Past President Mira Mdivani, MMdivani@uslegalimmigration.com Young Lawyers Section President Katherine E. Marples Simpson, kmarples@gmail.com District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Katherine S. Clevenger, katherine@pcfamilylaw.com District 2 Bethany J. 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 William L. Townsley, III, wtownsley@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Dell Marie S. Swearer, dell@hutchcf.org District 9 Aaron L. Kite, aaron@kitelawfirm.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Candice A. Alcaraz, calcaraz@wycokck.org District 12 Alexander P. Aguilera, alex.aguilera@leggett.com Bruce A. Ney, bn7429@att.com John M. Shoemaker, john.shoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Bruce T. Gatterman, 24thcj@pawnee.kscoxmail.com KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric K. Rosenblad, rosenblade@klsinc.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.

ABA State Delegate Rachael K. Pirner, rkpirner@twgfirm.com

For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com

KBF Representative Scott M. Hill, hill@hitefanning.com

For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org.

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

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, P.O. Box 751080, Topeka, KS 66675-1080.

4

Let your VOICE 2020-21 be Heard!

KBA Officers & Board of Governors

The Journal of the Kansas Bar Association

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

Executive Director of the KBA/KBF Stacey Harden, sharden@ksbar.org

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

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from the executive director

Getting to know each other

by Stacey Harden, Executive Director, KBA/KBF

Stacey (center) with sons Austin (L) and Brayden (R)

G

reetings and salutations! I joined the KBA team last fall as the association’s Accounting Manager and was recently selected to serve as the KBA’s next Executive Director. I start that new adventure on August 3rd.

A hometown girl, I was born and raised in Topeka. I graduated from Topeka High School just up the street, and then twice from Baker University, a little farther down the road.

With my roots already planted in the Topeka area, I embarked on many amazing yet challenging opportunities in this community that have allowed me to grow professionally. I have served as a regulatory analyst for a State advocacy agency, a grants accountant, a Chief Financial Officer and an adjunct business and accounting instructor.

A self-professed sports fanatic, I identify the season by the sport I am watching—its either basketball season, baseball season or football season. To say that I have a healthy competitive spirit might be an understatement. But in all seriousness, consuming sporting activities for the better part of my life has taught me priceless lessons about success and failure and the value of having a great team.

I was lucky enough to attend game seven of the 2014 World Series, where I watched my favorite team try to reverse nearly three decades of failure by upending a formidable opponent on the field. In the bottom of the ninth inning, with the tying run standing on third base, I, along with 40,000 of my closest friends, watched our championship moment slip away, as the Royals were unable to defeat the literal and figurative

6

The Journal of the Kansas Bar Association

Stacey (L) with Mom, MaryAnn Kramer (center) and sister Amanda Wright (R). Amanda is the KBA’s CLE Director.

Giants. What happened in the moments that followed will stay with me forever—instead of feeling the sting of failure, with the soundtrack provided by chants of “Let’s Go Royals,” 40,000 people filed out of the stadium cheering, smiling and hopeful for what was to come next. There was no failure that night in October, only lessons learned. And with those lessons learned—and a little patience—came the ultimate success just one year later.

I am fortunate to be working with such a fantastic team at the KBA/KBF. The talent, personality and professionalism of the KBA/KBF staff are second to none. I hope in future editions of the Journal to be able to spotlight members of the KBA staff. I would like to give a special shout-out to Ms. Karla Whitaker, who graciously came out of retirement to take on the Executive Director duties on an interim basis this past January, without any knowledge that the world as we know it would be tipped upside down and inside out.

Karla has done an amazing job of navigating the KBA/KBF through the choppy waters of a global pandemic. If you have a moment, please reach out and thank Karla for her service to the KBA/KBF. We are still learning how to successfully plot our course through this COVID world, but I am confident the KBA/ KBF will emerge stronger than before. I anxiously await the opportunity to welcome you back in person, to shake hands and exchange stories and lessons with each other first-hand.

For the time being, however, this runner will have to remain standing on third base. n

from the kba president

“It’s an Adventure!”

by Charles E. Branson KBA President, 2020-2021

W

hen those words are uttered in my household, it holds a special meaning for my entire family. Typically, it is a signal we are embarking on a trip or outing where we have little idea what is going to happen—but we are going to do it anyway. Sometimes, this phrase also evokes that internal feeling of being in a roller-coaster car as you clatter towards the top of the track for the first big plunge.

As my term starts as President and I survey the landscape, those words come to mind. Both as an association and as individual legal professionals, we have watched our world change like it never has before. Due to the pandemic, we have had courts close and clients vanish. We have had to learn new technology. Where we used to rely on a face-to-face meeting and a handshake, we now rely on a video call and the inevitable cat that walks across on the participant’s screen.

Your KBA has been rising to meet the new challenges we face. Our Past President Mira Mdivani was quick to take action in April, creating a series of informative, live-streamed roundtable discussions on the impact of COVID-19 on our law practices. These programs helped many Kansas attorneys

navigate this new frontier. I could not be prouder of the KBA’s response to our members during this time.

In the midst of the pandemic, the KBA and the Kansas Bar Foundation also interviewed and hired a new executive director. More than forty people applied, with interest coming from all over the country. As President-Elect, I had the privilege of leading an amazing search committee. These dedicated people experienced business in the age of COVID firsthand.

After reviewing applicants and several Zoom interviews, we passed finalists on to the Board for consideration. The final interview process really showed the KBA’s creativity. On the first day, each candidate hosted a Zoom social hour as Board members rotated between the candidates in small groups. On the second day, the candidates each went through a formal interview with the Board. On the final day, the candidates presented a formal action plan to the Board concerning how to study and account for the challenges of maintaining and increasing bar membership in the wake of COVID-19. With that process complete, the Board met and deliberated in a digital meeting before selecting Stacey Harden as the new Executive Director for the KBA and KBF. Congratulations, Stacey! www.ksbar.org | July/August 2020 7

kansas bar association president

Sadly, we were unable to join together for our annual meeting in June. But take heart, we are working on a virtual meeting for August 21. Stay tuned for more details.

I also have great hope that this year marks a turning point where we will finally confront the longstanding systemic racism in our society. It is high time we not only recognize that all people are equal, but do the work to stamp out inequality wherever it is found. The KBA’s diversity committee is already working on actions the bar can take to strengthen our profession’s response.

Finally, I want to close out my first column by extending a heartfelt thank you to two people who have performed above and beyond the call of duty during these last several months.

Immediate Past President Mira Mdivani, you have handled a difficult presidency with grace and poise. I will strive to follow your example.

Karla Whitaker, you came to us in our time of need without knowing the unusual times we would be facing. You have been a calm and collected steward of the bar and an amazing colleague over the last several months. As you transition back into retirement, please know you have left a lasting impression on the bar.

Clacky, clacky, clacky, the roller coaster car heads up the track. I anticipate it will be an interesting year to be President of the Kansas Bar Association. As we all collectively climb into the car though, I cannot possibly think of better companions for this “adventure.” n About the Author Charles E. Branson is the President of the Kansas Bar Association for 2020-2021. He is the Douglas County District Attorney, Before running for election in 2004, Branson was in private practice in Lawrence; his practice focused on the areas of criminal and civil litigation. A long-time active member of the KBA, Branson has served on the Executive Committee of the Board of Governors, has been the KBA Representative on the Board of Trustees of the Kansas Bar Foundation, and has also been a member of the Bench-Bar Committee and the Scholarship Committee. Charles and his wife Kathy have two children, Chance and Grace, and are very proud to call Lawrence and Douglas County their home.

CBranson@ksbar.org

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The Journal of the Kansas Bar Association

kansas bar foundation president

Please Hug the KBF Mission

by Scott Hill, KBF President

I

t was about this time in 2008 when I sat down to write my first column for The Journal of the Kansas Bar Association as the new KBA Young Lawyers Section (“YLS”) President. At that time, I had been in practice for only about five years.

Here were my first three paragraphs of that column: My charge over the next year as the author of this Young Lawyers Section column is to provide direction, education, or other enlightenment to the junior attorneys of our bar. If I follow that charge to a “T,” I should only be writing to our younger members and anyone more than 35 years of age should just turn the page (I say that only figuratively; stick with me).

But before I reach out directly to the young lawyers, I want to take this opportunity to direct questions and comments to the senior bar. You might ask how addressing older attorneys provides direction, education, and/or enlightenment to young lawyers? A wise man once said, “Give a man a fish, and you have fed him for today. Teach his mentor to fish, and you fed him for a

lifetime.” Maybe that is not exactly how the quotation goes, but the point is, we can significantly impact the young lawyer by first reminding the senior members of a thing or two.

So I begin with a question: Have you hugged a young lawyer today? We have all heard the expression, “have you hugged your child today,” meaning that parents need to show physical affection to children to nurture both physical and emotional development. But how does this translate to the practice of law? I hypothesize —no better yet I promise—through professional affection, you can nurture the development of our young lawyers.

It is now my pleasure in 2020 to serve the Kansas Bar Foundation (“KBF”) as its President. In these last 12 years, I have graduated from the YLS and lost some hair (and what remains is pretty gray), but I feel like I have grown much as a person and a lawyer. However, I find that these “words of wisdom” from 2008 might be just as applicable today to the KBF. www.ksbar.org | July/August 2020 9

kansas bar foundation president

Hear me out. First, I am not advocating that anyone hug anyone —keep your six feet of social distance (hopefully, in 12 more years we will have forgotten that term.) Second, I am not here to scold any non-fellows of the KBF. The connection is that we cannot only look to our own membership to satisfy our mission. As President of the KBF, I challenge our existing fellows to step forward to lead the charge. We continue to need the direct financial support from our members. But in addition, our members must reach out to non-fellows to help us with our mission.

The mission of the KBF is “to serve the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor and integrity of the legal system by improving its accessibility, equality and uniformity, by enhancing public opinion of the role of lawyers in our society.”

How can a non-fellow of the KBF help with this mission?

I would love it if each non-fellow reading this article made a pledge to financially contribute to the KBF each and every year. Too much? How about a one-time contribution? I say this a bit tongue-in-cheek, as the goal of this article is not to reach out my hand to you for a donation. Writing a check is not the only way you can help support that mission.

Much of the KBF’s mission is met through the administration of the IOLTA grants. Is your trust account an IOLTA account? Is your bank a “Partner in Justice” bank that is committed to paying a higher interest rate and waiving routine fees on IOLTA accounts? Significant support towards the KBF’s mission is possible through even passive action such as this.

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The Journal of the Kansas Bar Association

Are you aware that the KBF does not just administer IOLTA grants? I urge each Kansas lawyer to learn about our Community Redevelopment & Homeowners Assistance (“CRHA”) grant program, and our law school scholarship programs. Take awareness of these sorts of programs and share it with your communities and the organizations that you support that might benefit from these programs. The KBF’s mission is greatly furthered with meaningful and successful charitable partners.

Please hug the KBF mission. In whatever way you can.

With your help, we all can “foster the welfare, honor and integrity of the legal system by improving its accessibility, equality and uniformity, by enhancing public opinion of the role of lawyers in our society.” n

About the Author Scott Hill is a partner at Hite, Fanning & Honeyman L.L.P. He concentrates his practice in banking, business transactions, business litigation and real estate. Scott sits on his firm’s management committee and devotes substantial time to his firm’s management and marketing efforts. Raised in Independence, Kan., he graduated from Pittsburg State University and Washburn University School of Law. Scott earned his MBA at Washburn during law school. He is married to Jennifer Hill of McDonald, Tinker, and has two sons (ages 11 and 7). hill@hitefanning.com

kansas bar foundation

Fellows Giving levels as of July 2020

Pillar oF ProFession Thomas V. Murray, Lawrence

Pillar oF Foundation Arden J. Bradshaw, Wichita Laura Ice, Wichita Robert W. Minto, Jr., Missoula, MT

Edward J. Nazar, Wichita David J. Rebein, Dodge City Mikel L. Stout, Wichita

Fellow diamond Sara S. Beezley, Girard Michael P. Crow, Leavenworth Whitney B. Damron, Topeka

Gloria Farha Flentje, Wichita James L. Hargrove, El Dorado Richard Hayse, Topeka

Hon. Marla J. Luckert, Topeka Daniel D. Metz, Lincoln Byron E. Springer, Lawrence

Gerald L. Goodell, Topeka C. David Newbery, Topeka

E. Lou Bjorgaad Probasco, Topeka Hon. Dale L. Somers, Topeka

William S. Mills, McPherson John R. Morse, Sanibel, FL Timothy M. O’Brien, Kansas City James D. Oliver, Overland Park Linda S. Parks, Wichita Terri J. Pemberton, Topeka David G. Seely, Wichita

William H. Seiler, Jr., McPherson Hon. Fred Six, Lawrence H. David Starkey, Topeka Hon. David J. Waxse, Kansas City Mary Kathryn Webb, Wichita Hon. Evelyn Z. Wilson, Topeka

James E. Benfer III, Topeka L. O. Bengtson, Salina Mary Beth Blake, Kansas City, MO Brett C. Bogan, Overland Park Richard L. Bond, Overland Park Robert M. Bond, Haysville Carol Ruth Bonebrake, Topeka Ray L. Borth, Overland Park Hon. Donald W. Bostwick, Wichita Philip L. Bowman, Santa Rosa, CA Stephen W. Boyda, Topeka Hon. J. Patrick Brazil, Topeka Kevin J. Breer, Overland Park Dana E. Brewer, Concordia Hon. Joseph Bribiesca, Wichita Robert C. Brown, Wichita Steven W. Brown, Salina

John J. Bryan, Topeka Mert F. Buckley, Wichita Hon. Benjamin L. Burgess, Wichita Vaughn L. Burkholder, Overland Park James L. Bush, Hiawatha Jeffery L. Carmichael, Wichita Hon. William R. Carpenter, Topeka George L. Catt, Lawrence Stephen W. Cavanaugh, Topeka Edward J. Chapman Jr., Leavenworth Pamela C. Clancy, Wichita James W. Clark, Lawrence Martha J. Coffman, Topeka Prof. James M. Concannon III, Topeka Scott R. Condray, Concordia Ray L. Connell, El Dorado Jeffrey K. Cooper, Topeka

Fellow Platinum Thomas A. Adrian, Newton Hon. Jesse D. Euler, Wathena

Fellow Gold J. Eugene Balloun, Kansas City, MO Anne E. Burke, Overland Park Nancy M. Dixon, Topeka Jack Focht, Wichita Dennis L. Gillen, Wichita Albert J. Kirk, Wichita Randee Koger, McPherson

Fellow silver Jana D. Abbott, Wichita Alan F. Alderson, Topeka Stanley G. Andeel, Wichita Mark A. Andersen, Lawrence David W. Andreas, Winfield Stephen T. Ariagno, Wichita Kevin J. Arnel, Wichita Charles S. Arthur III, Manhattan Gary L. Ayers, Wichita Mark G. Ayesh, Wichita Anne L. Baker, Topeka Ernest C. Ballweg, Overland Park D. Shane Bangerter, Dodge City Thomas J. Bath Jr., Overland Park Gregory L. Bauer, Great Bend Martin W. Bauer, Wichita Hon. Carol A. Beier, Topeka

www.ksbar.org | July/August 2020 11

kansas bar foundation

Fellow silver Linda K. Cooper, St. Louis, MO Donald L. Cordes, Wichita Christopher G. Costello, Tampa Wendell F. “Bud” Cowan Jr., Overland Park David G. Crockett, Wichita Daniel W. Crow, Topeka Hon. Sam A. Crow, Topeka June R. Crow-Johnson, Topeka Terry C. Cupps, Wichita Peter K. Curran, Lawrence Michael J. Day, Saint Francis Patricia M. Dengler, Wichita Dennis D. Depew, Neodesha Sue A. Dickey, Olathe Daniel H. Diepenbrock, Liberal Sen. Robert J. Dole, Washington D.C Michael A. Doll, Dodge City J. Darcy Domoney, Paola Wade A. Dorothy, Overland Park Jerry E. Driscoll, Russell Debra S. Duncan, Topeka Kenneth J. Eland, Hoxie Jane M. Eldredge, Lawrence Jeffrey O. Ellis, Overland Park Prof. Linda D. Elrod, Topeka H. Philip Elwood, Topeka John A. Emerson, Lawrence J. Eric Engstrom, Wichita Jerry D. Fairbanks, Goodland Hon. Robert W. Fairchild, Lawrence Margaret A. Farley, Lawrence G. Michael Fatall, Kansas City, MO Jack D. Flesher, Wichita Patrick T. Forbes, Eureka Jay F. Fowler, Wichita Drew D. Frackowiak, Overland Park Joni Jeanette Franklin, Wichita Curtis A. Frasier, Beloit Phillip S. Frick, Wichita Bernie D. Frigon, Scottsdale, AZ John D. Gatz, Colby John F. Gernon, Hiawatha Jack Glaves, Wichita Alan C. Goering, Medicine Lodge Jim H. Goering, Wichita Dana L. Gorman, Independence Ruth E. Graham, Topeka James T. Graves, Overland Park Carol Gilliam Green, Topeka Don D. Gribble II, Wichita William A. Guilfoyle, Abilene Lawrence M. Gurney, Wichita Frederick L. Haag, Wichita 12

The Journal of the Kansas Bar Association

E. Charles Hageman, Stockton Lowell F. Hahn, Phillipsburg Debra D. Hallauer, Leawood Thomas A. Hamill, Overland Park John R. Hamilton, Topeka Gary Hanson, Topeka Ron H. Harnden, Wichita Richard C. Harris, Colorado Springs, CO Charles R. Hay, Topeka William G. Haynes, Topeka Robert L. Heath, Wichita Lewis A. “Pete” Heaven, Jr., Overland Park Danton C. Hejtmanek, Topeka Keith R. Henry, Junction City Charles N. Henson, Topeka Thomas D. Herlocker, Winfield G. Taylor Hess, Leawood Matthew C. Hesse, Wichita B.J. Hickert, Topeka Max M. Hinkle, Walnut Creek, CA Richard C. Hite, Wichita Ray Hodge, Wichita David K. Holmes, Hailey, ID Richard L. Honeyman, Wichita Hon. Steven L. Hornbaker, Junction City Donald J. Horttor, Topeka Blake D. Hudson, Fort Scott Leigh C. Hudson, Fort Scott Robert M. Hughes, Wichita Leslie F. Hulnick, Wichita John H. Hutton, Topeka James M. Immel, Iola Curtis M. Irby, Wichita R. Eric Ireland, Wichita Arvid V. Jacobson, Manhattan Susan C. Jacobson, Manhattan Debra A. James, Salina Hon. Teresa J. James, Overland Park John W. Johnson, Wichita Hon. Lee A. Johnson, Topeka Lynn R. Johnson, Kansas City, MO Robert E. Johnson II, Iola Robyn E. Johnson, Troy Alan Joseph, Wichita John D. Jurcyk, Kansas City John J. Jurcyk Jr., Kansas City Norman R. Kelly, Salina Craig D. Kershner, Manhattan Stephen M. Kerwick, Wichita E. L. Kinch, Wichita Katherine L. Kirk, Lawrence

John G. Kite, Saint Francis Mark W. Knackendoffel, Manhattan Gerald R. Kuckelman, Atchison Tammie E. Kurth, Liberal Mark T. Lair, Chanute Jodde O. Lanning, Overland Park Hon. Edward Larson, Topeka Eric J. Larson, Wichita Charles F. Lay, Spring Hill Hon. Steve Leben, Topeka Charles D. Lee, Hutchinson Gregory A. Lee, Topeka Amy S. Lemley, Wichita Jacqueline K. Levings, Wichita Joe L. Levy, Coffeyville Aubrey G. Linville, Salina Richard D. Loffswold, Jr., Girard Scott Christopher Long, Overland Park Hon. Kurtis I. Loy, Pittsburg Robert W. Loyd, Overland Park Hon. Ward E. Loyd, Topeka Hon. Cathy J. Lucas, Sublette Hon. John W. Lungstrum, Kansas City Hon. Patricia A. Macke Dick, Hutchinson T. Bradley Manson, Overland Park Kim R. Martens, Wichita Jeffery A. Mason, Goodland Christopher J. Masoner, Lenexa Robert S. Maxwell, Topeka Jacob F. May Jr., Kansas City, MO Jack Scott McInteer, Wichita David L. McLane, Pittsburg Calvin L. McMillan, Wichita Brock R. McPherson, Great Bend Kerry E. McQueen, Liberal Teresa M. Meagher, Overland Park S. Richard Mellinger, Leawood Hal D. Meltzer, Kansas City, MO Alan G. Metzger, Wichita Jill A. Michaux, Topeka Phillip A. Miller, Kansas City, MO Michael T. Mills, McPherson Derenda J. Mitchell, Topeka John H. Mitchelson, Pittsburg Kevin F. Mitchelson, Pittsburg Daniel E. Monnat, Wichita Tim J. Moore, Wichita Hon. Nancy L. Moritz, Topeka J. Joseph Morris, Leawood Otis W. Morrow, Arkansas City Ronald C. Myers, Eureka John C. Nettels Jr., Kansas City, MO Patrik W. Neustrom, Salina

kansas bar foundation

Fellow silver (con’t.)

Rodney G. Nitz, Lawrence Don W. Noah, Beloit Erick E. Nordling, Hugoton Christopher W. O’Brien, Wichita Nancy A. Ogle, Wichita William L. Oliver Jr., Wichita James R. Orr, Westwood Sen. Thomas C. “Tim” Owens, Overland Park W. Dean Owens, Lawrence Stephen R. Page, Topeka Arthur E. Palmer, Topeka Hon. Floyd V. Palmer, Topeka Jerry R. Palmer, Topeka Hon. James A. Patton, Hiawatha Kenneth E. Peirce, Hutchinson Kent T. Perry, Overland Park H. Douglas Pfalzgraf, Wellington Timothy V. Pickell, Westwood Hon. G. Joseph Pierron Jr., Topeka Rachel K. Pirner, Wichita Hon. David R. Platt, Junction City Hon. Sally D. Pokorny, Lawrence Alan R. Post, Chatham, IL Marc A. Powell, Wichita Hon. James A. Pusateri, Naples, FL Eric C. Rajala, Shawnee Mission David M. Rapp, Wichita Brett A. Reber, McPherson Jay M. Rector, Wichita Elaine Reddick, Wichita Sharon M. Reilly, Manhattan Prof. Sheila M. Reynolds, Lawrence Zackery E. Reynolds, Fort Scott Thomas M. Rhoads, Wichita John L. Richeson, Ottawa Ann T. Rider, Wichita Calvin D. Rider, Wichita Stephen E. Robison, Wichita Eric L. Rosenblad, Pittsburg Kelly J. Rundell, Wichita Alan L. Rupe, Wichita Anthony F. Rupp, Overland Park Hon. Gerald L. Rushfelt, Kansas City

Larry R. Rute, Topeka Thomas E. Ruzicka, Olathe Frank C. Sabatini, Topeka Susan G. Saidian, Wichita William R. Sampson, Kansas City, MO Gerald Sawatzky, Santa Fe, NM Michael K. Schmitt, Hiawatha Hon. Kim R. Schroeder, Hugoton Sheila M. Schultz, Paola Steve A. Schwarm, Olathe Hon. K. Gary Sebelius, Topeka David G. Seely, Wichita David C. Seitter, Kansas City, MO Shoko Kato Sevart, Wichita Gene H. Sharp, Liberal Rex A. Sharp, Prairie Village Sarah B. Shattuck, Ashland J. Bradley Short, Overland Park Michael S. Sizemore, Leawood Bryan W. Smith, Topeka E. Dudley Smith, Leawood Eric B. Smith, Topeka Stanford J. Smith Jr., Wichita Lee M. Smithyman, Overland Park Brock R. Snyder, Topeka Harvey R. Sorensen, Wichita William B. Sorensen Jr., Wichita Jeffrey S. Southard, Lawrence Steven L. Speth, Wichita Frank G. Spurney Jr., Belleville Hon. Melissa Taylor Standridge, Topeka Roger D. Stanton, Overland Park Frederick K. Starrett, Overland Park S. Philip Stover, Quinter Wayne T. Stratton, Topeka Alan Mark Stremel, Manhattan Gregory J. Stucky, Wichita Hon. David L. Stutzman, Manhattan Hon. Ronnie L. Svaty, Ellsworth William B. Swearer, Hutchinson Wayne R. Tate, Hugoton Connie D. Tatum, Houston, TX L. Franklin Taylor, Olathe Trisha A. Thelen, Wichita

Todd N Thompson, Lawrence Willard B. Thompson, Wichita Hon. Nelson E. Toburen, Pittsburg M. Moran Tomson, Johnson William L. Townsley III, Wichita William P. Trenkle Jr., Overland Park Hon. Linda S. Trigg, Olathe Thomas C. Triplett, Wichita Hon. Thomas M. Tuggle, Concordia Phillip L. Turner, Topeka Jeffrey L. Ungerer, Topeka Michael J. Unrein, Topeka Thomas A. Valentine, Topeka Thomas W. Van Dyke, Kansas City, MO John A. Vetter, Wichita J. Ronald Vignery, Goodland Hon. Mark A. Vining, Wichita Hon. John L. Vratil, Overland Park John H. Wachter, Lawrence Darrell L. Warta, Wichita Kenneth W. Wasserman, Salina Hon. Teresa L. Watson, Topeka William K. Waugh III, Overland Park Kevin D. Weakley, Overland Park Hon. John L. Weingart, Hiawatha Craig W. West, Wichita Philip R. White, Wichita Cindy L. Whitton, Southlake, TX Clarence R. Wietharn, Overland Park Calvin K. Williams, Salina Laurie B. Williams, Wichita T. Michael Wilson, Wichita Larry W. Winn III, Overland Park Robert W. Wise, McPherson Warren B. Wood, Burlington Lee H. Woodard, Wichita John P. Woolf, Wichita Hon. William S. Woolley, Wichita Brian C. Wright, Great Bend H. Morgan Wright, Larned Thomas E. Wright, Topeka Angel R. Zimmerman, Topeka Larry N. Zimmerman, Topeka

www.ksbar.org | July/August 2020 13

kansas bar foundation

Fellow Hon. Adrian J. Allen, Topeka Daniel N. Allmayer, Kansas City, MO Craig J. Altenhofen, Junction City Charles J. Andres, Olathe Samantha P. Angell, Salina Stephen B. Angermayer, Pittsburg Nancy S. Anstaett, Overland Park James M. Armstrong, Wichita Hon. Karen M. Arnold-Burger, Topeka Stanley R Ausemus, Emporia Gary M. Austerman, Wichita Mary K. Babcock, Wichita Deena Hyson Bailey, Wichita Anthony S. Barry, Topeka Charles Darren Baskins, Troy Kermit M. Beal, Lawrence Norman E. Beal, Shawnee Terry Beck, Topeka David J. Berkowitz, Lawrence Susan A. Berson, Overland Park Dennis L. Bieker, Hays John T. Bird, Hays Brett C. Bogan, Overland Park Cydney D. Boler, Overland Park William B. Bolin, Garden City Hon. Danny D. Boyer, Salina Charles E. Branson, Lawrence Hon. Glenn R. Braun, Hays John T. Bullock, Lawrence Stacy A. Burrows, Kansas City, MO Hon. Michael B. Buser, Topeka Kathryn B. Bussing, Kansas City, MO Ronald L. Campbell, Wichita Terrence J. Campbell, Lawrence Don A. Cashman, Hiawatha Jeff Chanay, Topeka Michele Marie Chollet, Kansas City, MO Shelley Hickman Clark, Lawrence Amy Fellows Cline, Wichita Charles E. Cole Jr., Wichita Michael E. Collins, Garden City Jane Colonno, Overland Park John D. Conderman, Manhattan Craig D. Cox, Manhattan Vincent M. Cox, Topeka Daniel D. Crabtree, Kansas City, MO Martha Burnett Crow, Leavenworth Marshall Crowther, Lawrence Paul T. Davis, Lawrence Victor A. Davis Jr., Junction City Thomas M. Dawson, Leavenworth 14

The Journal of the Kansas Bar Association

Paul E. Dean, Emporia Richard C. Dearth, Pittsburg Stanley Lucky DeFries, Topeka Michael Francis Delaney, Overland Park Cheryl L. Denton, Lawrence Bradley D. Dillon, Hutchinson James Curtis Dodge, Liberal Hon. J. Charles Droege, Olathe Holly A. Dyer, Wichita Philip David Egan, Wichita Yvette L. Ehrlich, Bakersfield, CA Timothy R. Emert, Independence Jay Scott Emler, McPherson Prof. J. Lyn Entrikin Goering, Little Rock, AR David Eron, Wichita Todd D. Epp, Harrisburg, SD Joel R. Euler, Troy Roger L. Falk, Wichita Kimberly D. Farha, Wichita Roger D. Fincher, Topeka Hon. Thomas E. Foster, Olathe John E. Foulston, Wichita Gregory L. Franken, Wichita Bradley J. Frigon, Englewood, CO Theron E. Fry, Wichita Kathryn A. Gardner, Topeka Thomas P. Garretson, Wichita Jeffrey W. Gettler, Independence A. James Gillmore III, Newton W. Thomas Gilman, Wichita Gregory P. Goheen, Kansas City Nancy Morales Gonzalez, Kansas City, MO Steven Gough, Wichita Gerald L. Green, Hutchinson Scott C. Gyllenborg, Olathe Hellen L. Haag, Wichita Natalie G. Haag, Topeka Marilyn M. Harp, Topeka Kurt A. Harper, Wichita Hon. Charles M. Hart, El Dorado Jennifer R. Hays, Topeka Kimberly W. Helvey, Alexandria, VA Michael D. Herd, Wichita Jennifer M. Hill, Wichita Kevin M. Hill, Hiawatha Scott M. Hill, Wichita Mark D. Hinderks, Kansas City, MO Martha J. Hodgesmith, Topeka Donald F. Hoffman, Hays Harold A. Houck, Safety Harbor, FL

James R. Howell, Wichita Roger D. Hughey, Wichita Paul H. Hulsey, Charleston, SC Hon. Fred S. Jackson, Topeka Linda P. Jeffrey, Topeka Scott D. Jensen, Wichita Alan V. Johnson, Topeka Peter S. Johnston, Salina Robert S. Jones, Salina Jeffery A. Jordan, Wichita Seth M. Jurcyk, Kansas City Melissa E. Kasprzyk, Topeka Hon. David J. Kaufman, Wichita Prof. Mike Kautsch, Lawrence Timothy E. Keck, Topeka Matthew D. Keenan, Kansas City, MO J. Michael Kennalley, Wichita Jeff Kennedy, Wichita Jennifer Kinzel, McPherson Anne M. Kindling, Topeka Richard C. King, El Dorado Timothy J. King, Wichita Thomas D. Kitch, Wichita Aaron L. Kite, Dodge City Ruben J. Krisztal, Leawood James A. Kuharic, Hugoton Joslyn Kusiak, Independence Christine M.T. Ladner, Topeka Brad J. LaForge, Wichita Chelsey G. Langland, Topeka Karen L. Langston, Wichita Luanne C. Leeds, Topeka Jeffrey D. Leonard, Wichita Brett D. Leopold, Fairway Lori A. Leu, Plano, TX Robert A. Levy, Garden City Jennifer L. Magana, Wichita Hon. Thomas E. Malone, Topeka Norman G. Manley, El Dorado Scott M. Mann, Shawnee Terry L. Mann, Wichita Norbert C. Marek Jr., Westmoreland David K. Markham, Parsons Katherine E. Marples, Lawrence Hon. J. Thomas Marten, Wichita James E. Martin, Overland Park Jack C. Marvin, Wichita Hon. Rhonda K. Mason, Olathe Michelle M. Masoner, Kansas City Timothy A. McNearney, Overland Park Lisa Adrian McPherson, Wichita Shirla R. McQueen, Liberal

kansas bar foundation

Fellow (con’t.)

Mira Mdivani, Overland Park Angela M. Meyer, Pittsburg Kent A. Meyerhoff, Wichita Matthew Crane Miller, Kansas City, MO Hon. Paul E. Miller, Manhattan Jim D. Mills, Garden City Charles E. Millsap, Wichita Alexander B. Mitchell, Wichita Derenda J. Mitchell, Topeka John W. Mize, Salina Joseph N. Molina III, Topeka Lisa D. Montgomery, Independence John Terry Moore, Wichita James H. Morain, Haven Amy E. Morgan, Overland Park David H. Moses, Wichita Catherine Veach Moyer, Ulysses Thomas M. Mullinix, Shawnee William E. Muret, Winfield John J. Murphy, Plano, TX Gregory L. Musil, Overland Park Scott C. Nehrbass, Overland Park Jon E. Newman, Wichita Hoa Alec Nguyen, Wichita Brian J. Niceswanger, Overland Park Tamara Niles, Arkansas City Andrew J. Nolan, Wichita Cynthia A. Norton, Kansas City, MO Michael J. Norton, Wichita Hon. Robert E. Nugent, Wichita Ammon Martin Nunley III, Midland, TX Katherine L. O’Connor, Leawood Charles A. O’Hara, Wichita

Timothy P. O’Sullivan, Wichita Evan J. Olson, Houston, TX Timothy P. Orrick, Overland Park Hon. C. William Ossmann, Topeka Randall J. Pankratz, Newton Hon. John K. Pearson, Lawrence Prof. John C. Peck, Lake Quivira Patrice Petersen-Klein, Topeka Roger K. Peterson, Ellsworth Brandon T. Pittenger, Overland Park James P. Rankin, Topeka Forrest T. Rhodes Jr., Wichita R. Chris Robe, Wichita Hon. Julie A. Robinson, Topeka Nancy Schmidt Roush, Kansas City, MO Hon. Rebecca A. Sanders, Topeka Terri Savely, Topeka Scott R. Schillings, Wichita Gregory A. Schwartz, Hays Richard H. Seaton Sr., Manhattan Susan P. Selvidge, Santa Cruz, CA Constance L. Shidler, Overland Park John Shoemaker, Singapore David G. Shriver, Topeka Steve Six, Kansas City, MO Melissa D. Skelton, Lawrence William J. Skepnek, Lawrence Duston J. Slinkard, Topeka Branden L. Smith, Lawrence Charles F. Speer, Kansas City, MO Douglas C. Spencer, Oakley Fred J. Spigarelli, Pittsburg Stephen M. Stark, Wichita Mary Stephenson, Louisburg

Alan R. Stetson, Overland Park Bradley A. Stout, Wichita Paul B. Swartz, Andover John B. Swearer, Hutchinson Benoit M.J. Swinnen, Topeka Todd N. Tedesco, Wichita Thomas L. Theis, Topeka Gabrielle M. Thompson, Manhattan Gaye B. Tibbets, Wichita Clyde W. Toland, Iola Karen L. Torline, Shawnee David M. Traster, Wichita Cheryl L. Trenholm, Lawrence Randy J. Troutt, Wichita Richard G. Tucker, Parsons Craig Lee Uhrich, Boston, MA Kathleen R. Urbom, Topeka John L. Utz, Overland Park Jennifer K. Vath, Kansas City, MO Hon. Kathryn H. Vratil, Kansas City Hon. A. J. Wachter, Pittsburg John M. Waldeck, Prairie Village James A. Walker, Wichita Larry W. Wall, Wichita Roger W. Warren, Overland Park Hon. Sarah E. Warner, Lenexa David E. Waters, Overland Park Sherri L. Wattenbarger, Kansas City, MO Kimberly W. Wiggans, Washington, D.C. James T. Wiglesworth, Shawnee Mission Philip B. Wolfe, Topeka Teresa A. Woody, Kansas City, MO Gregory S. Young, Wichita

Paul M. Keithley, Topeka John H. Mitchelson, Pittsburg Kevin F. Mitchelson, Pittsburg John Shoemaker, Singapore

Sabrina K. Standifer, Wichita Catherine C. Theisen, Lawrence Benjamin M. Thomas, Topeka

Fellow PledGes 2019-20 Glenda Cafer, Topeka Jennifer M. Cocking, Topeka Michelle Chollet, Kansas City, MO Craig D. Cox, Manhattan

www.ksbar.org | July/August 2020 15

kansas bar foundation

Gernon Fund donors Mr. & Mrs. David C. Adams, Lawrence Mr. & Mrs. Larry M. Adcock, Hiawatha Mr. Eric J. Aufdengarten, Lawrence Mr. J. Eugene Balloun, Lenexa Mr. & Mrs. Richard E. Barton, Lawrence Mr. & Mrs. Charles Bebermeyer, Hiawatha Mr. & Mrs. Kevin T. Beckwith, Perry Mr. & Mrs. Matt Bellemere, Lawrence Mr. & Mrs. Michael Blake, Lake Quivira Mr. & Mrs. Geral L. Blanton, White Cloud Mr. & Mrs. Ryan D. Blum, Topeka Ms. Ilene S. Blum, Angel Fire, NM Mr. John K. Bork/Hon. Jean F. Shepherd, Lawrence Mr. & Mrs. Tom E. Bowser, Olathe Mr. & Mrs. Charles E. Branson, Lawrence Hon. & Mrs. J. Patrick Brazil, Topeka Ms. Judith E. Bruning, Robinson Ms. Paula Roberts Buchele, Topeka Ms. Holly L. Buser, Overland Park Mr. & Mrs. Thomas H. Bush, Blue Springs, MO Mr. & Mrs. Terry Campbell, Lawrence Hon. Nancy M. Caplinger, Topeka Mr. George L. Catt, Lawrence Ms. Martha J. Coffman, Lawrence Ms. Terri A. Combs, Kansas City, MO Mr. & Mrs. Gerald L. Cooley, Lawrence Hon. Rebecca & Mr. Douglas M. Crotty, Garden City Mr. & Mrs. Charles V. Curless, Granby, CO Mr. & Mrs. Thomas W. Delpesco, Hockessin, DE Mr. & Mrs. Loren Doll, Dodge City Mr. Kenneth J. Doll, Shawnee Mission Mr. & Mrs. Randall E. Dooley, Lawrence Hon. Jerry G. Elliott /Ms. Debra S. Duncan, Lawrence Mr. & Mrs. Kent H. Flury, Charlottesville, VA Hon. & Mrs. Phillip M. Fromme, Burlington 16

The Journal of the Kansas Bar Association

Donor list from September 2005-September 2008 Mr. & Mrs. Joseph P. Geier, Topeka Mr. & Mrs. John F. Gernon, Hiawatha Mr. & Mrs. Jon T. Graves, Centerville, OH Mr. & Mrs. Leland Hansen, Hiawatha Mr. & Mrs. Robert N. Haselwood, Berryton Ms. Carole Hawk, Osage Beach, MO Rich Hayse, Topeka Mr. Jeffrey O. Heeb, Lawrence Mr. & Mrs. Jeffery J. Heline, Lawrence Ms. R. Ann Henderson/Mr.Quinby J. Henderson, Lenexa Mr. & Mrs. Eugene R. Hillyer, Hiawatha Ms. Mary S. Hirsch, Hiawatha Mr. & Mrs. Greg Hough, Topeka Mr. & Mrs. Robert M. Idol, Robinson Mr. & Mrs. Norman W. Johnson, Mercer Island, WA Ms. Margaret Jones, Sabetha Mr. & Mrs. Frank R. Jordan, Abilene Hon. David W. Kennedy, Wichita Prof. Janet K. Kerr, Topeka Ms. Cora A. King, Hiawatha Ms. Greer S. Lang, Lawrence Mr. & Mrs. Warren K. Legler, Lawrence Mr. & Mrs. Terence E. Leibold, Lawrence Ms. Jane S. Lewis, Topeka Mr. & Mrs. Don O. Loyd, Hiawatha Hon. & Mrs. John W. Lungstrum, Lawrence Ms. Sherry Maxwell, Santa Fe, NM Ms. Patricia Ann McGrew, Lawrence Ms. Esther M. Miller, Hiawatha Mr. & Mrs. Jerry L. Miller, Topeka Mr. Thomas V. Murray, Overland Park Mr. & Mrs. Erick E. Nordling, Hugoton Mrs. Barbara Nordling, Lawrence Mr. & Mrs. Cameron E. Oury, Lawrence John B. Patterson Lori L. Heasty, Lawrence Mr. & Mrs. Richard L. Patterson, Topeka Mr. & Mrs. Leonard Peck, Scottsdale, AZ

Mr. William B. Pendleton, Lawrence Hon. & Mrs. G. Joseph Pierron, Lawrence Mr. & Mrs. Rodney J. Rice, Horton Mr. & Mrs. James A. Roberts, Lawrence Mr. & Mrs. Steve Roberts, Hiawatha Mr. & Mrs. Bill Sampson, Lawrence Mr. & Mrs. Delwin Scarbrough, Hiawatha Ms. M.L. Schmitt, Hiawatha Ms. Erin R. Schneider, Shawnee Mr. & Mrs. Richard Schroff, Corvallis, OR Mr. & Mrs. Blaine Shaffer, Hiawatha Mr. Rex A. Sharp, Prairie Village Ms. Diane W. Simpson, Lawrence Ms. Mary Sue Smith, Wichita Mr. & Mrs. Glee S. Smith, Jr., Lawrence Ms. Paula W. Starr, Hiawatha Ms. Mary G. Starr, Hiawatha Ms. Barbara /Ms. Helen Starrett, Lawrence Mr. & Mrs. Frank Sullivan, Jr., Indianapolis, IN Prof. Ellen E. Sward, Lawrence Ms. Joyce R. Swim, Hiawatha Hon. Deanell R. & Mr. John A. Tacha, Lawrence Mr. & Mrs. Shaun P. Trenholm, Lawrence Mr. & Mrs. Lester Trentman, Fairview Hon. Thomas M. & Mrs. Suzanne F. Tuggle, Concordia Mr. & Mrs. Roger A. Vickery, Topeka Mr. & Mrs. Gerald K. Wagner, Hiawatha Mr. & Mrs. Marvin D. Watts, Hiawatha Matthew S. Wheeler /Maria A. Tacha, Hays Mr. & Mrs. Stephen R. Wilson, Hiawatha Mr. & Mrs. Bradley S. Winfrey, Prairie Village Hon. & Mrs. James R. Wolf , Tallahassee, FL Ms. Ruth E. Wolfe, Hiawatha Hon. Lee Yeakel, Austin, TX Mr. & Mrs. Jerry Young, Topeka

kansas bar foundation

Gernon Fund donors (con’t.)

21st Funeral Company LC, Lawrence Appellate Defender’s Office & the Capital Appellate Defender’s Office, Lawrence Collister & Kampschroeder, Attorneys at Law, Lawrence Fleeson Gooing Coulson & Kitch LLC, Wichita Hite Fanning & Honeyman LLP, Wichita

James M. Milliken, Chartered, St. Francis The Judge Hugh Means American Inn of Court, Lawrence Judges Fund, Topeka Kansas Court Reporters Association, El Dorado Missouri Court of Appeals, Kansas City, MO

O’Neal State Rep Agy Short & Borth Attorneys at Law, LLC, Overland Park Thompson & Associates, PA, Lawrence Trail Ends Farm, Moran Wichita Women Attorneys Association, Wichita

Burn the mortGaGe Fund donors Mark A. Andersen, Lawrence Terrence J. Campbell, Lawrence Cafer Pemberton LLC, Topeka Family of Robert L. Gernon Richard Hayse, Topeka Laura Ice, Wichita

Bruce Kent, Manhattan Mark Knackendoffell, Manhattan Randee Koger, McPherson Amy Morgan, Overland Park Edward J. Nazar, Wichita C. David Newbery, Topeka

Terri Pemberton, Topeka David Rebein, Dodge City Mikel L. Stout, Wichita Todd N Thompson, Lawrence Weary Davis L.C. Firm, Junction City

our mission The purpose of the Kansas Bar Foundation is to serve Kansans and the legal profession by funding charitable and educational projects that foster the welfare, honor and integrity of the legal system by improving its accessibility, equality and uniformity and by enhancing public opinion of the role of lawyers in our society.

The Kansas Bar Foundation is a 501(c)(3) charitable organization and is supported by contributions from private donations from lawyers, corporations and the public.

Attorneys may make ongoing donations to the KBF Fellows Program. These “Fellows” sign a pledge to commit at least $1,000 over a 10-year period. After reaching Fellow status, donors can reach the following higher-giving categories: Fellow Silver: Fellow Gold: Fellow Platinum: Fellow Diamond: Pillar of Foundation: Pillar of Profession:

$2,500 – $4,999 $5,000 – $7,499 $7,500 – $9,999 $10,000 – $14,999 $15,000 – $49,999 $50,000 or more

Individuals, corporations and other organizations may also contribute gifts online at

www.ksbar.org/donations

www.ksbar.org | July/August 2020 17

Give later, too kansas bar foundation

By participating in the KBF Planned Giving Program, you can help ensure the future access to justice for all Kansans

Planned giving possibilities include but are not limited to:

• Naming the KBF as a beneficiary of part or all of your retirement assets.

Planned charitable giving can be done during your lifetime • Donating your life insurance policy. or through your will. The tax benefits depend on theive vehicle ater oo • Creating a bequest in your will or living trust. used. Donor restricted and unrestricted funds allow for a • Leaving a lasting legacy with a major gift. range of options in creating your gift.

By participating in the KBF Planned Giving Planned giving possibilities include but are not • Creating memorial or honorary gifts in recognition Program, you can help ensure the future access limited to:members or special occasions. of KBA How a planned gift benefit Kansans and • Naming the KBF as a beneficiary of part or all of your to can justice for all Kansans

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members of the KBA? Planned charitable giving can be done during your lifetime

Yourorgift will help and future programs through your support will. Thecurrent tax benefits dependKBF on the vehicle thatused. facilitate the administration of justice and the success Donor restricted and unrestricted funds allow for a of the range foundation by providing: of options in creating your gift.

• Support for legal services to low-income Kansans.

• Advocacy need of careKansans and victims of How canfora children plannedingift benefit and domestic violence. members of the KBA? • Legal and law-related educational materials theprograms public.

Your gift will help support current and futureto KBF • Scholarships and stipends forand teacher training that facilitatefor thestudents administration of justice the success of and continuing education. the foundation by providing: • KBF building maintenance fund support.

• Support forand legal services to low-income Kansans.

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retirement assets.

• Donating your life insurance policy.

• Creating a bequest in your will or living trust.

• Leaving a lasting legacy with a major gift.

• Creating memorial or honorary gifts in recognition of KBA members or special occasions.

• Advocacy for children in need of care and victims of domestic violence.

• Legal and law-related educational materials to the public.

• Scholarships for students and stipends for teacher training and continuing education.

• KBF building and maintenance fund support.

Kansas Bar Foundation Robert L. Gernon Law Center 1200 SW Harrison St. Topeka, KS 66612-1806 Kansas Bar Foundation Robert L. Gernon Law Center 1200 SW Harrison St. Topeka, KS 66612-1806

18

The Journal of the Kansas Bar Association

P.................. 785-234-5696 F .................. 785-234-3813 E ................. info@ksbar.org fb.me/kansasbarfoundation P.................. 785-234-5696 F .................. 785-234-3813 E ................. info@ksbar.org fb.me/kansasbarfoundation

diversity corner

Is the Legal Profession Finally Ready for the Institutional Change Necessary to Yield Greater Diversity?

by Carla D. Pratt Dean and Professor of Law Washburn University School of Law

F

or decades the legal profession in the United States has embraced diversity and inclusion as core principles. Yet little structural change has been made to remedy the continued exclusion and subordination of people of color in the legal profession. Even elite professions such as medicine, accounting and academia achieve more diversity in their professional ranks than the legal profession.1 It’s not that people of color aspire to be doctors, accountants or professors at a rate higher than they aspire to be lawyers. Based on the data, throughout the years that I have been in the legal profession, there have been plenty of people of color in the pipeline each year who wanted to be lawyers. The problem is that we lose them. We have been focused on the perceived deficiencies with the people that we lose in the pipeline to the profession, but from my vantage point the problem lies not in the people, but in the structure of the pipeline. We need to reimagine the pipeline to the legal profession so that we can restructure it in ways that afford more people from subordinated social groups a pathway to the profession.

When I conducted a study of the pipeline to the legal profession that focused on African-Americans, my Co-Investigator and I discovered that Black students were lost at every stage in the pipeline.2 Young Black students were lost in elementary

Courtesy Washburn University School of Law

school because they never saw a lawyer that looked like them and they couldn’t imagine setting such a lofty goal for themselves. One Black male in the study said that he set his goal on being a paralegal. No one in his family had ever graduated high school so attending college and becoming a paralegal was a “big deal” to him and his family. It wasn’t until a Black male lawyer came to speak to his paralegal class one day that he had the thought that he could be a lawyer. That one moment of seeing his own Black male identity represented in the legal profession as a lawyer told him that becoming a lawyer was not a pie in the sky dream; it was an attainable goal. But in law school he would confront a crisis of confidence when a law professor gave him feedback on his first legal writing paper and told him that he needed to work on a myriad of issues including subject verb agreement. He said that he didn’t even know what subject verb agreement was because he had attended underfunded public schools in New York City where many of his teachers would play movies that they had brought from home rather than attempt to deliver a lesson from a lesson plan. Thanks to a strong academic support program in his law school, he was able to remedy those deficiencies, graduate from a well-respected law school and pass the NY bar on the first attempt. Today he is a very successful lawyer in private practice in New York City. www.ksbar.org | July/August 2020 19

diversity corner

Black students were also lost in high school where they were ushered into coursework that would not adequately prepare them for college. Many Black students who made it to college were lost in college due to working for money while trying to complete college and finding themselves unable to devote the time to academics that is necessary for academic success. Those who made it through college and graduated found themselves unable to pay for an LSAT prep course and devote the time necessary to prepare for the entrance test for law school. Every participant in our study shared that they did not do as well on the LSAT as they expected. Some Black students decide to pursue a different career path after taking the LSAT because they equate ability to succeed in the legal profession with ability to score well on the LSAT. As someone who has been in legal education for two decades now, I can tell you that I have personally known dozens of students of color who had LSAT scores in the bottom quarter of scores nationwide and today those former students are successful, competent lawyers with thriving law practices.

The Bar Exam is another place in the pipeline where many students of color are lost. This year the California Board of Law Examiners reported that only five percent of Black first-time takers of the California bar exam passed the February 2020 exam.3 Sure, some of those 95 percent will take the exam again and pass, but many of them will choose to move in a different direction, and they will be lost to the legal profession.

What would reimagining the pipeline to the legal profession look like? Clearly it would look like creating more equity in education at the K through 12 level of public education, and eliminating the bias that funnels children of color into career paths that are less intellectually rigorous. But there are some changes that could be made in areas that reside directly within the jurisdiction of the leadership of the legal profession. I would recommend that we start with the LSAT. Although some law schools now accept the GRE and other graduate tests to help assess the ability of candidates to be successful in law school and on the bar exam, the LSAT is the premier test that has for decades been a reliable predictor of a student’s ability to perform well academically during the first year of law school.

Consequently, it is a very useful tool that helps faculty admission committees determine who to admit to law school. Nonetheless, the speededness4 of the LSAT hides from view the students who have the mental capacity to solve logic problems and comprehend complex reading without being rushed to the extreme while doing it.5 For years I have wanted to see the LSAC offer a non-speeded version of the LSAT which could be taken as a follow-up to the standard speeded version of the test. The median LSAT score for African-American students nationwide is about a 144 in any given year. The median score for all LSAT test takers is about a 152. As a law school dean, I look at the historical data of academic performance of students at my law school and see the LSAT score range where students fail to suc20

The Journal of the Kansas Bar Association

ceed academically. I share this information with my faculty so that the faculty knows that absent significant evidence to the contrary in the student’s academic record, they should avoid admitting a student with an LSAT score below the identified threshold because we have documented evidence that students below that level do not succeed in law school and/or on the bar exam. Evidence to the contrary that can offset a low LSAT score is often a very high undergraduate GPA. Hence, law schools take a chance and admit a very few students with lower than desired LSAT scores. Having a non-speeded version of the LSAT as a secondary test offered to students who do not obtain the score necessary for law school admission would provide another piece of evidence to a law school to demonstrate that the student/applicant to law school is capable of doing the work if afforded adequate time. This information could be a game changer for low-income applicants to law school and applicants of color. If the applicant is able to increase their6 LSAT score to a significant degree, that would demonstrate that the applicant has the ability to succeed in law school and that this applicant is one that the law school should take a chance on and admit.

Presently, some law schools are using the GRE in this way and inviting applicants to submit a GRE score as well as an LSAT score to see if the applicant scored in a higher percentile on the GRE. However, a better approach that would be a more apt comparison would be to have a standard speeded LSAT score to compare to a non-speeded LSAT score.

As discussed earlier, another place in the pipeline where people of color are lost is the bar exam. When I started law school, I was just a country girl from a farm in rural Oklahoma. I could ride a horse, drive a tractor, and bake a prizewinning pecan pie, but I knew absolutely nothing about the legal profession. I naively thought that once I graduated from law school, I would be a lawyer. But when I arrived at law school, I quickly learned that there was an exam that I would have to take after graduation and that passing the exam was a necessary precondition to practicing law no matter how well I performed in law school. To me this seemed odd, so I started reading and learned that the bar exam was intended to ensure minimum competency and protect the public. That rationale made the bar exam seem even more strange because it basically meant that the high court in each jurisdiction did not trust law schools to prepare all of their graduates for law practice. The bar exam was the final “trap door” aimed at weeding out the folks who graduated law school but cannot be trusted to represent the public.

While researching the bar exam I learned that some jurisdictions had historically admitted people to the bar by allowing them to “read the law.” This was an apprenticeship model of admission to the bar offered in lieu of formal education and was used at a time when nearly all applicants to the bar were white men. It made me wonder why did “they” get rid of this path to the profession? In reading a bit more I learned that the

diversity corner

apprenticeship model had been criticized as racially biased in our profession. Implementing these changes will require vibecause most lawyers at the time were white men who would sionary leadership at the highest levels of our profession. What only take a white man as an apprentice. Hence, replacing the is encouraging about these proposals is that there now appears biased apprenticeship model with a bar exam has been argued to be an openness to institutional change. The challenge is to to be a more inclusive approach to bar admission that allows translate our aspiration for a more diverse and inclusive profesanyone to apply for admission. But I’m left wondering, why sion into action, and I stand ready to do my part. not have both paths to admission for law school graduates?

A post-graduate apprenticeship practicing under the supervision of a seasoned licensed lawyer for a one-year term would About the Author probably prepare a law school graduate for practice more than Carla D. Pratt is Dean and Professor of Law at a two-day bar exam. At the conclusion of the apprenticeship, Washburn University School of Law. She is coauthor of the book, The End of the Pipeline: A the supervising lawyer would have to certify under oath that Journey of Recognition for African Americans the apprentice has the requisite knowledge and skills necesEntering the Legal Profession, which reports the sary to provide competent representation to members of the findings of a qualitative study of African American public, and is therefore recommended for membership to the attorneys and challenges the assumption that bar. We now have a profession with lawyers who are women blacks entering the profession today have a postracial colorblind journey. and people of color who stand ready, willing and able to take on a post-graduate apprentice in law. Moreover, in this mod- carla.pratt@washburn.edu ern era of the profession, most of our white male colleagues would also be willing to serve as a formal mentor to a woman or a person of color seeking to be trained in the practice of law. Why then is the bar exam the only pathway to the profes1. Brad Smith, General Counsel & Executive Vice President, Legal & sion? The more pathways to bar admission that we create, the Corporate Affairs, Microsoft, Raising the Bar: Exploring the Diversity Gap within the Legal Profession, (Dec. 10, 2013), https://docs.microsoft.com/ more inclusive our profession will become. en-us/archive/blogs/microsoft_on_the_issues/raising-the-bar-exploringToward that goal of greater diversity and inclusion, we the-diversity-gap-within-the-legal-profession (2013). ELIZABETH CHAMshould consider a third pathway to the profession. With the BLISS, ABA COMM’N ON RACIAL AND ETHNIC DIVERSITY IN THE LEGAL recent pandemic making it extremely difficult to administer PROFESSION, MILES TO GO: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION 6 (2005). a bar exam in a humane and equitable manner, a few jurisdic2. CARLA PRATT, THE END OF THE PIPELINE: A JOURNEY OF RECtions have turned to diploma privilege as a means of admit- OGNITION FOR AFRICAN-AMERICANS ENTERING THE LEGAL PROFESSION ting graduates to the bar. If state high courts do not trust law (2012).

3. California typically has one of the lower pass rates in the country schools to prepare graduates for practice, there is a reason that is so. Law schools need to look inward to the education that and only a third of white first-time test takers from ABA approved law schools passed the exam. See Cheryl Miller, How Law Schools Fared on we provide to students. If we look closely, we might see that the February 2020 Bar Exam, THE RECORDER (June 12, 2020, 3:10 PM), only a small percentage of our students get the intense clinical https://www.law.com/therecorder/2020/06/12/how-law-schools-faredtraining where they learn how to apply classroom learning and on-the-february-2020-bar-exam/ 4. Speededness refers to the situation where the time limits on a stanactually practice law. Perhaps the high courts in states could partner with law schools in the state to create a curriculum that dardized test intentionally preclude a substantial numbers of test takers from fully considering all test items. For more on speededness, see, Ying offers diploma admission to students who complete a specified Lu et. al, Validity Issues in Test Speededness, 26 EDUCATIONAL MEASURErigorous curriculum. That curriculum could require hands-on MENT ISSUES AND PRACTICE 29 (Nov. 2007) https://www.researchgate. practical clinical experience with real clients, and some amount net/publication/230026430_Validity_Issues_in_Test_Speededness 5. Malcolm Gladwell recently reported his experience with taking of coursework focused on the law of the state where the student will practice. State high courts could impose a minimum the LSAT and how strange and difficult he found the speeded nature of the test. See Malcolm Gladwell, PUZZLE RUSH, REVISIONIST HISlaw school GPA for diploma privilege so that students who do TORY (2016), https://podcasts.apple.com/us/podcast/revisionist-history/ not meet the minimum threshold would have to take and pass id1119389968?i=1000442142499 and Malcolm Gladwell, THE TORTOISE the bar exam or successfully complete an apprenticeship. With AND THE HARE, REVISIONIST HISTORY (2016), https://podcasts.apple. three pathways to the profession, we create diversity in the way com/us/podcast/revisionist-history/id1119389968?i=1000442923261.

6. Intentional use of “their” as a singular gender-neutral pronoun in that people can become lawyers which will create diversity in recognition that gender is a spectrum and not a binary concept. See, Pubthe people who become lawyers while still ensuring the compe- lication Manual of the American Psychological Association (7th ed.). APA tency needed to protect the public.7 advocates for the singular use of “they” because it is inclusive of all people making assumptions about gender.

These institutional changes to the pipeline to the profession and7.avoids Under each of the three pathways, applicants to the bar would conare possible if we as members of the profession want to effec- tinue to be required to pass the character and fitness assessment to ensure tuate real change and achieve greater diversity and inclusion that the public is adequately protected.

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The 2020 Department for Children and Families Series: BABIES IN THE RIVER

by Shanelle Dupree

There is a story of a village that has a peculiar problem of babies being found in the river. The townspeople are frantically rescuing the babies from tragedy. Everyone who visits and lives in the town spends all their time dramatically saving these vulnerable babies. The situation is simply terrible. The townspeople are tired and always discontent, nevertheless they continue to work hard to keep the babies safe. One day, an outsider comes to the village. She stares at the villagers and then she stares at the river and says nothing. The townspeople ask, “Don’t you care about the babies? Come into the river and help us!” She looks at them and says, “No—I won’t be joining you. I’m going to travel upstream and stop the person who keeps throwing children in the river.”

T

he federal government enacted legislation called Family First Prevention Services (FFPS). Family First Prevention Services makes sweeping changes to the child welfare system.1 Kansas is one of the first states to take advantage of FFPS and serves as a leader in “traveling upstream” and providing preventative services for children and families. Prevention is key as noted in the story above. We can impact families by providing needed services to safely keep children connected with their families. However, there is more to the story.

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Before the woman ventured upstream to stop the person who was throwing children in the river, she noticed something. She asked a townsperson, “Why are most of the babies in the river black and brown?” Startled by the question, the townsperson shrugged their shoulders and said, “It’s just the way things are.”

A child welfare system that produces equal experiences and outcomes for all Kansas families regardless of race, ethnicity, and socioeconomic status will help all Kansans. Racial disparities and disproportionality and their effect on child welfare are areas for improvement within our system as acknowledged by countless government agencies and public policy institutions studying the issue and recommending various solutions.2 Black and brown children being over-represented in the child welfare system is not a Kansas problem, it is happening nationwide.3 The world is engaged in an ethical reckoning of how systems embedded in the foundation of our nation affect people of color, specifically African Americans. The consciousness of the world was jolted into action by the public slaying of George Floyd and countless other Black lives snuffed out too soon. Although much attention is currently focused on the criminal justice system, the child welfare system has parallel

dcfs series: babies in the river

outcomes. Black and Native American children are twice as likely to end up in foster care compared to white children.4 The removal of a child from a home is an extremely traumatic experience, even when necessary. The effects of removals on communities of color deserve a rigorous examination so we can authentically answer the important question: Why are there more black and brown babies in the river?

As the agency embarks upon the amazing opportunities of being proactive versus reactive, we must have courageous conversations to maximize its potential. Understanding how and why racial disparities matter within the child welfare system and how it relates to prevention services will be the purpose of this article.

Why is race so hard to talk about?

It’s probably because of the complicated history America has with race and its lasting effects.5 No person alive today participated in the inhumane practices of slavery or forced assimilation, yet this does not change the structural effects which are still evident. The enslavement of Africans and the forced removal and assimilation of Native Americans were not just unfortunate events which occurred in our history, they were nationwide practices, codified by the law,6 engrained in the fabric of the economy, which in turn infiltrated our systems. Their effects were disastrous. Millions of newly free African Americans and displaced Indigenous Americans had no land, no resources and limited education.7 At the same time, systems and laws were enacted which directly impacted generational wealth and the ability to own land and pass on financial benefits for future generations.8 These effects are seen through redlining which impacts housing, subpar educational opportunities which impacts employment options,9 and limited health care choices which leads to lower life expectancy rates. According to the Indian Health Service, a division of Health and Human Services, “The American Indian and Alaska Native people have long experienced lower health status when compared with other Americans. Lower life expectancy and the disproportionate disease burden exist perhaps because of inadequate education, disproportionate poverty, discrimination in the delivery of health services, and cultural differences.”10 Why should we discuss race as it relates to outcomes in the child welfare system?

It is widely recognized that race plays a role in how and why some children and families become involved in the child welfare system. To highly summarize the concern and findings: 1. African American and Native American children are consistently overrepresented in the child welfare system. According to the Center for the Study of Social Policy, African American children are 14 percent of the child population, but they make up 23 percent of children in foster care. One study

found 4.9 percent of white children will experience foster care placement before their eighteenth birthday, compared to 15.4 percent of Native American children and 11 percent of Black children.11 2. When children of color, specifically African American and Native American children and their families, become involved in the child welfare system, they experience worse outcomes than Caucasian children and families.12 They have less placement stability, lower rates of permanency, they remain in the system longer, and their mental and physical health needs are poorly addressed.

What is a racial disparity?

The unequal outcomes of one racial or ethnic group as compared to outcomes for another racial/ethnic group.13 What is racial disproportionality?

The underrepresentation or overrepresentation of a racial or ethnic group compared to its percentage in the total population.14 Family First Prevention Services addressing racial disparities and disproportionality FFPS serves children who are at imminent risk of removal who can safely remain at home with services. It serves parents, caregivers, pregnant and parenting youth in foster care.

Because of FFPS, we now have providers across the state who can offer mental health services, substance use disorder treatment, parent skill-building, and kinship navigator programs before a child enters foster care. However, if we do not pay attention to the families we are serving and monitor the data at various decision points throughout the process, we will continue to have negative outcomes for families of color.

Equitably implementing FFPS alone will not address the racial disparity and disproportionality problem that is prevalent across the nation. It will require additional efforts in conjunction with Family First services. Kansas is not shrugging its shoulders as the townsperson did above and saying, “It’s just the way things are.”

Structured Decision Making® (SDM) and Signs of Safety® (SOS) Families that come to our attention will now receive equal assessments because Kansas is using SDM in the Protection Reporting Center (PRC). When the agency first receives a report of suspected abuse or neglect through the PRC, we will have a concrete and consistent manner to screen in versus screen out a report of abuse or neglect. This will allow us to make clear safety and risk assessments in an unbiased fashion.

Additionally, if the report is assigned for follow up contact, Child Protection Specialist workers can use SDM to accu-

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dcfs series: babies in the river

rately access risk versus safety. SOS can be used to authentically engage all families equitably. We can then determine whether we can offer services that will support the family and safely keep them together, or recommend removal from the home.

Kansas Strong Kansas Strong is the name of the federal grant awarded to the KU School of Social Welfare by the U.S. Department of Health and Human Services. KU School of Social Welfare researchers are collaborating with DCF, KVC Kansas, Saint Francis Ministries, TFI Family Services, Inc., DCCCA and the Kansas Court Improvement Program. One of the areas the grant will address is racial disproportionality and disparities for children ages 0-5 in Wyandotte County, Kan. The technical assistance is provided by an expert with the Center for the Study of Social Policy. “Kansas Strong for Children and Families proposes to serve three target populations: children and families involved with in-home services, foster care and adoption. In all three populations, the partners plan to focus on improving outcomes for African-American youths because they are disproportionately represented in the Kansas foster care system, and for children who have high risk factors, including age, removal because of parental substance abuse, neglect or disability.” This collaborative work across agencies is exactly the type of partnerships we must form to address systemic barriers for families of color in the child welfare system.

Team Decision Making (TDM) TDM is a process which involves important people in the child’s life when a safety threat suggests a child may need to be separated from parents or caregivers. A TDM meeting presents an opportunity to engage an entire team of people when making a safety decision regarding the child’s placement. Because TDM is a facilitated meeting, it brings the agency, parents, community members and grassroot organizations to the table. TDM is effectively family group decision making which shows remarkable promise towards greater community trust and awareness, less time in foster care and increased kinship placements.

Kansas is working towards answering the question, “How can children and families have equal access to services and equitable experiences while involved in our system?” To frame the question another way, how can we reduce the flow of babies in the water and notice which ones are being thrown in at a disproportionate rate with disparate outcomes? We’ve taken many steps as an agency to address these questions. We all must continue to intentionally address the systemic barriers faced by families of color in the child welfare system. This will only strengthen DCF’s resolve as we interact with our communities and continue to build trust. n

1. Family First Prevention Services Act, as part of Division E in the Bipartisan Budget Act of 2018 (H.R. 1892).

2. Child Welfare Information Gateway, Children’s Bureau/ACYF/ ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare.” https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, (last visited June 28th, 2020).

3. Disproportionality in the Child Welfare System, Casey Family Programs, (https://www.ncsl.org/Portals/1/documents/cyf/fostercarecolor. pdf, last visited June 28th, 2020) 4. U.S. Government Accounting Office. “African American Children in Foster Care: Additional HHS Assistance Needed to Help States Reduce the Proportion in Care.” July 2007. Available at: https://www.gao. gov/new.items/d07816.pdf. (last visited June 29th, 2020).

5. See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857).

6. Plessy v. Ferguson, 163 U.S. 537 (1896).

7. See a summary of the outlined issues http://www.peripherycenter. org/culture/redlining-race-inequality, (last visited June 28th, 2020).

8. The Color of Law: A Forgotten History of How Our Government Segregated America, by Richard Rothstein (2019).

9. Consider a race neutral policy such as the G.I. Bill enacted for WWII veterans returning home. The implementation of this new bill was extremely skewed in favor of white veterans and seriously impeded black veterans from securing home loans and affordable education. See a 2006 article in the Journal of Blacks in Higher Education, How the GI Bill Shunted Blacks into Vocational Training (2006).

10. Indian Health Service, the Federal Health Program for American Indians and Alaska Natives; see factsheet on disparities, https://www.ihs. gov/newsroom/factsheets/disparities/ (last visited June 29th, 2020).

11. Children’s Bureau. “The AFCARS Report.” For data on race of child population in 2016, see KidsCount. “Child Population by Race.”

Available at: https://datacenter. kidscount.org/data/tables/103-childpopulation-by-race#detailed/1/any/fal se/870,573,869,36,868,867,133, 38,35,18/68,69,67,12,70,66,71,72/423,424. For an analysis of the overrepresentation of African American children specifically, see U.S. Government Accounting Office. “African American Children in Foster Care: Additional HHS Assistance Needed to Help States Reduce the Proportion in Care.” July 2007. Available at: https://www.gao.gov/new.items/ d07816.pdf.

12. Minoff, Elisa. “Entangled Roots: The Role of Race in Policies that Separate Families.” Center for the Study of Social Policy, October 2018.

Available at: https://cssp.org/resource/entangled-roots (last visited June 29th, 2020).

13. Child Welfare Information Gateway, Children’s Bureau/ACYF/ ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare.” https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, pg. 2, (last visited June 28th, 2020).

14. Child Welfare Information Gateway, Children’s Bureau/ACYF/ ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare” https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, pg. 2, (last visited June 28th, 2020).

About the Author Shanelle Dupree is the Kansas City Regional Director of the Department for Children and Families. Before her appointment to this role, Shanelle was the Kansas state director for a childplacing agency, served as a Guardian ad Litem, represented parents and children in CINC and juvenile court, and enjoyed her time teaching a child welfare class for parents whose children were in state custody. She graduated from Washburn Law and married her law school sweetheart, Mark Dupree. They pastor a local church in Wyandotte County and have 4 beautiful, active children.

Shanelle.Dupree@ks.gov

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The Journal of the Kansas Bar Association

How can we help you serve your clients?

If your clients have legal needs that you are unable to serve, we’d appreciate the opportunity to assist you. As the “lawyer’s lawyer,” we respect your relationship with the client. We’ll keep you informed while offering responsive and practical legal solutions to help you take care of your client.

Serving and assisting KBA members in these practice areas: Intellectual Property

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cigarette and tobacco sale and use case: city home rule prevails

Cigarette and Tobacco Sale and Use Case:

City Home Rule Prevails

by Mike Heim

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The Journal of the Kansas Bar Association

cigarette and tobacco sale and use case: city home rule prevails

S

moking can be hazardous to your health. Smoking is also a crime under state law if you are under 18 years of age, but in at least 25 cities and counties in this state, the lawful age has been raised to 21.1 Why this disparity?2 The answer is the home rule power of cities and counties.

A uniform state law3 applies to persons under 18 and makes it a crime, a class B misdemeanor, for any person: 1. to sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age; 2. to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products if the person is under 18 years of age; or 3. to possess or attempt to possess cigarettes, electronic cigarettes or tobacco products if the person is under 18 years of age.4 How can at least 25 cities and counties change the application of a criminal statute that applies statewide? The Kansas Supreme Court examined this question in DWAGFYS Manufacturing., Inc., d/b/a The Vapebar Topeka, and Puffs ‘n’ Stuff, L.L.C. v. City of Topeka5 (hereinafter “Vapebar”). The court affirmed the fact that cities have broad home rule powers when it upheld the city of Topeka’s “ordinary” home rule that a person must be at least 21 years of age for the purchase or possession, sale or distribution of cigarettes, electronic cigarettes and other tobacco products or liquid nicotine.

Home rule allows a city (or a county6) to impose a different standard locally for the sale of cigarettes and other tobacco products than that imposed by a uniform state law even when all other provisions of the state law apply statewide. The Vapebar court reaffirmed that a new era in city-state relations was inaugurated in Kansas on July 1, 1961, the effective date of a city home rule constitutional amendment approved by voters at the November 1960 general election. Since that date, cities can look directly to the Kansas Constitution for the source of their powers7 and are no longer dependent upon specific enabling acts of the legislature.8 In other words, Dillon’s Rule is dead in regard to cities and counties.9

City Home Rule: Constitutional Basis The key to the broad scope of city home rule powers is found in the following provisions of Article 12 §5 of the Kansas Constitution: (i) “Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions . . .”10

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cigarette and tobacco sale and use case: city home rule prevails

(ii) “Cities shall exercise such determinations by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments applicable uniformly to all cities...”11 (iii) “Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.”12 (iv) “Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.”13 The apparent redundancy in points (ii) and (iii) above simply clarify that the legislature can only bind cities by the passage of uniform laws that apply to all cities in the exact same way regardless of whether the law deals with a statewide concern or to other uniform enactments.

Certain general characteristics of the city home rule amendment are that it applies to all cities regardless of their size. Further, the home rule amendment is self-executing in that there is no requirement that the legislature enact any law implementing it, nor are cities required to hold an election, to adopt a charter, constitution or some type of ordinance declaring their intent to exercise home rule powers. This latter feature, according to one authority, makes the Kansas home rule provisions one of the more liberal grants of home rule power in the country.14 How City Home Rule Powers are Exercised Cities exercise their home rule powers by either “ordinary” ordinances or charter ordinances.15 The use of the term “ordinary” ordinance was coined after the passage of the constitutional amendment to distinguish ordinances passed under home rule authority from charter ordinances and from other ordinances enacted by cities under specific legislative enabling acts.16 An “ordinary” ordinance is the most common way home rule powers are used by cities since it gives cities the power to initiate legislation by ordinance without relying on an enabling statute. “Ordinary” ordinances are subject to the same formalities and other requirements that are contained in K.S.A. 12-3001 et seq. that apply to other ordinances.17 Charter ordinances have constitutional formalities that are described in more detail later.18 A city that attempts to exercise home rule powers through a resolution rather than an ordinance does not meet the constitutional requirements noted above and, as a result, any such resolution would be invalid.19 28

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When “Ordinary” Ordinances May Be Used As posed in Vapebar, there are four basic questions that need to be asked in order to determine whether an ordinary ordinance may be used to exercise home rule authority: (1) Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is a uniform law, does it preempt further action by cities? (4) If there is a uniform state law but there has been no preemption, does the local regulation conflict with the uniform law?20 The first two questions were not in play in Vapebar because the parties agreed that both the state statute and the city ordinance governed the same subject—the regulation of tobacco products—and the state law was a uniform law applicable to all cities.

I. IS THERE A STATE LAW THAT GOVERNS THE SUBJECT? An ordinary ordinance may be used to regulate conduct where there is no state law on the subject as illustrated by the following Kansas cases. While not all attempts to regulate conduct were upheld, it was not because of a lack of home rule authority but, rather, because the regulations were faulty for some other reason.

In Delight Wholesale Co. v. City of Overland Park,21 the court voided a city ordinary ordinance that prohibited all huckstering and peddling on city streets. The acknowledged purpose of the ordinance was for the protection of children who would run into the street and surround the confectionery vehicles. In Kansas, however, a city can regulate but cannot absolutely prohibit legitimate business enterprises. The court concluded that the prohibition was arbitrary and unreasonable—an inappropriate use of police power.22 An anti-litter ordinance making it unlawful to throw a weekly “shopper” onto private property except with the consent of the owner or occupant after the publisher had been notified not to deliver the paper was upheld in City of Fredonia v. Chanute Tribune.23 The court found that the delivery of

cigarette and tobacco sale and use case: city home rule prevails

a shopper paper, after the publisher had received notice not to do so, converted the paper into litter.

The regulation of searchlights used for advertising purposes under a zoning ordinance requiring a special use permit was the issue in Robert L. Rieke Bldg. Co. v. City of Overland Park.24 In upholding the ordinance, the court rejected arguments that the ordinance denied equal protection and infringed on commercial speech rights under the First Amendment.

An Overland Park ordinance prohibited the sale of drug paraphernalia unless those items were kept in a part of the business closed to minors. The ordinance was upheld against constitutional challenges of overbreadth, vagueness and infringement on commercial speech rights under the First Amendment in the case of Cardarella v. City of Overland Park.25 Nude dancing regulations were reviewed in City of Wichita v. Wallace,26 where the court found that a city ordinance regulating erotic dance studios was unconstitutionally vague.

Another city ordinance banning nude dancing and establishing other regulations of drinking establishments was partially upheld in DPR, Inc. v. City of Pittsburg.27 The court upheld the part of the ordinance that required the use of such items as pasties and G-strings as being well within the power of a city acting under the Twenty-First Amendment to the United States Constitution.

City ordinances regulating the ownership of pit bull dogs were upheld in Hearn v. City of Overland Park,28 and in State v. Lee.29 The court in City of Topeka v. Mayer 30 also upheld a city ordinance that prohibited a dog owner from permitting a dog to attack or bite any person upon the owner’s premises.

The court said the word “permit” made the ordinance broad but not necessarily vague.

II. IF THERE IS A STATE LAW, IS IT UNIFORMLY APPLICABLE TO ALL CITIES? The clearest statement by a court concerning what constitutes a uniform enactment applicable to all cities is found in the seminal city home rule case of City of Junction City v.

Griffin.31 The Griffin court determined that the entire Kansas Code of Procedure for Municipal Courts (K.S.A. 12-4101 through 12-4707) did not apply uniformly to all cities since one section of that act, K.S.A. 12-4105, required municipal judges in cities of the first class to be attorneys but did not require the same of municipal judges in cities of the second or third class. The court noted that this section was one of the sections included in 1973 Kan. Sess. Laws, ch. 61, and was clearly one of the sections comprising the legislative enactment. The court stated: “The division into chapter, article and sections in the Kansas Statutes Annotated does not have the effect of making separate enactments of a single bill passed by the Legislature of the State of Kansas.”32

An enactment, then, is all sections of a single bill enacted by the Kansas Legislature. Every section of a bill must apply uniformly to all cities if the bill is to be a uniform enactment.

Doctrine of In Pari Materia and Uniform Enactments: Clafin v. Walsh,33 is the home rule case most frequently cited regarding the doctrine of in pari materia. In Claflin, the court upheld a Kansas City charter ordinance exempting the city from K.S.A. 73-407 and providing substitute provisions transferring management and control of the Soldiers’ and Sailors’ Memorial Building from a board of trustees to the city commissioners. The issue was whether K.S.A. 73-407 was “applicable uniformly to all cities” and, therefore, not subject to charter ordinance. The court found that the statute was not uniformly applicable to all cities because it permitted three exceptions in its application to various cities. Moreover, the court noted that another statute, K.S.A. 73-427, that was part of a separate enactment, authorized control of memorials by certain city governing bodies. In determining whether the legislature intended to have a statute apply “uniformly to all cities,” the court concluded that all statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together: “In order for a statute to be applicable uniformly to all cities there must be no exceptions.”34

III. DOES THE UNIFORM LAW PREEMPT FURTHER ACTION BY CITIES? The issue of state legislative preemption arises when the legislature has enacted a uniform state law. If the area of law has not been clearly preempted by the legislature, local action is permitted. The courts, however, have in the past flirted with the idea that legislative preemption can be implied by the nature of the legislation itself rather than by a clear statement in the law.35 The Vapebar case specifically rejected the doctrine of implied legislative preemption. The appellees argued that the legislature’s enactment of a “comprehensive scheme” of regulation was sufficient to clearly manifest an intent to preempt the field. The court disagreed. The court noted that it had already rejected the idea that the legislature’s adoption of a comprehensive scheme can establish a clear intent to preempt the field.36 The legislature, with some frequency, has preempted city home rule by passage of a uniform law that contains clear preemptive language--both of which are normally required.

Some uniform laws, however, do not need any preemptive language since the law simply prohibits some action by a city or county. The primary areas where the legislature has preempted local action are in the levy of taxes, excises, fees, charges, and other exactions, in licensing and other regula-

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cigarette and tobacco sale and use case: city home rule prevails

tory activities, weapons control and gaming. Representative examples where the legislature has clearly stated its desire to preempt local action and where the legislature apparently has also enacted a uniform law include the following.

1. Pesticide Law – K.S.A. 2-2480 prohibits any city or county or other political subdivision from enacting or enforcing any law, ordinance, rule or regulation “in conflict” with, in addition to, or supplemental to the Kansas pesticide law and expressly invalidates any such law.

2. Income Tax – K.S.A. 12-140 provides that no city shall have power to levy and collect taxes on income from whatever source derived.

3. Wages Regulation – K.S.A. 12-16,130 et seq. prohibits cities, counties and other local governments from enacting any local laws requiring private employers to provide wages and certain other benefits at a higher level than required by state or federal law.

4. Campaign Canvassing – K.S.A. 25-2712 provides that no city or county shall regulate or prohibit canvassing, polling, soliciting or otherwise approaching private residences for the purpose of distributing campaign literature or campaigning for a candidate for an elected office.

5. Alcoholic Liquor, Beer – K.S.A. 41-208 vests in the state the exclusive control of regulating the distribution, sale, possession, transportation and traffic in alcoholic liquor, and the manufacture of beer, but permits any city to prohibit by ordinance what is prohibited by state law as long as the minimum and maximum penalties for violation are the same.

6. Lottery – K.S.A. 74-8770 prohibits the levy of any taxes, fees or charges by cities, counties, or other municipalities regarding lottery gaming facilities revenues or electronic gaming revenues from racetrack gaming.

7. Motor Fuel Tax – K.S.A. 79-3424 prohibits municipal corporations and other political subdivisions from imposing any tax upon, or measured by, the sale, receipt, distribution, or use of motor vehicle fuel, or any excise, license, privilege or occupation tax upon the business of manufacturing, using, selling or delivering motor vehicle fuels.37 8. Weapons – A number of state laws restrict or preempt local governments in their regulation of weapons—both firearms and knives. The Personal and Family Protection Act38 in conjunction with several criminal statutes establish the right of persons 21 years of age or older who otherwise may lawfully possess a firearm to carry a firearm openly. Further, a handgun may be carried openly or concealed by such persons.

In addition, there are laws that prohibit the use of state appropriated moneys for any type of gun control and the use of tax moneys for firearms buyback programs.39 Clear and unmistakable preemptive language is found in the Personal and Family Protection Act, K.S.A. 75-7c17, 30

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which in part, states: “(a) The legislature finds as a matter of public policy and fact that it is necessary to provide statewide uniform standards for issuing licenses to carry concealed handguns for self-defense and finds it necessary to occupy the field of regulation of the bearing of concealed handguns for self-defense to ensure that no honest, lawabiding person who qualifies under the provisions of this act is subjectively or arbitrarily denied the person’s rights. No city, county or other political subdivision of this state shall regulate, restrict or prohibit the carrying of concealed handguns by individuals except as provided in K.S.A. 2016 Supp. 21-6301, 21-6302, 216304, 21-6309, 75-7c10 or 75-7c20, and amendments thereto, or K.S.A. 21-4218(f ), prior to its repeal. Any existing or future law, ordinance, rule, regulation or resolution enacted by any city, county or other political subdivision of this state that regulates, restricts or prohibits the carrying of concealed handguns by individuals except as provided in K.S.A. 2016 Supp. 21-6301, 21-6302, 21-6304, 21-6309, 75-7c10 or 75-7c20, and amendments thereto, or K.S.A. 21-4218(f ), prior to its repeal, shall be null and void.40

IV. IF THE STATE LAW IS UNIFORM AND DOES NOT PREEMPT LOCAL ACTION, DOES THE LOCAL REGULATION CONFLICT WITH THE UNIFORM LAW? Unless there is a uniform law applicable to all cities that includes language expressly prohibiting local legislation, then the focus is on the local legislation and whether there is a conflict between it and the state law. Stated another way, if it has been determined that there is no clear legislative intent to preempt all local action, then the question is whether the local provisions conflict with state law.

The Vapebar case utilized the frequently cited test found in Junction City v. Lee41 to determine whether a conflict exists.

Briefly stated, does the local law permit or license that which the state law forbids or prohibit that which the state statutes

cigarette and tobacco sale and use case: city home rule prevails

authorize? If so, there is a conflict. When both a local law and the statute are prohibitory and the local law goes further in its prohibition but not counter to the state prohibition, there is no conflict.

Vapebar is one of the best examples of a city’s use of an “ordinary” home rule ordinance to supplement a uniform state law. The city ordinance simply supplemented the state law by increasing the minimum lawful age for the purchase, possession and sale of tobacco products from 18 to 21 years of age.42 Examples of other cases finding no conflict between the state and local law: 1. If the local law is parallel or identical to the state law, there is no conflict. See City of Garden City v. Miller43 where a local DUI ordinance was upheld.

2. If the local law supplements or adds to the state law, there is no conflict. See Hutchinson Human Relations Commission v. Midland Credit Management, Inc.,44 where a local civil rights commission was validated, and State et rel. Franklin v. City of Topeka,45 which upheld a city antidiscrimination ordinance and its application to the Kansas Department of Human Resources, a state agency. Similarly, a Wichita ordinance extending the city’s driving under the influence (DUI) ordinance to cover operating a bicycle while under the influence was also upheld in City of Wichita v. Hackett.46 There the court noted that state law did not expressly authorize riding a bicycle under the influence of alcohol—the state law merely failed to proscribe it.

3. When a local law provides for standards of performance that are higher than those set by state law, there is no conflict.

The most recent example is found in Vapebar. More stringent local closing hours were upheld in Leavenworth Club Owners Association v. Atchison.47 More stringent local environmental regulations were upheld in Johnson County Water District No. 1 v. City of Kansas City.48 Likewise, City of Wichita v. Gasgall 49 upheld an ordinance that prohibited parking in or blocking access to a designated handicapped parking space, access ramp or access area. The covering of access areas expanded on both federal and state laws covering this subject.

Examples of cases finding that a conflict precludes a city ordinance: 1. In State v. Jenkins,50 the court held that a Wichita theft ordinance making theft of property valued at less than $1,000 a misdemeanor conflicted with state law that made theft of property of less than $1,000 a severity level 9, nonperson felony if committed by a person who had been convicted of theft previously two or more times.

2. In City of Junction City v. Cadoret,51 the defendant was convicted in municipal court with a DUI as a third time offender. A third time DUI offense under state law was defined

as a felony and municipal courts only have jurisdiction over misdemeanor crimes. Conflicts with state law also precluded use of third and fourth DUI convictions of a defendant in municipal court since that court lacked jurisdiction for those cases that were considered felonies.52 3. In Moore v. City of Lawrence,53 the court found that a Lawrence ordinance requiring submission of plats to the city governing body for approval of public dedications of easements and public rights-of-way conflicted with the state law which provided only for plat approval by the planning commission. The court found that an amendment by the legislature in 1965 repealing a provision giving governing bodies authority to accept or reject land dedicated for public use was evidence of the conflict.

City Charter Ordinance Procedure When thinking about home rule power and how it is exercised, most people believe it must be exercised by charter ordinance. Not true, but charter ordinances are an extremely important way to exercise city home rule power.

Procedures for passage of city charter ordinances are meticulously set out in the home rule amendment. Article 12, §5(c)(2) of the Kansas Constitution provides that a charter ordinance shall be so titled and shall designate specifically the legislative enactment made inapplicable to the city. It requires a 2/3 vote of the members-elect of the governing body of the city.54 The mayor was considered part of the governing body of the City of Topeka in reference to the number of votes needed to pass a charter ordinance.55 Publication of the charter ordinance is required once each week for two consecutive weeks in the official city newspaper or, if none, then in a newspaper of general circulation. A 60day waiting period is mandated after the final publication to allow for a protest petition by 10 percent of those who voted at the last regular city election. Election procedures also are set out in detail if a protest petition is filed and must include the wording for the ballot. The governing body may submit any charter ordinance to a referendum without a petition.

The charter ordinance becomes effective upon approval of a majority of the electorate voting thereon or after the expiration of the 60-day protest petition period.

Various Attorneys General have issued opinions on the failure to follow requirements for adopting a charter ordinance.

While a city governing body is not required to submit a charter ordinance to a vote if a petition is filed, the charter ordinance is rendered ineffective without an election following the filing of a valid protest petition.56 Failure to file the petition with the city clerk precludes holding an election.57 Attorney General Stephan approved using the Mail Ballot Election Act, K.S.A. 25-431 et seq., to submit the issue of the adoption of a county charter resolution to an election.58 www.ksbar.org | July/August 2020 31

cigarette and tobacco sale and use case: city home rule prevails

The same rule should apply to cities. A governing body may abandon a proposed charter ordinance after a petition is filed simply by failure to call the election. There is also a requirement that charter ordinances be maintained in a book by the city clerk and a certified copy be filed with the secretary of state.59 Failure to file a copy of the charter ordinance with the secretary of state’s office within the 60-day period, however, has no effect on the validity of the charter ordinance.60

1. Existing laws on city incorporation, boundary changes, merger and consolidation (Article 12, §5(a); 2. nonuniform laws where the legislature has established not to exceed four classes of cities for the levy of taxes, excises, fees, charges and other exactions (Article 12, § 5(b); and 3. enactments prescribing limits of indebtedness (Art. 12, §5(c)(1).

These particular limits provide exceptions to the general rule that the legislature may bind cities only by the enactment of a uniform state law on a subject.

City Boundary and City Status Adjustments – A Special Rule

City Charter Ordinance Amendment or Repeal Article 12, §5(c)(4) of the Kansas Constitution provides that each charter ordinance enacted shall control and prevail over any prior or subsequent act of the governing body of the city and may be repealed or amended only by charter ordinance or by enactments of the legislature applicable to all cities.

Bigs v. City of Wichita61 held that a repeal of a non-uniform provision in the Club and Drinking Establishment Act was sufficient to cause the repeal of a city charter ordinance that provided for a higher liquor license fee than the statute allowed.

The court in State ex rel Tomasic v. Unified Government of Wyandotte County/Kansas City, Kansas62 addressed the issue of whether the form of government established by charter ordinance for Kansas City, Kansas, had been properly changed as a result of the consolidation of the city and county. The court held that the city’s attempt through Charter Ordinance No. 114 to repeal only certain sections of Charter Ordinances Nos. 84 and 90, the sections that related to the city’s prior form of local government, was proper.

In Edgington v. City of Overland Park,63 the court approved a charter ordinance which amended one section of a previous charter ordinance but did not specify the state statute which was made inapplicable. The court said repeating the state statute being made inapplicable was not necessary in the second charter ordinance since it was cited in the first charter ordinance.

When A City Charter Ordinance May Not Be Used Several subsections of Article 5, §12 of the Kansas Constitution limit the use of charter ordinances. These limits include: 32

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The home rule amendment, Article 12, §5(a) of the Kansas Constitution provides: “The Legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, that existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance.”

It is generally recognized that this language reserves to the legislature the power to enact laws relating to city incorporations and other boundary matters.

Four Classes of Cities for Tax Purposes Cities are granted the power to levy taxes, excises, fees, charges and other exactions by the home rule amendment, Article 12, §5(b) of the Kansas Constitution. The legislature, however, may restrict this power by establishing not to exceed four classes of cities. These classes are not classes for general government purposes: cities of the first,64 second65 and third class.66 Rather, these are constitutional classes for purposes of imposing revenue limitations or prohibitions.67 The only example to date where the legislature classified cities for the purpose of imposing limits upon or prohibiting taxes has been in the area of local retailers’ sales taxes.68 The city home rule amendment, Article 12, §5, when describing the use of charter ordinances does not require or even mention the use of such ordinances in reference to the four classes of cities that the legislature may create under Article 12, §5(b), to impose limits of cities’ taxing powers. It seems logical, however, to assume that if the legislature exceeds its constitutional authority by establishing more than four classes of cities for tax excises, fees, charges, and other exaction purposes, cities should not be bound by such laws. One of two alternatives seem appropriate:

cigarette and tobacco sale and use case: city home rule prevails

1. The law is simply a nullity and has no impact on a city’s power to decide the tax issue in question; or 2. The law is treated as a non-uniform enactment and is binding on a city unless it passes a charter ordinance to exempt itself from the law.

The latter option seems preferable in upholding the integrity of state legislative enactments while at the same time preserving the city home rule authority and the constitutional mandate for liberal construction of this power.69 Kansas City Renaissance Festival Corp. v. City of Bonner Springs 70 held that a city’s ordinary home rule resolution establishing an amusements admission tax was invalid thus indicating a charter ordinance was necessary. The court rejected the city’s argument (the first option noted above) that the city was not bound by any tax limiting legislation that was not uniformly applicable to all cities or at least uniformly applicable to cities within one of the four classes permitted under Article 12 §5.

Debt Limitations Cities are subject to all enactments of the legislature prescribing limits of indebtedness. Uniformity is not required and modification by charter ordinance is prohibited.71 The court has had little opportunity to construe what is meant by the term “enactments prescribing limits of indebtedness.” In City of Wichita v. Kansas Taxpayer Network, Inc.,72 the court upheld a charter ordinance which, among other things, exempted the city from a statutory requirement for a vote on general obligation bonds issued for sewer system improvements. The court noted the nonuniform statute specifically provided that the bonds “shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation. . . .” The court held that the exemption from the election requirement did not violate Article 12, §5(b) and (5) (c)(1) relating to the prohibition of opting out of limits of indebtedness.

In Crummett, “City Home Rule in Kansas,” 9 Washburn L.J. 1, 14 (1969), the discussion focused solely on bonded debt limits with the comment that bonded debt limits are not comprehensive, are full of exceptions, but are still binding on cities.73 This assumption that the scope of the language covers only bonded debt limits has been carried forward by the attorney general and others.74 Elections and Home Rule The legislature is empowered to prescribe elections when cities exercise home rule powers by ordinance pursuant to Article 12, § 5(b) of the Kansas Constitution. As an example of the constitutional provision, note the enactment of K.S.A. 12-137, 12-138 and 12-138a. These statutes require that cities follow procedures nearly identical to the passage of char

ter ordinances when imposing any home rule tax, excise, fee, charge or other exaction for revenue purposes. Charter ordinance procedures described earlier include protest petition and election procedures also.

The court, in Ramcharan-Maharajh v. Gilliland,75 interpreted Article 12 §5(b) of the Kansas Constitution to allow referendums only in such cases as prescribed by the legislature. The court said that Osage City was without power to order a referendum on the issue of whether to continue to spend tax dollars on a rails-to-trails project. A petition had been presented to the city requesting an election. The city initiative and referendum statute, K.S.A. 12-3013, was not mentioned in the opinion.

Conclusion In my 2005 home rule article,76 I closed with the statement that “time will tell whether the Court has developed two conflicting lines of rationale for deciding home rule cases.” Vapebar eliminated the possibility of continuing two lines of thought on implied legislative preemption—one embracing the concept and one rejecting it—and chose the latter. n

About the Author Mike Heim has worked for the Kansas Legislature for over 45 years and is currently an attorney with the Revisor of Statutes Office. He staffs local government, elections, and federal and state affairs committees of the Kansas Legislature. He has taught municipal law as an adjunct professor at the Washburn University School of Law for 35 years.

Heim graduated from Washburn Law School and has a Masters Degree in Public Administration from the University of Kansas. He is a member of the KBA and of the City Attorneys Association of Kansas. He authored Kansas Local Government Law, 6th edition, 2018 and the earlier editions of the book, as well as several law review articles. He has presented on a number of continuing legal education topics and has served as an expert witness on municipal law issues. Mike Heim was chosen to receive the KBA’s Distinguished Government Service Award for 2020. mike.heim@rs.ks.gov

www.ksbar.org | July/August 2020 33

cigarette and tobacco sale and use case: city home rule prevails

1. https://www.tobaccofreekids.org › sales_21 › states_localities_ MLSA_21 2. Some surprising results can occur regarding the sale or use of tobacco products. For example, a person must be 21 years to have a tobacco product sold to them or to buy these products within the city of Topeka and the unincorporated areas of Shawnee County. You only need to be 18 years of age for these same transactions to be legal if you are within the city limits of Auburn and Silver Lake, both of which are located within Shawnee County. All this may be moot now because of a new federal law. See note 4.

3. See KSA 2018 Supp. 79-3321(l)-(n) and KSA 2018 Supp.79-3322 (b) and (c).

4. Pub. L. No.116-94, Div. N, Title I, §603(a), 133 Stat. 3123 (codified at 21 U.S.C. §387f(d)(5)), was signed by the President on December 20, 2019, raising the federal minimum age for sale of tobacco products from 18 to 21 years. Note: It is unclear whether the federal law is being enforced within cities and counties that have not raised the smoking ban age to 21 since the state law remains at 18.

5. Vapebar, 309 Kan. 1336, 443 P3d 1052 (2019).

6. The home rule powers of counties, which are statutory and similar to the constitutional home rule powers of cities, are not as extensive and secure as cities. The differences between city and county home rule powers are fully explored in Heim, Home Rule Power for the Cities and Counties in Kansas, 66 J.K.B.A. 26 (1997).

7. Vapebar, 309 Kan. at 1340.

8. One way to understand more fully the scope of home rule power of cities is to review the scope of powers of the cities of the first, second and third class which were contained in General Statutes of Kansas, Corrick, 1949 in chapters 13, 14 and 15 and compare those earlier chapters with their current versions in Kansas Statutes Annotated. Much of what was in the General Statutes of Kansas has been repealed under the rationale that these statutes were not needed with the advent of home rule.

9. Dillon’s Rule, although formulated by the courts for cities, is a rule that reflects the general dependency of all local governments upon state legislatures absent a home rule grant of authority. Dillon’s Rule, in part, states: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied....” See Dillon, Municipal Corporations, Sec. 237 (5th ed. 1911).

10. Kan. Const., Art. 12, §5(b).

11. Kan. Const., Art. 12, §5(b).

12. Kan. Const., Art. 12, §5(c)(1).

13. Kan. Const., Art. 12 §5(d).

14. Clark, State Control of Local Government In Kansas, Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 656 (1972).

15. Kan. Const., Art. 12, §5(b) and (c).

16. Ordinary ordinances are those referred to in Article 12, §5(b), where it provides that “...cities shall exercise such determination (home rule) by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature...” According to one commentator, Clark, “State Control of Local Government in Kansas: Special Legislation and Home Rule,” 20 Kan. L. Rev. 631 at 658, the above quoted language is the most significant aspect of the home rule amendment since it gives Kansas cities the power to initiate legislation by ordinance without having to rely on enabling statutes. Clark’s term for this power and procedure is “affirmative home rule.”

17. K.S.A. 12-3001 et seq. requires, among other things, consideration of ordinances at a public meeting, an ordaining clause, no more than one subject, passage by a majority elect of the governing body and publication in the official city newspaper.

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18. See Kan. Const., Art. 12, §5(c).

19. See Op. Att’y Gen. 64 (1983) 20. Vapebar, 309 Kan. at 1056-57, citing Heim, Home Rule Power for Cities and Counties in Kansas, 66 J.K.B.A. 26, 32 (1997).

21. 203 Kan. 99, 453 P.2d 82 (1969).

22. See Heim, Kansas Local Government Law (6th ed. 2018) §§ 3.053.15 for a more thorough discussion of cities and police power.

23. 7 Kan. App. 2d 65, 67, 638 P.2d 347 (1981).

24. 232 Kan. 634, 657, 657 P.2d 1121 (1983).

25. 228 Kan. 698, 620 P.2d 1122 (1980).

26. 246 Kan. 253, 788 P.2d 270 (1990).

27. 24 Kan. App. 2d 703, 953 P.2d 231 (1998).

28. 244 Kan. 638, 772 P.2d 758 (1989).

29. 45 Kan. App. 2d 1001,257 P.3d 799 (2011).

30. 16 Kan. App. 2d 567, 826 P.2d 527 (1992).

31. 227 Kan. 332, 607 P.2d 459 (1980).

32. Id. at 335-36.

33. 212 Kan. 1, 509 P.2d 1130 (1973).

34. Id at. 9.

35. Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982) has been the fulcrum of several major problems with the interpretation of both city and county home rule powers. The court held that a permissive or enabling law (i.e., a law authorizing, but not requiring, a city or county to act) was not uniform since not all cities chose to utilize the statutory planning and zoning laws. However, because the legislature intended the law to be uniform for those cities choosing to utilize the statutory scheme, the court declared the law to be uniform. The Moore court, in effect, endorsed the doctrine of implied legislative preemption and, in the process, blurred two separate questions: Is the law uniformly applicable to all cities, and if so, has the legislature clearly preempted supplemental action by cities.

See also Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990), and a more detailed discussion of implied legislative preemption in Heim, Home Rule: A Primer, 74 J.K.B.A. 26, 35-36 (2005).

36. Vapebar, 309 Kan. at 1342-43. The court explained the “‘[b]road language in Blevins unsettled the principle’ of requiring a clearly manifested legislative intent by statute to preempt the field.” The court restricted Blevins to its facts and disapproved any indication in prior unclear language in other cases that the court was adopting the doctrine of implied preemption.

37. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 845 P.2d 57 (1992), wherein the court invalidated a fuel flowage fee imposed by the City of Newton and Harvey County in violation of this statutory prohibition.

38. K.S.A. 75-7c01-75-7c23. See also K.S.A. 12-16,124(a) and 1216,134, which provide very broad prohibitions and preemptions of city or county regulation of firearms/ammunition and knives respectively.

39. K.S.A. 12-16,124b prohibits the use of tax proceeds to fund firearm buyback programs.

40. The statement of legislative preemption is clear enough in K.S.A. 75-7c17(a), but compare KSA 75-7c20 (k)(6)’s exemption from its requirements for: “any building owned or leased by the authority created under the university of Kansas hospital authority act, any building located within the health care district, as defined in the unified government of Wyandotte county and Kansas City, Kansas City-wide master plan, Rosedale master plan and traffic study or similar master plan or comprehensive planning or zoning document approved by the unified government of Wyandotte county and Kansas City, Kansas in effect on January 12, 2017.”

The exemption raises the possibility of home rule action by charter ordinance and charter resolution respectively for both cities and counties.

41. 216 Kan. 495, 532 P.2d 1292 (1975).

42. Vapebar, 309 Kan. at 1346.

43. 181 Kan. 360, 311 P.2d 306 (1957).

44. 213 Kan. 305, 517 P.2d 158 (1973).

45. 266 Kan. 385 969 P.2d 852 (1998).

46. 275 Kan. 848, 69 P3d 621 (2003).

cigarette and tobacco sale and use case: city home rule prevails

47. 208 Kan. 318, 492 P.2d 183 (1971).

48. 255 Kan. 183, 871 P.2d 1256 (1994).

49. 257 Kan. 631, 894 P.2d 876 (1995).

50. 295 Kan. 431, 284 P.3d 1037 (2012).

51. 263 Kan. 164, 946 P.2d 1356 (1997).

52. State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006).

53. 232 Kan. 353 (see also note 35, supra).

54. See Op. Att’y. Gen. 18 (2005), finding the mayor was considered part of the governing body of the City of Topeka in reference to the number of votes needed to pass a charter ordinance.

55. Id. 56. Op. Att’y Gen. 103 (1994).

57. Op. Att’y Gen. 80 (1994).

58. Op. Att’y Gen. 49 (1986).

59. Kan. Const. Art. 12, §5(c)(3).

60. Op. Att’y Gen. 65 (1999).

61. 271 Kan. 455, 23 P.3d 855 (2001).

62. 264 Kan. 293, 955 P.2d 1136 (1998).

63. 15 Kan. App. 2d 721, 727-28, 815 P.2d 1116 (1991).

64. See K.S.A. 13-101.

65. See K.S.A. 14-101.

66. See K.S.A. 15-101.

67. See Martin, Home Rule For Kansas Cities, 10 Kan. L. Rev. 50, 505 (1962).

68. K.S.A. 12-188 attempted to establish four classes of cities for local retailers’ sales tax purposes. These classes included the following: class A cities are all cities that have the authority to levy and collect local sales tax-

es; class B cities are those cities that have authority to levy a local sales tax for health care services; class C cities are all cities (Wichita) with a population of more than 290,000 located in a county with more than 350,000; and class D cities are all cities located in Cowley, Ellis, Ellsworth, Finney, Harper, Johnson, Labette, Lyon, Montgomery, Osage, Reno, Woodson, or Wyandotte counties and cities (Manhattan) located in both Riley and Pottawatomie counties. Other sections of the local sales tax law arguably created additional classes of cities. The legislature in 2006, recodified the local retailers’ sales tax law and repealed K.S.A. 12-188 with the stated purpose of eliminating the multiple classes of cities. Prior to its repeal, the court of appeals in Home Builders Association v. City of Overland Park, 22 Kan. App. 2d 649, 668, 921 P.2d 234 (1996), found the local sales tax law was not uniform because it contained more than four classes of cities and therefore was subject to charter ordinance by a city.

69. See Home Builders Association v. City of Overland Parks, 22 Kan. App. 2d 649, 668, 921 P.2d 234 (1996).

70. 269 Kan. 670, 8 P.3d 701 (2000).

71. Kan. Const., Art. 12, § 5(b) and (c).

72. 255 Kan. 534, 874 P.2d. 667 (1994).

73. See, e.g., K.S.A. 10-308.

74. See 64 Am. Jur. 2d, § 6 Public Securities and Obligations for a discussion of debt and bonded indebtedness “liability.”

75. 48 Kan. App. 2d 137, 286 P.3d 216 (2012).

76. 74 J.K.B.A. at 38.

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www.ksbar.org | July/August 2020 35

Kansas Child Support 2020:

Seeing the future of child support with open eyes

by Bethany Roberts and Casey E. Forsyth

I

n every divorce, parentage, and support action, the calculation of child support has the potential to become an intensely litigated and highly emotional issue. In an area of the law where emotions can overwhelm practical considerations, the child support guidelines assist families seeking predictability and fairness in the financial side of supporting their children. Effective January 1, 2020, the Kansas Child Support Guidelines changed significantly. This article highlights the most significant changes included in the 2020 Guidelines and their practical impact.

In every case, the parties and courts involved must use the Kansas Child Support Guidelines when calculating and ordering child support.1 These guidelines must adhere to the requirements set at the federal level while also meeting the approval of the Kansas Supreme Court. To maintain compliance with federal regulations, Kansas must review its child support guidelines at least every four years and include specific substantive provisions.2 The 2020 Kansas Child Support Guidelines changed significantly. Based on new requirements within the federal regulations, the Kansas guidelines include for the first time a consideration of a child support payor’s basic subsistence needs, the payor’s ability to pay support, and a reversal on how courts treat a parent’s incarceration in establishing or modifying child support.3 The updated guidelines include Kansasspecific changes regarding Social Security benefits, equal parenting time, and spousal maintenance, while also including mathematical and technical changes to parenting time adjustments, due process notice, and child support practice forms. Attorneys may fall victim to costly errors if they are not familiar and equipped to utilize these substantive and procedural changes to their clients’ advantage.

Federal Review and Reform The guidelines must meet not only the approval of the Kansas Supreme Court, but also comply with federal regulations. The federal agency that oversees state child support programs is the Office of Child Support Enforcement (OCSE), which is an office of the Administration for Children and Families (ACF) within the Department of Health and Human Services.4 In response to an executive order on regulatory improvements, OCSE issued its proposed changes to the nation’s child support programs. The resulting rule, “Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs,” included several departures from the previous requirements. The regulation took effect in January 2017 and included deadlines for mandatory compliance based on each state’s last four-year review of child support guidelines.5 With Kansas’s last mandatory four-year review of its child support guidelines completed in 2016, the 2020 Kansas amendments must comply with the 2017 federal requirements.6

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Federal Child Support Plan Requirements Before 2017, the federal regulations on child support guidelines required each state to create a child support plan with the following three requirements: 1) consideration of a payor’s income and earnings; 2) a basis in descriptive and numeric criteria that resulted in a computation of child support obligations; and 3) consideration of the children’s health insurance needs.7 While the new regulation keeps those requirements, it expands beyond these basic considerations. First, the regulation requires a closer examination of a payor’s financial circumstances by introducing the concept of the payor’s ability to pay.8 This necessitates not only the consideration of the payor’s earnings and income, but also the payor’s basic needs for living.9 This is accomplished through a mandated lowincome analysis.10 The regulation leaves open to the states how to implement this through either a self-support reserve analysis or through another method determined by the state.

The emergence of ability to pay considerations stems from research linking an ability to pay with an increase in the ability to collect child support obligations.11 Lack of investigation into a payor’s ability to pay often results in the creation of unrealistic child support orders, which leads to, “unpaid support, uncollectible debt, reduced work effort, and underground employment,” especially for low-income payors.12 When child support orders are based on evidence of the payor’s actual income, and his or her ability to pay, rather than an imputed and possibly erroneous wage, the payor is more likely to pay support to benefit the family.13 The goal of a low-income consideration is to allow a payor parent sufficient income to support himself or herself while also continuing employment.14 At the time of publication of OCSE’s final rule, all but five states had already instituted some type of low-income or pay reserve adjustments in their child support guidelines.15 The OCSE’s emphasis on ability to pay stems from the practical effects of an inaccurate child support order for low-income payors. While both parents are responsible for supporting their children, the OCSE’s position is that without consideration of the payor’s basic subsistence needs, he or she will be less likely to maintain child support payments and may leave traditional employment to seek off the grid or illegal methods of earning, to the detriment of the entire family.16 A second federal change is the requirements placed on imputation of income. When a court imputes a payor’s income at a different income than is reflected in the evidence of the payor’s actual wages, the rule requires that the guidelines include consideration of the payor’s specific circumstances.17 These factors include, to the extent known, the payor’s “assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record

and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the payor, prevailing earnings level in the local community, and other relevant background factors in the case.”18 While every child support calculation is necessarily casespecific, this provision increases the level of detail necessary to impute income and places an increased emphasis on fact gathering and presentation of evidence.19 It is not enough to assume universally that each parent is able to obtain full time employment. The addition of these factors requires that attorneys and courts take a careful look at the qualities of the parents and of their community.

The final requirement instituted at the federal level is aimed at the effect that incarceration has on a payor of child support.

The new rule states that the court may not treat a payor’s incarceration as voluntary unemployment in the establishment or modification of a child support order.20 OCSE determined that any guideline provision to the contrary was effectively a ban on the payor’s right to modify his or her child support order upon showing a substantial change in circumstance, which is in violation of the federal law requiring review and modification of child support orders.21 2020 Kansas Child Support Guidelines In Kansas, the Supreme Court adopts child support guidelines based on the recommendations of the Kansas Child Support Guidelines Advisory Committee.22 This thirteenmember committee consists of attorneys, judges, parent representatives, and child support experts. After meeting for over a year to review the federal regulations and discuss proposed changes to the Guidelines, the Advisory Committee released its Proposed Child Support Amendments in June 2019.23 These proposals were available to the public for comment until August 9, 2019, at which time they returned to the advisory committee for revision. The Supreme Court reviewed the final version, which it approved by administrative order.24 The following changes highlight the most important changes to the Kansas Child Support Guidelines, which became effective on January 1, 2020.

Ability to Earn One of the most striking changes in the child support guidelines is the additional burden placed on litigants and the court to determine the appropriate amount when imputing income to either parent.

In many cases, the court, whether based on evidence or lack of wage information, imputes a payor or payee’s income at a wage different from what he or she is actually earning.

Under previous versions of the guidelines, the court could assume the payor or payee was capable of earning at least the www.ksbar.org | July/August 2020 37

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federal minimum wage without further evidence.25 The party opposing this assumption was required to present substantial justification.26 Especially in the establishment of a new child support order for low-income families, imputation of the minimum wage income became a starting point or baseline calculation from which to modify in the future.

However, a large body of growing research shows that a payor’s likelihood of paying child support as ordered is closely related to the court’s consideration of the payor’s income and his or her ability to pay.27 To this end, the 2020 guidelines remove the assumption that a party is able to earn at least the federal minimum wage and now allow judicial discretion to impute income in “appropriate circumstances.”28 Under the 2020 guidelines, if the court is going to impute income to either party, the court must take into consideration the unique circumstances of the parent and the community, whether at the federal minimum wage or otherwise.29 This includes consideration of: • the parents’ assets; • residence; • employment and earnings history; • job skills; • educational attainment; • literacy; • age; • health; • criminal record and other employment barriers; • record of seeking work, as well as the local job market, the availability employers willing to hire the parent; • prevailing earnings level in the local community; and • other relevant background factors in the case.30 The court must also make written findings in support of any imputation of income.31 On its face, this new requirement could place a significant burden on a parent who seeks to establish or modify a child support order by establishing payor’s income, when that parent has little or no contact or information about the other parent. A payee may not know the payor’s current address, not to mention the details of the payor’s job search efforts or the prevailing earnings in the payor’s current local community. However, the guidelines only direct the court to consider these considerations “to the extent known.”32 Subject to time and financial resources, a prepared litigant will present as much available information as possible to the court to assist in its determination of income. This may require investigation into local job markets, national wage averages, or testimony regarding a parent’s work history or trade.

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The 2020 guidelines also address a parent’s deliberate underemployment. Where the 2016 guidelines included a provision that the parent must be deliberately underemployed specifically “for the purpose of avoiding child support,” the new guidelines remove this phrase.33 This lessens the burden for those seeking to have the other parent held to his or her potential earnings.

How courts choose to exercise this expanded discretion in the imputation of income remains to be seen. The new ability to earn consideration allows attorneys and self-represented litigants to make plausible arguments on personal matters such as an individual’s literacy, criminal record, and other employment barriers, that were previously well outside the scope of child support. The ability to earn factors take a deeper dive into the individual characteristics of the parties and requires more from the courts.

Deviations from the Rebuttable Presumption Amount and Ability to Pay Calculation While the use of the guidelines is mandatory, Kansas caselaw has long held that a court may deviate from the guidelines if the deviation is justified by written findings.34 A new section on deviations from the guideline amount includes this directive to make written justifications when deviating and include why the deviation is in the child’s best interest.35 It also includes the new ability to pay calculation. If the Court desires to deviate from the presumed amount, it must consider a payor’s basic subsistence needs.36 Under this provision, a court must consider the payor’s ability to meet his or her basic needs by comparing the payor’s child support income and the national poverty guidelines.37 The guidelines also grant the court the discretionary power to consider basic subsistence needs of the payee parent and children.38 To review a payor’s ability to pay, the court must become familiar with the federal poverty guidelines for a household of one, which is data maintained online from the U.S. Department of Health and Human Services.39 First, a child support worksheet is completed. Next, the payor’s child support income, as previously calculated, is lessened by the monthly poverty amount to generate the “income available for support.” If this amount is greater than the support owed by the payor parent, the lesser amount will be owed by the payor parent. If the income available for support is less than the child support owed, the court then has discretion to set a lower child support obligation based on the best interest of the child.40 The Kansas Child Support Guidelines Advisory Committee considered a provision that found if the child support income (Line D.1) is less than the federal poverty guidelines for a household of one, the presumptive child support obligation is $0 per month, absent written findings made by the court setting a child support obligation.41 Following

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the public comment period and the public response, the committee elected to remove this language from the version sent to the Kansas Supreme Court.

Unlike some requests for child support adjustments that require written notice to the opposing party, as discussed below, the ability to pay calculation is not optional.

The 2020 guidelines do not include a requirement that the payor affirmatively request this consideration in order to deviate from the presumptive amount.42 Incarceration The 2020 guidelines alter a previously well-settled issue in Kansas child support law: the effect of a payor parent’s incarceration on his or her child support obligation. Previously, incarceration alone was insufficient to justify a modification or suspension of a previous child support order.43 The fact that a parent became incarcerated did not meet the requisite change of circumstance for modification or suspension of the obligation.44 The 2016 guidelines reflected this categorical approach to incarceration. The guidelines previously disallowed incarceration as an excuse to the imputation of full time work at the federal minimum wage. That meant a payor parent who was incarcerated was frequently imputed at federal minimum wage or a previous wage, despite their current inability to work at that level. This led to incarcerated payor parents accruing large child support arrearages. The previous guidelines also denied incarceration as a material change to modify child support when loss of employment was due to incarceration.45 Under the 2020 guidelines, a payor’s incarceration will be relevant and possibly sufficient to modify his or her existing order of support. The language previously disqualifying incarceration as substantial justification for the inability to work the federal minimum wage has been completely removed.46 Further, the 2020 guidelines add new language, indicating that incarceration alone may not be treated as voluntary unemployment.47 The court may now consider the factors and surrounding circumstances of the payor’s incarceration and ability to pay, as well as any other equitable considerations in setting the payor’s income.48 This change allows the parties to present evidence of the incarcerated party’s criminal history, arrest, and sentence length, making these factors relevant. It also allows incarcerated individuals the chance, for the first time, to present evidence on his or her employability and ability to pay while incarcerated. Previously, the discussions regarding criminal acts by the parties had no bearing on child support.

This change may result in an influx of motions to modify child support by incarcerated individuals. The courts will have the added complication of how to facilitate these individuals’ court appearances and their ability to present testimony and evidence subject to cross-examination.

Prior Notice of Requested Child Support Adjustments One change in the 2020 guidelines comes from a Kansas Court of Appeals decision addressing specific pleading requirements.

Following In re Marriage of Fuller, the 2020 guidelines add the requirement that a party requesting any adjustment to the calculation of their child support order must do so in writing prior to the hearing on that issue.49 In Fuller, a parent’s out of state move did not provide sufficient due process notice of his request for a long-distance parenting time adjustment on a motion to modify child support.50 The court held that parties must make all requests for child support adjustments in writing, prior to the hearing.51 Neither the guidelines, nor the Fuller case, specify where or how parents must give this notice. A party requesting an adjustment could do so by marking an adjustment on a domestic relations affidavit, or within the body of the motion, or even through the inclusion of an adjustment on a proposed child support worksheet, if the requesting party provides these to the opposing party before the hearing.

Equal (no longer nearly equal) Parenting Time Parents on mostly amicable terms may seek to create a shared parenting time arrangement in which the time spent with each parent qualifies them for a special calculation under the guidelines, significantly reducing or eliminating either parent’s obligation to pay child support. In its previous version, the guidelines allowed parents who shared the children’s time on an equal or “nearly equal” basis to utilize the shared expense formula or the equal parenting time formula in calculating child support.52 These discretionary formulas result in the significant decrease of child support payable where both parents share residential custody of the children and, therefore, share some of the costs associated with having a child in their household.

The shared expense formula works best for highly cooperative parents who are willing to have ongoing communication and abide by a detailed plan of how they will pay the children’s direct expenses. Under the 2016 guidelines, the court had to determine that the children, in fact, spent time with each parent on an equal or nearly equal basis.53 www.ksbar.org | July/August 2020 39

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The equal parenting time formula, on the other hand, allowed the parents to pay for direct expenses of the children without the necessity of a detailed shared expense plan or requiring the exchange of receipts.54 In the previous guidelines, the equal parenting time formula required a finding that the parents share the children’s time on an equal or nearly equal basis.55 To calculate the adjustment to support using this formula, the court completes a computation based on whether each parent retains clothing in their own home and which parent is paying direct expenses.56 While the previous guidelines’ treatment of shared residential custody included parties who share the children’s time on either an equal or a “nearly equal” basis, the 2020 guidelines remove the “nearly equal” parenting time arrangements from consideration.57 This significant change puts the benefits of the equal parenting time and shared expense formulas out of reach for parties that share their children’s time on only a nearly, and not exactly, equal basis. To obtain this financial benefit and reduction in child support, parties may resort to negotiating and arguing over days and even hours of parenting time in order to reach an equal parenting time schedule.

The parties may focus on the calculation of equal sharing of parenting time as opposed to a plan that is child centered and focused on the best interest of the child. Without the cushion of “or nearly equal” time, parties may look to parenting time adjustments.

Parenting Time Adjustments Another available method of adjusting child support is the parenting time adjustment. Under this section, the court may adjust the payor’s child support obligation based on the percentage of time a child spends in the payor’s household. The previous guidelines allowed adjustments reducing a payor’s support by five percent, 10 percent, and 15 percent; the new guidelines double these adjustments to 10 percent, 20 percent, and 30 percent.58 Under the previous guidelines, a party whose children resided with him or her for 49% of their year would be able to utilize the shared expense or equal parenting time formulas, resulting in very low or zero child support orders.59 Under the new version, a payor in the identical situation cannot access those parenting time adjustments but would be entitled to a standard reduction in support of 30 percent. Even though the time spent with the “payor” is the same, the difference in child support payable could be drastically different.

Social Security Income and Dependent Benefits Another consideration that may reduce the overall child support obligation arises when a parent receives Social Security Disability benefits. Social Security Disability Insurance (SSDI) is a benefit based on what an individual paid into the Social Security System when he or she was able to work; Sup40

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plemental Security Income (SSI) is a needs-based program based on an individual’s finances and disability.60 With 10.4 million individuals receiving monthly SSDI, the 2020 guidelines add necessary clarification to how to account for these payments when calculating child support.61 First, the 2020 guidelines verify that SSDI and Social Security Retirement benefits are included in a party’s gross income.62 The 2020 guidelines also explain how to include a child’s dependent or auxiliary benefits in the calculation of child support.63 When a disabled parent qualifies for SSDI payments, there may also be a monthly benefit available to his or her dependents, known as an auxiliary or dependent benefit.

The Social Security Administration makes this payment directly to the child, through the child’s payee. The payments do not pass through the Kansas Payment Center. While the monthly benefits to the child are not included as income to the payee parent if he or she receives the money as payee for the child, the child’s monthly benefit is entered as a credit on the payor’s side of the child support worksheet, resulting in a reduction of the payor’s child support obligation.64 These additions are in line with the Kansas Supreme Court’s decision in Andler, where the Court held that SSDI dependent payments for a child are to be applied as a credit toward a payor’s child support obligation, only to the extent of the monthly support amount.65 The added language provides a uniform approach to where to input this information on the child support worksheet, and incorporates the controlling case law on this issue in the widely available guidelines.

kansas child support 2020

While it is possible that the child will have two SSDI-qualifying parents, and thus would be eligible for auxiliary benefits due to either parent’s disability record, the new guidelines only state that the court has the authority to make findings on how these benefits will be applied to child support.66 Another financial consideration pertains to the application of lump sum payments from the Social Security Administration. When a parent qualifies for SSDI benefits and his or her child qualifies for dependent benefits, often the child receives a lump sum in the amount the child would have received in dependent benefits for the months the parent was determined to be disabled. The new guidelines follow the Kansas Court of Appeals decision of In the Marriage of Taber, in determining that this lump sum can be credited only as to the payor’s arrearages existing from the same months that the lump sum award covered and nothing in excess of those months.67 Importantly, the new guidelines place a mandatory requirement on the payee parent to notify all parties and the court within thirty days of receiving a lump sum payment; the court may issue sanctions in the event a payee parent fails to provide this notice.68 Unreimbursed Medical Expenses While previous guidelines remained silent on the issue, the 2020 guidelines mandate a specific mechanism for the exchange and demand for reimbursement of medical expenses that are not covered by the parties’ health insurance.69 Using the 30/30 method, a parent requesting reimbursement from the other parent for his or her portion of uninsured medical bills must present a copy of the bill to the other parent within 30 days of receipt with proof of payment; then, the party receiving the request has 30 days to pay his or her share of the amount.70 If the requested party does not pay, the court may impose sanctions including attorney fees or the entirety of the uninsured balance.71 Can parties opt out of this procedure by agreement? While courts evaluate separation agreements as contracts, including ascertaining the parties’ intent, all child support obligations in divorce actions must comply with the relevant statutes and use the child support guidelines.72 Because parents cannot reduce or terminate the child support belonging to the child, they cannot completely do away with reimbursement of medical expenses by agreement.73 However, it may be possible that an agreed upon alternative method for exchanging and reimbursing uncovered medical bills that does not result in the reduction or termination of support flowing to the child would be upheld by the court as in the child’s best interests.

Spousal Maintenance One of the biggest recent changes in family law stemmed from the Tax Cuts and Jobs Act of 2017 (TCJA). The 2020

guidelines incorporate the changes in IRS regulations regarding spousal maintenance as it relates to child support.

The TCJA brought changes to IRS regulations on the taxation of spousal maintenance. Historically, the individual paying spousal maintenance could deduct from his or her income the amount of spousal maintenance paid, and the burden fell on the receiving spouse to pay taxes on the spousal maintenance received.74 Under the previous child support guidelines, this was accounted for by subtracting the amount of spousal maintenance paid from the payor’s income, and adding the amount of spousal maintenance received (not including arrearage payments) to the payee’s income.75 Changes accompanying the TCJA modify the tax results of paying and receiving spousal maintenance. The TCJA eliminates the spousal maintenance deduction for the payor for any divorce entered after December 31, 2018; the payee is no longer required to include these spousal maintenance payments in his or her income.76 The 2020 guidelines account for this change with a new calculation. For orders entered before the TCJA deadline, December 31, 2018, the amounts paid and received in spousal maintenance remains as in previous guidelines: it is subtracted from the payor’s income and added to the payee’s income.77 For orders entered under the TCJA, after December 31, 2018, the payor parent’s income is calculated by taking the total maintenance awarded, and increasing it by the payor parent’s federal and state marginal tax rates.78 This amount is subtracted from the payor parent’s income. The payee parent’s income is calculated by taking the total amount of maintenance awarded, increasing it by the payee’s federal and state marginal tax rates, and adding this amount to the payee’s income.79 The parties, by agreement, may use an average tax rate of 25% instead of the marginal tax rate calculation.80 Forms and Schedules Along with the significant substantive edits, the 2020 guidelines include changes in the forms and child support tables which are included in the guideline appendices. The Child Support Schedules are tables that calculate a per child support amount based on national economic data regarding family expenditures based on the income of the parents, the number of children in the family, and the age of the children.81 The 2020 guidelines adjust these amounts based on updated data from the committee’s economist. The results are increases for the younger age bracket groups (0-5 years old and 6-11 years old) in lower income levels, and child support reductions for middle and high income levels. These changes narrow the difference in the child support payable among the age brackets.

The guidelines also update a required technical form. In matters involving child support, a party must file a domestic relations affidavit (DRA).82 A DRA may be in a “long-form” www.ksbar.org | July/August 2020 41

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or “short-form,” depending on at what point and in what kind specific decisions. While this may decrease the predictability of action the child support issue is taken up. Parties may now of child support orders, it may increase the collectability of use the short-form DRA in establishing initial support orders child support for the benefit of the supported children. n in parentage and child support actions as well as post-judgment motions to establish and modify child support.83 The 2020 guidelines have expanded this document to five pages of About the Authors inquiries on a party’s household composition, child support Bethany Roberts is a partner with Barber orders, education, compensation and job history, disability, Emerson, L.C. in Lawrence, Kan. Ms. Roberts child care and health insurance. If fully and accurately comwas previously a District Court Judge, Pro Tem in pleted by both parties, this information will significantly aid Douglas County handling Child in Need of Care, in the court’s evaluation of the parties’ ability to earn.

Juvenile Offender and child support cases. Ms. Roberts also previously was the managing attorney All forms and appendices, including a new fillable Shared with Kansas Legal Services in Topeka, Kansas. Ms. Parenting Plan, are available at the Kansas Judicial Branch Roberts is a proud graduate from law school at website.84 the University of Kansas (Go Jayhawks!). Prior to law school, Ms. Conclusion The Kansas Child Support Guidelines are mandatory rules used by parents, attorneys, and judges to calculate child support. Changes effective January 1, 2020 include significant departures from previous practice. It is essential that practicing family law attorneys both new and seasoned be familiar with these changes to avoid costly mistakes and sanctions.

These changes, some mandated from the federal government, impose new considerations regarding a payor’s ability to earn and incarcerated parents. The 2020 guidelines expand judicial discretion on many fronts, leading to increasingly fact1. K.S.A. 2018 Supp. 23-3002(a).

2. 45 C.F.R. § 302.56(e) (2017).

3. 45 C.F.R. § 302.56(c)(1) (2017); Kansas Supreme Court Administrative Order No. 307 (effective October 9, 2019).

4. “About the Office of Child Support Enforcement,” https://www.acf. hhs.gov/css/about.

5. Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs, 81 FR 93492, at 93520 (December 20, 2016).

6. See Kansas Supreme Court Administrative Order No. 287 (effective August 19, 2016).

7. 45 CFR § 302.56 (effective July 20, 2008).

8. 45 CFR § 302.56(c)(1) (2017).

9. Id. 10. Id. 11. The Establishment of Child Support Orders for Low Income Nonpayees, Department of Health and Human Services, Office of Inspector General, https://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf (2000); Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs, 81 FR 93492, at 93520 (December 20, 2016).

12. Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs, 81 FR 93492-01.

13. Id. at 93,519 to 93,520.

14. Id. 15. Id., citing Venohr, Jane, ‘‘Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues,’’ Family Law Quarterly, 47(3), Fall 2013, pages 327–52, available at: http://static1.squarespace. com/static/5154a075e4b08f050dc20996/t/54e34dd2e4b04c0eab578456 /1424182738603/3fall13_venohr.pdf.

16. Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs, 81 FR 93492-01, at 93519.

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Roberts was a special education teacher. broberts@barberemerson.com

Casey E. Forsyth is an associate attorney at Barber Emerson, L.C. in Lawrence, Kansas where her practice concentrates on family law. Prior to joining Barber Emerson, she spent several years as an attorney for the State of Kansas Department for Children and Families’ Child Support Services, focusing on parentage and child support matters.

CForsyth@barberemerson.com 17. 45 C.F.R. 302.56(c)(iii) (2017).

18. Id. 19. 81 FR at 93520.

20. 45 C.F.R. 302.56(c)(3) (2017).

21. 81 FR at 93526.

22. K.S.A. 2018 Supp. 20-165; Kansas Supreme Court Administrative Order No. 307 (2019), at endnote 1.

23. “Updates to Kansas child support guidelines open for public comment” News Release, June 26, 2019.

24. Administrative Order No. 307, supra note 22.

25. Kansas Child Support Guidelines [hereinafter KCSG] § II.F.1.a.

(2016).

26. Id. 27. 81 FR 93516, No. 244; HHS Office of Inspector General, The Establishment of Child Support Orders for Low-Income Non-payees, OEI– 05–99–00390, (2000), available at: http://oig.hhs.gov/oei/reports/oei-0599-00390.pdf; Meyer, Daniel, R. Yoonsook Ha, and Mei-Chen Hu, ‘‘Do High Child Support Orders Discourage Child Support Payments?’’ Social Service Review, (2008), 82(1): 93–118; Huang, Chien-Chung, Ronald B. Mincy, and Irwin Garfinkel, ‘‘Child Support Obligations and LowIncome Fathers’’ Journal of Marriage and Family, (2005), 67(5): 1213–25.

28. KCSG § II.F.1 (2019).

29. Id. 30. Id. 31. Id. 32. Id. 33. Id. at § II.F.1.e (2016); § II.F.1.e, (2019).

34. In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998).; In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1091, 176 P.3d 965, 972 (2008).

kansas child support 2020 35. KCSG § IV.F (2019).

36. KCSG § IV.F.2 (2019).

37. Id. 38. Id. 39. “U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs; HHS Poverty Guidelines for 2019.” available at https://aspe.hhs.gov/poverty-guidelines.

40. KCSG § IV.F.2 (2019).

41. KCSG § IV.F.2 (released June 2019, not adopted).

42. KCSG § IV.F.2 (2019) (stating that the court “must take into consideration the basic subsistence needs of the noncustodial parent”).

43. Thurmond, supra note 34, 265 Kan. at 729–30; KCSG §§ II.F.1.a; V.B.5 (2016).

44. Id. 45. KCSG §§ II.F.1.a; V.B.5 (2016).

46. KCSG § II.F.1.a (2019).

47. KCSG § II.F.1.f (2019).

48. Id. 49. In re Marriage of Fuller, 52 Kan. App. 2d 721, 371 P.3d 964 (2016); KCSG § IV.E. (2019).

50. Id. 51. Id. 52. KCSG § III.B.7. (2016).

53. KSCG § III.B.7.a. (2016).

54. KSCG § III.B.7.b. (2016).

55. Id. 56. Id. 57. KCSG § III.B.7. (2016); KCSG § III.B.7. (2019).

58. KCSG § IV.E.2.b. (2016); KCSG § IV.E.2.b. (2019).

59. Id. 60. Social Security, 2019 Red Book, available at https://www.ssa.gov/ redbook/eng/overview-disability.htm.

61. See Social Security, Office of Retirement and Disability Policy, Annual Statistical Supplement, 2018, available at https://www.ssa.gov/policy/docs/statcomps/supplement/2018/highlights.html, retrieved 10/9/19.

62. KCSG § II.D (2019).

63. KCSG § II.I (2019).

64. Id. 65. Andler v. Andler, 217 Kan. 538, 538, 538 P.2d 649, 650 (1975).

66. KCSG § II.I (2019).

67. KCSG § II.I.b. (2019). In re Marriage of Taber, 47 Kan. App. 2d 841, 841, 280 P.3d 234, 234 (2012).

68. KCSG § II.I.b.1. (2019).

69. KCSG § IV.D.4.b. (2019).

70. Id. 71. Id. 72. In re Marriage of Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25 (2008); K.S.A. 2018 Supp. 23-3001 et seq.; K.S.A. 2018 Supp. 20-165.

73. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970).

74. Tax Cuts and Jobs Act of 2017 [hereinafter TCJA], 26 U.S.C.A. § 215, I.R.C. § 215 [§ 215. Repealed. Pub.L. 115-97, Title I, § 11051(a), Dec. 22, 2017, 131 Stat. 2089]; 26 U.S.C.A. § 71, I.R.C. § 71 [§ 71.

Repealed. Pub.L. 115-97, Title I, § 11051(b)(1)(B), Dec. 22, 2017, 131 Stat. 2089].

75. KCSG § IV.C.3-4 (2016).

76. TCJA § 11051(c) (2017).

77. KCSG §IV.C.3.(a), IV.C.4(a) (2019).

78. Id. §IV.C.3.(b), IV.C.4(b) (2019).

79. Id. 80. Id. at §IV.C.3.(c)(2019).

81. Id. § II.C. (2019) 82. Kan. S.C. Rule 139.

83. KCSG Appendix IV (2019).

84. Kansas Child Support Guidelines, https://www.kscourts.org/ About-the-Courts/Programs/Child-Support-Guidelines.

Bankruptcy & Insolvency CLE Series CLE Webinars - All Online

July 28th, Noon

Bankruptcy Chapter 12: Things to Consider when Representing the Distressed Agricultural Borrower Presenters: Tom Barnes & Wes Smith

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REGISTER TODAY ONLINE - www.ksbar.org/cle Questions? Contact Amanda Wright, CLE Director awright@ksbar.org (785) 861-8815

www.ksbar.org | July/August 2020 43

The Kansas Fellows of the American College of Trial Lawyers

are proud to announce the induction of the following Fellows into the College: James Bartimus (2017) Daniel Diepenbrock (2019) Arthur Chalmers (2019) Thomas Warner, Jr. (2019) Melanie Morgan (2020) Holly Dyer (2020)

Leawood, Kansas Liberal, Kansas Topeka, Kansas Wichita, Kansas Olathe, Kansas Wichita, Kansas

The American College of Trial Lawyers is a professional association of lawyers skilled and experienced in the trial of cases and dedicated to improving the standards of legal practice, the administration of justice and the ethics, civility, and collegiality of the trial profession.

Invitation to the Fellowship is extended to experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of 15 years trial experience before they can be considered for Fellowship and membership in the College cannot exceed 1% of the total lawyer population of any State or Province.

The Kansas Fellows of the College Mikel Stout Brian Wright Todd N Thompson Gerald Morris Robert Howard Paul Morrison Bruce Keplinger James Duncan Hon. Donald Bostwick Pedro Irigonegaray Wayne Stratton M. Warren McCamish 44

David Rebein Donald Hoffman Richard Hite Hon. Gerald Rushfelt Kerry McQueen Wendel Toth Richard Dearth Leigh Hudson Roger Stanton Hon. Joseph Johnson Richard Honeyman

James Eisenbrandt Gerald Green Max Foust Thomas Wagstaff Gene Sharp Thomas Bath Fred Spigarelli Scott Logan Aubrey Linville Honorable Ed Larson Jack Focht Arden Bradshaw

Jay Fowler Amy Lemley James Frickleton J. Eugene Balloun Donald Vasos Kirk Goza Dan Monnat Jeffery D. Morris C. Stanley Nelson Jerry Palmer Don Gribble II Mark Bennett

Steven C. Day Lee Woodard Robin Fowler Darrell Warta Craig Shultz Craig Kennedy Ronald Wurtz Craig West Randy Rathbun H.W. Fanning

Congratulate and welcome our new members to the Fellowship.

The Journal of the Kansas Bar Association

T o R e g i ster :

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Tuesday, July 21 – Noon – Oil & Gas Series: Liens & Litigation: A Guide to Oil Field Collections Wednesday July 22 – Noon – Kansas Legislative Update Thursday, July 23 – Noon – Oil & Gas Series: Basic Bankruptcy for Operators and Producers Monday, July 27 – Noon – Oil & Gas Series: Advocating Ethically Tuesday, July 28 – Noon – Bankruptcy Series: Chapter 12:

Things to Consider When Representing the Distressed Agricultural Borrower Wednesday, July 29 – Noon – Legal Ethics is No Laughing Matter Thursday, July 30 – Noon – Bankruptcy Series: Unexpired Leases & Executory Contracts in Bankruptcy Friday, July 31 – Noon – Bankruptcy Series: Chapter 7 Overview with Specific Issues Thursday, August 6 – Noon – Brown Bag Ethics (Replay) Wednesday, August 12 – Noon – The Lawyer’s Guide to Ethical Business Development Thursday, August 13 – Noon – Take it to the Limit: The Extent of an Employer’s Duty to Reasonably

Accommodate Under the Americans With Disabilities Act

(and in the time of Covid-19) Wednesday, August 19 – Noon - If You Can’t Say Something Nice, Shut Up!

The Ethical Imperative for Civility

August 20 & 21 – Annual Meeting (full of CLE!) Wednesday, August 26 – Noon – Overcoming Procrastination: How to Kick the Habit Wednesday August 26 – Noon - The Truth, The Whole Truth and Nothing But the Truth: The Ethical

Imperative for Honesty in Law Practice Wednesday, September 9 – Noon - Design Patent Nuts & Bolts:

Incorporating Industrial Design Protection into Your Patent Portfolio Thursday, September 17 – Noon – Brown Bag Ethics Replay Monday, September 21 – Noon – Legislative & Caselaw Institute (FIRST HALF Replay – 4 cr.)

Monday, September 28 – Noon – Legislative & Caselaw Institute (SECOND HALF Replay – 4 cr.)

“ON DEMAND” CLE: www.ksbar.org/cle-on-demand Legislative & Caselaw Institute (8 cr.)

Brown Bag Ethics (2 cr.)

Expert Views on Hot US Patent Law Topics (2 cr.)

Ethics for Good XXI (2 cr.)

Staying Ethical During a Pandemic (1 cr.)

Perspectives on New Dispute Resolution Methods in Domestic Cases in Kansas (1 cr.)

How to Lose an Appeal in One Simple Brief (1 cr.)

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“Authorized by Law:”

Ex Parte Contact with Government Officials Represented by Counsel

by J. Nick Badgerow

B

ackground. Generally, lawyers are prohibited from communicating about a matter with persons who are known to be represented by another lawyer in the matter. On the other hand, lawyers, like other citizens, occasionally have a need to speak with individuals employed by federal, state or local governments or government agencies about matters of importance to those citizens. These two principles collide when a lawyer attempts to communicate with a government official without the presence or permission of the government’s lawyer.

The purpose of this article is to explore this conflict, reaching the conclusion that the right to redress grievances established in both the United States and Kansas Constitutions usually trumps the government lawyer’s right to object to direct, ex parte communication by a lawyer with a government official on policy matters, even if that official happens to be represented by another lawyer in the matter.

Rule 4.2, KRPC.1 This Rule of Professional Conduct provides: Transactions with Persons other than Clients: Communication with Person Represented by Counsel. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.2 This rule generally prohibits contact by a lawyer with another lawyer’s client about a matter on which the second lawyer represents the client.

Rule 4.2 codifies the no-contact or anticontact rule. If a person is represented in a matter, lawyers for others

in the matter may not communicate about it with him directly but must go through his lawyer.3 The salutary purpose of this rule is to preserve the attorney-client relationship, and to ensure that one lawyer (with presumed superior knowledge of the law and a likely ulterior motive) does not take advantage of the other (perhaps trusting and unwary) person who has engaged counsel to represent him/her in a matter.4 [T]he purpose and the spirit of Rule 4.2 . . . is to prevent lawyers from taking advantage of laypersons and to “preserve the integrity of the lawyer-client relationship.”

Annotated Model Rules of Professional Conduct 392 (3d. ed.1996).5 The purpose of Rule 4.2 is to protect the represented individual “from the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.”6 Similarly, the Minnesota Supreme Court has observed: The purpose of Rule 4.2 is to “protect[ ] a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter,” including against “interference by those lawyers with the client-lawyer relationship.” Minn. R. Prof. Conduct 4.2 cmt. 1.[ ]7 The rule is also intended to “protect[ ] the right of counsel to be present during any communication between the counsel’s client and opposing counsel.” State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999). [W]e have referred to the language of Rule 4.2 as “plain and unambiguous,” State v. Clark, 738 N.W.2d 316, 339 (Minn. 2007). . .8

www.ksbar.org | July/August 2020 47

authorized by law

This rule is not designed just for the protection of clients.

No attorney wants her client to be discussing matters regarding legal strategy or settlement with another attorney without her being present. Nor does any attorney want her client to discuss with another attorney the merits or demerits of the client’s position without being present, since such discussions may affect the client’s resolve in prosecuting or defending the litigation or the client’s confidence in his attorney. See, e.g., Pratt v. National Railroad Passenger Corporation, 54 F. Supp.

2d 78, 79 (D. Mass. 1999) (Young, J.) (“Historically, [Rule 4.2] is justified by the need to preserve the mediating role of counsel on behalf of their clients and to protect clients by overreaching by counsel for adverse interests”); Rockland Trust Company v. Computer Associates International, Inc., 1999 WL 95722 at *5 (D. Mass.

1999) (Collings, M.J.); Hanntz v. Shiley, Inc., 766 F. Supp. 258, 265 (D.N.J. 1991).9 “Knows to be Represented by Another Lawyer.” First, the lawyer must “know” the other person to be contacted is represented by another lawyer.

The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(g).10 Even if the communicating lawyer “knows” that a government generally has counsel, the lawyer must have actual knowledge that the particular government agency being contacted specifically is represented by that counsel or some other lawyer.

In reaching this conclusion, I am relying, in part, upon the commentary and history of Rule 4.2 of the Model Rules of Professional Conduct, a rule that was taken virtually verbatim from DR 7-104 (see, 2 G. Hazard Jr., The Law of Lawyering, § 4.2:101). By their terms, both rules prohibit contact with a represented party where the attorney actually “knows” of a representation. Neither rule expressly forbids such contact, however, where the attorney “reasonably should know” that the witness was represented (see, Model Rule 4.2; DR 7-104[a]).11 The mere fact that a lawyer generally represents the government does not make him/her counsel to each and every person employed by the government, in each and every matter.

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Corporate counsel’s assertion of blanket representation of the corporation and all its corporate employees is bluster. It is inappropriate. First, a unilateral declaration by a corporation’s counsel that he or she represents all current and former employees does not make it so.

Second, such blanket representation of a corporation and all its current and former employees would in many instances be fraught with impermissible conflicts of interest for the corporate lawyer.12 “In the Matter.” Second, under Rule 4.2, the person must be known to be represented by another lawyer “in the matter.” In fact, the term “matter” is used no less than 16 times in just this one Rule and its Official Comments. Just because a lawyer knows that a government or agency generally has counsel does not mean the lawyer knows that the government or agency is represented by counsel “in the matter.”

By prohibiting communication about the subject matter of the representation, the Rule contemplates that the matter is defined and specific, such that the communicating lawyer can be placed on notice of the subject of representation. Thus, if the representation is focused on a given matter, such as one involving past conduct, and the communicating lawyer is aware of this representation, she may not communicate with the represented person absent consent of the representing lawyer. . . .13 But even if the communicating lawyer “knows” that the government, agency, or official is represented by another lawyer, even in the specific matter at issue, may the communicating lawyer proceed with the contact?

Direct Party to Party Communication. As an aside, and to be clear, irrespective of Rule 4.2 (which is applicable to the conduct of lawyers), any non-lawyer citizen has the right to communicate with any government official directly, even about pending litigation, because non-lawyer parties are always free to communicate with each other without the presence or involvement of lawyers, whether or not one of the parties is a government entity and whether or not the parties are in litigation against one another. As one court has clearly observed: “[A]ll parties may communicate unreservedly with each other.”14 The Annotated Model Rules states: “Rule 4.2 does not restrict the parties from communicating with each other, whether or not they have their own lawyers.”15 The federal district court in Kansas has observed: . . . “there is nothing in the disciplinary rules which restrict a client’s right to act independently in initiating communications with the other side, or which requires that lawyers prevent or attempt to discourage such conduct.”, 148 F.R.D. 68, 83 (S.D.N.Y.1993) (citing New

authorized by law

York City Bar Association Formal Opinion No.1991-2, at 5-6); Annotated Model Rules of Professional Conduct 392 (Center for Professional Responsibility, American Bar Ass’n, 3d ed.1996) (counsel is not obligated to “dissuade” his client from communicating with the opposing party). The text of and comment to Rule 4.2 also support this conclusion. See Kan. S. Ct. Rule 226 at Rule 4.2 and Rule 4.2 cmt. (“parties to a matter may communicate directly with each other”).16 So, under any circumstances—whether or not litigation is involved, and whether or not one of the parties happens to be a governmental agent or agency—parties are always free to communicate directly with each other.

Lawyers are free to advise clients of this principle,17 and they need not discourage clients from availing themselves of it by communicating directly with an opposing party.18 Indeed, lawyers may advise clients generally on the type of information needed.19 On the other hand, lawyers should not script the communication for their clients.20 This is because Rule 8.4(a), KRPC makes it misconduct for a lawyer to “induce” another person to take actions which would violate the KRPC, or to violate the KRPC “through the acts of another.”21 The Comments to this Rule add: Lawyers are subject to discipline when they . . . knowingly assist or induce another to [violate the Rules] or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.22 But the Comment concludes (consistent with the discussion above), that “[p]aragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.”23 Right to Redress Grievances—United States Constitution. In the United States of America, the right to petition the government for the redress of grievances is guaranteed by the First Amendment to the United States Constitution, which specifically prohibits Congress from abridging “the right of the people...to petition the Government for a redress of grievances.”24 The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U.S. 229, 235), provides that Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.25 The right of citizens to petition their government in order to redress their grievances is a basic one. The United States Supreme Court has observed, “The right of citizens to petition their government for the redress of grievances is fundamental to our constitutional structure.”26

Right to Redress Grievances—Kansas Constitution.

The Kansas State Constitution similarly enshrines the principle that “The people have the right . . . to petition the government, or any department thereof, for the redress of grievances.”27 This right is coextensive with the right afforded by the federal constitution.28 Thus, there is the highest authority, under both the federal and state constitutions, for any citizen to petition his/her government in order to redress grievances.

“Authorized by Law.” As noted above, even where the party is “known” to be represented by counsel “in the matter,” Rule 4.2 contains an express exception for communications which are “authorized by law.”29 The Comments to Rule 4.2 describe the major “authorized by law” exception, being the right of any member of the public, including a lawyer, to communicate with government employees, exercising the right to petition the government for the redress of grievances.

Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. . . . Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.30 The Kansas Bar Ethics Advisory Opinion Committee has addressed this specific issue, and has specifically and unequivocally affirmed a lawyer’s right to communicate with government officials directly, without government counsel present: Contacts by attorneys with government agencies have been held to be “authorized by law.” The rules of professional conduct state that a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. . . . The “authorized by law” exception under Rule 4.2 includes those contacts made by a lawyer with a public or governmental body. That is because a citizen must always have access to his or her government, and because the First Amendment trumps any other considerations and concerns. When a governmental agency is the represented party, the Comment to Rule 4.2 recognizes that a party may “speak with governmental officials about the matter.” The First Amendment right of petition brings such communications within the “authorized by law” exception to Rule 4.2.

See American Canoe Ass’n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W.Va. 1998)(when citizens are litigating against government agencies, direct contacts bewww.ksbar.org | July/August 2020 49

authorized by law

tween agency officials and plaintiff’s counsel regarding the matter in controversy are authorized by law as long as the formalities of the particular citizen-access statute allowing direct communications are met; however, plaintiff’s counsel is required to prepare an inventory of any materials received from agencies under freedom of information statutes); Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996)(“Insofar as a party’s right to speak with government officials about a controversy is concerned, Rule 4.2 has been uniformly interpreted to be inapplicable”). . .

ABA, Annotated Model Rules of Professional Conduct 411 (1999).

Another treatise makes the same observation: The anticommunication rule [Rule 4.2] is subject to certain exceptions. Communication is permitted when authorized by law, for example, a communication pursuant to court rule or court order. In our society, open access to government is a fundamental value, so the rule allows lawyers to communicate directly with government officials even when those officials are represented by counsel.

Crystal, An Introduction to Professional Responsibility, Aspen Law and Business Publishing 275 (1998).31 Addressing constitutional concerns, the Kansas Ethics Advisory Committee continued: [A] lawyer for a private party may seek ex parte interviews with relevant government officials. If the normal bar of Rule 4.2 were applied stringently, the government’s lawyer could veto discussions between private parties and government officials, which is questionable policy, and might raise questions under the “petition for redress of grievances” clause of the First Amendment.32 The Utah Bar Ethics Opinion Committee has stated this principle with equal force: Because the Utah and United States Constitutions guarantee all private citizens access to government, all communication, whether oral or in writing, with employees or officials of a government agency under any circumstances are permitted. Thus, a lawyer representing a government office or department may not prevent his non-government counterpart from contacting any employee of the government office or department outside the presence of the government attorney, whether or not the communication involves a matter in litigation.33

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The Journal of the Kansas Bar Association

In another opinion the Utah Committee has reiterated: The right to petition one’s government “is implicit in ‘[t]he very idea of government, republican in form.’”

Individuals therefore have the right to communicate their will to the government and elected officials, and may do so through legal counsel so that their voice will be effective. While First Amendment rights can be limited when a state enacts a rule that is narrowly tailored to achieve a compelling state interest, “a state may not, under the guise of prohibiting professional misconduct ignore constitutional rights.”34 If government counsel wishes to make sure s/he is included in every communication with government employees, it is incumbent upon him/her to make sure that those employees are aware of that desire, and to include counsel in meetings or communications with members of the public. Given the constitutional right of any person, including a lawyer, to communicate with a governmental agency, there would be no violation of Rule 4.2 for the lawyer to do so without investigating whether the agency has counsel “in the matter,” and whether that counsel wishes to intervene.

One of Petitioners’ arguments centers around a perception that, under the U. S. or Utah Constitutions, government lawyers have a right to have the same rules apply to them as to non-governmental lawyers. At first glance, this argument has a superficial ring of plausibility to it, but it misses the point of whose interests are at stake in this issue. The important interest here is that of the public, not of the lawyers. In the Committee’s judgment, it is more important to minimize the difficulties and obstacles that face private parties dealing with the government and its officials than it is to provide government agencies and officials with an insulating layer of attorneys.35 Policy Versus Litigation. Some cases and authorities differentiate between communications with a government official about policy matters (which are uniformly permitted) and communications about pending litigation or claims, unrelated to policy matters (which are not). At the very least, direct communications about policy matters are permitted, even where Rule 4.2, KRPC, would otherwise prohibit them.36 Thus, when there is pending litigation, some authorities would prohibit a lawyer’s direct communication with a represented government official about the specific matter involved in the litigation, despite the “authorized by law” exception in Rule 4.2, KRPC. As an ABA Formal Opinion states: In situations where the right to petition has no apparent applicability, either because of the position and author-

authorized by law

ity of the officials sought to be contacted or because of the purpose of the proposed communication, Rule 4.2 prohibits communication without prior consent of government counsel.37 The Alaska Bar Ethics Opinion Committee states the same principle: [I]t is the Committee’s opinion that Rule 4.2 and the interpreting Comment do not authorize an attorney to advocate a clients’ position relating to pending litigation directly to the governing officer or body of a public agency without the consent of the opposing counsel. . . . The committee believes the first amendment right of a citizen to petition the government does not “authorize” attorneys to directly communicate with the governing body of an agency on the citizen’s behalf regarding a matter in litigation. This position is supported by Walters v. National Assoc. of Radiation Survivors, 574 U.S. 337, 105 S. Ct. 3180 (1985).38 Similarly, the Utah Ethics Opinion quoted above clarifies: However, if counsel for a private party contacts a government employee about pending litigation, counsel must inform the government employee (a) about the 1. Kansas Rules of Professional Conduct (“KRPC”), Rule 226, Rules of the Kansas Supreme Court.

2. Rule 4.2, KRPC. 3. ABA, Annotated Model Rules of Professional Conduct, Eighth Ed., 440 (2015), citing, inter alia, Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621 (S.D. N.Y. 1990) and Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 764 N.E.2d 825 (Mass. 2002)(rule “protects clients from other people’s lawyers”).

4. In re Hodge, 307 Kan. 170, 206, 407 P.3d 613 (2017)(“The respondent directly communicated with the principals of CLS advising them to ignore their attorney’s specific advice”). See also, In re Hillbrant, 286 Kan. 280, 288, 182 P.3d 1253(2008).

5. In the Matter of Application for Disciplinary Action Against Hoffman, 2003 ND 161, 670 N.W.2d 500, 504 (2003). See also, People v. Santiago, 384 Ill. App. 3d 784, 793, 895 N. E. 2d 989, (Ill. App. 2008)(“[T]he purpose of Rule 4.2 is to foster public confidence in the legal profession and to protect clients from being tricked by an opposing lawyer into giving away his case. Op. 384 Ill. App. 3d at 788, 324 Ill.Dec. at 277, 895 N.E.2d at 992”); In re Syfert, 550 N. E. 2d 1306, 1307 (Ind.1990) (When attorneys, in violation of Rule 4.2, contact opposing parties who are represented by counsel, they undermine the representative adversarial system).

6. Minnesota v. Clark, 738 N.W.2d 316, 338 (Minn. 2007).

7. See also, Rule 4.2, KRPC, Comment [1] (same).

8. In re Charges of Unprofessional Conduct in Panel File No. 41755, 912 N.W.2d 224, 229 (Minn. 2018).

9. Edwards v. Massachusetts Bay Transportation Authority, 2000-MBAR293, 2000 WL 1786326 (Mass. December 7, 2000).

10. Rule 4.2, KRPC, Comment [8].

11. Schmidt v. State, 695 N.Y.S.2d 225, 232, 181 Misc. 2d 499 (N.Y. Ct. Claims 1999).

pending litigation or that the matter has been referred to agency counsel and (b) about his representation of a private party in that litigation.39 The Comments to Rule 4.2 confirm this view: This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.40 Conclusion. In most instances, Rule 4.2, KRPC, provides valuable protection against one lawyer taking advantage of a party represented by another lawyer. However, the constitutional right of every citizen to redress actual or perceived grievances caused by governmental action necessitates the precedence of that constitutional right over the protection provided by Rule 4.2. Thus, any lawyer should be free to communicate with any governmental employee or official about any matter of interest to the lawyer, whether or not the government employee or official happens to be represented by another lawyer in the matter, at least on matters unrelated to pending litigation between the lawyer’s client and the government. n About the Author J. Nick Badgerow, now retired, was a partner with Spencer Fane LLP in Overland Park, Kansas.

A trial lawyer for 44 years, his practice focused on representing and consulting with lawyers and judges on professional responsibility and ethics issues. He was a member of the Kansas Judicial Council (23 years); a member of the Kansas State Board of Discipline for Attorneys (16 years); chairman of the KBA Ethics Advisory Opinion Committee (9 years); and chairman of the Johnson County (Kansas) Bar Ethics and Grievance Committee (30 years). Nick was also chairman of the Kansas Bar Ethics 2000 Commission and the Ethics 20/20 Commission. He was the editor and a co-author of the KBA Ethics Handbook, Third Edition (2015). nbadgerow@spencerfane.com 12. Ohio Ethics Opinion BCGD 2005-03 (2005).

13. Nebraska Ethics Opinion ETH 09-03 (2009).

14. In re Disciplinary Proceeding against Haley, 156 Wn.2d 324, 337, 126 P.3d 1262 (Wash. 2006).

15. ABA, Annotated Model Rules of Professional Conduct, 8th ed., 443 (2015).

16. Holdren v. General Motors Corp., 13 F. Supp. 2d 1192, 1195 (D. Kan. 1998)(holding further, “Because the language of Rule 4.2 does not prohibit party-to-party contact, and expressly applies only to conduct by attorneys, that portion of the comment concerning parties communicating directly with each other is consistent with Rule 4.2.”).

17. ABA Formal Ethics Op. 92-362 (1992). See also, ABA Formal Eth-

www.ksbar.org | July/August 2020 51

authorized by law

ics Op. 11-461 (2011) (lawyer may assist client in communicating with represented opposing party, so long as it does not result in overreaching by the lawyer).

18. Tex. Ethics Op. 613 (2001).

19. Va. Ethics Op. 1870 (2013).

20. See, Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998)(showing client how to draft affidavit to be presented to represented opposing party for execution); In re Pyle, 278 Kan. 230, 91 P.3d 1222 (2013)(preparation of affidavit and “encouraging” client to present it to represented opposing party).

21. Rule 8.4(a), KRPC. 22. Rule 8.4(a), KRPC, Comment [1].

23. Id. 24. Constitution of the United States, First Amendment.

25. Adderly v. Florida, 385 U.S. 39, 48, 87 S. Ct. 242 (1966).

26. United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 1207, 35 L.E.2d 379 (1973). See also, Rendelman v. State, 175 Md. App. 422, 441, 927 A.2d 468 (2007).

27. Kansas Constitution, Bill of Rights, § 3. See also, Flynn v. The Brotherhood of Railroad Trainmen, 111 Kan. 415, 419, 207 P. 829 (1922)(“Our state constitution provides that ‘The people have the right . . . to petition the government, or any department thereof, for the redress of grievances.’

(Bill of Rights, § 3)”).

28. Brown v. Wichita State University, 217 Kan. 279, 297, 540 P.2d 66, (1975), vacated on other grounds, 547 P.2d 1015 (1976).

29. “Rule 4.2 does not prohibit direct contact with a represented party where the party’s lawyer consents or the contact is authorized by law.”

Wilkerson v. Brown, 26 Kan. App. 2d 831, 835, 995 P.2d 393 (1999).

30. Rule 4.2, KRPC, Comments [4] and [5].

31. Kansas Ethics Advisory Opinion 00-06 (2000)(emphasis added) (footnotes omitted).

32. Id., quoting 2 Hazard & Hodes, The Law of Lawyering, Fourth Edition, §38.3, p. 38-16 (2011 Supp.), and citing, inter alia, American Canoe Ass’n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W.Va. 1998) (Rule 4.2 is not violated by counsel for one party contacting governmental employees directly, without government attorneys present, even where the contacting counsel’s client is in litigation with the governmental agency).

33. Utah State Bar Ethics Advisory Opinion No. 115 (1993). See also, Connecticut Ethics Opinion Informal 87-15 (1988)(school board employees).

34. Utah State Bar Ethics Advisory Opinion 113 (1991).

35. Utah State Bar Ethics Advisory Opinion Committee Opinion 115R (1994).

36. ABA Formal Op. 97-408 (1997)(communication may address policy issue, including settlement, rather than the specific facts of the case).

See also, Ill. Ethics Op. 13-09 (2009)(communication with government official about policy matters by counsel permitted, despite pendency of appeal in tax assessment matter).

37. ABA Op. 97-408, supra. See also, United States v. Sierra Pacific Industries, 759 F. Supp. 2d 1206, (E. D. Cal. 2010).

38. Alaska Bar Ethics Opinion 94-1 (1994). See also, Illinois State Bar Ethics Opinion 92-3 (1992)(“It would therefore be improper for the inquiring attorney to communicate directly with represented employees of the city regarding the litigation”); Florida Bar Ethics Op. 87-2 (1987).

39. Utah State Bar Ethics Advisory Opinion No. 115, supra note 33 (1993); Montana Bar Ethics Opinion 940430 (1994).

40. Rule 4.2, KRPC, Comment [4] (emphasis added). See also, Stone v. City of Kiowa, 950 P.2d 1305 (1997)(communication with represented party about other matters permitted); United States v. Ford, 176 F.3d 376 (6th Cir. 1999)(communication about matters unrelated to criminal case permitted); Grievance Committee v. Simels, 48 F.3d 640 (2nd Cir. 1995).

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The Journal of the Kansas Bar Association

2020 Legislative Overview

by Joseph N. Molina III

T

he 2020 Kansas Legislature was truly historic. It contained 687 individual bills, five vetoes, denial of two executive reorganization plans, a rejected Court of Appeals nominee and three COVID-19 response bills— the first of which was found to be unconstitutional by the Kansas Supreme Court. The legislature held a 60-day regular session producing only nine bills, a 24-hour straight Sine Die session that produced eight bills and a two-day Special Session culminating in a single bill. This Legislative Overview will touch on many of these approved measures and discuss some that failed to hit the mark. It will take the issues in reverse order and summarize the most pressing legislation of 2020: the Kansas response to COVID-19.

Special Session The Kansas Legislature completed its 24th Special Session—only the third this century—in a mere 48 hours. Gov. Kelly called this Special Session to deal with the Kansas

Emergency Management Act (KEMA) after she vetoed Senate Sub for HB 2054.

During the Special Session, the Legislature was able to negotiate with the Governor’s office on a variety of COVID-related items. The compromise resulted in HB 2016, the Omnibus Governmental Response to the 2020 COVID-19 pandemic.

HB 2016 allowed the Governor to appropriate CARES Relief Funding with oversight from the State Finance Council. It further amended the Kansas Emergency Management Act by limiting the Governor’s authority to close schools and businesses. Those types of closings will be locally controlled through school boards and county commissions. HB 2016 also provides immunity for healthcare providers and businesses. This immunity extends to product liability claims.

Adult care facilities can claim an affirmative defense. The bill creates the COVID-19 Contact Tracing Privacy Act which www.ksbar.org | July/August 2020 53

legislative overview

protects the private information of individuals who may have been exposed to the virus. HB 2016 further requires that during a COVID-19 state of disaster, healthcare workers will work with first responders to share information indicating when and where a person resides who tested positive or is under quarantine. The bill also extends the use of video conferencing authority for the courts and validates notarial acts performed during the pandemic. The bill contains other provisions related to healthcare audits, tele-medicine, unemployment benefits and the sale of alcohol. All told, HB 2016 contains 11 distinct provisions dealing with nine areas of law that can appropriate over $1.2 billion dollars. It is a massive piece of legislation.

Sine Die The Kansas Legislature adjourned Sine Die at 8:00 a.m. on Friday, May 22nd. The legislative day lasted a full 24 hours, having started at 8am on May 21st. Normally, Sine Die is a quiet and routine affair; this year, COVID-19 made it anything but normal.

As previously stated, the largest bill was the COVID bundle incorporated in Conference Committee Report (CCR) for HB 2054. That bill included provisions dealing with CARES funding, Emergency Management Act oversight, liability protections for healthcare, businesses and products, extension of executive orders till 2021 and nursing home oversight. The KBA was most interested in the extension of the executive orders for remote notaries and use of audio visual, both of which were added to the CCR. The KBA was opposed the immunity protections added to the bill. Gov. Kelly ultimately vetoed HB 2054.

CCR for HB 2054 was not the only issued worked on the last day of the session. The legislature debated and passed three other conference committee reports. They include: • CCR for HB 2246 bundles changes to the Kansas Insurance Department, KDHE, KU MED Cancer Fund and the bonding authority for Wichita State.

• CCR for HB 2510 which amends the provision of free ACT exams for Kansas high school students, concurrent and dual enrollment for high school students, and the authority of healing arts school clinics to provide healing arts services. The bill would also require the creation of a foster care report card and would establish the Kansas Promise Scholarship Act. The bill would also authorize the sale by Kansas State University of land in Saline County.

• CCR for HB 2702 establishes new notice and public hearing requirements for certain taxing subdivisions, prohibits certain real property valuation increases, and provides a one-time delay in the deadline for payment of property taxes, enacts the Taxpayer Pro54

The Journal of the Kansas Bar Association

tection Act, extends certain income and privilege tax filing and payment deadlines, authorizes county treasurers to accept partial payments and establish payment plans for all property taxes, and provides for county discretion in handling de minimis property tax penalty charges.

The legislature passed eight bills in the 24-hour Sine Die session. Governor Kelly vetoed four of those measures, including the COVID-19 response bill (HB 2054); the education bill that contained the Promise Scholarship Act (HB 2510); the Kansas Economic Recovery Loan Deposit Program (HB 2619); and the Notice and Hearing Requirements for Property Evaluation (HB 2702).

HB 2034 dealing with restitution orders, HB 2137 concerning Kansas Open Records exemptions, HB 2246 amending agencies duties for KU Med and KDHE, and HB 2585 dealing with utility rates were signed into law.

Regular Session The Kansas Legislature reached First Adjournment on March 19th. The session ended with a truncated state budget and the passage of an emergency resolution, neither of which was foreseen at the start of the session. The legislature focused its final days on COVID-19 response and passed a series of bills aimed at COVID-19.

• SB 27 extends unemployment eligibility for workers filing claims January 1, 2020 and later.

• SB 142 expands the waiver authority for meeting education requirements (e.g., hours of attendance).

• SB 102 grants the Judicial Branch authority to extend statutory deadlines, time limitations on court proceedings and authorizes video conferencing.

The most significant piece of COVID-19 legislation was HCR 5025, Governor’s Emergency Powers The State of Kansas took the lead on the COVID-19 precautionary front. Kansas was the first in the country to close public schools. Other states followed suit after that and large

legislative overview

states including California and New York instituted even more restrictive measures.

The governor imposed several additional restrictions to help reduce the spread of Covid-19 including: • Non-essential state employees were furloughed for two weeks starting Monday, March 23.

• Mass gatherings likely to draw 10 or more people were prohibited.

• Evictions and foreclosures were temporarily restricted until May 1, 2020.

• Bars, restaurants and related businesses were closed for dine-in services; take-out only.

• Utility disconnects were suspended.

Those restrictions were just the beginning, and it was understood that more restrictions could be implemented. The governor allowed the hospitality industry to take out $20,000 in short term loans at no interest for up to six months.

The governor had the authority to offer these types of programs because the legislature passed HCR 5025. HCR 5025 granted the governor additional emergency powers, while it placed certain limitations and awarded oversight on that authority by the Legislative Coordinating Council. The governor has emergency powers by statute to deal with natural disasters and other kinds of situations that are more generally foreseeable. HCR 5025 prevented the governor from enacting restrictions on the sale of firearms and ammunition and prohibited the governor from confiscating or otherwise taking control of the assets and accounts of local governments.

HCR 5025 was ultimately challenged by the governor’s office when the LCC struck down her executive order pertaining to religious gatherings of more than 10 people. That litigation resulted in a finding that HCR 5025 improperly provided the LCC authority to review the governor’s actions.

The legislature passed two other large bills while dealing with the pandemic: the state budget and the Eisenhower Transportation Plan.

The legislature approved a $19.9 billion budget for fiscal year 2021, which begins July 1. The budget is about $1.2 billion more than the budget for the current fiscal year. The budget is now underwater by some $600 million for FY2021.

A rescission bill would not be a surprise next session.

The legislature passed a new 10-year, $10 billion transportation plan that includes money for major highway projects, public transportation, rail, aviation, broadband and driver’s education. Some shovel- ready projects have already broken ground.

Before COVID, Medicaid expansion and abortion were the most pressing issues. The 2020 session was geared up for a

battle between these two issues with a real possibility for an agreement on both. However, even the best laid plans can be upset. Both issues will be election fodder, and both will likely return in 2021.

The senate passed a constitutional amendment reversing the state Supreme Court ruling that found that the right to an abortion is protected by the state constitution. However, the Kansas House was unable to command the 84 required votes, and the legislation stalled. In direct response, senate leadership bottled up Medicaid Expansion in a senate committee and blocked it from coming to the floor. A possible compromise was thwarted when COVID became the immediate issue.

Tort Reform Measures Contingency fees The legislature decided against forwarding contingency fee legislation proposed this session, opting to focus on COVID immunity language. Each of the bills dealing with contingency fees and legal representation failed to progress in the Senate. That means they were considered dead for the remainder of the session.

As a reminder, those bills included: SB 444 – Public Litigation Coordination Act to restrict certain contracts by public entities for legal services on a contingency fee basis SB 445 – Defining and prohibiting certain deceptive lawsuit advertising practices and restricting the use or disclosure of protected health information to solicit individuals for legal services.

SB 446 – Enacting limitations on contingency fee agreements in certain civil actions

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legislative overview

SB 447 – Providing for joint liability for costs and sanctions in third-party funded litigation, requiring certain discovery disclosures and requiring payment of certain costs for nonparty subpoenas.

HB 2461 – Public Litigation Coordination Act was introduced by the KSAG office to require that public entities get approval before entering contingency fee contracts. This bill also failed to move forward in the legislative process but will be discussed in 2021.

HB 2673 – Original Jurisdiction over Medical Malpractice was introduced by Rep. Fred Patton (R-Topeka) on behalf of Speaker Pro Tem Blaine Finch (R-Ottawa). The bill would give the Kansas Supreme Court original jurisdiction over medical malpractice cases with a claim of noneconomic loss.

Judicial Branch

With the significant downturn in the Kansas economy, the stay-at-home order and numerous layoffs, it was difficult to be optimistic that additional state funds would be allocated to the judicial branch for raises.

Judicial selection: A proposed constitutional amendment allowing the senate to confirm the governor’s nominations to the Kansas Supreme Court didn’t see action this year, although at one point in 2019, it appeared to have enough votes to pass in the Kansas Senate.

HB 2591 – Allowing legislators to remain in a closed courtroom –was introduced by Rep. Michael Capps (RWichita). The bill would allow legislators of either chamber to observe the proceedings in a closed courtroom. That bill infringed on a judge’s authority over his courtroom. It was stricken from the calendar after the legislative turnaround deadline on Feb. 27th.

SB 403 – Withdrawal of Court of Appeals Nominee was introduced by Sen. Eric Rucker (R-Topeka) to clarify statutory language setting forth the conditions under which a nominee for the Kansas Court of Appeals may withdraw from consideration. The proposed language stated: (2) The governor may withdraw an appointment from consideration by the senate at any time before the senate consents to such appointment by serving written notice of such withdrawal on the secretary of the senate in accordance with K.S.A. 60-303, and amendments thereto. That bill was stricken from the calendar post Feb. 27th.

KBA Legislation

The Kansas Supreme Court acted quickly to protect litigants, lawyers and staff. On March 18, 2020, the Supreme Court released Administrative Order 2020-PR-016 directing all district and appellate courts to cease all but emergency operations until further order. The Supreme Court anticipated the order to remain in effect for at least two weeks, at which time it was to be reevaluated. The Court has also issued additional orders including: 03-16-20: 2020-PR-015: Restrictions to mitigate COVID-19 spread 03-12-20: 2020-PR-013: Kansas judicial branch policy on pandemic disease.

Earlier in the session, Chief Justice Marla Luckert and several other OJA employees had testified about the need for an additional $18.3 million to fund increases for staff and judges and to add a few more judges to cover high-filing areas. The General Government Budget Committee approved this request as did the House Appropriations committee. However, the Senate Ways & Means Committee decided to hold off on its debate of the judicial budget until the Veto Session. The legislature did pass 2.5 percent raise for all state employees.

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Family Law SB 157 – Presumptive Shared Parenting was introduced by the National Parent Organization which operates out of Arizona and champions fathers’ rights. The goal of the legislation was to create a presumption that shared parenting was in the best interest of a child. The bill would require that parenting be divided 50/50 when a petition for divorce is filed. The bill was strongly supported in the Kansas Senate. It passed 39-1. Sen. Dinah Sykes (R-Leawood) was the lone NO vote.

The Kansas House was more skeptical of the bill’s intentions.

The House Judiciary Committee held a hearing with over 200 pieces of testimony. The KBA played a significant role in opposing SB 157, organizing family law experts, law professors, civic groups and other associations. The House Judiciary Committee did not vote on the bill, but all indications were that the vote would have been negative, and the bill would have failed.

HB 2533 – Uniform Family Law Arbitration Act was introduced by the KBA with Prof. Linda Elrod speaking on its behalf. The bill would allow arbitration to be used in certain family law actions, such as divorce. Family Law Arbitration is voluntary. The House Judiciary Committee recommended HB 2533 favorably for passage but it failed to receive a vote by

legislative overview

the committee of the whole. Leadership was afraid that Rep. Ward would attempt to amend the bill to include teacher due process, which caused the bill to fall below the line. At that point, the bill was dead for the session. A possible strategy would be to use this bill next session as an alternative to any presumptive shared parenting proposals. Family arbitration could be a way for divorcing couples to negotiate custody without altering the “best interest of the child” standard.

SB 404 – Terminating Parent Rights was introduced by the Kansas Judicial Council to create a cause of action to terminate the parental rights when a child is conceived as the result of a sexual assault. The bill passed 40-0. It moved on to the house where it waited in vain for a hearing.

Legislative Resources

Corporate Law

http://www.kslegislature.org/li_2016s/documents/info_ks_ spec_session_ro.pdf http://www.kslegresearch.org/KLRD-web/Publications/ SummaryofLegislation/2020_Special_summary_of_legislation.pdf

HB 240 – Quorum Requirements for Certain Corporations was introduced by Rep. Boog Highberger (D-Lawrence) to assist the Merc Co-Op in amending its corporate charter.

The bill lowered the quorum requirement to 10 percent which would mean fewer voting members would be required to be present to change the corporate by-laws. The KBA’s Corporate Law Section led by Bill Matthews and Bill Quick, were concerned that the proposition set a dangerous precedent and requested that a sunset provision be added. Highberger agreed, but the bill was unable to pass before the legislature adjourned.

SB 424 – Corporate Code Clean-Up was introduced by the Kansas Secretary of State’s office to clean-up the code after several laws passed in 2019. This would allow the KSSOS to use new technology in business filings. The KBA was able to beat back an amendment which would have added d/b/a and fictitious names to business filings which would have conflicted with federal and state trademark laws. The amended version of SB 424 passed the senate. The new regulations would have also helped with online filings. It should have been a priority in the Veto Session. The KSSOS asked that the new laws be delayed until 2022 but due to COVID-19, expedited rules and regs would surely have resulted, had SB 424 been approved. n About the Author Joseph N. Molina III serves as the director of legislative services for the Kansas Bar Association. Prior to joining the KBA, he was chief legal counsel for the Topeka Metropolitan Transit Authority and served as assistant attorney general, acting as chief of the Kansas No-Call Act. Molina earned a B.A. in political science, philosophy, and economics from Eastern Oregon University and a J.D. from Washburn University School of Law. jmolina@ksbar.org

The Kansas Legislative Research Department has published its first 2020 Summary of Kansas Legislature. The following links provide information on bills passed into law: http://www.kslegresearch.org/KLRD-web/Publications/ SummaryofLegislation/PreliminarySummaries/2020-preliminary-summary.pdf http://www.kslegresearch.org/KLRD-web/Publications/ SummaryofLegislation/PreliminarySummaries/2020-preliminary-summary-supp-I.pdf Special Session

2021 Budget Info http://www.kslegresearch.org/KLRD-web/Publications/ BudgetBookFY21/FY2021_ABS.pdf

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THE

3rd Annual

KBA Photo Contest

THEME: Requirements: • Open to KBA member attorneys only • Photos must have been taken in the 2020 calendar year • MUST be submitted in digital, hi-resolution format (300 dpi or better) • Photographers MUST complete personal info sheet AND sign and submit a release for photos submitted.

• A maximum of one photo per category may be entered • Photographer will determine the category in which each photo will be judged.

CINEMA!

Categories:

Film Noir - Black and white photos,dark,

moody, bleak...people or places....

Drama/Documentary - Photos that tell a

compelling story, a riveting history, a burning issue

Romance - a romantic place or loving gesture between pairs of people, animals, fish, birds Comedy - an incongruous sign, an anachronism in time or place...anything that would make you laugh

Action - anyone or anything in motion - make

us FEEL the motion with your photo

The Journal of the Kansas be Bar Association All 58photos must submitted by the end of the day on October 12th!

substance and style

I Want to Talk About Me1

I

f l e s y mME

by Emily Grant

W

hen I was in first grade, a classmate would participate in show-and-tell with a story that started “my brother and me went…” Every time, I would raise my hand and politely point out to the teacher and my classmate that he should have said “my brother and I went.”2

Now, far (far) beyond first grade, the rich irony is that I consistently misuse personal pronouns in one distinct setting: “Mom gave it to my brother and I,” I say every time, when it should be “to my brother and me.” I know my use is incorrect, but I can’t shake the notion that “my brother and me” just feels wrong.

No more. I have read and internalized the rules for using personal pronouns, including the often-confusing “myself.” I am reformed, and I share these rules with you so that you can make it through show-and-tell without the pig-tailed girl in the front row3 calling you out on your pronouns.

Nominative case personal pronouns (I, we, you, he, she, it)—These pronouns serve as the subject of a verb. “I drafted

the brief.” When there is a double subject, the pronoun comes second: “Michelle and I drafted the brief.” Not “I and Michelle drafted the brief.” And like my first grade classmate was frequently reminded,4 “me” is not an appropriate pronoun for the subject of a sentence, even in cases where there is a double subject. You would not say, for example “Michelle and me drafted the brief,” any more than you would say “me drafted the brief.”

Objective case personal pronouns (me, us, you, him, her, it)—These pronouns are objects, either direct or indirect objects of a verb or objects of a prepositional phrase. “Carl gave me the assignment.” “Carl gave the assignment to me.” If there’s a double object, the pronoun and the other object can go in any order: “Carl gave the assignment to Stacy and me” or “Carl gave the assignment to me and Stacy.”

Reflexive case personal pronouns (myself, ourselves, yourself, himself, herself, itself)—These pronouns are never subjects of a sentence; they can only be objects, but they are obwww.ksbar.org | July/August 2020 59

substance and style

jects that refer back to the subject. So you would use these About the Author pronouns when the person of the pronoun is also the subject Emily Grant teaches Legal Analysis, Research, of the sentence: “The foreperson chose to speak for herself.” and Writing at Washburn University School of In that sentence, “herself” refers to the jury foreperson, who Law. She wrote this bio herself so that you can is also the subject of the sentence. Or “I was proud of myself read it yourself. Please reach out to herself her if you have questions or comments. for that brilliant cross-examination.”

Reflexive pronouns can also be used for emphasis or to add emily.grant@washburn.edu intensity to a sentence. “I will do it myself.” Or “Opposing counsel wanted to speak to the judge himself.” In both of these sentences, the reflexive pronoun could be omitted and the sentence would remain grammatically correct, so the use of the pronoun merely adds emphasis.

1. The next line of Toby Keith’s song “I Wanna Talk about Me” is Lastly, reflexive pronouns can be the object of a preposition, “Want to talk about I.” File that away as an example of improper personal again if the object is the same as the subject of the sentence: pronoun use. Read on to find out why.

“He mailed the letter to himself.” This does not hold true, 2. I didn’t have very many friends that year.

3. Of course I was in the front row. however, for prepositions of place: “She placed her purse be4. I’m so sorry, Brian! side her” and not “beside herself.” Or “I like the water pitcher 5. For additional reading, check out these websites: near me” and not “near myself.” https://www.dailywritingtips.com/me-myself-and-i/ https://www.quickanddirtytips.com/education/grammar/myself Final Suggestions5 https://www.instructionalsolutions.com/blog/me-myself-and-i• If you’re trying to decide which pronoun to use, read grammar only the subject, verb, and pronoun to check the sentence. “Co-counsel and I sat at the table.” You would check that with “I sat,” and not “me sat” or “myself sat.”

Or “Please give the paper to Randy and me” could be checked with “give paper to me” and not “to I” or “to myself.”

• Don’t treat “myself” as a fancier, more astute-sounding version of me. It’s not. “Me” is perfectly acceptable and often grammatically correct. Don’t try to add in extra “myself”s because you think it makes you sound sophisticated.

• “I” is the subject; “me” is an object; “myself” is only when you are also the subject of the sentence. n

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The Journal of the Kansas Bar Association

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a nostalgic touch

What are you doing to fight for social justice?

by Matt Keenan

I

t was on Thursday, March 12 when our third son, Robert David rolled his rental car into the city limits around 9:00 p.m. It was a two-day drive from Brooklyn, where he had lived the past two years. He arrived with a slight fever, and his mother dispatched him to the basement for two weeks, where the microwave, WIFI and cable were readily available.

He recovered, and later received a positive antibody test.

His unexpected arrival followed by Kansas City’s stay-athome order offered the opportunity for engagement. As the walls shrank, and he came up from the dungeon, we had many robust discussions. Some were light. Like when it came to cinema. I channeled Ben Mankiewicz of Turner Classic Movies and gave introductions and running commentary to “Cool Hand Luke,” “Lawrence of Arabia,” “The Way We Were,” and to the greatest comedy ever made—”It’s a Mad, Mad, Mad, Mad World.”

He took them in and offered his own favorites like “The Count of Monte Cristo.”

Politics percolated to the surface. We engaged on politicians and the direction of our country. Robert was more than willing to engage in a point-counter point reminiscent of the early years of 60 Minutes. When his cup overflowed from old timer wisdom, he dropped, “OK Boomer,” and left the room.

But everything changed on May 25th.

It would be a modest understatement to say that on May 25th, the lighter tone of topics took a different turn. The events that began in Minneapolis and then swept across the globe spoke loudly how much progress remains ahead of us when it comes to so many things—but particularly in regard to racial equality and justice for all.

My viewpoint, while relevant, seems insufficient to capture this moment. Two of my law partners, Buffy Mims, in the DC office and John Lewis, Jr., who practices in our Atlanta office, and who chair our firm’s Diversity and Inclusion committee, sent around a firm-wide e-mail on June 5th that is worth quoting here, in part: www.ksbar.org | July/August 2020 61

a nostalgic touch

“We must raise collective awareness of the factors that brought us to this place, and consider how we can use the lessons of this sad but inevitable period in our history to root out inequities in our own profession and firm. Racism is, indeed, America’s original sin. As a society, we are now, in a sense, paying the wages of that sin. Sadly, it seems that our country, in the words of Dr. King, still fails to live out the true meaning of its creed, “that we hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”

We are all asking ourselves these questions—what am I doing? What more can I do? And when?

Our profession is uniquely capable of helping to bring justice to our communities. Our law school libraries are full of treatises describing historic and ground-breaking legal cases righting wrongs and guaranteeing equality. None perhaps are more historic than Brown vs. Topeka Board of Education, with its own K.U. connection in the late Paul Wilson.

The opportunities I have received over the years to represent pro bono clients have offered only modest blows at the inequities in my own community. The first client I met was over thirty years ago, when Dave Waxse handed me a file and said, “This is your new client—she is coming in this afternoon.”

The relationship I forged with that single parent struggling to juggle twenty different balls was a true gift and changed my professional priorities forever. We remain friends today.

Kansas attorneys have a proud legacy of representing the poor and disadvantaged. The leadership in this area was shown to me by my early mentors—Dave Waxse, Gene Balloun, Ron Bodinson, Tim O’Brien, and my dad, to name a few.

The Kansas Bar has other leaders who have done amazing things. Some of these leaders were part of my discussions with my son. I mentioned to him Kansas City attorney Cheryl Pilate and her work to help free Darryl Burton—a man who spent 24 years in prison for a crime he did not commit, convicted of capital murder in the City of St. Louis in less than an hour, in a case without physical evidence and motive. It took eight years of legal work from a team—two lawyers, three investigators—to win Darryl’s release and exoneration.

Kansas Legal Aid is fighting for social justice Former Attorney General Janet Reno once said: “The importance of our profession to create justice is not a refrain. It has meaning. I think lawyers who engage in pro bono service to protect those who cannot help themselves are truly the heroes and the heroines of the legal profession.”

So I ask you this question: Do you currently represent a pro bono client?

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There is no institution better equipped to help you find a toddler, teen, mother or father in your city who is desperate for a fighter like you to represent them than Kansas Legal Services (KLS), with 33 attorneys in 11 offices—Topeka, Dodge, Emporia, Hays, KCKS, Hutchinson, Manhattan, Pittsburg, Salina, Seneca and Wichita. Every day they ensure that “Justice for All” is not just a meaningless refrain.

These days, Executive Director Marilyn Harp’s phones are ringing nonstop with clients needing an attorney. They contact KLS about a variety of concerns—evictions, protection order hearings and debt collection matters. You can get trained in just hours and start taking new clients.

Others support pro bono in other ways. They open their checkbooks. KLS started a new campaign—“We Are Legal Aid”— in Wichita. That campaign raised $20,000 a year for 3 years, with 11 firms, representing 237 lawyers, making a per-attorney commitment to the effort.

Twelve Wichita firms have contributed, including Bever Dye, Fleeson, Gooing, Foulston, Hinkle Law Firm, Martin Pringle, Hutton & Hutton, Klenda Austerman, Graybill & Hazelwood, Hite Fanning, Triplett Wolf, and the law firm of Edward Robinson.

Call Legal Aid of Kansas, or donate. Do it now. You are needed: (785) 233-2068. Marilyn Harp; harpm@klsinc.org.

Each one of us has the unique opportunity to shape change in our own communities. Will we? n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com

substance and style

Hi, Dear, Good Morning? Email Salutations in the 2020s

by Gillian Chadwick

T

he simple matter of how to begin an email has become with its own mores, rather than simply an electronic letter. an unexpected source of controversy in recent years. As Lawyers who began their careers with a typewriter may feel a profession, lawyers no longer have a shared norm to differently. Another discrepancy appears to be geographic. Unrely upon when beginning our most common form of written surprisingly, I see “Dear” more often in Kansans than I did in communication. Such shared norms are important because they the mid-Atlantic. This is unsurprising because I have found the help us convey and interpret our intentions towards one another. stereotype to be largely true— Kansans are more polite.

“Dear” remains the gold standard in letter writing and is So what’s a lawyer to do? still preferred by many emailers. However, “Dear” has not 1. First, let’s all cut each other some slack! It is importranslated to email for many lawyers. Some find it overly for- tant to recognize that customs and expectations around email mal, stilted, or even off-putting. To my surprise, an oppos- communication vary widely and no one standard exists. Asing counsel recently said he found my use of the salutation sume the human being on the other side of the computer “Dear” condescending. screen is doing their best to navigate this unlikely minefield Strong feelings exist on the other side of the “Dear” divide without causing offense. Lawyering is hard enough without as well. I know lawyers who take genuine offense to emails having to fret about our email salutations (or lack thereof). that do not begin with “Dear.” They see the lack of formality 2. Similarly, avoid reading into it too much. Rememas a lack of courtesy and believe the decline of “Dear” is a loss ber email tone is difficult to interpret. Between that and the for professionalism in the field. breadth of customs and expectations, you are unlikely to acIn the context of email, “Dear” is not as common as it once curately guess the intent behind someone’s use of a particular was. Unfortunately, no clear alternative has emerged to take salutation. Assume good faith and focus on the substance of its place. Less formal options include “Hi” or “Hello,” which the email, rather than the salutation. are used more and more. That approach leaves an awkward 3. Consider mirroring the approach of the person you are choice between the proper syntax “Hi, [Name],” and the in- emailing, particularly if they take a more formal approach correct but more streamlined “Hi [Name],” neither of which than you. If you notice someone using “Dear,” you can demlooks quite right. “Good morning/afternoon” can work, but onstrate respect by following suit. it has lawyers checking the clock before they press send; and 4. If you choose to skip salutations in the workplace, do “Good evening” sounds like it should be followed by “… and it carefully and only in casual conversation with friendly colwelcome to my email.” On the other hand, “Good afternoon” leagues and coworkers. “Good morning/afternoon” or a nameafter 5:00 p.m. can carry a passive-aggressive twinge as it sugonly approach will work in most professional contexts. Howgests the recipient must still be working since it is merely the ever, when in doubt, your best bet is to fall back on the old afternoon. standard, “Dear.” Although not universally embraced, it is still A more direct, and increasingly common approach is to use the least likely to cause offense. (But remember point #1 and be the recipient’s name without a preceding salutation. Propo- gracious to those who choose a different approach!) n nents of this approach see it as professional and business-like.

Detractors find it grating and impolite. Minimalists take it a About the Author step further by diving straight into the email body, skipping Gillian Chadwick is an Associate Professor at the salutation line altogether. These salutation skippers argue Washburn University School of Law, where she there is no need when every email begins, like a memo, with serves as Director of the Washburn Law Clinic and To, From, Date, and Re lines. While the point is well taken, Associate Director of the Children and Family Law Center. Professor Chadwick teaches Immigration this approach is abrupt to many readers and truly jarring to Law and Litigation Clinic, in which she supervises “Dear” fans. students representing low-income children, parents Part of this dissonance seems to be generational. Digital naand victims of abuse in a variety of contexts. tives may be more likely to perceive email as a unique medium gillian.chadwick@washburn.edu

www.ksbar.org | July/August 2020 63

law practice management tips and tricks

The Court During Crisis

by Larry Zimmerman

T

he impact of the novel coronavirus COVID-19 continues to be felt throughout Kansas by courts, lawyers, and citizens, introducing significant challenges to maintaining access to justice. Lawyers and the courts can utilize the lessons learned so far to harden the justice system against further health impacts of the virus, resultant economic disruptions, and other as yet unknown challenges lurking in our future.

Throughout the current crisis, I have had opportunity to meet with lawyers, litigants, judges, and court personnel across the state as we have each struggled in our own ways to protect litigants and citizens, maintain practices, and open the courts for business. Certain themes emerge from each of those conversations which underline the basics of a robust response to emergency.

Communication The Kansas Supreme Court is front and center in addressing any statewide emergency like COVID-19. The court, in coordination with the legislature and governor, acted immediately and decisively to address the growing crisis back in 64

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March. The court’s website, kscourts.org, features a prominent link at the page header to COVID-19 response that provides quick access to key issues like deadlines, statutes of limitation, and administrative orders related to court functions during pandemic.

Some opine that the website resource should be supplemented with a regularly scheduled press conference or, at the very least, recorded statements available for media use and distribution. Just as the governor and legislative leaders are addressing citizens and constituents, the third branch of government can be similarly accessible and interactive. Communication targeted at a non-legal audience is also recommended as vital outreach to citizens. Such press conferences or communications would not need to be as regular as the other branches but should accompany issuance of significant orders released to adapt to evolving circumstances.

Order Release Schedule The kscourts.org website lists 26 administrative orders issued by the Supreme Court related to COVID-19 from March 12 through June 16. Those orders dropped on every

law practice management tips and tricks

day of the week and appear always to have always been released at or near 5:00 PM. Sometimes orders trickled out one at a time over the course of a week and other times a large dump of five to six orders would hit in a single day. Processing the orders became a huge challenge for parties, lawyers, judges, and court personnel and the unpredictability of their release was consistently problematic.

Establishing a specific day of the week as an administrative order release day would improve the transmission and circulation of those orders. Just as the public knows to tune in on a weekly basis for statewide updates on COVID-19, a single date of release for court orders can help establish some predictability in an unpredictable time. Reviewing each of the orders, there appears to only be one in particular at the beginning of the crisis which was tied to an external event that drives release (2020-PR-16 related to suspended deadlines and operations).

Community Involvement In recent years, many of the Supreme Court’s administrative orders represent the outcome of committees established to gather, compile, and present options for addressing various access to justice issues. In fact, two of the orders issued during the COVID-19 crisis have formed such committees – the Ad Hoc Virtual Court Proceedings Committee (2020-CM059) and the Ad Hoc Jury Task Force (2020-CM-050). These types of committees are generally comprised of a variety of stakeholders including, optimally, practicing lawyers.

Order 2020-PR-016 is an example of why this is important.

The order outlined essential services of the courts and immediately upon issuance, some courts interpreted it to mean that filings related to non-essential activities should be rejected.

That misunderstanding was ultimately addressed two weeks later in 2020-PR-032 but greater participation in the original order’s drafting by practicing lawyers and clerks might have anticipated the issue.

Standardization/Unification The implementation of a uniform electronic filing system throughout the state and the bare bones beginnings of a new uniform case management system has contributed substantially to keeping the courts accessible to citizens of Kansas.

The decision-makers and court staff who have pushed for these tools and worked tirelessly to implement them deserve applause.

It is important to add to those efforts the lessons learned so far about using remote access, remote court sites, video conferencing, and simple forms and instructions to make the judiciary available to all citizens in a timely, affordable, and reliable manner regardless of emergency circumstances. While each district court represents its community and should be responsive therein, broader standardization of tools available will make that representation and involvement easier. The timeline should be sped up as much as possible to prepare for further disruption later this year and to allow a “new normal” which makes the courts more accessible—more efficiently— to more citizens. n

Help Center Because the orders issued during the pandemic are largely unprecedented in scope and outcome, interpreting them as the Supreme Court intends is important. The ad hoc manner in which the issues addressed in 2020-PR-016 and 2020-PR032 and non-essential filings ultimately resulted in a course correction and new order. However, a more clearly outlined help center can streamline communication and reduce unintended consequences. All stakeholders – judges, clerks, lawyers, and the public – have indicated in conversation that having someone to call with definitive authority would improve access to justice and minimize unexpected and undesirable consequences.

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

kslpm@larryzimmerman.com

www.ksbar.org | July/August 2020 65

law students’ corner

Traveling Down an Unpaved Road: My Experience as a First-Generation College Graduate

by John Goodyear

I

t was one of those conversations I never expected to have.

Sitting in my boss’s office discussing my future career plans, I opened up about something that I had been feeling since the beginning of my law school experience: imposter syndrome. That feeling that you don’t belong and the fear that you will soon be exposed as a fraud. Of course, I am not unique in feeling this. Many law students do. It stems from any number of insecurities. For me, it was rooted in my status as a first-generation college graduate.

I come from a working-class family in southeast Kansas.

While neither of my parents has a degree, I was raised in a household that valued and put an emphasis on education. My folks pushed me to do my best in school and told me that education was a password that could open almost any door.

I was eight years old when my dad first talked to me about college. He made it abundantly clear that I would be going, and while he supported me with everything he had, I would have to figure out how to pay for it myself. For some, that may seem like a pretty young age to have that weighty of a conversation, but for many first-generation students, it’s reality.

While the experiences of first-generation students vary from person to person and are colored by the circumstances

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unique to them, there are a number of central obstacles faced by many within the group, if not all. Perhaps the most common among those is a lack of resources—not just financial resources, although that is a major component. Notably, firstgeneration graduates often lack the social and professional connections possessed by their law school classmates and peers. The lack of connections often equates to a lack of exposure to the profession.

As I discussed my own doubts with my supervisor, I talked about feeling like I was somehow falling behind for this exact reason. It seemed as if I was the only one among my classmates at that point who had neither a parent nor close family friend in the field, helping to guide my steps. Of course, this was not the case, even though there were many within my class that were better connected. Rather, it was a symptom of my imposter syndrome. I needed to learn that the connections made after you decide to pursue a legal career are just as important and valid as those made before the leap.

Another challenge faced by those first-generation college graduates embarking on law school is a lack of readiness for the adjustments that must be made to be successful in the study of law. Anyone who has been through the law school

law students’ corner

experience knows that a significant amount of time is spent reconstructing and refining the way that you read, learn and think. To be successful, you must learn to “think like a lawyer.” This was a novel concept for me and many others with limited exposure to the field. Putting myself through college and finding the way on my own was a source of immense pride for me. Then being told that my approach to problem solving in the past was not going to work in law school or the legal profession was a tough pill to swallow. I had found the way without the map, but now I was being told that my way was not going to work anymore. I could not help but feel a bit defeated. While deconstructing thought processes is not easy for anyone as they embark on their legal careers, it is made more difficult when you do not see it coming.

How then can first-generation graduates meet these challenges and combat imposter syndrome? I think the most important thing is to realize that you are not alone. I was not the only first-generation college graduate in my law school class. Far from it. Seek out those with similar experiences and doubts and open up—not to wallow or to find common misery, but to build a system of support. Imposter syndrome is easier to deal with when you realize you are not the only person that feels it. I would also suggest talking about your doubts and fears with someone you consider to be a leader or

When the professional

mentor in your life. Having people in your corner that you can lean on for advice is crucial to your success; but they cannot help you with a problem if you don’t talk about it.

The more we incorporate people with differing life experiences into our practice, the better equipped we are to serve our clients and advocate on their behalf. In spite of (or perhaps because of) the challenges that they face, first-generation graduates often have a different set of experiences and perspectives that otherwise may not be represented in your office. I know now that, while it made the road more difficult at times, my experience as a first-generation college graduate has helped to make me a better advocate; and while impostersyndrome never goes away completely, there is a place for me and people like me in the legal profession. n About the Author John Goodyear works as a staff attorney for the League of Kansas Municipalities in Topeka, Kansas.

He is a 2019 graduate of Washburn University School of Law and holds an undergraduate and master’s degree from the University of Kansas. John is a lifelong resident of Kansas and is committed to using his education and experiences to try to improve the lives of all Kansans.

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www.ksbar.org | July/August 2020 67

law students’ corner

Respecting the Role of Dissent: A Call to Law Students

by Desiree’ Smith

W

ithin the first week of law school, students are assigned at least one dissenting opinion to read. Law students quickly learn that for every majority decision, there is also a dissenting opinion. Frequently, the dissenting opinion is as important if not more important than the majority opinion. The entire basis of the legal profession is that reasonable people can disagree, will disagree and should disagree.

Recently, our world has not been a place where reasonable people can disagree. A quick look at recent Facebook posts, news articles, email threads and blog posts show that our world has become very divided. The “majority” takes a stance, and that stance becomes right while everyone else’s perspective becomes wrong. We refer to this trend as “cancel culture.” Cancel culture perpetuates the idea that if you disagree, you get shut down. We see people losing their jobs over opinions and some speakers having their events literally canceled because their message isn’t popular. It has become common place to remove the opinions we disagree with. We remove “friends” from our Facebook feeds, and we don’t listen to news we disagree with. When people do entertain or agree with a dissenting opinion, they are often characterized as heartless, ignorant and a list of other descriptors that are not worth repeating.

It’s in this moment that law students, and every member of this profession, have an important and unique role to play in shaping society and overcoming the division that plagues

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our current society. Dissenters have been the base of the legal profession for a long time. Without people believing in the role of dissent, we wouldn’t have cases like Brown v. Board of Education. We wouldn’t have female attorneys. We wouldn’t have important pieces of the civil rights movement. Although we look back on those cases now and realize that the majority wasn’t always right, that is much harder to see in the present moment.

Law students, and academia as a whole, have the opportunity to shape the future of this profession. Students who disagree with the majority can quickly be pushed aside by their peers and colleagues, dismissed as being on the wrong side, and ultimately “canceled” for their opinion. Students are frequently warned that publicly disagreeing with the majority may permanently impact their future career options. However, if there is anything our profession knows well, it’s that the majority isn’t always right.

In this moment, law students have an opportunity to encourage and respect dissent. However, it’s not a one-sided task. Law students must be taught, and must practice respect for the role of dissent, even when they whole-heartedly disagree with the dissenters. Law students must learn to recognize that their point of view is not the only one that matters.

As a profession, we need to reflect on the role dissenters have played in the progress we’ve already achieved, and the progress we will achieve in the future.

law students’ corner

The profession is at a crossroads, but I don’t believe the senting opinion”—an opinion published everywhere that the legacy of respecting dissent is disappearing anytime soon. majority decision is published. As law students, it’s our time As a law student, I see my peers working towards this goal to embrace, respect and encourage the role of dissent; and I of respecting the value of each other’s points of dissent. Law believe we are up to the challenge! n students are engaging in productive conversations with each other and with the communities that surround them. Academia is playing a vital role in the shaping of our society. About the Author Lawyers are playing a vital role in the shaping of our society.

Desiree’ Smith is a law student as Washburn Dissent is playing a role in the shaping of our society.

University School of Law. She is currently a summer associate at Joseph, Hollander, & Craft I’m proud to be a part of a profession that believes reasonand will be beginning her 3L year in August. able people can disagree, and that the disagreement benefits Desiree’ is a Notes Editor for the Washburn Law society when treated with the respect it deserves. I’m proud to Journal, the Vice-President of the Washburn be in a place where I get to engage with the law in new and Student Bar Association, a competitor on the Jessup International Moot Court team, and former changing times. I’m proud to have peers, professors, faculty, Co-Director of the Children and Family Law and the staff who recognize the importance of this moment.

Center. Outside of law school, Desiree’ enjoys I call upon law students and the legal profession as a whole discussing politics with her friends, participating to continue the legacy of dissent and learn to appreciate the in trivia and board game nights, and spending value of listening to those who you disagree with the most. time with her friends and family.

We are above “cancel culture.” We don’t eliminate the voices we disagree with; we give them a platform called “the dis- desiree.smith1@washburn.edu

Get your CLE credits online with the KBA New Orders from the Office of Judicial Administration mean attorneys have until September 30, 2020 to complete 12 CLE Credits (including 2 hours of Ethics) for the 2019-2020 compliance year. Any attorney who cannot meet the June 30 deadline will be granted an automatic extension. All credits may be earned online.

You can complete ALL of your hours online!

Don’t procrastinate. Check out our online CLEs today! www.ksbar.org/CLE

www.ksbar.org | July/August 2020 69

Members in the News N

E

W

S

!!!

NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service.

If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: editor@ksbar.org

New Positions Jake Holly has joined the Foulston Siefkin LLP office in Topeka. Holly will be on the firm’s Northeast Kansas Transactional team, counseling clients in the areas of business, corporate, administrative, estate planning and real estate law. He earned his Juris Doctor from Washburn University School of Law and is a member of the American, Kansas, and Topeka Bar Associations.

Lauren G. Hughes has become a partner in the firm of Wise & Reber, L.C., in McPherson. Lauren is a Texas native. She received her B.A. from the University of Kansas and graduated with her Juris Doctor from the University of Kansas School of Law. She is licensed to practice in Kansas state and federal courts and is a member of the Kansas and McPherson Bar Associations. Lauren was recently named Outstanding Young Lawyer by the Kansas Bar Association and practices in the areas of estate planning, trust and estate administration, and business law.

Margaret “Maggie” E. Robertson joined Hinkle Law Firm LLC in Wichita as an attorney. Her practice focuses on business formation and planning, estate planning, asset protection and trust services. She also provides counsel on business succession planning, equity agreements and contracts. Maggie is a graduate of Kansas State University and Washburn University School of Law. She is a member of the KBA, the Oklahoma Bar Assn., and the OKC Bar Assn. She is admitted to practice in Kansas and Oklahoma.

Elias Underwood joined Foulston Siefkin LLP in Wichita as an associate attorney. He is a member of the transactional practice group where he advises corporate clients in the area of tax law. Underwood received a Master of Laws (LL.M.) in Taxation from the University of Florida Fredric G. Levin 70

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College of Law. He earned his Juris Doctor from Washburn University School of Law after graduating from the University of Kansas with a B.S. in Accounting. Before law school, Underwood, a CPA, was a senior insurance auditor with PricewaterhouseCoopers, LLP, in its KCMO office.

Notables Justice Carol A. Beier announced that she will retire from the Kansas Supreme Court effective Sept. 18, 2020. Beier has served on the court since September 2003; before that, she served on the Kansas Court of Appeals for over three years. Beier was appointed to the Supreme Court by former Governor Kathleen Sebelius. She was previously a partner at Foulston & Siefkin of Wichita and taught at the University of Kansas School of Law. The Kansas Supreme Court appointed an Ad Hoc Jury Task Force to analyze issues courts will face when jury operations resume in district courts across the state. District Judge Amy Hanley of the 7th Judicial District will chair the task force. Other members of the task force include: District Judge Steven Ebberts, District Judge Lori Bolton Fleming, Chief Judge Laura Lewis, District Judge Christopher Smith, Mary Kay Howe (court reporter), Paul Brothers (attorney), Terrence Campbell (attorney), Jeffrey Dazey (attorney), James Howell (attorney), Kate McKinney (attorney), Christopher McMullin (attorney) and Dionne Scherff (attorney). The panel met weekly in June and started meeting biweekly in July.

Shannon S. Krysl was inducted into the Wichita Business Journal’s HR Professionals Hall of Fame in February. Krysl retired as Chief Human Resources Officer in July 2020 from the Wichita Public Schools after 15 years of service.

Obituaries W. Robert “Bob” Alderson Jr. ( 6/24/1939 - 6/5/2020) Robert “Bob” Alderson Jr., 80, of Topeka, passed away at the House at Midland Care on Friday, June 5, 2020 from a cerebral hemorrhage.

He was born in Kansas City, Missouri on June 24, 1939 the son of W. Robert and Ellen Frances (Hedges) Alderson.

He received his undergraduate degree from Kansas University in Political Science where he attended on a track scholarship. Bob received his Juris Doctorate from Washburn University School of Law. Bob was an attorney and a partner in the Alderson Law Firm. He was a member of the Topeka Bar Association as their President, member of the Topeka Lawyers Club, Transportation Lawyers Association and several other professional organizations. He was a Past President of the Transportation Lawyers Association and currently President of the Topeka Bar Association. He was also a member of the House of Ushers Tycoon Club and served as its Treasurer. He was also a member of the Kansas Oral History Project. Bob held several positions in State government. He was First Deputy Attorney General under Bob Stephan, General Counsel for the Kansas Corporation Commission, and Secretary of Administration under Governor Bennett.

He was active in all aspects of the First Christian Church.

He served as a Board Chair, Elder Chair, served as the Christian Church of Kansas legal counsel and was a Camp Counselor for the Disciples Center at Camp Tawakoni.

Bob enjoyed Jazz music and was active with the Topeka Jazz Workshop. He was a season ticket holder for KU and was an avid fan of both football and basketball in good times and bad, and also was a Royals supporter. He enjoyed vacationing with his family, working out with friends at Wood Valley (now Genesis), attending the Topeka Civic Theatre, and playing golf.

He married Ruth (Hoagland) Alderson in Prairie Village, Kansas on November 13, 1971. She survives. He is also survived by two daughters; B.J. Mays and her husband Brian, and Stephanie Switzky and her husband Drew and two granddaughters, Brynna and Brooklyn Mays all of Topeka; three brothers, Alan Alderson and wife Gail of Topeka, Rusty Alderson and wife Berna of Cedar Park, TX, Ross Reninger of Roeland Park, KS, step-mom Peggy Alderson of Overland Park, KS and his devoted dogs, Abby and Zeva.

The family greeted friends at a carside visitation in the parking lot of First Christian Church (1880 Gage Blvd) on Thursday, June 11. Those able to attend were encouraged to

dress in KU or Royals gear. A digital Celebration of Life was posted to the Brennan-Mathena website later that week.

In lieu of flowers, memorial contributions may be made in his memory to the First Christian Church of Topeka, Disciples Center at Camp Tawakoni or to the Topeka Jazz Workshop and sent in care of Brennan-Mathena Funeral Home, 800 SW 6th Ave., Topeka, Kansas 66603.

Online condolences and fond memories may be left at www.brennanmathenafh.com.

Kurt Leslie James (1/11/1952 – 6/3/2020) Kurt Leslie James passed peacefully at his home in Topeka, Kansas on June 3, 2020. His untimely passing was a shock to all who knew him. Kurt was born on January 11, 1952 in Topeka, Kansas to Howard and Helen James. Kurt is survived by his two sons, Dylan James, (29) and Daniel James, (27) his mother, Helen James, and his four (4) siblings, Karen Campbell, Tim James, Chris James, and Terry James, and many nieces and nephews. Kurt is also survived by his loving fiancé, Maria Noriega, of San Luis Obispo, California.

Kurt graduated from Topeka West High in 1969 and was proud to serve his country as a medic in the United States Air Force. After a stretch of time living in New York City, he returned to Topeka, Kansas where he worked full time at Goodyear Tire Co. in a supervisory role, while paying his way through law school at Washburn University School of Law. He graduated and passed the Kansas Bar Exam in 1996.

Over the course of his legal career, Kurt offered his guidance and energy to many individuals in Shawnee and the various surrounding counties in Northeast Kansas.

Throughout his life, Kurt loved showing dogs and the dog show life, with his favorite breed being the Standard Poodle.

Kurt met the love of his life, Maria, at a dog show in 2012.

He loved life and was never one to turn down adventure or walk away from a challenge. Kurt loved his sons, Dylan and Daniel, Maria, his many friends, his family, and most of all he loved gathering together with and cooking for them. He was an avid golfer, animal lover, a great storyteller, a gambling man, and one that loved the theater, art, the blues, live music, fine food and traveling. He will be missed by many.

SAVE THE DATE :There will be a celebration of life and a golf tournament on September 12, 2020 at Western Hills Golf Course. More details to follow.

www.ksbar.org | July/August 2020 71

Howard “Michael” Nichols (12/20/1946 – 5/9/2020)

Carl Wayne Shewmaker (2/17/1928 – 5/5/2020)

Howard “Michael” Nichols, 73, Wichita, KS passed away Saturday, May 9, 2020 at his home. Mike was born on December 20, 1946 in Paxton, IL, the son of Howard and Betty Sue (Kirksey) Nichols.

Mike was a noble, humble, caring man with a great sense of humor who lived life by example. Mike was laughing and caring for his wife and family until the end.

He was a graduate of the University of Kansas with a JD law degree. He was an attorney and owned his own law firm.

He married the love of his life Diane Marie Born on May 16th 1981 in Lawrence, KS. He is survived by his loving wife Diane, 3 sons: Jeff Phillips (wife Samantha and children Jayden and Ryder Phillips of Galena, KS), Chris Phillips (wife Cydney and children Lincoln and Charlie Phillips of Wichita, KS), John Nichols of Austin, TX, and sister Patricia Petterson of Topeka, KS. The family suggests memorials in his name to The American Cancer Society and may be sent in care of Warren-McElwain Mortuary, 120 W. 13th Street, Lawrence, KS 66044.

It is with deep and abiding grief that we announce the death of Carl Wayne Shewmaker, while in Bellingham, WA. His smile lit up so very many lives, in very many places, and his memory remains a source of comfort, strength, and joy.

Born to James Carl and Genevieve Julia (Papp) Shewmaker on February 17th, 1928, Carl passed away peacefully on May 5th, 2020. He was predeceased by his beloved wife, Emily M. Shewmaker, and his brother, Dwight Shewmaker. He is survived by sister Genevieve (Shewmaker ) Duncan, and daughters Judith Marie Shewmaker Pine (son-in-law George A. Pine), and Edith A. (Shewmaker) Brown (son-in-law Todd Brown) grandchildren Deanna Honafius, Michael W. Brown and Steven T. Brown (partner Sophie Marie Pope), Elizabeth M. Pine, Carl A. Pine, and great-grandchildren Davin Honafius, Christian Brown and Claire Brown.

Carl was born in St. Joseph’s hospital in St. Louis, Mo and spent most of his childhood in rural Kansas, moving to Long Beach, CA for his senior year of high school. Upon graduation from Long Beach Polytech he joined U.S. Army, serving in Austria and Japan during the post-WWII occupation.

After mustering out, he attended Georgetown University on the GI Bill, earning a B.A. and a J.D. While living in Washington D.C., he worked for the Army Map Service. He came home to Kansas to practice law, and it was there that he met and married Emily M. Kemesies, originally of New York.

Carl practiced law in Eureka, KS until 2011 (he used to say that he had to keep practicing as he was not yet perfect). He got his private pilot’s license in the 1970s, and regularly flew small single-engine planes throughout the region. Also in the 1970s he and Emily purchased some property they dubbed “Slate Creek Ranch”, which made it possible for him to have a small herd of beef cattle whose care and feeding kept him active and outdoors, giving opportunities for visiting daughters and grandchildren to help out with winter feeding during the holidays. In Eureka, he was an active member of Kiwanis, the Midian Temple Shrine and the Jaycees, serving as an officer in all of these organizations at one point. He was also a dedicated and determined Kansas Democrat, and a member of Christ Lutheran Church of Eureka. He was a founding member of the Board of Great Plains Diabetes, and an active member of the Kansas Bar Association and the American Bar Association, with 50+ years of active membership.

On retirement, he and Emily sold the ranch and moved to the Kansas Masonic Home in Wichita. After Emily passed away in 2012, Carl spent much of his time in Bellingham, WA, home to his daughter Judy and her family. While in Bellingham he attended the Bellingham Unitarian Fellowship and was an engaged member of the Black Lives Matter Ministry Action Team.

Memorial services will be scheduled when large gatherings are again an option. Scheduling remains uncertain due to the COVID-19 pandemic. An online Guest Book has been created at the Tributes site maintained by Mt Baker Cremation Society.

In lieu of flowers, donations to causes near to Carl’s heart are welcome. These would include those organizations that work on behalf of workers, social justice, and the good of the human community.

David E. Shay (11/9/1962 – 5/11/2020) David E. Shay, Esq., 57, passed away suddenly at his home Monday, May 11, 2020. Dave was born November 9, 1962 in Scranton, PA. to Howard E. and Arlene J. Shay, who preceded him in death.

He was a graduate of Cameron R1 High School in Cameron, MO. He earned his BS in Journalism from the University of Kansas in 1984. He then went on to earn his Juris Doctor from the University of Kansas in 1988, where he was a member of Law Review and Order of the Coif. He was sworn into the Missouri Bar Association in 1988. He was a Shareholder at Seigfreid Bingham, PC over the past 20 plus years.

David was a coach and mentor to many young men through Kansas City Football and Cheerleading Club for more than 20 years. This was a source of great joy for him.

Left to mourn his passing are his loving wife of 35 years, Kym Shay; Sons: Daniel Shay and wife Nicole, Mission, KS; Andrew Shay, Overland Park, KS; and Matthew Shay and wife Taryn, Salina, KS; Grandsons Jackson Shay and Kingslin Johnson; Brother Bill Shay and wife Gail, Rocky Hill, CT; Sisters Peggy Elliott, Oak Grove, MO; and Suzanne Shay, St. Joseph, MO: Mother-in-law, Sharon Grow, Prairie Village, KS; Coaching partner Reggie Foster; many nieces and nephews, great nieces and nephews, bonus kids, cousins, aunts, uncles, and friends. Dave will be greatly missed by all who knew him.

Memorial contributions may be made to the David E. Shay memorial scholarship through Kansas City Football and Cheerleading Club. Donate by clicking here Private Family Services will be at 10:30 AM, Tuesday, May 19, 2020 at the Porter Funeral Home, Lenexa, KS. Burial will be at the Resurrection Cemetery. Condolences may be expressed at: www.porterfuneralhome.com Arrangements: Porter Funeral Homes & Crematory, 8535 Monrovia, Lenexa, KS (913) 438-6444) 72

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

Kansas State Supreme Court Civil TRUSTS IN RE ST. CLAIR TRUST REFORMATION SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,050—JUNE 5, 2020

FACTS: Jill St. Clair executed a trust agreement in September 2003. St. Clair’s husband, William, was named a life beneficiary of the trust’s income. Upon his death, the trust’s income would be distributed to Jill and William’s children and grandchildren, with the principal eventually being distributed to the grandchildren or their estates. William had previously created his own trust with an identical distribution scheme. Both trusts were funded with identical amounts, and both trusts were prepared by the same attorney. Mr. Davidson drafted the trusts to make sure that the trust assets were not included in either William or Jill’s taxable estates. At the time the trust was executed, Jill believed it contained the necessary provisions for the trust assets to be excluded from both taxable estates. Unfortunately, the trust contained a drafting error which resulted in the trusts becoming reciprocal, with the assets of Jill’s trust being included in William’s estate upon his demise, and vice versa. The trust as written did not accurately express Jill’s intent. In order to correct the drafting error, Jill and her trustee petitioned the district court for an order reforming Jill’s trust to include provisions which would prevent the trusts from becoming reciprocal. The proposed amendment was served on all beneficiaries, with no objection. The district court ordered that the trust be reformed to correct the scrivener’s error.

ISSUE: (1) Whether trust should have been reformed HELD: The district court’s decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, and the case was transferred from the Kansas Court of Appeals. The record on appeal shows that Jill and the trustee demonstrated by clear and convincing evidence that Jill’s intent in creating and funding the trust was adversely affected by a drafting error, making it necessary to reform the trust.

Reformation destroys the economic symmetry of the trusts,

allowing the trust to be consistent with Jill’s original intent.

The reformation is affirmed.

STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415 PUBLIC DUTY—TORTS MONTGOMERY V. SALEH SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART, REVERSED IN PART NO. 112,518—JUNE 26, 2020

FACTS: Trooper Saleh initiated a traffic stop when he was informed that a passenger in the vehicle had a knife and was acting erratically. The driver rapidly accelerated and drove recklessly, running stop signs and red lights while his speed reached near 100 miles per hour. Saleh decided to stop pursuit, but not before the driver ran a red light and hit a pickup truck, injuring Montgomery and another individual named Bennett. The plaintiffs filed separate petitions alleging that Saleh was negligent and that the State was liable for his actions. The State moved for summary judgment, arguing that even if the plaintiffs could prove negligence there was no duty owed by Saleh under the public duty doctrine. The district court granted the motion, rejecting application of both the public duty doctrine and Kansas Tort Claims Act immunity.

But the district court ruled the plaintiffs failed to proffer evidence sufficient to support a finding of causation in fact. The Court of Appeals affirmed the district court’s findings on immunity and the public duty doctrine but remanded the case for further action on proof of causation. The Supreme Court granted Trooper Saleh and the State’s petition for review.

ISSUES: (1) Application of the public duty doctrine; (2) breach; (3) causation; (4) immunity HELD: The plain language of K.S.A. 8-1506 required emergency vehicle drivers to “drive with due regard for the safety of all persons.” This language shows that the legislature did not intend to exempt emergency vehicle drivers from the consequences of reckless conduct. This statute imposes a specific duty on law enforcement and individuals may sue if they believe this duty has been breached. In order to prevail, the www.ksbar.org | July/August 2020 73

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plaintiffs must prove that Saleh acted with reckless disregard for the safety of others. The evidence presented to the district court showed there is a material issue of fact as to whether Saleh exhibited reckless disregard when continuing to pursue the fleeing driver. Law enforcement’s conduct during a pursuit can be the legal cause of a third party’s injuries. Given the evidence presented to the district court, a jury could have found that the driver knew he was being pursued by Saleh.

Because there is a statutory duty created by K.S.A. 8-1506(d), the discretionary function exception does not apply to Saleh’s pursuit of the fleeing driver.

DISSENT: (Rosen, J., joined by Stegall, J., and Green, J., assigned) Justice Rosen would reverse the Court of Appeals and affirm the district court’s grant of summary judgment, holding that the plaintiffs failed to establish a prima facie case that Saleh breached his duty of care under K.S.A. 8-1506.

STATUTE: K.S.A. 8-1506, -1506(d), 75-6101(b), -6103(a), -6104, -6104(e), -6104(n) TORTS HAMMOND V. SAN LO LEYTE VFW POST #7515 CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED, CASE REMANDED NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table.

Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW’s petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons.

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Questions that must be answered on remand include whether Hammond’s injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

CONTRACTS RUSSELL V. TREANOR INVESTMENTS DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 117,973—JUNE 26, 2020

FACTS: In 1997, the owner of two adjacent properties executed and recorded an Operation and Easement Agreement.

The OEA restricted the building size and prohibited either property from being used as a regular grocery store. The OEA allowed for amendment if all of the current owners agreed in writing, and the OEA was amended to alter the original site plan. The amendment allowed for the creation of a multi-unit buildings with condominiums and retail space; Russell purchased a unit in the building in 2010. Treanor Investments purchased part of the property covered by the OEA in 2015, with hopes to amend the OEA and enlarge the property footprint to encompass a grocery store. Russell filed suit, claiming the OEA could not be amended without condominium owner consent. The parties filed competing motions for summary judgment and the district court agreed with Treanor, finding that it had been designated as the responsible owner, who had authority to act on behalf of other owners.

The Court of Appeals affirmed, finding that the OEA and its amendments were clear and unambiguous in allowing the responsible owner to act on others’ behalf. Russell’s petition for review was granted.

ISSUES: (1) Authority to amend the OEA; (2) can amendment materially change the character of the real estate HELD: The language of the OEA is plain and unambiguous, and it allows for the designation of a responsible owner to act on others’ behalf. This language existed before Russell purchased his condominium. Nothing in the language prevents the responsible owner from further amending the OEA to alter size and use restrictions. Russell failed to raise a genuine issue of material fact about whether the proposed changes to the property would cause a material change in circumstances.

STATUTES: No statutes cited.

Criminal ATTORNEYS AND CLIENTS—CRIMINAL PROCEDURE— MOTIONS—SENTENCING STATE V. ADAMS SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,475—JUNE 12, 2020

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FACTS: District court allowed Adams to dismiss his appointed attorney and to proceed pro se at trial, resulting in plea agreement for guilty plea to criminal charges including premeditated first-degree murder. His request for reappointment of attorney for sentencing was granted. Sentence was imposed, which included a hard 50 sentence, following the plea agreement. Adams later filed motion to withdraw plea stating he was prepared to offer evidence from Iowa and Kansas departments of corrections of his unmedicated schizophrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had an unmedicated mental health diagnosis, or have Adams undergo a mental health evaluation. District court held preliminary hearing with new appointed counsel and denied both motions. Adams appealed.

ISSUES: (1) Post-sentence motion to withdraw plea; (2) ineffective assistance of counsel at sentencing HELD: District court properly concluded there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis was not dispositive and the overall record would still conclusively show he was entitled to no relief.

Under totality of circumstances, appointed counsel’s decision to forego a mental health evaluation of Adams does not constitute deficient representation when record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceeding. There were no red flags in the record to suggest appointed counsel should have investigated Adams’s mental health. Adams’s reliance on “duty to investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced.

STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 223301(1), 60-1507 APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING—STATUTES STATE V. BRADFORD DICKINSON DISTRICT COURT—AFFIRMED NO. 120,683—JULY 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan.

585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995) APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JURIES—VERDICTS STATE V. BROWN COWLEY DISTRICT COURT—AFFIRMED; COURT OF APPEALS—REVERSED NO. 115,817—JUNE 5, 2020

FACTS: State charged Brown with attempted seconddegree intentional murder. District court instructed jury on that charge and the lesser offense of attempted voluntary manslaughter. Verdict form returned by the jury, however, found “the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7,” an instruction that referred to the correct crime of attempted voluntary manslaughter. This verdict inconsistency was not caught until sentencing, well after jury was discharged.

District court sentenced Brown for the instructed crime, attempted voluntary manslaughter. Brown appealed. In unpublished opinion, Court of appeals reversed and remanded for a new trial on that count, holding the written language of the verdict controlled and district court was powerless to deviate from its literal meaning. Panel in a strikingly similar case held the district court could reasonably interpret the verdict in light of the record. State v. Rice, (2011)(unpublished opinion).

State’s petition for review granted to resolve this panel split.

ISSUE: Ambiguous verdict HELD: Based on Kansas caselaw and persuasive decisions from other jurisdictions, general approach in Rice is correct.

Lower court’s decision is reversed with caution. An ambiguous verdict can be reasonably interpreted in light of the charging document, jury instructions, and record as a whole to determine and give effect to jury’s intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instruction. The strong presumption in favor of the literal text of the jury verdict as the surest guide to jury’s intentions can only be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. An appellate court’s review of a district court’s application of the surplusage rule is de novo. In this www.ksbar.org | July/August 2020 75

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case, district court did not err when it discarded the “in-“ prefix from the verdict form as mere surplusage.

STATUTE: K.S.A. 22-3421 CRIMINAL PROCEDURE—MOTIONS—SENTENCING STATE V. COTT JOHNSON DISTRICT COURT—AFFIRMED NO. 120,075—MAY 29, 2020

FACTS: Cott was convicted on guilty plea to two counts of premeditated murder. Hard 50 sentence imposed. Nine months later, he filed pro se motion to withdraw his guilty plea, arguing in part the alleged lack of help from defense counsel, and the coercive effect of Cott’s mother urging him to enter into plea agreement to avoid death penalty, left him feeling he had no choice. He further claimed that no one explained that hard 50 sentence would not be eligible for good time credit. District court made specific findings in holding that manifest injustice did not warrant voiding the plea agreement. Cott appealed.

ISSUE: Post-sentencing motion to withdraw plea HELD: District court did not abuse its discretion by denying Cott’s motion to withdraw plea. Cott failed to demonstrate his mother’s pressure deprived him of the ability to make his own decisions. He also failed to demonstrate that district court’s findings were arbitrary or unreasonable, or based on any error of law or fact.

STATUTES: K.S.A. 2019 Supp. 21-5419(c), 22-3210, -3210(d)(2); K.S.A. 21-4636 CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—STATUTES STATE V. DINKEL SALINE DISTRICT COURT—REMANDED WITH DIRECTIONS; COURT OF APPEALS—REVERSED NO. 113,705—JUNE 12, 2020

FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims related to her defense that K.H. had raped and then blackmailed her into continuing sexual encounters. Dinkel argued the district court’s exclusion of this evidence violated evidentiary rules and her constitutional right to present a defense.

Court of appeals affirmed in unpublished opinion, concluding the rape of a child has no mental culpability requirement thus Dinkel’s intent was irrelevant. Review granted.

ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence relevant to voluntary act requirement HELD: Court of Appeals erred in concluding that whether K.H. forced the sexual encounter was irrelevant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 requires a voluntary act on the part of the defendant. Dinkel’s claim that she was forcibly raped is relevant since the rape 76

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of Dinkel negates the voluntary act requirement of rape of a child under 14. Jurisdiction retained while case is remanded to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.

STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— PREEMPTION—STATUTES STATE V. GARCIA JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 112,502—JUNE 12, 2020

FACTS: Kansas Supreme Court reversed Garcia’s jury conviction for identity theft, holding prosecution based on the use of his W-4 form was preempted by the Immigration and Reform and Control Act (IRCA). State v. Garcia, 306 Kan. 1113 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA. ISSUE: (1) Preemption—Immigration Reform and Control Act of 1986 HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district court’s failure to give unanimity instruction was clearly erroneous, was improvidently granted. These issues are not addressed on the merits.

STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp.

21-6107 APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE STATE V. GEORGE FINNEY DISTRICT COURT—AFFIRMED NO. 120,190—JUNE 26, 2020

FACTS: George convicted of first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He appealed claiming: (1) his convictions were multiplicitous, arguing three of his convictions “folded” into one another and became a single offense; (2) prosecutorial error during cross-examination of a witness by commenting on the witness’ credibility; (3) trial court erred by allowing a witness to invoke Fifth Amendment and refuse to testify where the witness had been convicted and sentenced but his appeal was

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still pending; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Multiplicity; (2) prosecutorial error; (3) invocation of Fifth Amendment; (4) cumulative error HELD: George’s convictions are not multiplicitous. Elements of each of three crimes arising from the same conduct but grounded in three different statutes are examined, finding: attempted aggravated robbery and aggravated assault are not multiplicitous; attempted distribution or possession with intent to distribute a controlled substance and attempted aggravated robbery are not multiplicitous; and attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with aggravated assault.

George failed to preserve his evidentiary claim and cannot evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by reframing the issue as one of prosecutorial error. Defense counsel objected to the State’s cross-examination question as going “beyond the scope” of direct examination, but did not argue any grounds relating to impeachment or character evidence. This was insufficient for appellate review of the issue now claimed.

Error resulting from district court’s exclusion of a witness’ testimony, if any, was harmless. Court declines to decide whether a plea of nolo contendere waives the privilege against self-incrimination after sentencing but before the conclusion of direct appeals. Even if error is assumed in this case, the error is harmless because the substance of this witness’ proffered testimony was entirely presented at trial through the testimony of a detective.

Cumulative error doctrine does not apply in case having only one assumed error.

STATUTES: K.S.A. 2019 Supp. 21-5301, -5301(a), -5412(a), -5412(b)(1), -5420, -5420(a), -5420(b), -5705(a) (1), -5705(d)(3)(C), 22-3601(b)(4), 60-261; K.S.A. 60-404, -422(c) APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—STATUTES STATE V. GIBSON RILEY DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART NO. 119,993—JULY 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a

privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial.

He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview.

As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster, 259 Kan. 198 (1996), is flawed and Foster is distinguished.

District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60426a(a), raised for first time on appeal, was not preserved.

Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

No trial errors found for application of the cumulative error doctrine.

District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 745323, -5323(a) CONSTITUTIONAL LAW—EVIDENCE—MOTIONS STATE V. GLOVER DOUGLAS DISTRICT COURT—REVERSED; COURT OF APPEALS—AFFIRMED NO. 116,446—JUNE 12, 2020

FACTS: District court granted Glover’s motion to suppress evidence obtained during a traffic stop, finding the officer lacked reasonable suspicion of illegal activity when he stopped the truck in violation of Fourth Amendment. Court of appeals reversed. State v. Glover, 54 Kan. App. 2d 377 (2017). Kansas Supreme Court reversed and affirmed the district court’s suppression ruling. 308 Kan. 590 (2018). State’s writ of certiorari granted.

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ISSUE: (1) Fourth Amendment—traffic stop HELD: Consistent with Kansas v. Glover, 589 U.S. __ (2020), an investigative traffic stop made after running a vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. Kansas Supreme Court’s judgment is vacated and case is remanded to district court for further proceedings.

STATUTES: None CRIMINAL PROCEDURE—EVIDENCE—MOTIONS STATE V. HACHMEISTER SHAWNEE DISTRICT COURT—AFFIRMED NO. 114,796—JUNE 5, 2020

FACTS: Hachmeister was convicted of premeditated murder for killing his mother. On appeal he claimed the district court abused its discretion by admitting evidence under K.S.A. 60-455 of mother thinking that Hachmeister had stolen her wedding ring, and of child pornography found on Hachmeister’s computer and the charges associated with that possession. He also claimed eight instances of error during prosecutor’s closing argument.

ISSUES: (1) K.S.A. 60-455 evidence; (2) prosecutorial error HELD: No error in district court’s admission of the 60-455 evidence. Probative value of the wedding ring evidence substantially outweighed any prejudice where the confrontation surrounding the missing wedding ring was key evidence of motive. And evidence of child pornography on Hachmeister’s computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous letters written by the “real killer.”

Each allegation of prosecutorial error is examined finding only one error. Prosecutor’s comment that victim “could breathe just fine” exceeded the prosecutor’s ability to draw inferences from the evidence. This error was harmless in light of the trial as a whole and the overwhelming evidence against Hachmeister..

STATUTES: K.S.A. 2019 Supp. 60-455(b) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— DOUBLE JEOPARDY—JURY INSTRUCTIONS—TRIALS STATE V. KORNELSON RENO DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 118,091—JULY 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of 78

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driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial. Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action.

Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b) APPEALS—APPELLATE PROCEDURE—CRIMINAL PROCEDURE—MOTIONS—SENTENCING STATE V. MAYES JOHNSON DISTRICT COURT COURT OF APPEALS—DISMISSAL OF APPEAL IS AFFIRMED NO. 115,006—JUNE 19, 2020

FACTS: Mayes appealed from district court’s denial of Mayes’ motion to correct an illegal sentence. State moved to dismiss the appeal as moot because Mayes had been released from prison. Court of Appeals in unpublished motion granted State’s motion and dismissed the appeal without reaching merits of Mayes’ illegal sentence claim. Mayes’s petition for review granted. In his petition, he argued in part his appeal was not moot because a corrected criminal history score will affect when he can legally possess a firearm.

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ISSUE: (1) Mootness doctrine—expiration of sentence HELD: Court of appeals erroneously applied sweeping bright-line rule rejected in State v. Roat, 311 Kan. __ (this day decided), but dismissal of the appeal is affirmed. Mayes failed to preserve below his argument that his appeal was not moot because a decision regarding whether his sentence was illegal will affect when he can legally possess a firearm.

STATUTE: K.S.A. 2010 Supp. 21-3701, -3716 CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— PREEMPTION—STATUTES STATE V. MORALES JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 111,904—JUNE 12 2020

FACTS: Kansas Supreme Court reversed Morales’ convictions for identity theft and making a false information, holding prosecution based on use of a Social Security number belonging to another person for employment was preempted by the Immigration and Reform and Control Act (IRCA).

State v. Morales, 306 Kan. 1100 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA. ISSUE: (1) Preemption—Immigration Reform and Control Act of 1986 HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud was improvidently granted. This issue is not addressed on the merits.

STATUTE: 8 U.S.C. § 1324a(b)(5) CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS STATE V. MORRIS SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,911—MAY 15, 2020

FACTS: Jury convicted Morris of charges including both first-degree premeditated murder and alternative charge of first-degree felony murder, aggravated kidnapping, and aggravated battery. On appeal, he claimed district court erred in refusing to give a requested instruction on voluntary intoxication, and in admitting gruesome photographs of victim’s partially decomposed body that had been exposed to damage from animals. Morris also claimed cumulative error denied him a fair trial.

ISSUES: (1) Jury instructions—voluntary intoxication; (2) gruesome photographs; (3) cumulative error HELD: District court did not err in denying Morris’ request for a voluntary intoxication instruction. While the requested instruction would have been a legally available defense to Morris’ first-degree murder charge and conviction, such an instruction was factually inappropriate because insufficient evidence supported that defense in this case.

District court did not abuse its discretion in admitting photographs of victim’s body. Because Morris’ argument clearly fails on the merits, no need to determine State’s argument that Morris failed to properly preserve this issue by failing to lodge a specific objection to the 12 photographs admitted. A few of the admitted photographs may have been repetitive, and many may have been gruesome, but they were relevant and admissible to show the manner and violent nature of victim’s death and to corroborate testimonies of witnesses having credibility issues.

No error supports Morris’ claim of cumulative error, and evidence against Morris was overwhelming.

STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; K.S.A. 60-401(b), -404, -445 APPEALS—ATTORNEYS AND CLIENTS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURISDICTION—MOTIONS—SENTENCING STATE V. ROAT SEDGWICK DISTRICT COURT COURT OF APPEALS—DISMISSAL OF APPEAL IS AFFIRMED NO. 113,531—JUNE 19, 2020

FACTS: Roat was sentenced in 2009 and 2012 using criminal history that classified his 1984 Kansas burglary conviction as a person felony. Alleging classification error in light of State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, 301 Kan. 1018 (2015), Roat filed motion to correct an illegal sentence, and appealed the district court’s denial of relief.

While appeal was pending, State filed notice that Roat had satisfied both the prison and post-release supervision provisions of his sentences. Court of appeals then ordered Roat to show cause why the appeal should not be dismissed as moot.

Roat argued his sentence could impact future sentences, and he might want to pursue a legal malpractice claim against trial attorney for not raising Murdock and Dickey issues at sentencing. Court of Appeals dismissed the appeal in unpublished opinion, holding the expiration of Roat’s sentence meant the outcome of the appeal would have no effect on his sentence in this case. Roat’s petition for review granted.

ISSUE: (1) Mootness doctrine—expiration of sentence HELD: Historical basis and application of the mootness doctrine is examined, including Kansas cases approaching www.ksbar.org | July/August 2020 79

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mootness as jurisdictional or as discretional policy-based, and the constitutional, jurisdictional concept of mootness in federal cases. Consideration of mootness as a prudential doctrine is held to be the better approach. Bright line rule that renders a sentencing appeal necessarily moot if the sentence is completed is rejected. Instead, a determination of mootness must include an analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including future implications. In this case, State established a prima facie showing of mootness by demonstrating that Roat had fully completed the terms and conditions of his sentence, but Roat failed to demonstrate a vital or substantial right requiring a judgment in this appeal. A legal malpractice claim cannot be grounded on an attorney’s failure to make arguments for a change in the law, even if such a change later takes place, and mere stigma or “rightness” is insufficient to justify continuing to exercise jurisdiction over an appeal. Panel’s summary dismissal of the appeal without application of well-established principle in State v. Montgomery, 295 Kan. 837 (2012), and no reference to Roat’s asserted collateral rights, was erroneous but it arrived at the correct conclusion. Judgment of court of appeals is affirmed, subject to identified reservations. Court notes the 2019 amendment of K.S.A. 22-3504 does not directly invoke or demonstrate mootness of motions, such as Roat’s, that were filed before the amendment.

CONCURRENCE (Biles, J.): Concurs in the result based on rationale stated in State v. Tracy, 311 Kan. __ (this day decided).

CONCURRENCE (Stegall, J.): Joins Justice Biles’ concurrence, but states disagreement with portion of majority opinion that appear to abandon or weaken the constitutional requirement that Kansas courts decide only cases and controversies. Suggests standing (rather than mootness) is the better legal doctrine for future courts to focus on.

STATUTES: K.S.A. 2019 Supp. 22-3504(a), -3504(d), 602102(a); K.S.A. 2018 Supp. 21-6813, -6814; K.S.A. 22-3504 CRIMINAL PROCEDURE—EVIDENCE—SENTENCING— STATUTES STATE V. SATCHELL SEDGWICK DISTRICT COURT—AFFIRMED IN PART AND VACATED IN PART COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART NO. 116,151—JUNE 26, 2020

FACTS: Satchell charged with 2014 sexual offenses involving two children. To show his propensity to sexually abuse children, State was allowed to present evidence under K.S.A. 2019 Supp. 60-455(d) about Satchell’s 2010 abuse of three other children under similar circumstances. Jury convicted Satchell on all counts. Sentencing court ordered consecutive 80

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“hard 25” sentences for the eight off-grid offenses, followed by 100 months in prison for criminal sodomy. Court also ordered lifetime parole for the off-grid offenses and lifetime postrelease supervision for the on-grid offense. On appeal Satchell claimed in part the district should not have allowed the 60-455 evidence because it was unduly prejudicial, and argued he should not have been given lifetime postrelease supervision. In unpublished opinion, Court of appeals rejected both claims. Review granted ISSUES: (1) K.S.A. 60-455 evidence; (2) sentencing HELD: District court did not abuse its discretion by admitting evidence of the 2010 allegations. The 2010 evidence, if true, would be relevant. At issue is whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. Factors in State v. Boysaw, 309 Kan. 526 (2019), to be considered in determining probative value and undue prejudice are analyzed on facts in this case. In balancing those factors, the district court can exclude otherwise admissible relevant evidence if its probative value is “substantially outweighed” by the risk of undue prejudice.

Court acknowledges criticism of past decisions that have left out the term “substantially,” but finds the proper test has been applied despite the occasional shorthand references. Here, the risks of undue prejudice did not substantially outweigh the high probative value of the 2010 evidence.

District court erred by ordering lifetime postrelease supervision. Under K.S.A. 2016 Supp. 21-6819, in effect at the time of Satchell’s offenses, the proper post release supervision term is lifetime parole when the district court imposed consecutive on-grid and off-grid sentences. The lifetime postrelease supervision portion of Satchell’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 60-455(d); K.S.A. 2016 Supp. 21-6627, -6819, -6819(b)(2), 22-3717, -3717(d)(1)(G), -3717(u); K.S.A. 60-406, -407(f), -445 APPEALS—APPELLATE PROCEDURE—ATTORNEYS AND CLIENTS—MOTIONS STATE V. SYKES SEDGWICK DISTRICT COURT COURT OF APPEALS—DISMISSAL OF APPEAL IS AFFIRMED NO. 113,903—JUNE 19, 2020

FACTS: Sykes appealed the district court’s denial of his motion to correct an illegal sentence based on calculation of Sykes’s criminal history. State moved to dismiss the appeal as moot because Sykes had completed his sentence. Sykes filed no response. Court of appeals granted State’s motion and dismissed the appeal. Sykes petitioned for review, arguing his appeal was not moot because a hypothetical future sentencing court might take judicial notice of Sykes’s criminal history score, and a successful appeal might preserve a legal malpractice claim against his trial counsel.

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ISSUE: (1) Mootness doctrine—expiration of sentence HELD: Panel erred to the extent it considered Sykes’ claim moot based solely on the completion of his sentence, but dismissal of the appeal is affirmed because Sykes failed to challenge the State’s motion for involuntary dismissal of the case as moot.

STATUTES: None APPEALS - ATTORNEYS AND CLIENTS - CRIMINAL PROCEDURE - MOTIONS - SENTENCING STATE V. TRACY SEDGWICK DISTRICT COURT COURT OF APPEALS - DISMISSAL OF APPEAL IS AFFIRMED NO. 113,763 - JUNE 19, 2020

FACTS: District court revoked Tracy’s probation and denied motion to correct an illegal sentence in which Tracy challenged the classification of his 1974 Colorado burglary conviction as a person offense. In unpublished opinion Court of Appeals held the Colorado conviction was properly classified. Tracy’s petition for review granted but held in abeyance pending resolution of other appeals with related issues. After Tracy fully served his prison sentence and applicable period of postrelease supervision, State argued Tracy’s appeal was moot.

ISSUE: (1) Mootness doctrine—expiration of sentence HELD: The appeal is moot. No merit to Tracy’s speculative claim that a future sentencing court will feel obligated to follow the panel’s uncorrected ruling and again classify the 1974 Colorado conviction as a person felony. By failing to provide any detail about what he might assert as a basis for the alleged legal malpractice he might want to file, Tracy waived this argument. And under current Kansas caselaw, no merit to Tracy’s claim that the uncorrected panel’s decision could have an impact on other defendants in other cases.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Malone, J.): Concurs in the result based on rationale expressed in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 2019 Supp. 21-6813, -6814(c) CRIMINAL PROCEDURE—RESTITUTION—SENTENCING STATE V. TUCKER WYANDOTTE DISTRICT COURT—REVERSED NO. 119,242—JUNE 12, 2020

FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District court ordered payment of $5,000 in restitution without an explicit order for payment during Tucker’s incarceration, and acknowledged that restitution will never be paid. Tucker appealed.

ISSUE: (1) Restitution—unworkable plan

HELD: Under circumstances in this case, district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without possibility of parole to pay restitution even while recognizing the restitution would not be paid. State v. Holt, 305 Kan. 839 (2017), State v. Shank, 304 Kan. 89 (2016), and State v. Alcala, 301 Kan. 832 (2015), are distinguished. Restitution is the rule, and unworkability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Restitution order is reversed.

STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1) APPEALS—CRIMINAL PROCEDURE—MOTIONS— POSTCONVICTION RELIEF—SENTENCING STATE V. WARD FRANKLIN DISTRICT COURT COURT OF APPEALS—DISMISSAL OF APPEAL IS REVERSED, CASE REMANDED NO. 116,545—JUNE 19, 2020

FACTS: Ward filed motion to correct an illegal sentence, and under K.S.A. 60-1507 to allege district court erred when it revoked Ward’s probation and imposed the underlying sentence. District court summarily denied the motion.

Noting that Ward had completed his sentence, Court of appeals ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837 (2012). In response Ward argued in part that a finding he violated the terms of his probation could be used to deny him probation or subject him to a future upward departure sentence. Panel dismissed the appeal as moot in an unpublished opinion. Ward’s petition for review of panel’s dismissal granted.

ISSUE: (1) Mootness Doctrine—expiration of sentence HELD: Ward correctly distinguishes Montgomery because he challenges the probation revocation, not just the sanction.

Case is remanded to Court of Appeals to reconsider under guidance provided in State v. Roat, 311 Kan. __ (this day decided), the arguments Ward presented in his response to the show cause order.

DISSENT (Biles, J.)(joined by Luckert, C.J. and Stegall, J.): Dissents from remand order based on rationale expressed in State v. Tracy, 311 Kan. __ (this day decided). Case should be dismissed.

STATUTE: K.S.A. 60-1507 APPEALS—CRIMINAL PROCEDURE —EVIDENCE — SENTENCING STATE V. YAZELL JOHNSON DISTRICT COURT COURT OF APPEALS - DISMISSAL OF APPEAL IS REVERSED, CASE IS REMANDED NO. 116,761 - JUNE 19, 2020 www.ksbar.org | July/August 2020 81

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FACTS: Yazell appealed from revocation of probation following his out-of-state arrest. When State submitted evidence from Kansas Adult Supervised Population Electronic Repository (KASPER) showing Yazell had been released from custody, court of appeals ordered Yazell to show cause why the appeal should not be dismissed as moot. In response Yazell challenged the evidence the State submitted to the appellate courts to show Yazell had competed his sentence, and argued his case was not moot because a finding he violated probation could be used as evidence he is not amenable to probation in future cases. Court of appeals summarily dismissed the appeal as moot. Yazell’s petition for review granted.

ISSUES: (1) Appellate factual findings; (2) mootness doctrine—expiration of sentence

HELD: The reasoned approach by Kansas appellate courts to date has been to reject basing appellate decisions on KASPER and similar documentation. Because KASPER is unreliable evidence, courts may not rely on it to make factual findings. Court of appeals erred to the extent it relied on KASPER and State’s hearsay assertions about a Corrections employee confirming the accuracy of the KASPER report.

Panel’s decision is reversed and case is remanded to court of appeals.

If panel on remand should again find that Yazell has completed his sentence, it should reconsider whether his case is moot under guidance provided in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 60-409(a)

Kansas Court of Appeals Civil AGENCY ACTION—MEDICAL EXPENSES UNIVERSITY OF KANSAS HOSPITAL AUTHORITY V. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS WYANDOTTE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 120,472—JUNE 26, 2020

FACTS: After seeing a man driving without headlights and with a suspended license, Ottawa police engaged in a highspeed chase. Officers lost track of the vehicle, and by the time they found it, the driver had crashed and the vehicle was fully engulfed in flames. Rescue personnel found the driver on the ground, suffering from severe injuries. Officers did not search the driver, and he was not placed under arrest, although a hold was placed while the man was in the hospital. After his release, the driver was taken to jail based on outstanding warrants that were unrelated to the police chase. After an investigation, the driver was charged with felony fleeing and eluding. The University of Kansas Hospital Authority filed suit against the City of Ottawa and the Franklin County Board of County Commissioners in an attempt to recoup some of the man’s considerable medical bills. All parties filed motions for summary judgment. After considering arguments, the district court found that the driver was in the City’s custody when medical treatment was initiated. But for the driver’s injuries, he would have been arrested when the chase ended.

The district court granted summary judgment in the Hospital’s favor against the City but found that the County was not 82

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involved enough to be responsible for bills. The City appealed and the Hospital cross-appealed.

ISSUES: (1) Whether the driver was in custody; (2) existence of disputed material facts HELD: “Custody” has a broad definition. A formal arrest is not always necessary to show that a person is in custody. It is undisputed that County deputies did not witness any crimes being committed and did not participate in the chase. This means it is also undisputed that the driver was not in County custody when medical care was sought, and the County has no obligation to contribute to the driver’s medical bills. There are lingering fact questions, though, about whether the driver was in the City’s custody. Specifically, there was no stipulation that the driver was stopped by law enforcement, triggering the statutory obligation to take him into custody. Because there is a lingering fact question, summary judgment was not appropriate. The case must be remanded to clear up these issues.

STATUTE: K.S.A. 2019 Supp. 8-1568(b), -1568(c), 222202(d), -2202(i), -4612, -4612(a) ATTORNEY FEES—JURY TRIAL—REMEDY HARDER V. ESTATE OF FOSTER LEAVENWORTH DISTRICT COURT—AFFIRMED AND REMANDED NO. 118,845—MAY 15, 2020

FACTS: The case arises out of a real estate dispute between Evelyn Harder and Ronald Foster. In 2013, a jury found Foster guilty of negligent misrepresentation, intentional misrep-

appellate decisions

resentation, and breach of contract. The real estate contract included a provision which required a party who breached the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court awarded Harder fees for the initial litigation but denied her motion for fees incurred while attempting to finalize the decision and journal entry. After this trial, Harder filed a second suit against Foster and his children, claiming that Foster fraudulently transferred all proceeds from the property sale to his family members, leaving him unable to pay Harder’s judgment. Foster died during this litigation. His estate paid the judgment in full and the district court dismissed the action on summary judgment, finding that the payment extinguished any of Harder’s claims. Harder’s motion for attorney fees and costs was denied. These decisions were upheld on appeal except the panel determined the district court erred by denying Harder’s motions for attorney fees and expenses in the 2013 case. The panel remanded the 2015 case to allow the district court to determine whether Harder could prove an exception to the American rule which requires parties to bear their own litigation costs unless a statute or contract expressly authorizes such an award. The district court’s factfinding was limited to Harder’s third-party claims. On remand, Harder claimed that she had a right to have a jury decide attorney fees and expenses for both the 2013 and 2015 cases. The district court disagreed, and the Court of Appeals granted Harder’s application for an interlocutory appeal.

ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 case; (3) fees for 2015 case HELD: The right to a jury trial in a civil action is not absolute. It is only guaranteed if such a right existed at common law at the time the Kansas constitution was adopted in 1859. There was no right to recover attorney fees at common law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so requiring. Kansas does recognize the third-party litigation exception to the American rule, but that exception did not exist in 1859. Accordingly, there is no right under the Kansas constitution to have a jury determine attorney fees and expenses. The 2013 judgment has been satisfied in full. Harder voluntarily chose not to present her attorney fees claim to the jury; her attorney expressly asked the trial court to resolve the matter, arguing in a pleading that the question of fees and expenses arising out of the real estate contract was not a jury decision. The error Harder now claims was invited by her counsel before the district court, and she is not entitled to relief. The prior decision on the 2015 case is upheld. Harder is not entitled to have a jury decide whether an exception to the American rule exists which would allow her to recover attorney fees for third-party conduct.

Civil CONTRACTS—OIL AND GAS THOROUGHBRED ASSOCIATES V. KANSAS CITY ROYALTY COMPANY COMANCHE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 120,068—JUNE 26, 2020

FACTS: Beginning in 1997, Thoroughbred acquired oil and gas leases. After it struck a big well, Thoroughbred acquired leases on nearby property to prevent competition. However, there was a 1/3 mineral interest in one of these tracts which remained unleased. In an attempt to acquire that lease, Thoroughbred contacted the owner, Oxy USA Inc., about selling.

The parties signed a lease in 1998 which allowed Thoroughbred to unitize the lease. The lease would continue for as long as Thoroughbred produced oil or gas in paying quantities, either from the tract or from the unit as a whole. Oxy had a 3/16 royalty on production from the tract. In 1999, Oxy sold its interest in the lease to KC Royalty. Tensions arose when KC Royalty believed that gas from the unit was being drained into another unit that was not covered by KC Royalty’s lease and that KC Royalty believed that Thoroughbred owed it unpaid royalties. After extensive litigation and another appeal which was heard by the Kansas Supreme Court, the parties ended up back in district court. That court ruled in favor of KC Royalty, finding that the parties agreed to unitize the Lease, that KC Royalty had waived certain conditions, and that Thoroughbred was equitably estopped from enforcing the conditions. After ruling that all liquids produced in the unit were incidental byproducts of the gas, the court concluded that KC Royalty’s interest included all unit production.

Both parties appealed.

ISSUES: (1) Whether the parties included the lease in the unit by modification, waiver, or estoppel; (2) award of interest in oil production arising from gas lease; (3) attorney fees HELD: Substantial evidence supported the district court’s finding that the parties modified their lease to include the parcel in the larger unit. This is proven by both Oxy and KC Royalty accepting royalty payments. KC Royalty had the unilateral power to waive conditions and allow Thoroughbred to include the lease in the larger unit. All evidence shows that KC Royalty intended to modify the agreement. Because Thoroughbred represented that KC Royalty’s lease was in the unit for over three years, it is estopped from changing its mind now. A portion of the unit included a parcel which was a separate, oil-producing formation where oil production far exceeded gas production. There was no evidence that the oil and gas in this particular parcel was condensate. The district court improperly included this parcel in its royalty calculations, and the case must be remanded for accurate calculations. The district court did not abuse its discretion by denywww.ksbar.org | July/August 2020 83

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ing KC Royalty’s motion for attorney fees.

STATUTE: K.S.A. 55-205, -1617 ADMINISTRATIVE LAW—JURISDICTION BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE FINNEY DISTRICT COURT—REVERSED AND REMANDED NO. 12,409—JUNE 12, 2020

FACTS: Corporal Kerley arrested Brungardt for driving under the influence. Corporal Kerley administered a breath test, following the mandatory procedures for the Intoxilyzer 9000 machine. The machine allows officers to fill out the required forms—including the DC-27 certification form— electronically. Because his blood-alcohol level exceeded legal limits, Brungardt’s driver’s license was administratively suspended by the Kansas Department of Revenue. In requesting an administrative hearing, Brungardt claimed, among other things, that the DC-27 form was invalid because it lacked an original, non-electronic signature. Although the hearing officer affirmed his suspension, the district court reversed during judicial review. The court found no flaws in Corporal Kerley’s performance but ruled that Corporal Kerley had physically signed the machine when he created his electronic signature profile, before Brungardt’s test was performed.

K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned that Corporal Kerley signed a blank page when he established his signature profile. The department appealed.

ISSUES: (1) Jurisdiction; (2) validity of electronic signature HELD: Brungardt’s petition for judicial review included his claim that the DC-27 form was invalid. Even though he didn’t argue the exact grounds relied on by the district court when overturning the suspension, Brungardt gave adequate notice that the validity of the DC-27 was in question. This gave the district court jurisdiction to rule. “Signing” encompasses more activity than merely writing a name, and Kansas law recognizes electronic signatures. It is the intent of signing, not the physical form, which controls the effectiveness of the signature. Corporal Kerley followed the procedures of K.S.A. 8-1002(b) and affixed his signature when done. The district court improperly interpreted the statute and erred by reversing the suspension of Brungardt’s driver’s license.

STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), -1002(f); K.S.A. 77-614(b)(6) CLASS ACTIONS—OIL AND GAS COOPER CLARK FOUNDATION V. OXY USA, INC. GRANT DISTRICT COURT—AFFIRMED NO. 120,371—JUNE 26, 2020

FACTS: This appeal involves a class-action lawsuit over natural gas leases. After extracting gas, Oxy sent most of it for processing. Cooper, representing the wells included with84

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in the class action, disputes the method Oxy was using to calculate royalties for all Class Leases. The class action petition was filed in 2017, alleging that Oxy underpaid royalties from July 2007 through April 2014. Cooper’s specific grievances included Oxy passing through processing fees, improperly calculating volume, using the wrong price structure, and not paying interest on conservation fees. The district court certified Cooper’s class, and Oxy appealed that certification.

ISSUE: (1) Whether class was properly certified HELD: Gas produced from Class wells wasn’t marketable until it was in a condition suitable for its intended market. This didn’t occur until after it was processed. The district court did not abuse its discretion when it found that the class petition raised questions of law and fact that were common to all class members. All of the claims can be litigated class-wide without individualized evidence; this includes a dispute over whether Oxy owes interest for conservation fees that were repaid to class members. There are similarly no individualized issues regarding Oxy’s statute of limitations defense. The district court rigorously analyzed the requirements for class certification and correctly concluded that the class was appropriate.

STATUTES: K.S.A. 2019 Supp. 60-223, -223(a), -223(b); K.S.A. 16-201, 55-1614, -1615 FAMILY SETTLEMENT AGREEMENT SCHMITENDORF V. TAYLOR DOUGLAS DISTRICT COURT—AFFIRMED NO. 120,123—JUNE 19, 2020

FACTS: Schmitendorf and Taylor were both cousins of Vera Park. In 1993, Park created a revocable trust, designating Park as the trustee. In the event of Park’s death, Schmitendorf was to receive 20 percent of the trust estate unless the primary beneficiary predeceased Park, in which case Schmitendorf would receive all the trust estate. After the primary beneficiary died, Park amended the trust so that Schmitendorf and Taylor would evenly split the trust assets. Schmitendorf remained the sole trustee; in that capacity, she used trust assets to purchase a home and made a substantial gift to a community group to establish an endowment in Park’s name.

Taylor was concerned about Schmitendorf’s use of trust assets, and a protracted dispute arose over the trust, a guardian for Park, and alleged financial misappropriation. Ultimately, Schmitendorf and Taylor agreed on terms for a Family Settlement Agreement. The district court approved the Family Settlement Agreement and appointed Schmitendorf and Taylor as co-guardians for Park. Park died in 2016 and Schmitendorf filed a petition contesting the amendment to the trust which established Taylor as a co-equal beneficiary. Taylor sought summary judgment, claiming that all Schmitendorf’s claims were controlled by the Family Settlement Agreement.

The district court agreed, and Schmitendorf appealed.

ISSUE: (1) Whether dispute is controlled by Family Settlement Agreement

appellate decisions

HELD: Kansas law favors the settlement of disputes and family settlement agreements are liberally construed and should not be disturbed without good reason. The plain language of this Family Settlement Agreement clearly determines the parties’ interests and their intent to settle all disputes relating to the distribution of trust assets. Under the plain language of the Family Settlement Agreement, Schmitendorf is barred from asserting any claims for relief.

STATUTES: K.S.A. 2019 Supp. 60-256(c)(2); K.S.A. 59102(8)

Criminal APPEALS—APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE— MOTIONS—STATUTES STATE V. CONTRERAS SCOTT DISTRICT COURT—REVERSED AND REMANDED NO. 119,584—MAY 29, 2020

FACTS: Contreras charged with rape, aggravated criminal sodomy, and aggravated intimidation of a child (“K.B.”).

Defense called K.B.’s father (“Father”) to describe Father’s encounter with K.B. in December 2012. Father, who had been convicted of sodomy on plea agreement for acts between April 2011 and March 2012, said he wanted to invoke Fifth Amendment right against self-incrimination and not testify.

District court determined Father’s prior criminal conviction concerning K.B. did not extend to events occurring in December 2012, allowed Father to invoke Fifth Amendment, and excused him from the trial. Jury convicted Contreras on the charged crimes. He appealed, claiming in part the district court denied him a fair trial by allowing a witness who could have bolstered Contreras’ credibility to invoke the Fifth Amendment privilege against self-incrimination. State asserted the Fifth Amendment issue was not preserved for appellate review because Contreras failed to object to district court’s decision to allow invocation of Fifth Amendment and excusal of Father from trial, and argued the doctrines of acquiescence or judicial estoppel should be applied.

ISSUES: (1) Appeal—procedural barriers; (2) Constitutional right to present a defense HELD: There is no procedural bar to consideration of Contreras’ Fifth Amendment claim. The contemporaneous objection requirement in K.S.A. 60-404 to admission of evidence does not apply to the question of law whether a witness has a right to assert Fifth Amendment privilege against self-incrimination. Even if rule would generally apply, purpose of the rule was met by parties’ presentation of the issue to district court for its resolution. State abandoned its argument that

Contreras had to object when district court excused Father from trial. District court’s Fifth Amendment ruling is not a judgment to which the doctrine of acquiescence applies. And doctrine of judicial estoppel does not bar Contreras’ claim.

District court’s Fifth Amendment determination was made without benefit of essential documents that would have informed its decision as to whether Father’s conviction included the December 2012 timeframe. Panel granted Contreras’ motion on appeal to take judicial notice of additional documents relevant to Father’s prior conviction, and those documents support Contreras’ claim that Father did not have a privilege against self-incrimination for the December 2012 incident with K.B. District court erred in failing to compel his testimony. That error was not harmless in this case where district court found Father’s testimony was material, relevant and admissible, and Father’s testimony was crucial to support Contreras’ credibility. All convictions are reversed and case is remanded for a new trial.

STATUTES: K.S.A. 2019 Supp. 21-5501(b), -5504(b)(1), 22-3415(b)(1); K.S.A. 60-404, -405, -425, -407, -409, -412(c) EQUAL PROTECTION—SEX CRIMES STATE V. LITTLE SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,214—JUNE 12, 2020

FACTS: Little was convicted of multiple, high-level felonies, including rape and aggravated criminal sodomy. These convictions meant that on top of his prison sentence, Little was given a lifetime term of postrelease supervision. Little appealed, arguing that this lifetime term of postrelease violated his right to equal protection.

ISSUE: (1) Equal protection HELD: Equal protection requires that similarly situated people be treated alike. Little compares his postrelease term to the shorter terms given to people who are convicted of other serious felonies, like murder. But sex offenders are not similarly situated to people convicted of murder. Individuals convicted of certain sex offenses have much higher rates of recidivism, and the lifetime term of postrelease supervision serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses.

STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G) APPEALS—APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— DAMAGES— INSURANCE—RESTITUTION—SENTENCING STATE V. ROBINSON LYON DISTRICT COURT—AFFIRMED NO. 120,903—JUNE 26, 2020

FACTS: Robinson pled no contest to battery of law enforcement officer. Sentencing included requirement that Robinson www.ksbar.org | July/August 2020 85

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pay $2,648.56 in restitution to reimburse workers compensation insurance carrier that paid medical expenses of officer injured as a result of the battery. Robinson appealed claiming the statutes authorizing the district court to order restitution violate Section 5 of Kansas Constitution Bill of Rights by depriving him of right to have a civil jury determine the amount of damages, and violate the Sixth Amendment of U. S. Constitution by allowing a judge to determine the amount of restitution to be awarded the victim. He also claimed district court erred in awarding restitution to be paid to an insurance carrier. State contends the constitutional issues, raised for first time on appeal, were not properly preserved.

ISSUES: (1) Unpreserved claims; (2) restitution—Section 5 of Kansas Constitution Bill of Rights; (3) restitution—Sixth Amendment of U.S. Constitution; (4) payment to insurance carrier HELD: The issues not raised below are considered because they potentially implicate a claim to the fundamental right to a trial by jury under the Kansas and United States constitutions, and a decision on the merits would serve the ends of justice.

Robinson failed to establish that Section 5 of the Kansas Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2). Criminal restitution is not a civil remedy and no provision in the Kansas territorial statutes mentions criminal restitution.

District court’s restitution order did not violate the Sixth Amendment. Court of appeals panels have addressed whether Sixth Amendment applies to criminal restitution, and review of one unpublished opinion is currently pending. Under State

86

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v. Huff, 50 Kan.App.2d 1094 (2014), rev. denied 302 Kan. 1015 (2015), restitution is not punishment, but even if punishment is assumed, the Kansas statutes do not violate the Sixth Amendment. Huff is consistent with cited federal and state court opinions, and courts have concluded that Southern Union Co. v. United States, 567 U.S. 343 (2012), does not extend Apprendi and its progeny to restitution. Kansas statutes governing restitution impose neither mandatory minimum amounts nor mandatory maximum amounts, so they do not trigger concerns in Apprendi or Alleyne.

Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant’s crime.

DISSENT (Leben, J.): Would vacate the restitution award because Robinson had a right to have a jury determine the amount of damage or loss he caused any victim of his crime.

Text of Sixth Amendment, history, and precedent support a holding that Sixth Amendment applies to restitution. Cases cited by the majority as rejecting the claim that Apprendi applies to restitution are criticized. The two Kansas restitution statutes violate Apprendi by allowing judges to increase the statutory maximum punishment for an offense beyond that authorized by the jury’s verdict or the plea agreement. Even if Robison had no jury-trial right under Sixth Amendment, he had one under Section 5 of Kansas Constitution Bill of Rights.

STATUTES: K.S.A. 2017 Supp. 21-5413(c)(3)(D), -6604, -6604(b)(1), -6604(b)(2), -6607(c)(2), -6608(c)(7), -6613(a), -6613(b), 60-238, -2401, -4304(b); K.S.A. 1991 Supp. 216607(c)(2); K.S.A. 60-430

appellate practice reminders

Appellate Practice Reminders From the Appellate Court Clerk’s Office

Reinstatement of Deadlines and Time Limitations—Appellate Style

T

he most pressing issue for us at the appellate courts is the consequence of reinstating deadlines and time limitations. The fear of the unknown is omnipresent in the pandemic climate. This fear has generated daily phone calls from attorneys seeking precise and immediate interpretation of what the reinstatement will entail—enter shoulder shrug stage right.

Chief Justice Marla Luckert suspended statutes of limitation and statutory time standards or deadlines effective March 19, 2020, through Administrative Order 2020-PR-016, and reiterated the suspension in Administrative Orders 2020-PR-32, 2020-PR-058 and 2020-PR-076. At the appellate level, our time limitations were suspended for most cases with exceptions for expedited cases and other cases specified by the appellate courts.

For the most part, sans a switch from in-person to video arguments, the appellate courts never really skipped a beat through the current stages of COVID19. At every opportunity, I told attorneys to continue to treat an appellate case just like normal. If you needed additional time, file a motion, the appellate courts understand the collateral consequences of the coronavirus. By continuing the norm, it not only gave our system a deadline, but it kept the case on the attorney’s radar as well.

On June 29th, Chief Justice Marla Luckert announced the plan to reinstate statutes of limitation and statutory time standards or deadlines that apply to the conduct or processing of judicial proceedings. Most time requirements will be reinstated August 3. The Chief Justice announced her intention well in advance so Kansans and their attorneys would have adequate notice of her plan to reinstate deadlines and statutes of limitations that impact court proceedings.

Again, the current plan is to reinstate most time requirements effective August 3, 2020, assuming all district and appellate court facilities in Kansas remain open to the public. As I pen my small monthly contribution to the KBA Journal, I realize we are living in pandemic times and the world may have completely changed in a month’s time when this goes to publication. n

The appellate clerk’s office is only a phone call (785) 296-3229 or an email appellateclerk@kscourts.org away.

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.

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3rd Annual KBA Photo Contest.......................... Pg. 59

Clayton Wealth Partners..................................... Pg. 35

Advertise with Us................................................ Pg. 88

Cohen & Duncan............................................... Pg. 35

Bankruptcy/Insolvency........................................ Pg. 43

Foulston Attorneys at Law................................... Pg. 25

Classified Ads in the Journal............................... Pg. 90

Joseph, Hollander & Craft, LLC......................... Pg. 67

CLE.................................................................... Pg. 45

LawPay.............................................Inside Front Cover

KALAP................................................................. Pg. 8

Legal Directories................................................. Pg. 10

Kansas Fellows of the American College of Trial Lawyers ..................... Pg. 44

Lighthouse Business Information Systems........... Pg. 52 Northern Plains Weather Services....................... Pg. 60 Rebein Brothers................................................... Pg. 46 Shamberg, Johnson & Bergman.................. Back Cover Stange Law Firm, PC.......................................... Pg. 60 TranslationPerfect............................................... Pg. 57

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The Journal of the Kansas Bar Association

KBA Online CLE Credits................................... Pg. 69 KLS Pro Bono....................................................... Pg. 8 Lawyer Referral Service.................... Inside Back Cover

Classified Advertisements

Positions Available Attorney Position Available. Arn, Mullins, Unruh, Kuhn & Wilson LLP, established Wichita law firm seeks associate and/ or lateral hire. Minimum two (2) years’ experience in Civil, Family, Litigation and General Practice. Attractive benefits, including health insurance, 401(k), disability/life insurance. Please forward resume, introductory letter and writing sample(s) to: Kris J. Kuhn (kkuhn@arnmullins.com).

Attorney Position Available. Young, Bogle, McCausland, Wells & Blanchard, a downtown Wichita law firm seeks associate or lateral hire. At least three years’ experience in civil litigation/general practice and must be admitted to the Kansas Bar. Equal opportunity employer. Competitive benefits, including health insurance. Email resume, introductory letter, writing sample, and salary requirements to Paul McCausland, p.mccausland@youngboglelaw.com.

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.

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.

Part-Time Legal Assistant. A private law firm in Topeka has an immediate opening for a qualified Legal Assistant processing collections. Experience in general office administration required and legal office experience is preferred. Only applicants meeting specific criteria will be considered; please contact for duties and requirements. Please send resume and cover letter for consideration to the attn. of Alisia at info@probascolaw.com or via fax (785) 233-2384.

Wanted. Lawyer with a minimum of 3 years’ experience practice in estate and business law with a desire to become the owner of a central Kansas firm that has a very predictable gross revenue. The firm limits its practice to estate planning, probate, trust settlement and business planning. Please send your resume to kslawyerrecruit2019@ gmail.com.

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 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, 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, Mediator and Arbitrator: AV-rated, over 30 years’ experience in

employment and labor cases and in civil litigation; Past President, KBA Employment Law section (2016-18); selected numerous times for Best Lawyers in America © (Litigation—Labor and Employment and other Employment/Labor categories) and Missouri-Kansas Super Lawyers ©; past selection in Ingram’s Magazine Best Lawyers in Kansas City ©; approved by State of Kansas as Civil Mediator and as Faculty Due Process Hearing Examiner; former corporate counsel in charge of litigation & claims, including personal injury, contract, and discrimination claims. Mudrick Arbitration & Mediation, LLC (785) 5541570, dmudrick@MudrickADR.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.

www.ksbar.org | July/August 2020 89

classified advertisements

Social Security Disability Services. Your clients that are dealing with serious injuries or illness may have a claim for Social Security disability. We have lots of experience, get good results, and we are ready to help and to augment your reputation. If you have questions, let’s talk. Our practice is limited to Social Security disability. We can travel anywhere in Kansas, Missouri, Nebraska or Colorado. Contact: Pat Donahue at Western Law (785) 832-8521 or phd@wpa-legal.org.

Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.

Office Space Available 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 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.

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.

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 Retiring due to injuries. I have a complete set of Kansas Reports and Kansas Appellate Reports—$500 OBO. Will deliver in the Topeka area. Contact Robert E. Keeshan, Esq., Topeka, KS (785) 554-6187.

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The Journal of the Kansas Bar Association

Downtown Lawrence office space & furnishings Ready to open your own practice and need office furnishings? Looking at downtown Lawrence? Local attorney retiring.

Leased corner suite on Massachusetts Street with KSA & other books, attorney desk & credenza, computer desk, conference table & chairs, receptionist desk, reception seating & more. Call (785) 749-2333 (or mthorpesq@ gmail.com).

Interested in placing a

Classified Ad in the KBA Journal?

COST: FREE for KBA Members

$45/three months for Non-members

Word count: 75-100 words

(Editor reserves the right to edit for space.)

Simply email your preferred copy to: Editor@ ksbar.org

Need clients?

Need increased

VISIBILITY?

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

Your trusted legal source.

MEETS ABA STANDARDS FOR LAWYER REFERRAL

AMERICAN BAR ASSOCIATION THE RIGHT| CALL FOR THE RIGHT www.ksbar.org July/August 2020LAWYER 91 TM

A TRADITION OF SUCCESS

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

816-474-0004 www.sjblaw.com

Victor A. Bergman

David R. Morantz

OUR EXPERIENCE PAYS We have a long history of success inside and outside

2600 Grand Boulevard, Suite 550 Kansas City, MO 64108

the courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.

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The Journal of the Kansas Bar Association The choice of a lawyer is an important decision and should not be based solely on advertisements.