Your Partner in the Profession | May/June 2020 • Vol. 89 • No. 5
KBA COVID-19 Response and Help Center www.ksbar.org/COVID19
COVID-19: An Update on the Law of Infectious Disease in Kansas by Robert Parnacott P. 10
10 | COVID-19: An Update on the Law of Infectious
Disease in Kansas
by Robert Parnacott
31 | The Diversity Corner: Lyda Conley’s Fight to Save the Huron Indian Cemetery by Emily Matta
Cover Design by Ryan Purcell
Regular Features 7 | From the Interim Director of the KBA/KBF
43 | Law Practice Management Tips and Tricks
9 | From the President of the KBF
45 | Members in the News
KBA: Meeting Your Needs.................. Karla Whitaker KBF: Our Work Goes On and So Do We ............................................................ Susan Saidian
33 | May/June CLE
Meet Your CLE Requirements Online
37 | Substance and Style
Virtual Forensics: Tips for Online Oral Argument ............................................................. Pamela Keller
40 | Law Students’ Corner
Pandemic Preparedness Tested....... Larry Zimmerman
46 | Appellate Decisions 51 | Appellate Practice Reminders
Changes for 2020 Annual Attorney Registration & Other Corona Virus Extensions................Doug Shima
52 | Advertising Directory 53 | Classified Advertisements
“Zoom”-ing through Law School: A Law Student’s Perspective on Learning During COVID-19 .............................................................. Daniel Sloan
www.ksbar.org | May/June 2020 3
THE
JOURNAL
OF THE KANSAS BAR ASSOCIATION
2019-20
Journal Board of Editors Emily Grant (Topeka), chair, emily.grant@washburn.edu Sarah G. Briley (Wichita), sbriley@morrislaing.com Hon. David E. Bruns (Topeka), brunsd@kscourts.org Richard L. Budden (Kansas City), rbudden@sjblaw.com Boyd A. Byers (Wichita), bbyers@foulston.com Jennifer Cocking (Topeka), jcocking@capfed.com Connie S. Hamilton (Manhattan), jcham999@gmail.com Michael T. Jilka (Lawrence), mjilka@jilkalaw.com Lisa R. Jones (Ft. Myers, FL), ljones@fgcu.edu Casey R. Law (McPherson), claw@bwisecounsel.com Hon. Robert E. Nugent (Wichita), judge_nugent@ksb.uscourts.gov Professor John C. Peck (Lawrence), jpeck@ku.edu Rachael K. Pirner (Wichita), rkpirner@twgfirm.com Richard D. Ralls (Overland Park), rallslaw@turnkeymail.com Karen Renwick (Kansas City), krenwick@wrrsvlaw.com Jennifer Salva (Kansas City), jenniferhsalva@gmail.com Teresa M. Schreffler (Wichita), tschreffler@gmail.com Richard H. Seaton Sr. (Manhattan), seatonlaw@sbcglobal.com Sarah B. Shattuck (Ashland), bootes@ucom.net Richard D. Smith (Topeka), rich.smith@ag.ks.gov Marty M. Snyder (Topeka), marty.snyder@ag.ks.gov Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@ksbar.org Catherine A. Walter (Topeka), cwalter@topeka.org Meg Wickham, Dir. of Communications & Member Svcs., mwickham@ksbar.org Issaku Yamaashi (Overland Park), iyamaashi@foulston.com Natalie Yoza (Topeka), nyoza@ksbar.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at editor@ksbar.org. Ryan Purcell, graphic designer, rpurcell@ksbar.org 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 Mira Mdivani, MMdivani@uslegalimmigration.com President-elect Charles E. Branson, cbranson@douglas-county.com Vice President Cheryl Whelan, cwhelan@ksbar.org Secretary-Treasurer Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Immediate Past President Hon. Sarah E. Warner, warners@kscourts.org Young Lawyers Section President Mitch Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Diana Toman, dianatoman@gmail.com District 2 Bethany Roberts, broberts@barberemerson.com District 3 Angela M. Meyer, angela@angelameyerlaw.com District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Vincent Cox, vcox@cavlem.com Terri J. Pemberton, tpemberton@cox.net District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Mark Dupree, mdupree@wycokck.org District 12 Alexander P. Aguilera, alex@sbhlaw.com Bruce A. Ney, bruce.ney@att.com John M. Shoemaker, johnshoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. James R. Fleetwood, jfleetwo@dc19.org KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric 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 Linda S. Parks, parks@hitefanning.com
For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com
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For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.
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Let your VOICE 2019-20 be Heard! KBA Officers & Board of Governors
The Journal of the Kansas Bar Association
YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com
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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Where Does the Money Go? Our designated charities for 2020 are: • CASA (Johnson/Wyandotte Counties) • Safehome and Hope House (domestic violence programs) • Metropolitan Organization to Counter Sexual Assault (MOCSA) • Kansas Bar Foundation • FosterAdopt Connect • In addition, we will fund Ethics for Good scholarships to each of the KU, Washburn and UMKC law schools and the Johnson County Community College paralegal program.
How Do We Sign Up for this Amazing, Funny and Informative Program? For a mere $90, you get both the ethics and the good, the entire Ethics for Good – now in its 21st year! To register for this program, complete the form below or register online at:
www.ksbar.org/EthicsforGood
Who Are these Intrepid Presenters?
Wednesday, June 24, 2020 2:00 – 4:00 p.m.
Stan Davis, Ethics for Good Elder Statesman Mark Hinderks, Stinson LLP Todd LaSala, Stinson LLP Hon. Steve Leben, Kansas Court of Appeals Jacy Hurst, Kutak Rock LLP Todd Ruskamp, Shook, Hardy & Bacon L.L.P. Hon. Melissa Standridge, Kansas Court of Appeals
WEBINAR ONLY
Friday, June 26, 2020 11:00 a.m. – 1:00 p.m. WEBINAR ONLY
Contact Deana Mead, KBA Associate Executive Director at: dmead@ksbar.org* (Email) • 785-861-8839 (D) • 785-234-3813 (F) *
Please mark the date you will be attending:
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*The Kansas Bar Foundation does not accept credit card information via email or fax. You may submit your form via www.ksbar.org | May/June 2020 5 email or fax without credit card information and then contact Deana Mead at 785-861-8839 to provide your credit card info.
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
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from the interim executive director
KBA: Meeting your needs by Karla Whitaker, KBA/KBF Interim Executive Director
I
n the weeks since COVID-19 arrived in Kansas, the KBA has been working hard to meet the changing needs of our members and community. To date, we have hosted three open town halls, moved all CLE programming to online webinars, have begun moving our Annual Meeting program online, and have worked with Kansas Legal Services to offer free CLE programs thanks to the Kansas Bar Foundation. KBA staff has been diligently working to address member needs on an individual and group basis. Immediately responding to the stay-at-home orders issued across the state, our KBA COVID-19 Response Town Hall meetings—spear-headed by President Mira Mdivani—have covered topics ranging from managing a remote law practice, adjusting to new employment-related regulations, applying for newly available loans and aid from the government, and updates from the Kansas Office of Judicial Administration. These town halls have been very well-received, and the content remains available for all to view on our COVID-19 resource web page (www.ksbar.org/covid-19). We are grateful
for all the presenters and judges who gave their time to provide this service to our membership. Before the Kansas stay-at-home order was issued, the KBA worked quickly, making the difficult decisions to cancel inperson programs. This decision included our 2020 Annual Meeting which was scheduled for mid-June in Wichita. While we are disappointed that we will be unable to gather for this always memorable event, we are happy to share that efforts are currently underway to move our annual meeting events and educational programs online, accessible to membership wherever they are. More details about the all-online 2020 Annual Meeting will be coming soon, so please stay in touch. Throughout March, our CLE department worked to cancel all spring in-person CLE programming and create additional opportunities for members to earn CLE credits online. Several of the groups leading the cancelled in-person conferences have worked to move some of the content to virtual CLE offerings, including intellectual property, family law, oil & www.ksbar.org | May/June 2020 7
from the interim executive director
gas, and bankruptcy programs. The CLE team has coached a number of members on how to access CLE with the new online webinar formats and have answered countless questions about complying with the newest orders issued by the courts regarding CLE credit requirements and deadlines. We now have an extensive list of CLE being offered via live webinar and on-demand video, and programs are being added weekly. Our Annual Survey of Law publication is right on track and will be ready for members to purchase soon. In conjunction with the Annual Survey, our annual Legislative and Case Law Institute (LCLI) will also take place in June with our new all-virtual platforms. We are pleased to offer that comprehensive and informative CLE program and thankful for all the authors and presenters who have contributed to those efforts. While adjustments had to be made, the entire eight-credit hour program will be offered both on-demand and via live webinar. Given the current environment, we have chosen to move publication of the Annual Survey of Law to an all-electronic format, available for immediate download upon purchase and included in your registration for any of our LCLI programs. While we are disappointed that we cannot meet with our members in person for CLE conferences in this season, we are pleased to be able to meet your needs for continuing legal education where you are located—in your homes or offices, and on your own time. We are continually evaluating the future of in-person programming with hopes to schedule
new dates for CLE conferences before the end of 2020. In the meantime, please look for our CLE offerings on our website and reach out to our CLE Director, Amanda Wright, with any questions or feedback. These times have caused us to get creative and be flexible. Most recently, our friends at Kansas Legal Services reached out with an idea to help address the quickly increasing demands from Kansans experiencing various hardships during this time. Thanks to the generous support of the Kansas Bar Foundation, we are proud to be partnering with KLS to offer a series of three free CLE programs to cover the topics of evictions and landlord issues, protection from abuse orders, and unemployment issues. We hope these offerings will help meet the CLE needs of our members while also training and recruiting new volunteers to assist our friends at Kansas Legal Services and their clients. We must all remain flexible; we must all adapt. You, as KBA members, are doing vital work for your clients and staff, and it is our goal to support you however we can. We truly appreciate the patience, flexibility and resilience that our entire membership, leadership and staff have shown as we find new ways to meet the novel demands of this time. We know things will continue to change and that will require us to change too. We stand ready to change, adapt and work hard to serve our KBA membership in the days, weeks and months ahead. n
https://klsprobono.org/
PRO BONO LEGAL SERVICES
Law professionals in Kansas can participate in the pro bono community through clinics, posted projects, or by volunteering to take on specific cases displayed on the site. Opportunities are regularly updated by Pro Bono Coordinators in the 11 statewide KLS field offices.
8
The Journal of the Kansas Bar Association
kansas bar foundation president
KBF: Our work goes on...and so do we by Susan Saidian, KBF President
I
want to take this opportunity to thank all of the KBA staff for their hard work during these difficult times. The business of the KBA and the KBF is continuing to be handled, and now that we have caught our breath, both organizations will be recalibrating to take into account our new normal and what that means for each. Our new normal is still a work in progress, and it will require us to be flexible, patient and conscientious. From what I have seen over the past couple of months, KBA staff has done its work in exactly that way. Thanks, also, to KBA President Mira Mdivani and all those who worked with her to put on the town hall-style seminars designed to bring attorneys the latest information from the courts and agencies. It was what was needed and was executed without hesitation by those who participated. And finally, please pay attention to yourself. Times like these, with so many unknowns and so much waiting will wear you out, especially when things are out of control. Self care is vital. I know it will be harder for some than others to get a few quiet minutes to do something enjoyable, but try: maybe a book, a binge watch, a jog, a long drive in the country.
The KBF will continue with its philanthropic work, and the KBA will continue to meet the needs of its members. You will continue your work, and I hope we will all appreciate each other just a little bit more as our world continues to change. n
About the KBF President Susan Saidian graduated from Washburn University School of Law. She spent most of her years in private practice in the area of bankruptcy, working for both consumre and business debtors and cridtors. While she found all areas rewarding, she particularly enjoyed her work for consumer debtors. Susan is a member o f the ABA, KBA, Wichita Bar Association, KWAA, and has served on the board of CASA of Sedgwick County. She has also served on the Kansas Bar Foundation/s IOLTA Committee. She is now in-house counsel at Line Medical and lives in Wichita with her husband, David. sgsaidian@gmail.com www.ksbar.org | May/June 2020 9
COVID-19: An Update on
the Law of Infectious Disease in Kansas by Robert W. Parnacott . . . because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know. . . . Donald Rumsfeld It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so. Attributed to, inter alia, Mark Twain
Introduction Faced with a pandemic, there are things we do not know. And some things we know for sure may not be legally correct. This article cannot answer the questions we do not yet know to ask. But it can review what we do know, try to answer those questions some readers may not know, and then correct matters readers know that may not be accurate. This article supplements and updates Anthrax, Smallpox, and Flu, Oh My!: The Law of Infectious Disease in Kansas, published in the October 2009 edition of this Journal. 1 When the 2009 article was written, Covid-19 was an unknown unknown. But the possibility of a pandemic was known, and the article was primarily intended to provide an overview of the state of Kansas law on infectious disease. “While the law may not be the first public health tool considered in a disaster, it is fundamental to the effective functioning of multiple actors and must be harmonized across jurisdictional lines.” 2 Since then, there have been some changes to the law of infectious disease in Kansas; one of the purposes of this article is to update the reader on those changes. Although most statutes and regulations cited in the 2009 article remain current, that article was written with a somewhat different purpose; that is, to provide an overview of the state of the law. Instead, this article will look at the law of infectious disease from a more practical standpoint, given what has happened as of the time of final editing. This article will also focus on the law of infectious disease in general, and not on the other laws regarding specific infectious diseases such as tuberculosis which were covered in the prior article. The 2009 article also did not address infectious disease and public health law in a pandemic situation, which brings into play a host of emergency management laws and issues. This article will provide information regarding that area of law. This article will start with a brief overview of the 2009 article, then a summary of information on Covid-19 to frame the remainder of the article in the here and now. Next, after a brief review of some basic terms and concepts of emergency management and infectious disease, the article will address these key topics:
www.ksbar.org | May/June 2020 11
covid-19: an update on the law of infectious disease in Kansas
1)
Who can exercise state and local emergency manage ment and public health laws in a pandemic? 2) What is the source and scope of those powers, illustrated by concrete examples of those powers that have been exercised already, and those that might be exercised still? 3) What other practical legal concerns are there, e.g. overlap of laws, conflicts, and immunity from liability? The article will also briefly address enforcement and judicial review of emergency management and public health actions, provide some legal resources for the practitioner to be aware of, and finish with an emergency management checklist and some suggested non-legal books for those interested in public health history.
There are matters that are beyond the scope of the article, including law enforcement powers and principles and the constitutional questions that are inherent in responding to disasters. The exercise of public health powers and emergency management significantly impacts basic rights afforded by federal and state constitutions, including the right to travel freely, the right of association, the right to be secure in our persons, the rights to use property as we see fit, and exercise of religious freedom. Some of these matters will be touched on in passing, however. Another issue some practitioners in Kansas should be aware of is the interplay between the federal government and the sovereign nations of federally recognized Native American tribes regarding disaster and public health emergency declarations.3 In addition, although the narrow focus of the article will be state and local emergency management and public health laws, a disaster of this nature raises, and will continue to raise, perhaps for years to come, a host of other legal issues in many areas: family law, employment, contracts, debtor relations, and many more. There will be litigation sounding in tort, whether of negligence or intentional torts, which will be affected by various statutory provisions providing immunity from liability for government, and immunity for some private actors. Those matters will have to be addressed more fully by other authors, hopefully, who will respond and provide guidance to Kansas practitioners and the courts. This article cannot, unfortunately, offer definitive answers to many of the questions raised. The law in this area is primarily found in statutes, regulations, and local ordinances or resolutions. There is a dearth of case law interpreting and applying these laws.4 Reasonable attorneys and judges will, and often do, differ on reasonable interpretation of statutes and regulations. Even when the written law is clear, and reasonably only subject to one interpretation, there may be conflicts between different laws. This article also cannot go into detail on some of the matters discussed. Readers are encouraged to closely review the declarations, orders, and other matters cited in the article for a deeper understanding. 12
The Journal of the Kansas Bar Association
Overview of the 2009 article That article focused on the law of infectious disease control in Kansas, with a brief overview of related federal authorities. It reviewed the grant of powers and responsibilities to the three main actors regarding public health in Kansas: the secretary of the Kansas Department of Health and Environment (KDHE), the local boards of health, and the local health officer. The requirements for mandated reporting of infectious disease cases and the concomitant duty to maintain confidentiality of that information were discussed. The main section of the article dealt with the powers granted to the local boards of health and the local health officers, with particular focus on the 2005 act5 regarding issuance of orders for persons to be tested, examined, quarantined, or isolated if suspected of being exposed to, or inflicted with, an infectious disease. That article also addressed laws regarding two specific infectious diseases: tuberculosis and Acquired Immune Deficiency Syndrome (AIDS). Because public health and infectious disease are regulated in connection with many activities subject to government control, the article also reviewed statutes and regulations that applied to those activities. Finally, enforcement of infectious disease laws was covered, and the article concluded with short summaries of key Kansas Supreme Court cases involving infectious disease control.
Covid-19, Timeline, and basic emergency management and public health concepts Covid-19 The following information is a brief overview for the layperson of the virus at the heart of the matter: Covid-19. Due to the lag between the final editing and publication, given the fast-moving developments regarding what we know and are learning about this virus, this information is subject to later developments. Kansas statutes and regulations refer to both infectious and contagious diseases. The latter are diseases that are spread by contact; the former are diseases spread by an agent such a virus.6 Because most infectious diseases, like Covid-19, are also contagious, this article will only use the term infectious disease. An example of an infectious disease that is not contagious is food poisoning.7 Lyme disease from a tick bite is another infectious disease that is not contagious because it is not spread by contact.8 Kansas regulations identify diseases subject to mandated reporting, quarantine and isolation requirements, including “severe acute respiratory syndrome-associated coronovirus [sic] (SARS-CoV).”9 SARS-CoV-2 is the virus that causes the current disease.10 In the alternative, because Covid-19 is new, it falls under the section dealing with any “exotic or newly recognized disease.”11 Covid-19 is a respiratory illness that can be spread from person to person.12
covid-19: an update on the law of infectious disease in Kansas
Although the main mode of transmission is between persons in close contact, i.e. within six feet of each other, the virus, if expelled by an infected person through sneezing or coughing, can land on surfaces or other objects.13 Another person touching that surface or object, then touching his or her mouth, nose, or perhaps his eyes, may then become infected.14 Symptoms generally include fever, cough, and shortness of breath.15 Cases may range from mild to severe with the latter cases triggering pneumonia and multi-organ failure, which can be fatal.16 Because, as of now, there are no vaccines or treatments for this disease, the best defense is social distancing, washing hands frequently, avoiding touching your face, and cleaning frequently touched surfaces with a disinfectant.17 Timeline of Key Events The following timeline covers significant events up to final editing of the article. The particulars of certain orders referred to will be discussed in a later section. 12/31/19 Outbreak of unidentified illness in China18 1/7/20 New coronavirus identified19 1/11/20 First death reported in China 20 1/20/20 First U.S. case reported (travel related)21 1/31/20 U.S. Public Health Emergency declared22 2/26/20 First U.S. case reported (non-travel related)23 3/7/20 First Kansas case reported in Johnson County24 3/11/20 World Health Organization declares pandemic25 3/12/20 Three more cases reported in Johnson County; first death in Kansas; Kansas Governor Laura Kelly declares statewide disaster; Chief Justice Luckert issues first pandemic-related order26 3/13/20 President declares state of emergency; Governor Kelly restricts gatherings to less than 250 persons; United States District Court of Kansas Chief Judge Julie A. Robinson issues order postponed hearings and trials in criminal cases, as well as grand jury proceedings 3/16/20 Chief Justice Luckert issues order to mitigate spread of Covid-19; Tenth Circuit Chief Judge Timothy M. Tymkovich issues general order; Chief Judge Julie A. Robinson issues order amending order on restricting access to federal courthouse and probation office 3/17/20 Governor Kelly reduces size of gatherings to less than 50; Governor Kelly closes in person instruction at K-12 schools 3/18/20 Chief Justice Luckert issues order in anticipation of legislation; President invokes Defense Production Act 3/19/20 H. Sub. For S. Bill No. 102 becomes effective (Authority of Chief Justice to suspend various deadlines)
3/24/20 Governor Kelly reduces size of gatherings to less than 10 3/25/20 K.A.R. 16-20-1, re: open meetings takes effect 3/28/20 Governor Kelly issues statewide “stay-at-home” order 4/3/20 Chief Justice Luckert issues updated orders 4/7/20 Governor Kelly removes exemption for religious services from the 3/17/20 order 4/8/20 Attorney General issues guidance on Governor’s 4/7/20 Order (Opining action violates state statute and constitution) Legislative Coordinating Council revokes Governor’s 4/7/20 order Chief Justice Luckert issues administrative orders re: CLE and attorney registration 4/9/20 Governor Kelly files petition for writ of quo warranto with Kansas Supreme Court; Governor issues orders on notary services and professional license deadlines; Chief Justice amends order on municipal court deadlines and issues order regarding methods of taking oaths and affirmations 4/10/20 Kansas Supreme Court sets hearing for 4/11/20 on quo warranto petition; Judge Robinson extends suspension of grand jury proceedings 4/11/20 Kansas Supreme Court hears oral arguments; Opinion issued 4/13/20 Governor Kelly issues additional order on motor carriers 4/16/20 Lawsuit filed by two churches in U.S. District Court challenging mass gathering ban on religious services; Judge Robinson orders public access to telephone and video hearings 4/17/20 Governor issues order amending the prior mass gathering order 4/18/20 U.S. District Court Judge John W. Broomes issues temporary restraining order against enforcement of restrictions on religious gatherings [Arguments on the preliminary injunction set for 4/23/20] 4/22/20 Governor issues order suspending restrictions on medical services Emergency Management Concepts State emergency management actions, as defined by K.S.A. § 48-904(a), are to prepare for and respond to disasters except where the military or other federal authorities are “primarily responsible.”27 Disasters, as defined in subsection § 48-904(d) includes epidemics and infectious diseases. As discussed further below, for statewide disasters, the emergency management act places primary authority in the governor and state www.ksbar.org | May/June 2020 13
covid-19: an update on the law of infectious disease in Kansas
adjutant general.28 The governor is charged with “meeting the dangers to the state and people presented by disasters.”29 The adjutant general is authorized “to do all acts and things, not inconsistent with law, for the furtherance of emergency management activities.”30 Local authority for emergency management is placed with the board of county commissioners of each county.31 The legislature has codified what is considered the common law duty of all Kansans in response to disasters: Each person within this state shall act and manage the affairs of such person and such person’s property in any way which reasonably will assist and not detract from the ability of the state and the public successfully to meet disasters.32 This includes providing personal service, as well as uses or restriction of uses of private property.33 Public Health Concepts The exercise of public health powers on the state level are given to the secretary of KDHE, including the power to “take action to prevent the introduction of infectious . . . disease into this state and to prevent the spread of infectious . . . disease within this state.”34 On the local level, statutes provide for the creation of a local board of health, which is generally the board of county commissioners, and the local health officer, who is appointed by the local board of health.35 The powers of these public health officials extend beyond the area of infectious diseases, but for the purposes of this article, the focus will be narrowed to that matter as more fully discussed in a later section. Public health concepts and terms may be somewhat unfamiliar to the reader, although given the scope of the pandemic, we all probably know much more about these matters that we did a few short months ago. The Kansas Supreme Court, through its jurisprudence mentioned in the 2009 article, and the quote that begins that article, have long recognized that preserving the public health is one of, if not the most important, function of government.36 The basic terms and tools of infectious disease control are endemic, epidemic, outbreak, pandemic, quarantine, isolation, and social distancing. “Endemic” refers to the constant presence and/or usual prevalence of a disease or infectious agent in a population within a geographic area.37 “Pandemic” refers to a disease occurring over a wide geographic area and affecting an exceptionally high proportion of the population.38 ‘‘Quarantine’’ means the separation of persons that have been exposed to a communicable disease in places and under conditions that prevent the direct or indirect conveyance of the infectious agents from those exposed persons to those who are susceptible or who may spread the agent to others in 14
The Journal of the Kansas Bar Association
the event those exposed persons develop illness or are otherwise infectious.39 ‘‘Isolation’’ means the separation, for the period of communicability, of infected persons from others, in places and under conditions that prevent the direct or indirect conveyance of the infectious agents from those infected to those who are susceptible or who may spread the agent to others.40 “Social distancing” is a public health practice that aims to prevent sick people from coming in close contact with healthy people in order to reduce opportunities for disease transmission. It can include large-scale measures like canceling group events or closing public spaces, as well as individual decisions such as avoiding crowds.41 In addition, Kansas regulations further define “cluster, outbreak, or epidemic” as “a situation in which cases are observed in excess of what is expected compared to the usual frequency of the incidence of the infectious . . . disease . . . in a defined area, among a specified population, and during a specified period of time.”42 Kansas imposes a duty to report suspected cases of certain infectious diseases on a variety of professionals in the health and education sectors.43 Once a case of disease is reported to a local board of health or health officer, it is up to those officials to “immediately exercise and maintain a supervision over such case” including ensuring that any quarantine or isolation requirements are complied with.44 The local public health officials are required to then report the information to KDHE.45 As discussed later in this article, that information is subject to strict confidentiality requirements.46
Statutory and Regulatory Changes Since the 2009 Article was Published There were several statutory changes in 2013, and subsequently some regulatory changes as well. Except noted as follows, the statutory and the regulatory laws discussed in the 2009 article remain current law, particularly for the key public health powers found in K.S.A. § 65-119, et seq., § 65129b, et seq., and § 65-201, et seq. There are no Kansas appellate state court decisions directly concerning public health statutes and regulations published since the 2009 article was written. Prior to the changes, the secretary of the KDHE already had the authority to adopt regulations. One of the key changes also gave the secretary the power to issue orders “as may be medically necessary and reasonable to prevent the spread” of infectious diseases.47 These orders can include but are not limited to orders regarding testing for such diseases, and for quarantine or isolation “of persons afflicted with or exposed to such diseases.”48 As discussed in the 2009 article, the secretary, and the local health officer, are also authorized to issue these types of orders under K.S.A. § 65-129b, et seq. The 2013 changes began with a bill intended to address up-
covid-19: an update on the law of infectious disease in Kansas
dating Kansas statutes regarding exposure of first responders to contagious diseases.49 That bill was then substituted to add provisions regarding issuance of regulations by the secretary on infectious diseases.50 The substitute bill included the additional general authority for the secretary to issue, inter alia, quarantine and isolation orders.51 The secretary of KDHE subsequently promulgated revised regulations in 2018 for K.A.R. §§ 28-1-1, 28-1-2, and 28-16. The list of diseases provided in K.A.R. § 28-1-2, subject to mandated reporting and orders for testing, examination, quarantine or isolation was modified, although for Covid-19, the change was not significant. The definitions of quarantine and isolation found in K.A.R. § 28-1-1 were deleted and are now found in the “Requirements for Isolation and Quarantine of Infectious or Contagious Diseases” document issued by the secretary on March 15, 2018, as noted above. Further explanation of the regulatory changes can be found in the statement accompanying the hearing notice for the proposed changes published in the Kansas Register.52 Although the habeas corpus act53 was amended several times after 2009, those amendments do not significantly affect challenges to infectious disease orders issued by the secretary of KDHE or the local health officer.
Who can exercise state and local emergency management and public health laws in a pandemic? As noted, the state powers of emergency management are primarily exercised by the governor and the state adjutant general. The governor is considered the commander-in-chief of the emergency management response.54 In turn, the governor is charged with delegating command authority, reserving the power of the governor to issue any necessary orders.55 Obviously other state officers, e.g. the attorney general, have responsibilities that come into play during a disaster. However, this discussion will be generally limited to those officers primarily charged with emergency management. On the local level, the emergency management powers are generally exercised by the chairman of the county commission, with oversight by the full county commission.56 As noted above, in the area of public health, the state-level powers are exercised by the secretary of KDHE and, generally on the county level by the local board of health and the local health officer. However, the act creating local boards of health and local health officers, K.S.A. § 65-201, et seq., is non-uniform and a county may have enacted local legislation modifying the creation and powers of the local board of health or local health officer.57 In most counties the local board of health is the county commission. Check with your local county commission to see whether they follow the state statute or have adopted a local charter resolution. One more entity should be mentioned: the local health department. Al
though it is not expressly provided for as a statutory matter, the local health department staff plays an important support role for the local board of health and the local health officer. The local board of health is generally the board of county commissioners, but an important distinction should be made: the former has limited powers as provided by statute, whereas the board of county commissioners also exercise broad local legislative powers under their home rule authority found in K.S.A. § 19-101, et seq. A corollary of that key difference is that while the local board of health’s authority, as well as the local health officer, is county-wide and includes areas within city limits, the county commission’s home rule power cannot be exercised within a city’s jurisdiction without consent of the city governing body.58
What is the source and scope of those powers, as illustrated by concrete examples of those powers that have been exercised already, and those that might be exercised still? Emergency management powers are found in K.S.A. § 48-904, et seq. Public health powers are primarily found in K.S.A. § 65-101; § 65-119, et seq., K.S.A. § 65-129b, et seq. and K.S.A. § 65-201, et seq. There are somewhat archaic public health powers of cities of the second and third classes in K.S.A. § 65-301, et seq. which will be briefly mentioned at the end of this article. Additional public health matters are addressed in K.A.R. § 28-1-1, et seq. These statutes and regulations will be discussed in the context of specific circumstances as follows. Actions Already Taken This section will address the various actions taken as of final editing of the article and provide information and citations to authority related to each action. Although the federal actions will be only briefly discussed, more detail will be provided for the Kansas state and local actions taken. Federal Declaration of Public Health Emergency
On January 31, 2020, the Secretary of the United States Department of Health and Human Services (DHHS) issued the following declaration: As a result of confirmed cases of 2019 Novel Coronavirus (2019-nCoV), on this date and after consultation with public health officials as necessary, I, Alex M. Azar II, Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby determine that a public health emergency exists and has existed since January 27, 2020, nationwide. This declaration allows the secretary of DHHS to then take
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covid-19: an update on the law of infectious disease in Kansas
various steps to respond to the emergency. The following discussion, inter alia, is from Public Health Emergency Declaration Questions and Answers, available online for download at the DHHS website.59 The powers granted are largely in the nature of issuing grants, entering in contracts, and granting extensions or waiving sanctions or other requirements imposed by various laws and regulations. For example, this declaration allows waiver of Emergency Medical Treatment and Active Labor Act (EMTALA) sanctions, subject to certain limitations. The secretary has also waived or modified various Health Insurance Portability and Accountability Act (HIPAA) penalties.60 The declaration lasts up to ninety days but may be extended if necessary. Additional information on the waivers is available at the Centers for Medicare and Medicaid Services (CMS) website.61 Other Federal Actions
Federal actions are also authorized by the National Emergencies Act, 50 U.S.C. Sec. 1601, et seq., the Stafford Act, 42 U.S.C. 5121, et seq., and the Defense Production Act, 50 U.S.C. Sec. 4501, et seq. The first two actions taken by President Trump on March 13, 2020, authorized the secretary of DHHS to waive various federal requirements under Medicare, Medicaid, the State Children’s Health Insurance Program, and HIPAA, and authorized the Federal Emergency Management Agency (FEMA) to provide assistance to states requesting aid.62 The governor of a state requesting FEMA aid must apply for a declaration by the President; Governor Kelly did so, and President Trump approved the request for Kansas on March 29, 2020.63 The President invoked the Defense Production Act on March 18, 2020.64 A State-wide Declaration of Disaster
If a disaster has occurred, or is imminent, the governor of Kansas “shall issue a proclamation declaring a state of disaster emergency.”65 Governor Kelly issued this statewide declaration on March 12, 2020. The declaration initially was limited to fifteen days, but may be extended with legislative approval, K.S.A. § 48-924(b)(3). That approval was granted.66 However, the validity of at least part of the legislative action was raised in the litigation discussed below in the section of the governor’s orders regarding public and private gatherings. After the initial extension by the full legislature, upon application by the governor to the State Finance Council (SFC), that body can extend the declaration for one 30-day period.67 The SFC, when the legislature is not in session, may extend the declaration for additional 30-day periods, again upon specific application by the governor.68 Once the legislature reconvenes at its next regular session, the declaration terminates on the 15th day of that session, unless extended by a concurrent resolution.69 The legislature, may, however, at any time, require the governor to terminate the declaration, again by concurrent resolution.70 The legislature, by House Concurrent Resolution No. 5025, 16
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ratified and extended the declaration until May 1, 2020. The ratification was subject to certain conditions, e.g., that after action by the SFC, and if the legislature was not in session, the Legislative Coordinating Council (LCC) was authorized to revoke any order of the governor. As discussed later in the article, the LCC did revoke an order of the governor, leading to the litigation discussed below. Another condition of the extension approved was to prohibit the governor from confiscating ammunition or any ordering any limitations on the “sale, dispensing or transportation of firearms or ammunition.” There is already a state statute that bars any state or local government employee, member of the national guard, or person acting “under color of state law, receiving state funds,” from seizing firearms during a state of disaster.71 The local authority regarding any matters related to firearms is likely precluded by K.S.A. § 12-16,124(a). In the declaration, the governor directed the Adjutant General to activate the state response plan and to coordinate with all local emergency management agencies. The governor also suspended all state regulations where strict compliance would detract from the response to the disaster, as authorized by K.S.A. § 48-925(c)(1). There is a statutory requirement that the declaration be promptly filed with “each city clerk or county clerk . . . in the area to which such proclamation applies.”72 The declaration states it applies to all 105 counties in Kansas. Normally, these disaster declarations are in response to a limited area, such as for flooding or storms, and this filing requirement would be less difficult. Complying with this filing requirement in a statewide disaster could be problematic, but presumably has been complied with as specified in the declaration. Local State of Disaster Declarations
The chairperson of the county commission may declare a state of local disaster, even when the threat is imminent and has not yet occurred.73 Several counties have done so. The local declaration activates the local response and recovery aspects of the local emergency management plan.74 The initial declaration is only in effect for seven days, at which time it may be extended by the county commission.75 However, on March 16, 2020, the governor issued Executive Order No. 20-03 which waived the requirement for the need for extensions by the county commissions. The governor’s order, for authority, cites generally to K.S.A. §§ 48-924 and 48-925. The former does not appear to grant any specific authority to support this action. Although the latter, under subsection (b)(1), allows the governor to suspend the provisions of any “regulatory statute [regarding] procedures for conduct of state business,” there does not appear to be any express authority for the governor to take this action regarding county commissions, unless the action of the local government is considered state business. K.S.A. § 48-925(c)(11) does provide a general grant of authority for the governor to “perform and exercise such other functions, powers and duties as are neces-
covid-19: an update on the law of infectious disease in Kansas
sary to promote and secure the safety and protection of the civilian population.” This may be the basis, or an alternative basis, for this executive order. State Order Limiting Public Gatherings
After issuing the proclamation discussed above, other powers may be exercised by the governor, generally by issuing orders that have the full force and effect of law.76 In Executive Order No. 20-04, issued March 17, 2020, the governor limited public and private gatherings to less than fifty persons. Subsequently, in Order No. 20-14, dated March 24, 2020, which rescinded Order No. 20-04, the governor further limited gatherings to less than ten persons. The orders, except for the size limitations, were generally the same, with some minor changes to wording and restrictions in the latter order. However, while the former order did not address local orders regarding restricting public gatherings, the latter order expressly “supersedes any less restrictive order by any local health department.”77 It should be noted that local orders regarding restricting public gatherings are issued by the local board of health, or local health officer, and not the local health department. Order 20-14 did not supersede any local stay at home orders which were more restrictive than the state order. As above, the authority cited was a general reliance on K.S.A. §§ 48-924 and § 48-925. In the memorandum of support for the petition for quo warranto discussed below, counsel for the governor clarified that the source of the order fell under the general provision in K.S.A. § 48-925(c)(11), as well as within the authority of the governor to “control ingress and egress of persons . . . to and from a disaster area [and] the movement of persons . . . within the area and the occupancy by persons . . . of premises therein.”78 In Order No. 20-14, the governor exempted some gatherings from the effect of the order, including “[r]eligious gatherings, as long as attendees can engage in appropriate social distancing.”79 The order did not, however, specify what would be appropriate social distancing. Other states have addressed religious service gatherings in different ways, some exempting religious gatherings, others not providing this exemption. There have been some legal challenges, or civil disobedience, in response to those jurisdictions not allowing religious gatherings. The intersection of public health and religious freedom is fraught with difficulties.80 At the time, the governor also exempted schools, although as discussed in a following section, the governor later ordered closure of all K-12 schools until the end of May 2020. Later, on April 7, 2020, the governor issued Executive Order 20-18, which rescinded Order 20-14, and removed the exceptions for religious services and funerals, which then became subject to the ten-person limitation, with some minor qualifications. That prompted the Attorney General to issue an updated guidance to law enforcement officers asserting that the religious restriction was likely unconstitutional and should
not be enforced.81 The Attorney General opined that the Kansas state constitution and statutes “provide substantially more protection for Kansans’ fundamental religious freedoms than does federal law.”82 Later in the memorandum the Attorney General cited the Kansas Preservation of Religious Freedom Act (RFRA).83 The Attorney General suggested, instead, that voluntary cooperation be practiced.84 Later that day, the LCC revoked Executive Order 20-18. The governor, on April 9, 2020, filed a petition in quo warranto as an original action in the Kansas Supreme Court. That court, in addition to its appellate jurisdiction, has original jurisdiction to for quo warranto, mandamus and habeas corpus actions.85 The petition asserted that the delegation of authority to the legislative coordinating council was unconstitutional. A secondary issue, raised by the petitioner, was whether the unconstitutional part of the resolution—the delegation of revocation power—could be severed. That would leave the remainder of the resolution, e.g. the ratification and extension, in place.86 The court issued an order to the attorney general, due to the allegation of unconstitutionality, requiring the general to either enter an appearance or respond why his participation was not required by K.S.A. § 75-764. General Schmidt then filed a response, declining to enter an appearance, because, while the petition alleged a constitutional problem with the concurrent resolution, K.S.A. § 75-764 only speaks to constitutional challenges to statutes or constitutional provisions.87 He offered, however, to file an amicus brief if requested. Named respondents were the LCC, the House of Representatives, and the Senate, which filed a joint answer and memorandum in support of the answer. They raised several defenses, including that the governor had acquiesced in the process included in the concurrent resolution, and that the delegation issue was not severable, which would result in the extension to May 1, 2020, being inoperative. In the memorandum in support of their response, the respondents asserted that there had been no delegation at all, but instead the action was authorized by K.S.A. § 46-1602, which allows the LCC to act as a representative of the legislature when the entire legislature is not in session. The respondents also argued that the provision was not severable. They next argued that Order 20-18 was not valid until published in the Kansas Register. Finally, they asserted that the restrictions on religious gatherings violated the RFRA and Sec. 7 of the Kansas Constitution Bill of Rights regarding religious liberty. The court held videoconferencing arguments on April 11, 2020, and later that day issued a per curiam opinion finding in favor of the petitioner on narrow grounds.88 The Kansas House of Representatives and the Senate were dismissed because it is unclear whether either or both houses of the legislature have capacity to be sued, leaving the LCC as the only respondent.89 Prior case law had recognized the capacity of www.ksbar.org | May/June 2020 17
covid-19: an update on the law of infectious disease in Kansas
the LCC to be sue and be sued.90 On the merits, the court found the plain language of the resolution required action by the SFC before any action could be taken by the LCC.91 The court also found that the more specific statute regarding the legislative oversight of the governor during a disaster— K.S.A. § 48-925—controls over the general statute related to the LCC—K.S.A. § 46-1202. The court did not see need to reach other underlying issues, particularly the RFRA.92 Judith Johnson, in her article “Kansas in the ‘Grippe’: The Spanish Influenza Epidemic of 1918,” 93 noted during that pandemic, local authorities in Wichita issued an order that while limiting public gatherings including churches, there was lax enforcement for some retail businesses.94 A subsequent challenge to the order by commercial interests and the court invalidated the order on the grounds that the order impermissibly exempted some activities and was discriminatory.95 A subsequent order cured the matter by applying equally to all gatherings.96 One last note should be directed to another exemption included in the governor’s orders—funerals—which are still required to follow social distancing guidelines.97 State statute provides that services for those “who have died while suffering from an infectious . . . disease[,]” when the disease requires quarantining contacts, are only allowed with closed caskets, and any persons subject to quarantine must be “adequately segregated” from non-quarantined persons.98 Governor Kelly then amended the mass gathering order, No. 20-18, on April 17, 2020, by Order No. 20-25. The amendments appeared to be largely responsive to the concerns raised in the petition discussed below, which concerned the disparate treatment of religious services as compared to other activities. Under the earlier mass gathering order, exemptions were provided for shopping malls and libraries, but Order No. 20-18 eliminated those exceptions. Retail businesses with large occupancy capacity are now required to maintain six feet separation between persons and operations are also now limited only to essential activities or functions as described in Order No. 20-16.99 Restaurants and bars are now limited to no more than 10 customers in the facility at any time who must maintain six feet of separation between persons.100 The prior exemption for office spaces was also further restricted to only those offices engaged in essential activities or functions as set out in Order No. 20-16.101 Two churches in Kansas filed for declaratory and injunctive relief in U.S. District Court, asserting violations of their First Amendment rights of free exercise of religion as well as freedom of speech and the right of assembly, and violation of the Kansas RFRA.102 After hearing arguments by telephone on the request for a temporary restraining order, Judge Broomes granted the TRO and set the hearing for a preliminary injunction for Thursday, April 23, 2020.103 In the complaint, one plaintiff, First Baptist Church in Dodge City, had indi18
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cated it would follow a number of social distancing protocols, including, but not limited to: • Deep cleaning of the church following in-person services, • making hand sanitizer available, • limiting attendance to no more than 50 persons, • maintaining six feet of separation between non-cohabitating persons, and • refraining from use of church bulletins and passing of a collection plate.104 The other plaintiff, Calvary Baptist Church of Junction City, proposed, inter alia, to use 6 feet of separation between non-cohabiting congregants, also suspending the passing of a collection plate, and offering face masks to those attendees interested.105 Judge Broomes adopted the proposed protocols, respectively, for each church, and imposed them as a condition of the TRO.106 Local Orders Limiting Public Gatherings
Several jurisdictions issued local orders, generally by the local health officer, to limit public gatherings. K.S.A. § 65119(a) expressly authorizes both the local board of health and local health officer “to prohibit public gatherings when necessary for the control of any . . . infectious . . . disease.”107 Although the statute speaks to “prohibiting” gatherings, rather than “limiting” gatherings, the ability to limit gatherings rather than a complete prohibition would seem to be implied or inherent in the broader power to prohibit. In contrast to the governor’s order, which was directed also to private gatherings, local authority is limited under this statue to public gatherings. The statute does not define what should be considered a public gathering. In addition to the specific authority in K.S.A. § 65-119(a), the local health officer has general power under K.S.A. § 65-202, fourth paragraph, to “use all known measures to prevent the spread of any . . . infectious disease . . . .” This general power, if not read as limited by the specific power in K.S.A. § 65-119(a), could possibly be used to prohibit or limit private gatherings as well. State Stay at Home Order
After several local jurisdictions had issued “stay-at-home” orders, as discussed below, the governor issued a statewide “stay-at-home” order.108 As with other state orders, the authority cited was generally to K.S.A. §§ 48-924 and 48-925. As noted above, one of the other powers given to the governor is to control the movement of persons to, from and within the state during the state of disaster.109 And as noted, the governor has general authority under K.S.A. § 48-925(c)(11). The stay at home order could fall under either or both of those provisions. The order exempted “essential functions” and referenced a previous order to set out the framework for determining what qualified as an essential function.
covid-19: an update on the law of infectious disease in Kansas
Order 20-15, issued March 24, 2020, set out “Kansas Essential Function Framework [KEFF] for COVID-19 response efforts.” These were the essential activities that were exempt from the stay at home requirements. Order No. 20-16 expressly countermanded any local similar orders that failed to exempt the functions set out in the KEFF.110 The order identifies a framework for distinguishing “essential” activities that are not subject to the restrictions imposed by the order, and it authorized local authorities to identify other essential functions specific to their jurisdictions.111 It delegated to local authorities the responsibility to respond to inquiries by local businesses and other entities seeking guidance on whether their activity was essential. Although the local authorities have some discretion in granting exemptions, the order identified key activities that must be allowed to continue to operate. It remains in effect until May 1, 2020, or the date the state disaster declaration terminates, whichever is earlier. Order No. 20-16 was scheduled to end on April 19, 2020, unless extended. The essential activities identified in Order No. 20-15 are exempt from the stay at home requirements.112 This order also clarified the earlier order regarding prohibiting large private gatherings by expressly allowing private family gatherings, regardless of size.113 This order also superseded any local stay at home orders and prohibits local authorities from adopting or enforcing any stay at home orders.114 However, once the state stay-at-home order terminates, any local orders still in effect can be enforced.115 This prohibition against local orders did not affect the secretary’s or local health officer’s authority to issue quarantine or isolation orders.116 Local “Stay-at-Home” Orders
As with the state and its initial public gathering orders before the “stay-at-home” order was issued, several local jurisdictions followed their orders regarding limiting local public gatherings with a local “stay-at-home” order. For authority, as an example, the Sedgwick County “stay-at-home” order expressly cited K.S.A. § 65-119 (discussed above regarding limiting public gatherings) as well as Sedgwick County Charter Resolution No. 58, which was a local home rule resolution adopted to modify the provisions set out in the non-uniform act of K.S.A. § 65-201, et seq. The charter resolution retained the language noted above from K.S.A. § 65-202 regarding the power of the local health officer to use all known measures to control the spread of an infectious disease. That provision seems more applicable to a local health officer’s “stayat-home” order, rather than the powers conferred by K.S.A. § 65-119(a) regarding prohibiting public gatherings. Some jurisdictions may have also cited K.S.A. § 65-129b, et seq., as a source of authority for the local “stay-at-home” orders, but that act really appears to apply only to testing, examination, quarantine and isolation orders issued to specific individuals or groups. Those jurisdictions, in at least some cases, also cited to the provision in that act which authorizes the local health officer to order law enforcement officers to as
sist in executing and enforcing the order, K.S.A. § 65-129b(a) (2). If K.S.A. § 65-129b is not authority for general “stay-athome” orders, and does not cover actions taken under K.S.A. § 65-119 or § 65-202, then the provision in those local orders regarding ordering law enforcement officers to assist in the execution and enforcement of the order may not be legally effective. The Sedgwick County order, and other local “stay-athome” orders, unlike the state order discussed above, offered guidance on what would be considered as appropriate social distancing: For purposes of this Order, “Social Distancing Requirements” means maintaining at least 6 feet of social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs and sneezes (into sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.117 Finally, at least one of the orders asserted that violation of the order would be a Class C misdemeanor, without citing to specific authority for that penalty. There is no specific statutory authority given to the local board of health or the local health officer to set penalties for violations of their orders. There are penalty provisions in several statutes that set various penalties; K.S.A. § 65-127 sets a fine, but no criminal penalty, for, inter alia, violating any requirements of K.S.A. § 65-119, but not § 65-202. There is a criminal penalty imposed by K.S.A. § 65-129—a Class C misdemeanor—but it only applies to violations of orders of the secretary of KDHE, or for leaving an isolation or quarantine area without the permission of the local health officer. The local “stay-at-home” orders do not appear to qualify as a quarantine or isolation order. State Closing of Schools
By Executive Order No. 20-07, issued March 17, 2020, the governor ordered in-person activities at K-12 schools to close until May 29, 2020, subject to certain exceptions. This order generally cited to K.S.A. §§ 48-924 and 48-925, but presumably would fall under either the general powers in K.S.A. § 48-925(c)(11), or perhaps the specific power regarding controlling ingress and egress within the disaster area under subsection (c)(7). This order specifically overrode any local “contrary or less restrictive order[s]” of local health departments, but as noted before, those local orders would be issued by the local board of health or the local health officer.118 Other State Executive Orders
In addition to the orders discussed above, the governor issued a variety of other executive orders related to the response to the pandemic: 20-05 Utility and internet disconnection, www.ksbar.org | May/June 2020 19
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20-06 20-08 20-09 20-10 20-11 20-12 20-13 20-17 20-19 20-20 20-21 20-22
Evictions and foreclosures, Telemedicine and licensing issues, Motor carrier rules and regulations, Replacing and rescinding 20-06, Waste removal and recycling services, Drivers license and vehicle registration, Tax filing deadlines, Unemployment insurance, Professional and occupation licenses, Notaries and witnesses, Non-resident spring turkey hunting permits, and Motor carrier rules and regulations.119
Judicial System Orders
Chief Justice Luckert issued Administrative Order 2020PR-013 on March 12, 2020, and No. 2020-PR-015 on March 16, 2020, stating the court system’s policies regarding the pandemic disease. Although the orders do not cite any specific authority as its basis, it is presumably based on the constitutional authority of the Supreme Court regarding the administration of the court system.120 Order 2020-PR013,121 authorized district court chief judges, upon consultation with the chief justice or the departmental justice, to close courts if there were any local outbreaks; such closure would then be treated as a legal holiday under K.S.A. § 60-206(a) to preserve any statute of limitations. Order No. 2020-PR-015 restricted access to the Kansas Judicial Center, including the Law Library, and advised chief judges in the local courts to consider similar restrictions.122 On March 18, 2020, the chief justice issued Order No. 2020-PR-016, in anticipation of the adoption of H. Sub. for S. Bill No. 102, regarding emergency operating procedures for the Kansas state courts. Subsequently, that bill was signed into law and published March 19, 2020, 39 Kan. Reg., No. 12A, 304 (March 19, 2020). In pertinent part, it provides: (a) Notwithstanding any other provisions of law, during any state of disaster emergency pursuant to K.S.A. § 48-924, and amendments thereto, the chief justice of the Kansas supreme court may issue an order to extend or suspend any deadlines or time limitations established by statute when the chief justice determines such action is necessary to secure the health and safety of court users, staff and judicial officers. (b) Notwithstanding any other provisions of law, during any state of disaster emergency pursuant to K.S.A. §48-924, and amendments thereto, the chief justice of the Kansas supreme court may issue an order to authorize the use of two-way electronic 20
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audio-visual communication in any court proceeding when the chief justice determines such action is necessary to secure the health and safety of court users, staff and judicial officers. (c) Any order issued pursuant to this section may remain in effect for up to 150 days after a state of disaster emergency is terminated pursuant to K.S.A. § 48-924, and amendments thereto. Any order in violation of this section shall be void. (d) The provisions of this section shall expire on March 31, 2021. Order 2020-PR-16, after publication of the above legislation, “suspends all deadlines and time limitations” for trials of criminal defendants set out in K.S.A. § 22-3402.123 In addition, it limits all court operations to only “emergency operations” which include various criminal and civil proceedings, including child in need of care matters, protection from abuse orders, and in particular relevance to the current situation, any hearings related to challenges to isolation and quarantine orders issued by the secretary or the local health officer under K.S.A. § 65-129b, et seq.124 Finally, the order suspended “all statute of limitations and statutory time standards or deadlines applying to the conduct or processing of judicial proceedings.”125 Following the effective date of this legislation, the chief justice issued additional orders Nos. 2020-PR-031 and 2020PR-032. The former order related to deadlines and time limitations on municipal courts if the city governing body had closed the court.126 Courts that remained open could use “two-way electronic audio-visual communication . . . to the extent feasible.”127 The latter order was in complement to Orders 2020-PR-013 and 2020-PR-015 and amended Order No. 2020-PR-16. It, inter alia, continued all civil and criminal jury trials until further order by the chief justice, but jury trials in process as of March 18, 2020, were allowed to continue at the discretion of the assigned judge, with the advice for CDC social distancing guidelines to be followed.128 Order No. 2020-PR-32 also directed that no filings of nonessential matters be rejected, and that the time limitations set out in Supreme Court Rule 23(c)(2) are suspended regarding processing of district court filings.129 The chief justice later issued Orders 2020-RL-33, 34, and 35. These orders, respectively, modified continuing legal education (CLE) attendance and reporting deadlines, modified the deadline for payment of the CLE annual fees, and moved the deadlines for attorney registration and fee payment. The CLE payment, attorney registration renewal, and registration fee deadlines have all been moved to September 30, 2020, from the usual June 30, 2020, deadline. Order 2020-RL-33 also created a grace period for meeting CLE hours requirements.130
covid-19: an update on the law of infectious disease in Kansas
The earlier order regarding municipal court proceedings, No. 2020-PR-031, has now been amended by Order No. 2020-PR-036. In addition to courts closed by the governing body, the suspension of deadlines and time standards has been extended to include closures ordered by city managers, municipal judges, or other authorized officers.131 It also now allows use of teleconferencing for court proceedings.132 The chief justice has also issued Order 2020-RL-037 which provides that any oath or affirmation, made pursuant to Rules of the Kansas Supreme Court, can be made by using “[r]emote technology [such as] videoconferencing or teleconferencing” or as authorized by K.S.A. § 53-601. On March 16, 2020, the chief judge for the Tenth Circuit closed the Byron White United States Courthouse to the public and restricted access by court personnel.133 All paper filings were suspended.134 The chief judge for the United States District Court of Kansas also issued several administrative orders. All criminal hearings and trials, and also grand jury proceedings were suspended.135 The suspension of grand jury proceedings was subsequently extended.136 Civil proceedings were subject to lesser restrictions.137 Finally, public access to telephone and video conferencing hearings was allowed.138 Attorney General Guidance on Open Meetings
Kansas has a strong public policy in favor of open government, particularly as found in the Kansas Open Meetings Act (KOMA).139 The Attorney General has authority to adopt regulations regarding the KOMA.140 The Attorney General has adopted K.A.R. § 16-20-1, regarding compliance with KOMA during a state of disaster emergency.141 The regulation only applies during the state of disaster declaration, either state or local, and then only to the extent the disaster affects the ability of the public entity to meet ordinary requirements of the KOMA. The regulation recognizes the authority of the governor, under emergency management statutes, to suspend regulatory requirements pertaining to state business. However, the regulation requires that the governor specifically cite to the authority relied on in suspending the KOMA requirements.142 The regulation requires that the governor’s order state the specific provisions to be suspended.143 The regulation also recognizes the appropriate use of technology, e.g. teleconferencing, videoconferencing, internet broadcast, that would allow the public to view the meetings remotely rather than in person.144 Subsection (e) of the regulation sets out requirements to be followed to allow, inter alia, for any public comment, which is permitted but not required under subsection (g). Physical public access to the meeting may be restricted, subject to certain requirements to allow the public to listen in and observe the meeting.145 The attorney general has also published a guidance document available on that office’s website for best practices of implementation of this regulation.146
Attorney General Guidance for Law Enforcement Officers
Also, at the attorney general’s website is his guidance to law enforcement officers during the Covid-19 disaster response, initially issued March 24, 2020.147 It notes that the office does not represent local law enforcement agencies as legal counsel.148 In the case of conflict between a governor’s order and local orders, it notes the former should be followed.149 It also notes that municipal ordinances conflicting with state or local disaster response plans are void as provided by state statute.150 The attorney general suggests that law enforcement officers should not enforce, as a criminal matter, local public health orders unless “they have been properly published,” although most such orders are not subject to a publication requirement.151 In support, he notes due process may require notice of the law before criminal prosecution may be had.152 The attorney general also recommends that before any law enforcement officer from outside the jurisdiction of a local health officer, e.g. a Kansas Highway Patrol officer, enforces a local health officer’s order, the order “should be carefully scrutinized by legal counsel.”153 As noted above, an addendum to this memorandum was issued April 8, 2020. Travel into Kansas from Out-of-State
KDHE has also issued, and periodically updated, a list of locations which require travelers entering the state from the designated locations or who meet certain exposure criteria to quarantine for 14 days.154 These include both international and national travelers. This requirement does not apply to “critical infrastructure sectors” such as healthcare, pharmaceutical and food supply operations. This is not styled as an order but could be considered an order of the secretary issued under K.S.A. § 65-128. In addition, the secretary has general power to: “take action to prevent the spread of infectious . . . disease into the state. . .”155 The CDC also has regulatory authority to address quarantine and isolation of travelers crossing state lines.156 Other Possible Actions That May Be Taken These actions may have not yet been taken, but could, subject to further developments. Commandeering Property
K.S.A. § 48-925(c)(2) authorizes the governor to use all available resources of the state and local government as “reasonably necessary.” In addition, subject to certain requirements for compensation under K.S.A. § 48-933, the governor may commandeer “any private property” deemed necessary for the disaster response.157 As mentioned earlier, there is a recognized statutory duty for all Kansans to assist in the response to a disaster.158 In return, and as would be required by the constitutional takings provisions, when private property has been commandeered by the government rather than volunteered by the owner, compensation may be due.159 The statute sets out the process for obtaining compensation by filing a claim with the district court.160 www.ksbar.org | May/June 2020 21
covid-19: an update on the law of infectious disease in Kansas
Individual/Group Orders to be examined, treated, quarantined or isolated
As noted earlier, the legislature has conferred on the secretary of KDHE the power to issue orders regarding testing, quarantine and isolation of persons exposed, or afflicted with, an infectious disease such as Covid-19.161 In addition, the secretary and local health officers (but not local boards of health) have authority under K.S.A. § 65-129b, et seq. to issue orders to persons, or groups of persons, suspected to have been exposed to, or suffering from, an infectious disease. The process and requirements for issuing orders under K.S.A. § 65-129b are more fully discussed in the 2009 article.162 Such orders may have been issued for individual matters since the start of the outbreak in Kansas. The Secretary’s power to quarantine local areas
K.S.A. § 65-126 authorizes the secretary of KDHE to step in and “quarantine any area in which any of these [infectious] diseases may show a tendency to become epidemic[,]” when the local authorities are not “properly” handling quarantine and isolation matters. Other Actions
In addition to the specific powers discussed above, both the governor and the local health officer, but not the local board of health, have been granted broad powers to take other necessary actions. The governor can “perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.”163 The secretary of KDHE may “issue such orders . . . as may be medically necessary and reasonable to prevent the spread” of infectious diseases.164 The local health officer “shall use all known measures to prevent the spread of any” infectious diseases.165 Although these powers are broad, and not expressly subject to specific limitations, they should be read in light of the more specific statutory requirements, e.g. K.S.A. § 65-129c (form and content of public health orders), as well as constitutional and statutory provisions regarding Kansans’ civil rights such as due process. Actions by Second- and Third- Class Cities
Initially, the legislature provided some statutory power for cities of all classes to address infectious disease control. After constitutional home rule power was adopted, the legislature repealed the authority for first class cities, but has left in place the power for second- and third-class cities found in K.S.A. § 65-301, et seq.: Whenever smallpox or other contagious or infectious diseases exist in a city of the second or third class the governing body of such city and the local health officer and the county commissioner in the district in which is located such cities shall take such action as in their judgment may be necessary to control, suppress and prevent the spreading of the same and to pay all the necessary expenses for such action and purposes. 22
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The city may then submit a claim to the county commission for payment.166 This act dates to 1919, and may have been a response to the 1918-19 flu pandemic. One Final Note on Emergency Management and Public Health Actions
One way to look at powers involved in emergency management and public health, as with all powers of the government, is to separate them into three categories: there are things the public officer must do; things the officer cannot do; and inbetween those two pillars, there are a variety of discretionary powers, things the officer may do.
What other practical legal concerns and issues are there? Conflict Issues
There is some overlap and therefore possibility of conflict between those persons authorized to act in a pandemic. There may be conflicts arising between state and local orders and actions. Conflicts may arise between decisions of the local board of health and the local health officer. While the board appoints the local health officer, and shares some co-extensive authority, e.g. the power to close public gatherings, the local health officer’s powers are more extensive than the board’s, particularly in issuing individual or group testing examination, quarantine and isolation orders, as well as the broad grant of power in K.S.A. § 65-202 to take all known measures to control the spread of a disease. Confidentiality of Personal Information
There are also, of course, concerns of confidentiality raised by mandated reporting requirements. Those concerns are more fully discussed in the 2009 article.167 Depending on who is maintaining, using or disclosing the information, HIPAA may impose some restrictions on how that information is handled, although there are exceptions in HIPAA including mandated disclosures for public health purposes.168 Under state statute, although K.S.A. § 65-118 imposes confidentiality requirements on information disclosed regarding infectious diseases, there are some exceptions. Particularly, like HIPAA, where the information is de-identified (the person involved cannot be identified from the disclosure) or consent is given. Liability and Immunity Issues
There are several Kansas statutory sources of immunity from liability that may be later tested. As related to mandated reporting, those persons reporting information as required by statute, if acting “in good faith and without malice” are immune from civil or criminal liability when those actions would normally give rise to liability.169 In a more general sense, to the extent actors are covered by the Kansas Tort Claims Act, K.S.A. § 75-6101, et seq., the immunities and other provisions would still apply to actions taken under either the emergency management act, or the public health
covid-19: an update on the law of infectious disease in Kansas
laws. More specifically, the emergency management act includes three separate statutory grants of immunity: K.S.A. § 48-915: Immunity from liability of state, local governments and certain individuals,170 K.S.A. § 48-934: Duties and immunities of law enforcement, military and other authorized personnel, and K.S.A. § 48-936: Immunity from liability for persons in control of certain premises. Kansas also has a “Good Samaritan” law,171 which would appear to have some limited application to the present situation. In addition to these state grants of immunity, there are some additional immunities provided for by federal law.172 Under the Public Readiness and Emergency Preparedness Act (PREP Act), “covered persons,” i.e. persons engaged in manufacturing, distributing, administering, prescribing, or using “covered countermeasures” have some limited immunity for those activities.173 The act also provides for a compensation fund for persons injured, or who die, from the application of a covered countermeasure.174 Employee Protection from Termination
If a person is subject to a quarantine or isolation order under K.S.A. § 65-129b, et seq., they cannot be fired by their employer, whether public or private, “solely because the employee or an immediate family member of the employee is under an order of isolation or quarantine.”175 Although the person may be willing to voluntarily comply with quarantine or isolation requirements, a formal order by the secretary or local health officer can provide some employment protection. Any employer violating this section can be found guilty of a Class C misdemeanor.176
Enforcement Although there are various enforcement methods, and penalties for noncompliance, particularly in the area of public health, the lodestar is voluntary compliance. Civil and criminal penalties seem antithetical to this core interest of public health, and may not be practical, particularly when a pandemic is involved. One guiding theme of public health law action is to take the least restrictive means possible in responding to an infectious disease situation, in order to best protect public health while preserving to the extent possible individual and societal rights.177 This least restrictive means imperative is borne out in several statutes. For example, K.S.A. § 65-129b(a) imposes a condition precedent for issue orders that the secretary or local
health officer must first find the disease involved is “potentially life-threatening.”178 Before quarantine or isolation can be ordered, it must be “determine[d] that it is medically necessary and reasonable. Orders issued by the secretary under K.S.A. § 65-128(b) must be “medically necessary and reasonable.” Once a person no longer poses a “substantial risk” of infecting others, they must be allowed to leave the quarantine or isolation area.179 One method of enforcement available to the secretary of KDHE and the local health officer only, is the power to order law enforcement officers, including sheriffs, deputy sheriffs and any other law enforcement officer of the state or local political subdivision, to assist in the execution and enforcement of orders issued under K.S.A. § 65-129b, et seq. Also, as noted previously, under K.S.A. § 48-939, violation of any orders issued under the emergency management act is a Class A misdemeanor. The penalty is imprisonment for up to a year, as well as a fine of up to $2,500.180 In regards to public health law violations, persons violating any of the provisions found in K.S.A. § 65-118 (mandated reporting of infectious disease), § 65-119 (orders closing public gatherings), § 65-123 (funeral services requirements for infectious disease cases), and § 65-126 (local quarantine orders issued by the secretary of KDHE), are subject to fines of between $25 and $100. In addition, persons violating any regulations issued by the secretary of KDHE, or who leave a quarantine or isolation area without the local health officer’s permission, or who “knowingly conceals a case of infectious . . . disease” may be found guilty of a Class C misdemeanor.181 This misdemeanor class carries a sentence of up to one month in jail, and a fine of up to $500.182 The attorney general memorandum of March 24, 2020, provides additional discussion of this topic. Judicial Review The primary basis for judicial review for restrictions on individuals would be the habeas corpus act.183 There is more detailed discussion of this matter in the 2009 article.184 Other actions and orders may be tested by quo warranto, mandamus and equitable relief such as injunctions. Although there are some mandatory actions required of public officers acting in the emergency management and public health spheres, more of their powers are discretionary in nature and likely lie outside the scope of mandamus which requires a clear duty on the part of the public officer to act.185 Quo warranto is the writ used to challenge the authority of the public officer to exercise some claimed power.186 Unless the power is outside the express or implied grant of authority, or is being exercised by someone other than the governor, adjutant general, secretary of KDHE, local board of health or local health officer, a quo warranto action may not be, excuse the pun, warranted. Injunctive relief would appear to be the main vehicle to www.ksbar.org | May/June 2020 23
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challenge actions taken by emergency management or public health officials.187
Conclusion Laurie Garrett, in her book The Coming Plague, quoted Albert Camus, from his novel The Plague: “Everybody knows that pestilences have a way of recurring in the world; yet somehow we find it hard to believe in ones that crash down on our heads from a blue sky.” Public health professionals, and others, were not surprised by this pandemic. In countless seminars, desktop exercises, and other discussions during my public health law practice, the mantra was not if there would be a pandemic, it was when there would be a pandemic.188 One final note, particularly for lawyers. During a disaster, while lawyers are not first responders, they nonetheless provide valuable and necessary services during the disaster response. They must be able to function under difficult circumstances. Key to being prepared is having a Continuity of Operations Plan (COOP). The American Bar Association provides guidance for lawyers, including a draft FEMA plan template (not specific to attorneys), as well as other resources.189 To the stars through difficulties, our state motto rings as loud now as at any time in our state’s history. n PLEASE NOTE: It is very likely that as this issue of The Journal goes to print and the Kansas Legislature returns for Sine Die on May 21, new legislation could be proposed, more attorney general opinions on these matters could be issued, and possibly additional court decisions could be rendered. Look for updates in future issues of The Journal and check the website for the latest news. www.ksbar.org/COVID-19
Checklist for Emergency Management / Public Health Orders Review A) Obtain a copy of the order that is the basis for enforcement or other action against your client. B) Identify any constitutional or statutory rights of your client that may be negatively affected. C) Carefully review the order for the following: a. Does it state the source of authority for the order? i. If not, ask the issuing authority for the source of authority. b. Was it issued by an authorized person? c. Does it comply with statutory or other legal requirements for the order? d. Was publication or service required, and if so, were those requirements met? 24
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D) Determine what the potential penalty or negative effect for noncompliance is for your client. E) See if the issuing authority is willing to negotiate any amendment or exception for your client.190 F) If necessary, see if your client can comply with the order without significant negative impact. G) Determine appropriate means of obtaining judicial review, including: a. whether to file in federal or state court, b. what causes of action are appropriate, e.g. quo warranto, declaratory and injunctive relief, mandamus, etc., c. the best venue, and d. the relief to be requested. Additional Legal Resources for the Practitioner Websites
Washburn University School of Law has posted two Colloquia on Covid-19 and various legal topics. Videos of presentations by law professors are available at: http://washburnlaw.edu/practicalexperience/government/center/programs/ covid19/. Public Health Law Center: https://publichealthlawcenter. org/. Based at the Mitchell Hamline School of Law, St. Paul, MN. Network for Public Health Law: https://www.networkforphl.org/. Includes Covid-19 emergency preparedness materials. Center for Public Health Law Research: http://publichealthlawresearch.org/. Affiliated with Temple University Beasley School of Law. Includes Covid-19 resources at: http:// phlr.org/covid19response. Centers for Disease Control and Prevention Public Health Law: https://www.cdc.gov/phlp/index.html. The CDC also publishes the Public Health Law News. https://www.cdc.gov/ phlp/news/current.html. The CDC website has several online resources, including links to various public health law bench books. https://www.cdc.gov/phlp/publications/topic/ benchbooks.html. These are guides for judges and practitioners dealing with public health legal issues. See, e.g. Blum and Paradise, 20 DePaul Journal of Health Care Law at 4 (“These books offer one-stop compilations of procedural frameworks, statutory texts, relevant case law, and model orders to provide helpful guidance for judicial proceedings and policy making.”). Although each jurisdiction’s laws are different, these may still provide some assistance. Partnership for Public Health Law: https://www.astho.org/ Public-Policy/Public-Health-Law/Resources/Partnership-for-
covid-19: an update on the law of infectious disease in Kansas
Public-Health-Law/. This is a collaboration with various public health associations. Legal Books
Public Health Law: Power, Duty, Restraint, Lawrence O. Gostin: Third Edition (2016). I haven’t reviewed the latest edition but found the revised and expanded second edition to be a comprehensive examination of public health law, not just regarding infectious disease, but the whole spectrum of public health actions. Public Health Law Manual, Frank P. Grad, Third Edition (2004). Another excellent source for public health law practitioners, although less current than Gostin. Law in Public Health Practice, Richard A. Goodman, Mark A. Rothstein, Richard E. Hoffman, et al., Second Edition (2006). As with Grad, no longer as current as Gostin but still an excellent resource.
vid-19 was recognized as a potential threat. Journal Editor’s Note: Deepest thanks to author Robert W. Parnacott for his willingness to take on the task of updating his 2009 Journal article—and doing so with a ridiculously tight deadline. I’m confident our KBA members and other legal colleagues across the state will find this piece extremely interesting and helpful as we go through this time of pandemic, quarantine and social distancing. If you agree, you might drop Robert a note...he certainly deserves recognition for his extraordinary effort. In turn, Robert asked that we publicly acknowledge his assigned editor for this article, Jennifer Salva. Jennifer is new to the Board of Editors for The Journal of the KBA, and she volunteered to edit for Robert under the tight time constraints. I am indebted to both of them. Thank you very much.
Additional Non-Legal Reading
The Great Influenza: The Epic Story of the Deadliest Plague in History, John M. Barry (2004). Arguably the most informed book of the 1918-19 influenza pandemic. Flu: The Story of the Great Influenza Pandemic of 1918 and the Search for the Virus that Caused It, Gina Kolata (1999). While not as comprehensive as Barry, still an excellent examination of that pandemic and the ensuing search to identify the virus responsible. The Ghost Map: The Story of London’s Most Terrifying Epidemic – and How It Changed Science, Cities, and the Modern World, Steven Johnson (2006). A compelling story of one of the early interventions of public health, where a local physician identified the source of a deadly cholera outbreak, and may have stopped it by simply having the handle removed from a public pump where people were getting their drinking water. The American Plague: The Untold Story of Yellow Fever, The Epidemic that Shaped Our History, Molly Caldwell Crosby (2006). Another example of a major milestone in public health. The Hot Zone: A Terrifying True Story, Richard Preston (1994). This may be most familiar to readers, having been the basis for a dramatization last year by National Geographic television. Two of the key persons in the story, Dr. Nancy Jaxx, and her husband Dr. Jerry Jaxx, are alumni of Kansas State University’s School of Veterinary Medicine, and after the events in the book returned to K-State and Kansas. They will receive the 2020 Alumni Excellence Award later this year. https://www.k-state.com/news/2020Apr3AEJaaxes.php. The Coming Plague: Newly Emerging Diseases in a World Out of Balance, Laurie Garrett (1994). While one of the two oldest of these books mentioned, it bears noting that even as far back as 1994, the possibility of a pandemic such as Co-
About the Author Robert W. Parnacott retired and received the Kansas Bar Association Distinguished Government Service award in 2016 after serving 16 years in the Office of the County Counselor for Sedgwick County, Kansas. He graduated in 1991 from Washburn School of Law with Dean’s Honors. He has published a number of articles in the Journal of the Kansas Bar Association, including the October 2009 article on “The Law of Infectious Disease in Kansas,” the April 2020 piece on “Poetry in the Law,” and a two-part article on summary judgment. robertwparnacott@yahoo.com
Endnotes begin on pg. 26 www.ksbar.org | May/June 2020 25
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1. 78 Journal of the Kansas Bar Ass’n 24 (October 2009). 2. John D. Blum and Jordan Paradise, Public Health Preparedness & Response: An Exercise in Administrative Law, 20 DePaul Journal of Health Care Law 1 (2018). See also Eric E. Johnson and Theodore C. Bailey, Urgent Legal Lessons from a Very Fast Problem: COVID-19, forthcoming in 73 Stanford Law Review (2020). Available online at: https://papers.ssrn. com/sol3/papers.cfm?abstract_id=3567412. 3. See generally Gregory Sunshine and Aila Hoss, Emergency Declarations and Tribes: Mechanisms Under Tribal and Federal Law, 24 Mich. St. Int’l L. Rev. 33 (2015). 4. See, e.g. Kansas Attorney General Memorandum re: State and local law enforcement duties and authorities under emergency powers invoked in connection with COVID-19 response, at 3 (March 24, 2020) (“Moreover, the specific action of various state statutes and authorities involved is sometimes unclear and has not previously been clarified either by judicial ruling or by formal attorney general opinion.”) 5. K.S.A. § 2008 Supp. 65-129a et seq., repealed in part by Laws 2013, ch. 112, § 25, eff. July 1, 2013. 6. Is That Cold ‘Contagious’ or ‘Infectious’?, Merriam-Webster.com, https://www.merriam-webster.com/words-at-play/gesundheit-is-thatcold-contagious-or-infectious (last visited April 25, 2020). 7. Id. 8. Charles Patrick Davis, Is Lyme Disease Contagious?, MedicineNet, https://www.medicinenet.com/is_lyme_disease_contagious/article.htm (last visited April 25, 2020). 9. K.A.R. § 28-1-2(a)(13). 10. SARS Coronavirus 2, Lonic, https://loinc.org/sars-coronavirus-2/ (last visited April 25, 2020). 11. K.A.R. § 28-1-2(a)(19). 12. What you should know about COVID-19 to protect yourself and others¸ CDC, https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019ncov-factsheet.pdf, (last visited March 20, 2020). 13. Id. 14. Id. 15. Symptoms of Coronavirus, CDC https://www.cdc.gov/ coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited April 29, 2020). 16. Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), CDC, https://www.cdc.gov/ coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited April 29, 2020). 17. What you should know about COVID-19 to protect yourself and others¸ CDC, (last visited March 20, 2020). 18. Information in this section, other than references to official declarations, orders, and memoranda, is from the following sources: 2019-20 Coronavirus Pandemic, Wikipedia, https://en.wikipedia.org/ wiki/2019%E2%80%9320_coronavirus_pandemic#History (last visited April 25, 2020); 2020 Coronavirus Pandemic in Kansas, Wikipedia, https://en.wikipedia.org/wiki/2020_coronavirus_pandemic_in_Kansas (last visited April 25, 2020). 19. Id. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. K.S.A. § 48-904(a). 28. K.S.A. § 48-904. et seq. 29. K.S.A. § 48-924(a). 30. K.S.A. § 48-907(i). 31. K.S.A. § 48-932. 32. K.S.A. § 48-933(a). 33. Id. 34. K.S.A. § 65-101(a)(5).
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35. K.S.A. § 65-201. 36. State ex rel. Anderson v. Fadely, 180 Kan. 652, 665, 308 P.2d. 537 (1957). “Among all the objects sought to be secured by government, none is more important than the preservation of the public health; and, an imperative obligation rests upon the state through its proper instrumentalities or agencies to take all necessary steps to accomplish this objective.” Anthrax, Smallpox, and Flu, Oh My!, 78 Journal of the Kansas Bar Ass’n 24 (October 2009) (quotng State ex rel. Anderson v. Fadely, 180 Kan. 652, 665 (Kan. 1957)). 37. An Introduction to Applied Epidemiology and Biostatistics, Principles of Epidemiology in Public Health Practice, 3d ed., CDC, https://www. cdc.gov/csels/dsepd/ss1978/lesson1/section11.html (last visited April 25, 2020). 38. “Pandemic,” Merriam-Webster.com, https://www.merriam-webster. com/dictionary/pandemic (last visited April 25, 2020). 39. Requirements for Isolation and Quarantine of Infectious or Contgious Diseases, KDHE. 40. Id. 41. What is Social Distancing and How Can it Slow the Spread of Covid-19?, The Hub, Johns Hopkins University, https://hub.jhu. edu/2020/03/13/what-is-social-distancing/ (last visited April 25, 2020). 42. K.A.R. § 28-1-1(b). 43. K.S.A. § 65-118(a); K.A.R. § 28-1-2. 44. K.S.A. § 65-119(a). 45. Id. 46. K.S.A. § 65-118(c) and § 65-119(b). 47. K.S.A. § 65-128(b), as amended in L. 2013, Ch. 112, Sec. 2. 48. Id. 49. Supplemental Note on Substitute for House Bill No. 2183. 50. Id. 51. 2013 Substitute for House Bill No. 2183, Sec. 2. 52. 36 Kan. Reg., No. 48, 1306, November 30, 2017. 53. K.S.A. § 60-1501, et seq. 54. K.S.A. § 48-925(a). 55. Id. 56. K.S.A. § 48-932. 57. See, e.g. Kan. Att’y Gen. Op. Nos. 94-63 and 79-156. 58. K.S.A. § 19-101a(a)(4). 59. Public Health Emergency Declaration Questions and Answers, U.S. Department of Health and Human Services, https://www.cms.gov/ Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/PHE-Questions-and-Answers.pdf (last visited April 25, 2020). 60. See, e.g. BULLETIN: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19), U.S. Department of Health and Human Services, March 28, 2020. Also available online: OCR Issues Bulletin on Civil Rights Laws and HIPPA Flexibilities That Apply During the COVID-19 Emergency, U.S. Department of Health and Human Services, https:// www.hhs.gov/about/news/2020/03/28/ocr-issues-bulletin-on-civil-rightslaws-and-hipaa-flexibilities-that-apply-during-the-covid-19-emergency. html (last visited April 25, 2020). 61. 1135 Waivers, Centers for Medicare & Medicaid Services, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/ SurveyCertEmergPrep/1135-Waivers (last visited April 25, 2020). 62. 85 Fed. Reg., No. 53, 15337 (March 18, 2020); Letter from President Donald J. Trump on Emergency Declaration Under the Stafford Act, Statements & Releases, https://www.whitehouse.gov/briefings-statements/ letter-president-donald-j-trump-emergency-determination-stafford-act/ (last visited April 25, 2020). See also Blum and Paradise, 20 DePaul Journal of Health Care Law at 7 (“federal emergency declarations trigger various types of assistance . . . .”). 63. President Donald J. Trump Approves Kansas Disaster Declaration, Statements & Releases, https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-approves-kansas-disaster-declaration-6/ (last visited April 25, 2020). 64. 85 Fed. Reg., No. 53, 16227 (March 23, 2020). Additional in-
covid-19: an update on the law of infectious disease in Kansas
formation can be found at: Emergency Authority and Immunity Toolkit, Association of State and Territorial Health Officials, https://www.astho. org/Programs/Preparedness/Public-Health-Emergency-Law/EmergencyAuthority-and-Immunity-Toolkit/Robert-T--Stafford-Disaster-Reliefand-Emergency-Assistance-Act-Fact-Sheet/ (April 25, 2020). 65. K.S.A. § 48-924(b)(1). 66. H. Concurrent Resolution No. 5025, adopted March 19, 2020. 67. K.S.A. § 48-924(b)(4). 68. Id. 69. Id. 70. K.S.A. § 48-924(b)(5). 71. K.S.A. § 48-959. 72. K.S.A. § 48-924(b)(6). 73. K.S.A. § 48-932(a). 74. K.S.A. § 48-932(c). 75. K.S.A. § 48-932(a). 76. K.S.A. § 48-925(b). 77. Executive Order No. 20-14, at 4. 78. K.S.A. § 48-925(c)(7). 79. Order No. 20-14 at 2, ¶ 2(c). 80. See, e.g. Christopher Ogolla, The Public Health Implications of Religious Exemptions: A Balance of Public Safety and Person Choice, or Religion Gone Too Far?, 25 Health Matrix 257 (2015). Section IV, concerning religious exemptions and quarantine or isolation orders is particularly pertinent. Id. at 295. 81. Attorney General Memorandum, April 8, 2020, Addendum 1 to March 24, 2020, law enforcement duties and authorities memorandum regarding restrictions on religious facilities, services or activities set forth in EO 20-18. 82. Id. at 1. 83. Id. at 3 (citing K.S.A. § 60-5302, et seq.) 84. Id.. 85. Kan. Const. Art. 3, Sec. 3. 86. Memorandum in Support Petition in Quo Warranto, Argument and Authorities, Sec. E. 87. Response of Attorney General to Court’s Order, at 1. 88. Governor Laura Kelly v. Legislative Coordinating Council, et al., Case No. 127-765, slip op. (April 11, 2020). 89. Id. at 9-10. 90. Id. at 10, citing Legislative Coordinating Council v. Stanley, 264 Kan. 690, 957 P.2d 379 (1998). 91. Id. at 12. 92. Id. at 23, Stegall J. concurring. 93. 15 Kan. Hist. 44, 52-53 (1992). 94. Id. 95. Id. 96. Id. 97. Order 20-18 at 2, ¶ 1(d). 98. K.S.A. § 65-123. 99. Order 20-16 at 1-2. 100. Order 20-18 at 4, ¶ 2(s)(ii). 101. Id., ¶ 2(u). 102. First Baptist Church et al v. Kelly et al, No. 20-1102-JWB, (D. Kan.). Verified Complaint for Declaratory Judgment and Injunctive Relief (Apr. 18, 2020).. 103. Id., Memorandum and Order (Apr. 27, 2020). 104. Id., Complaint at ¶ 41 (Apr. 18, 2020). 105. Id., ¶ 51. 106. Id, Memorandum and Order at 17-18 (Apr. 27, 2020). 107. (Emphasis added). 108. Executive Order No. 20-16, dated March 28, 2020. 109. K.S.A. § 48-925(c)(7). 110. Order No. 20-16 at 3. 111. Id. at 3-8. 112. Id. 113. Id. at 3, ¶ 1(f ). 114. Id. at 3, ¶ 5.
115. Id. 116. Id. at 3, ¶ 2, 5. 117. Emergency Order of the Sedgwick County Local Health Officer, Sedgwick County, Kansas, https://www.sedgwickcounty.org/media/56921/ emergency-order-of-the-sedgwick-county-local-health-officer-3-24-20. pdf (last visited April 28, 2020). 118. Order 20-07 at 2, ¶ 6. 119. These orders are available at: https://governor.kansas.gov/newsroom/executive-orders/. 120. Kan. Const. Art. 3, Sec. 1; also K.S.A. § 20-101. 121. Order No. 2020-PR-013 at 3, ¶ 10 122. Order No. 2020-PR-015 at 1, ¶ 1. 123. Order No. 2020-PR-016 Id. at 2, 124. Id. at 2, ¶ 4-5. 125. Id. at 5, ¶ 15. 126. Order 2020-PR-31 at 1-2, ¶ 1-2. 127. Id. at 2, ¶ 3. 128. Order 2020-PR-032 at 2, ¶ 3-4. 129. Id. at 6, ¶ 18. 130. In response to Administrative Order 2020-RL-033, issued April 8, 2020, Kansas Bar Association, https://www.ksbar.org/news/news. asp?id=500992 (last visited April 25, 2020). All of these orders are available at the court’s website: https://www.kscourts.org/About-the-Courts/ Court-Administration/OJA/Kansas-Courts-Response-to-Coronavirus(COVID-19). 131. Order No. 2020-PR-036 at 2-3, ¶ 1-2. 132. Id., ¶ 3. 133. General Order: In re: Restrictions on Public Access to the Byron White United States Courthouse and Temporary Suspension of Paper Copy Requirements. 134. Id. 135. Administrative Order No. 2020-3: In re: Criminal Hearings and Trials Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus Health Conditions. 136. Administrative Order 2020-5: In re: Grand Jury Proceedings Due to COVID-19. 137. Amended Administrative Order 2020-2: In Re: Novel Coronavirus and COVID-19 Disease. 138. Administrative Order 2020-6: In re: Notice Regarding Public and Media Access to Video and Teleconference Hearings Due to COVID-19. 139. K.S.A. § 75-4317, et seq. 140. K.S.A. § 75-762. 141. 39 Kan. Reg. No. 14, 462 (April 2, 2020). 142. K.A.R. § 16-20-1(b)(1). 143. K.A.R. § 16-20-1(b)(2). 144. K.A.R. § 16-20-1(c)-(e). 145. K.A.R. § 16-20-1(f ). 146. Covid-19 Resources, Kansas Attorney General Derek Schmidt, https://www.ag.ks.gov/ (last visited April 25, 2020). 147. Id. 148. Id. 149. Id. 150. Id. 151. Id., ¶ 2. 152. Id., ¶ 7. 153. Id., ¶ 5. 154. The list of travel locations subject to quarantine is available at: https://govstatus.egov.com/coronavirus. 155. K.S.A. § 65-101(a)(5). 156. 42 C.F.R., Parts 70. See also, Quarantine and Isolation: Legal Authorities for Public Health Orders, CDC, https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html (last visited April 25, 2020). 157. K.S.A. § 48-925(c)(4). 158. K.S.A. § 48-933(a). Cont’d. on 159. Id.; K.S.A. § 48-933(c). pg. 30 160. K.S.A. § 48-933(d). www.ksbar.org | May/June 2020 27
covid-19: an update on the law of infectious disease in Kansas
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covid-19: an update on the law of infectious disease in Kansas
162. 78 J.K.B.A. at 27-29. 163. K.S.A. § 48-925(c)(11). 164. K.S.A. § 65-128(b). 165. K.S.A. § 65-201 (Fourth paragraph). 166. K.S.A. § 65-302. 167. 78 J.K.B.A., 27. 168. Id. 169. K.S.A. § 65-118(b). 170. Executive Order No. 20-26, Par. 5 (order suspending restrictions on medical services notes immunities for services provided in response to disaster). 171. K.S.A. § 65-2891. 172. Blum and Paradise, 20 DePaul Journal of Health Care Law at 7-8. 173. https://www.federalregister.gov/documents/2020/03/17/2020-05484/declaration-under-the-public-readinessand-emergency-preparedness-act-for-medical-countermeasures. 174. Id. 175. K.S.A. § 65-129d. 176. Id. 177. See, e.g. Blum and Paradise, DePaul Journal of Health Care Law at 6. Public health actions impacting individual liberties must show “that a substantial government interest is being protected and that this action is the least restrictive measure to protect that interest.” Id. 178. K.S.A. § 65-129b(a)(1)(B). 179. K.S.A. § 65-128b(a)(1)(B). 180. K.S.A. § 21-6602(a)(1); § 21-6611(b)(1). 181. K.S.A. § 65-129.
182. K.S.A. § 21-6602(a)(3); § 21-6611(b)(3). 183. K.S.A. § 60-1501, et seq. 184. 78 J.K.B.A., 28-29. 185. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 907, 179 P.3d 366 (2008). 186. See, e.g. State ex rel. Schmidt v. Kelly, 309 Kan. 887, 891, 441 P.3d 67 (2018). 187. K.S.A. § 60-901, et seq. 188. See Mark A. Rothstein, The Coronavirus Pandemic: Public Health and American Values, forthcoming in 48 Journal of Legal Medicine, No. 2, 1 (2020). Available online at: The Coronavirus Pandemic: Public Health and American Values, Social Science Research Network, https://papers. ssrn.com/sol3/papers.cfm?abstract_id=3571455 (last visited April 25, 2020) (noting concerns raised over last two decades over a coming pandemic); See also Blum and Paradise, 20 DePaul Journal of Health Care Law at 2 (noting that public health experts could not say exactly when a pandemic would occur, but there was a “consensus” that it was a matter of time). 189. Resources for Lawyers & Law Firms, American Bar Association, https://www.americanbar.org/groups/committees/disaster/resources/resources_for_lawyers_law_firms/ (last visited April 25, 2020). 190. See, e.g., Press Release: Osage County Responds to Legal Watchdog, Supports First Amendment, Kansas Justice Institute, https://kansasjusticeinstitute.org/2020/04/press-release-osage-county-responds-to-legal-watchdog-supports-first-amendment/ (last visited April 25, 2020) (reporting that the proposed ban on car parades in Osage County was lifted after negotiation).
Education Law
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30
The Journal of the Kansas Bar Association
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the diversity corner
Lyda Conley’s Fight to Save the Huron Indian Cemetery by Emily Matta
W
e often forget to appreciate the bravery and tenacity of diverse individuals who entered the legal profession before us. Without these people, our profession would be less diverse and less representative of the communities we serve. While our state probably isn’t top of the list when you think diversity in the legal profession, Kansas was widely regarded as a particularly receptive venue for women and minority attorneys in its early history. One 1898 newspaper reported that “Kansas has more successful women lawyers than any other western state,” listing Jennie Mitchell Kellogg, the assistant attorney general of Kansas from 1891 to 1893, as an example.1 Around that same time, Lutie Lytle, the first African American woman attorney in the West, returned to her hometown, Topeka, to open her own law practice. One newspaper reported that she chose Kansas “mainly on account of the fact that in the Sunflower State her sex will be less of a handicap than in other commonwealths.”2 Another trailblazing female attorney who grew up in this receptive atmosphere was Lyda Conley, the first Native American woman attorney in the United States. Eliza (“Lyda”) Burton Conley, born between 1865 and 1869, was of Wyandot descent and grew up in the Kansas City, Kansas area.3 Conley graduated from Kansas City Col-
lege of Law in 1902 and was admitted to the Missouri Bar shortly after.4 She was admitted to the Kansas Bar in 1910.5 Conley is best known for her fight to preserve the Wyandotte Huron Indian Cemetery where her parents and ancestors were buried. In 1906, Congress passed the Indian Appropriation Bill, directing the Secretary of Interior to sell the land on which the cemetery sits and remove the remains of all persons interred there to the Wyandotte cemetery at Quindaro.6 Hearing this news, Conley and her sister, Lena, built a hut overlooking the cemetery and posted signs warning trespassers. Both women (quite illegally) armed themselves with shotguns and threatened anyone who tried to take over the property.7 This bought her time to file a petition for an injunction in the U.S. Circuit Court for the District of Kansas.8 Using her legal education, Conley fought her case all the way to the U.S. Supreme Court. She could not argue as an attorney because no Washington attorney would vouch for her character and fitness to practice in the Supreme Court.9 Undeterred, she told a reporter, “one can plead his own case in any court, and this I intend to do. No lawyer could plead for the grave of my mother as I could, no lawyer could have the heart interest in the case that I have.”10 www.ksbar.org | May/June 2020 31
the diversity corner
Conley argued her case pro se, making her the third woman and the very first Native American woman, to appear and argue in the U.S. Supreme Court.11 Reflecting the attitudes of the time, the Wichita Daily Eagle reported with surprise that “no feminine display of emotion had a part in Miss Conley’s argument. It was composed of logic and extracts from the [S]upreme [C]ourt decisions and the [C]onstitution of the United States.”12 Though newspapers reported that Conley’s argument “stirred the great judges deeply,”13 the Court ultimately held she lacked standing to bring an action based on the treaty’s provisions.14 Despite this blow, Conley achieved her goal. Kansas Senator Charles Curtis—Kaw-American attorney and later Vice President under Herbert Hoover—heard of the Conley sisters’ efforts and introduced a bill in Congress to preclude the sale of the cemetery.15 In 1971, the cemetery was placed on the National Register of Historic Places16 and, in 2017, the National Park Service designated it a National Historic Landmark.17 Conley’s legacy is physically present today in the stillstanding Huron Indian Cemetery. But her influence is also strongly felt in American Indian law. Conley is noted as the first person to raise the legal argument that Native American burial grounds are entitled to federal protection—a notion codified in the Native American Graves Protection and Repatriation Act.18 She was also the first person to assert that descendants of treaty signatories can enforce treaty obligations—an aspect of the trust doctrine.19 Though just one example of diversity in Kansas legal history, she is a testament to the importance of continuing to promote and encourage diversity in our community. For a more in-depth and fascinating look into Lyda Conley’s life and career, see Kim Dayton’s work,“Trespassers, Beware!”: Lyda Burton Conley and the Battle for Huron Place Cemetery, 8 YALE J.L. FEMINISM 1 (1996). n
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1. Successful Women Lawyers of Kansas, KAN. FARMER & MAIL & BREEZE, Apr. 15, 1898, at 1. 2. Colored Woman Lawyer, ATCHISON DAILY GLOBE, Sept. 27, 1897, at 1. 3. Kim Dayton, “Trespassers, Beware!”: Lyda Burton Conley and the Battle for Huron Place Cemetery, 8 YALE J.L. FEMINISM 1, 13 (1996). 4. Id. at 17 (citing Jan English, A Chronological History of the Wyandot Nation of Kansas 1902, 1910 (1994) (unpublished manuscript)). 5. Id. 6. Fate of Huron Cemetery Rests with Congress, GALENA EVENING TIMES, Dec. 21, 1911, at 1 7. Dayton, supra note 3, at 19 (citing An Up-to-Date Heroine of the Wyandottes, INDIAN’S FRIEND, Sept. 1909, at 11). Conley’s shotgun is currently on display at the Wyandotte County Historical Museum in Bonner Springs, Kansas. 8. Id. at 19–20. 9. I.T. Martin, Living in a City of the Dead, KANSAS MAGAZINE, June 1909, at 52–53. 10. Id. 11. Dayton, supra note 3, at 25. 12. Last of the Wyandottes, OTTAWA DAILY REPUBLIC, Mar. 8, 1910, at 3. 13. Id. 14. Conley v. Ballinger, 216 U.S. 84, 91 (1910). 15. Dayton, supra note 3, at 25–26 (citing English, supra note 4, at Feb. 8, 1912); Fate of Huron Cemetery, supra note 6. 16. Dayton, supra note 3, at 28. 17. Thomas Crosson, Interior Department Announces 24 New National Historic Landmarks, U.S. Dept. Interior (Jan. 11, 2017), https:// www.doi.gov/pressreleases/interior-department-announces-24-new-national-historic-landmarks. 18. Id.; Dayton, supra note 3, at 30. 19. Crosson, supra note 17; Dayton, supra note 3, at 30.
About the Author Emily Matta graduated this month from the University of Kansas School of Law where she was an Articles Editor for the Kansas Law Review. She is a Kansas history enthusiast.
To Register: www.ksbar.org/CLE
May - June CLE
Meet your cle requirements online!
Tuesday, June 2 (9 – 10:40am) ������������ Brown Bag Ethics 2020 Tuesday, June 2 (noon) ������������������������ Don’t Try This At Home: Why You Should Never Emulate TV Lawyers Wednesday, June 3 (11am – 1pm) ������� Ask the Tax-Girl: What Lawyers Need to Know About Tax During the COVID Crisis Thursday, June 4 (noon) ���������������������� Improper Attorney-Client Relations Sex With Clients (and Other Really Dumb Things to Do) Monday, June 8 (8:30am, full day) ����� KBA Legislative and Caselaw Institute – 8 credit hours Tuesday, June 9 (noon) ������������������������ Privacy Reloaded: It Just Got Real Tuesday, June 9 (1pm) ������������������������� Oil & Gas – Bankruptcy Basics and the New Subchapter 5 Wednesday, June 10 (noon) ���������������� KLS Free CLE Webinar Series: Evictions & Landlord Issues in the Time of Covid-19 Wednesday, June 10 (noon) ���������������� Lying, Loyalty and Lots of Ethics Rules: A CLE Destinations Film Thursday, June 11 (noon) �������������������� Oral Argument: Tips From the Top Thursday, June 11 (1pm) ��������������������� Brown Bag Ethics 2020 Tuesday, June 16 (12:30pm) ���������������� KBA Legislative and Caselaw Institute – First Half (4 credit hours) Wednesday, June 17 (noon) ���������������� Alternative Dispute Resolution in Family Law Under the New Rules Wednesday, June 17 (noon – 2pm) ����� Deposition Dos and Don’ts Thursday, June 18 (noon) �������������������� Basics of Drone Law Friday, June 19 (8:30am - noon) ��������� KBA Legislative and Caselaw Institute – First Half (4 credit hours) Friday, June 19 (11am – 1pm) ������������� The 2020 Ethy Awards Monday, June 22 (1pm) ����������������������� KBA Legislative and Caselaw Institute – Second Half (4 credit hours) Monday, June 22 (noon) ��������������������� Sue Unto Others As You Would Have Them Sue Unto You Tuesday, June 23 (TBD) ���������������������� KLS Free CLE Webinar Series: Protective Orders: What You Should Know about PFA/PFS Wednesday, June 24 (2pm) ����������������� Ethics for Good XXI, Session One Thursday, June 25 (noon) �������������������� ADA “Reasonable Accommodation” and Coronavirus Response - an Employment Law CLE Friday, June 26 (11am) ������������������������ Ethics for Good XXI, Session Two Monday, June 29 (2pm)....................... Brown Bag Ethics 2020 Tuesday, June 30 (8:30am – 12:10pm).KBA Legislative and Caselaw Institute – Second Half (4 credit hours)
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www.ksbar.org | May/June 2020 35
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. 36 The Journal of the Kansas Bar Association
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
substance and style
Virtual Forensics: Tips for Online Oral Argument1 by Pamela Keller
T
he same day Governor Kelly issued a state-wide StayHome order to combat COVID-19, the KU Law School was in the throes of its first ever fully online in-house moot court competition.2 We have since held over one-hundred Zoom oral arguments involving about 140 lawyers-in-training. Social distancing restrictions of some kind may be with us for a while (or return periodically), so you may be called upon to argue virtually. Based on our experience, I offer tips for the as-yet uninitiated and those who haven’t read all the internet advice on Zoom conferencing. Make sure your technology is adequate for the job. Tech savvy readers — and those who are not tech-stubborn — can skip this paragraph (also less of a problem if you are working from your real office and not your home office). But those who have been getting by with an old-ish computer or relatively weak internet should consider an upgrade. Transmission delays make it much more difficult for a judge to ask a question, and it is frustrating for all when participants end up speaking over one another. Also, I prefer a laptop over a tablet or phone. Built-in laptop microphones generally work well, but you will get even better sound quality from an external microphone.3 You also need to test your conferencing application ahead of time to avoid technical surprises as much as possible.4
Fill the frame. If you haven’t fully embraced the selfie era, you might be uncomfortable having your face and shoulders fill up most of your screen while you argue. But it is worth getting comfortable with this. When I could see students clearly, and their images were large enough that I could pick up non-verbal cues, their presentations were more effective. The harder it is to pick up on non-verbal cues, the more difficult and more tiring it is for a judge to listen to and understand what you are.5 To ensure you fill the frame, put your laptop’s camera at or slightly above eye level. If you are sitting at a desk or table, put your laptop on a few books or a box. Then push the laptop only so far away that when you look at yourself on the screen, your eyes are about a third of the way down and your shoulders show in the frame.6 Avoid the mistake of keeping your laptop flat on a table and bending your screen back so far that your ceiling is your background. Lighting matters. Take a little time to stage your video area. Arrange your area so you have light in front of you and avoid having light behind you. If you do not have natural light in front of you, put a small lamp on the other side of your computer. Light from behind may blind the camera, making you appear dark, and light above you in the center of a room may cast shadows.7 If the judge cannot see your
www.ksbar.org | May/June 2020 37
substance and style
eyes or facial expressions, then you might as well be on a telephone conference. (Tips on how to give an oral argument by telephone appear in two articles cited in endnote 8 of this column.8) Practice virtual eye contact. Eye contact is critical to effectively communicating your argument to judges in person. To make eye contact virtually is tricky. To make virtual eye contact you need to look at your laptop’s camera when speaking. When you are looking at a judge on screen asking a question, your eyes are likely looking away from your camera. It takes some practice to look at the camera when speaking, but it is worth the effort. Even if you cannot look at the camera every time you speak, do so at the beginning and end of your argument. You can also make the conference application smaller on your screen, and move it near your camera.9 Then you can look at a judge’s image and the camera area at the same time. Rethink hand gestures. If you follow my advice and fill the frame, you may want to skip hand gestures or keep them to a minimum. If your head and shoulders fill the frame, your viewer will see your hands but not your arms when you hand gesture (so your hands pop into the screen seemingly unconnected to your arms). This is awkward, making hand gestures less effective in video format. The Tenth Circuit similarly advised lawyers to avoid exaggerated hand movements in teleconference arguments pre-COVID-19 days.10 If you prefer to hand gesture, consider standing when you make your argument or sit further away from your laptop’s camera so your arms are in full view (but then consider the risks of this extra distance, explained below). Use longer pauses. Effective oral advocates pause to allow judges time to ask questions and to emphasize particular words or phrases. Extend those pauses a little further on video. Everyone involved will appreciate this extra time to absorb what you are saying and will more effectively pick up on your non-verbal cues about whether you have completed your thought. Sit or stand (but adjust accordingly). Most lawyers in video arguments I’ve seen have been seated, but some chose to stand. We told our students to do what is most comfortable. Most chose to sit. If you are seated, maintain a formal posture. When you follow the fill the frame advice, you will usually have space for your notes in front of your laptop. Many of our students had no printer or simply chose to look at notes on their computer screen. This sometimes helped them make better virtual eye contact. You are less likely to slip into a casual presentation style when standing, and it can communicate an added touch of respect for the proceeding. A downside is that it puts you fur-
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ther away from your camera and microphone, so the sound and video quality can suffer. You should test your setup to make sure you will be clearly seen and heard. Give some thought to your background. Most of the articles I have read suggest a plain background. After judging a lot of arguments, I agree with this advice. But I don’t think it means you have to use a blank wall. You can use a spot in a home office with a tidy bookshelf or cabinet. Do not wear clothes that are the same color as your background. Dress like you would in court. It’s not surprising Florida lawyers annoyed judges when they appeared on video in beach coverups and “casual shirts and blouses, with no concern for ill-grooming.”11 I will confess, though, that I have been tempted when Zoom teaching to dress more casually than I do in person (not beachwear casual, but maybe Saturday errand-run casual). Valid reasons came to my mind —less dress prep saves time I can otherwise use to prepare substantively and to manage all the extra burdens of working from home. And it is, after all, a pandemic, so what I wear should matter less in the grand scheme of things. But we need to remain disciplined and always dress for an online argument like we would for an argument in a courtroom. As I told my students, the way we present ourselves online, just as in-person, communicates respect for the judicial process and others involved. A cautionary tale for those who dress formally only from the waist up. One reporter appearing on Good Morning America did not realize his bare legs were showing in the TV screen view.12 Also, remember if you accidentally leave your notes or a file on the other side of your office and have to get up to retrieve them, you may reveal more than you wish. Minimize background noises. Mute yourself when not speaking. And remember to turn off all notifications on your computer, phone, and any other device nearby. I never liked Skype or Facetime, so I was anxious about this transition to online arguments. Overall, though, I found the Zoom sessions effective. I found the online format for oral argument much more akin to live sessions than a Zoom classroom is to live classroom teaching. The small number of people involved and its predictable format made communication relatively easy. Appearing online from a familiar place likely put student speakers more at ease than being the center of attention in a courtroom, perhaps making it a bit easier for them to argue. Now that I am more comfortable with video conferencing platforms, I am considering ways we can use them in law practice to be more efficient and effective even when the world returns to “normal.” If you have been considering the same, send me your ideas (to pkeller@ku.edu), and I’ll share them in a future column. n
substance and style
1. I want to thank our law school paralegal Yolanda Huggins for her help shifting our oral argument competition to a Zoom platform. I also want to thank KU 3L Braden Lefler for his quick research in March, which helped us advise our students how to prepare for an online oral argument and helped me write this column. 2. Governor Kelly Issues Temporary, Statewide Stay Home Order in Ongoing Effort to Combat COVID-19, Kansas: Office of the Governor (March 28, 2020), https://governor.kansas.gov/governor-kelly-issues-temporarystatewide-stay-home-order-in-ongoing-effort-to-combat-covid-19/. The University announced about two weeks before that faculty needed to transition to a fully online curriculum. See Chancellor Douglas Girod, Message: A Very Important Note About COVID-19, KU Office of the Chancellor (March 11, 2020), https://chancellor.ku.edu/news/2020/mar11. 3. Joseph Liu, 12 Tips For Making Your Virtual Meetings More Professional, Forbes (March 17, 2020), https://www.forbes.com/sites/josephliu/2020/03/17/virtual-meeting-tips/#a9a9a9172089. 4. This is common sense to me, as something embarrassing always seems to happen when I use new technology in front of others. But those more expert at videoconferencing give the same advice. See, e.g., Bob Frisch & Carey Green, What It Takes to Run a Great Virtual Meeting, Harvard Business Review (March 5, 2020), https://hbr.org/2020/03/what-ittakes-to-run-a-great-virtual-meeting. 5. While this was my observation judging Zoom arguments, research supports it. See Julia Sklar, ‘Zoom Fatigue’ Is Taxing the Brain. Here’s Why That Happens, National Geographic (April 24, 2020), https://www. nationalgeographic.com/science/2020/04/coronavirus-zoom-fatigueis-taxing-the-brain-here-is-why-that-happens/?utm_source=pocketnewtab#close (During an in-person conversation, the brain derives meaning from the words spoken and from dozens of non-verbal cues. These cues help paint a holistic picture of what is being conveyed and what is expected in response from the listener. But a typical video call impairs these abilities and instead requires sustained and intense attention to words.). 6. See Jennifer M. Cooper, Virtual Oral Argument, http://www.jennifermcooper.com/virtual-oral-argument/ (last visited May 5, 2020)(she links a video from a TV producer that I thought provided useful information on how to present yourself more favorably online -- https://www. youtube.com/watch?v=nztuWsVWNgU&feature=youtu.be) 7. See id. 8. Benjamin Glassman, Telephonic Oral Argument: Tips for Advocates, Sixth Circuit Appellate Blog (March 25, 2020), https://www.sixthcircuitappellateblog.com/news-and-analysis/telephonic-oral-arguments-tipsfor-advocates/; Matthew Stiegler, Tips for Third Circuit Telephone Oral Arguments, CA3Blog (March 24, 2020). http://ca3blog.com/oral-argument/tips-for-third-circuit-telephone-oral-arguments/. 9. See Liu, supra note 3. 10. The Tenth Circuit advises avoiding exaggerated or unnecessary hand gestures as they “can be even more distracting than when arguments are presented in person.” See Videoconferenced Arguments Guide, The United States Court of Appeals for the Tenth Circuit, https://www.ca10. uscourts.gov/clerk/videoconferenced-arguments-guide (last visited May 5, 2020). 11. Debra Cassens Weiss, Lawyers Are Dressing Way Too Casual during Zoom Hearings, Judge Says, ABA Journal (April 15, 2020), https://www. abajournal.com/news/article/lawyers-are-dressing-way-too-casual-during-zoom-hearings-judge-says?utm_source=salesforce_196012&utm_ medium=email&utm_campaign=weekly_email&utm_ medium=email&utm_source=salesforce_196012&sc_ sid=00608769&utm_campaign=&promo=&utm_content=&additi onal4=&additional5=&sfmc_j=196012&sfmc_s=46711525&sfmc_ l=1527&sfmc_jb=241&sfmc_mid=100027443&sfmc_u=6515761. 12. David Mack, A Reporter Went On “GMA” Wearing No Pants. He Didn’t Realize We Could All See, BuzzFeed News (April 28, 2020), https:// www.buzzfeednews.com/article/davidmack/gma-reporter-no-pants-willreeve-work-home.
About the Author Pamela Keller is a clinical professor at the University of Kansas School of Law. She directs the lawyering skills program, moot court, and the judicial field placement. Before teaching she practiced employment law with Ice Miller in Indianapolis and clerked for the Hon. John W. Lungstrum, U. S. District Court of Kansas. pkeller@ku.edu
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www.ksbar.org | May/June 2020 39
law students’ corner
“Zoom”-ing through Law School: A Law Student’s Perspective on Learning During COVID-19 by Daniel Sloan
W
ith the exception of one notable billionaire1 and those working directly on pandemic studies,2 it is probably fair to assert that few of us could have predicted the extent to which the COVID-19 outbreak of 2020 would invade our way of life. When my fellow classmates and I began the Spring Semester of 2020, for example, none of us were aware that we would be finishing that same semester in what I affectionately refer to as “Zoom University.”3 The American Bar Association has long been skeptical of online courses.4 However, the ABA has largely “loosened the reins” on online legal education during the coronavirus outbreak.5 With the widespread implementation and adoption of Zoom University, the ABA may have to change their conceptualization of what an “online course” means as much as the rest of us have.6 Zoom University has been an adjustment for both professors and law students. The incredible professors at Washburn University School of Law were able to adjust to their pre-
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sentation formats with only one extra week of training after spring break.7 Undoubtedly, the professors at other law schools across the nation were also quick to adjust to this new paradigm. My heart reserves a special place of admiration for those law professors who took the time to get up to speed on using online education methods when they may previously have relied upon little to no technology for education in the classroom. Going from in-person instruction to Zoom University has been an adjustment. To avoid disruption, I generally choose not to bring technology into the classroom during traditional semesters. In contrast, distractions are nearly unavoidable during a Zoom session. During an average Zoom session, my dog tries to get my attention at least three times, the dishwasher runs in the background, and I occasionally find myself giving in to the allure of internet surfing. The distraction level at home can be high. For those of you who have been working from home, you may be facing an analogous situation.
law students’ corner
There are two law student groups in particular that I believe have received the worst deal during this time—the spring starters who entered law school in the spring of 2020, and the spring 2020 graduates. Spring starters had about eight weeks of total law school class time before COVID-19 deprived them of the in-person law school experience. Those who are graduating have lost the opportunity to say goodbye to many of those they grew close to over the previous three years. For the rest of us, we simply get to be a part of history. Even a scant twenty years ago, the rural internet infrastructure would probably not have been able to support this version of learning.8 I am grateful to be alive in a time where Zoom University is even possible. My complaints at this point are minimal, although this article appears to indicate otherwise. As a commuter, the gasoline and toll savings alone have been a lifesaver. Also, working from home is an excellent exercise in self-discipline. In some ways, this type of instruction is ideal in the 21st century. As I was growing up, my generation went from seeing the internet in its infancy to the “internet of things”.9 I can barely remember a time when nearly the entirety of human knowledge was more than a few clicks away. As time goes along, it seems inevitable that the driving pace of the world (not only pandemics) will force law schools across the nation to continue to adjust and grow. There have, of course, been some growing pains during this time of transition. For example, microphones cut out during the middle of cold calls. Imagine a student in the traditional setting who begins to speak cutting out about halfway through their attempt to summarize a case. Unfortunately, that is just a difficulty of sensorially contemporaneous online presentation at this point in time. Another technical hiccup that happens from time to time is that lower bandwidths kick some students from Zoom meetings entirely.10 A number of my classmates have complained of having to re-enter a Zoom session several times in one morning. Frankly, I am impressed with Zoom’s management of the substantial increase in its userbase. However, even Zoom’s flexibility in this time cannot make up for years of inadequacy in rural internet availability. A transition is a time to explore the ways that we can come together and innovate. Necessity is, after all, the mother of all innovation. The variety of approaches used by different professors both at Washburn and across the country reflects that this innovation can take many forms. For some classes, professors disable Zoom’s chat function. Professors also differ in whether video must be enabled. All of my classes automatically muted everyone as soon as they joined the chat and students could unmute when replying to questions. Some classes did not even use Zoom, but instead used an asynchronous online lecture with “chatrooms” available to discuss the material.
The vestiges of privacy law are front and center during this time. Not only do current law students have the opportunity to learn about privacy, they get to do it firsthand.11 Healthcare law, constitutional law, and a plethora of other areas are also front and center. Washburn University, for example, held a two-part colloquium on the COVID-19 crisis and how it relates to various areas of law.12 Lawyers are not only supposed to be advocates; they are supposed to be problem solvers. That is my major takeaway from this pandemic. Whether online law school will continue into the future is beyond the scope of a humble student’s perspective. However, it is difficult to see how the world will go back to the way it was before. Although the format may not persist, I would not be surprised to see online education become a bigger part of the norm moving forward. Until the time when circumstances permit, I suppose we will have to continue Zooming through school. n (see endnotes on pg. 42) About the Author Daniel Sloan is a second-year law student at Washburn University School of Law. He is an Articles Editor for the Washburn Law Journal, President of the Washburn Business Law Society, and President of the Moot Court Council. Daniel holds a B.S. from Missouri University of Science and Technology. He enjoys cooking, karaoke, and spending time with his beautiful wife, Jessica.
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www.ksbar.org | May/June 2020 41
law students’ corner
1. Bill Gates, The next outbreak? We’re not ready, TED (March 2015), https://www.ted.com/talks/bill_gates_the_next_outbreak_we_re_not_ ready?language=dz. 2. See National Infrastructure Advisory Council, The Prioritization of Critical Infrastructure For A Pandemic Outbreak In the United States Working Group, Final Report and Recommendations By The Council, NIAC (Jan. 16, 2007), https://www.dhs.gov/xlibrary/assets/niac/niac-pandemic-wg_ v8-011707.pdf. 3. See Taylor Lorenz et al., We Live in Zoom Now, NY TIMES (March 17, 2020), https://www.nytimes.com/2020/03/17/style/zoom-partiescoronavirus-memes.html. 4. See ABA, Distance Education, (June 19, 2018), https://www.americanbar.org/groups/legal_education/resources/distance_education/. 5. Karen Sloan, ABA Loosens Reins on online Legal Education Amid Coronavirus Spread, LAW (Mar. 12, 2020), https://www.law.com/2020/03/12/ aba-loosens-reins-on-online-legal-education-amid-coronavirus-spread/; Guidance Memo, Emergencies and Disasters February 2020, ABA (last visited Apr. 19, 2020), https://www.americanbar.org/content/dam/aba/ administrative/legal_education_and_admissions_to_the_bar/20-febguidance-on-disasters-and-emergencies.pdf. 6. This student article in no way intends to express dissatisfaction with or criticism of the ABA. 7. Washburn University School of Law, Message from Dean Pratt: Washburn Law Responds to COVID-19, (last visited Apr. 19, 2020), http://www.washburnlaw.edu/news/2020/3/covid19update.html.
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8. See Catherine Greenman, Life in the Slow Lane; Rural Residents Are Frustrated by Sluggish Web Access and a Scarcity of Local Information Online, (May 18, 2000), https://www.nytimes.com/2000/05/18/technology/lifeslow-lane-rural-residents-are-frustrated-sluggish-web-access-scarcity-local. html. 9. Andrew Meola, What is the Internet of Things? What IoT means and how it works, BUSINESS INSIDER (May 10, 2018), https://www.businessinsider.com/internet-of-things-definition. 10. Savannah Glaves, Internet providers need to focus more on rural areas, UNIV. DAILY KANSAN (Apr. 12, 2020) (“Better yet, you proceed to get kicked out of the Zoom meeting 10 times in just a 50-minute period.”), http://www.kansan.com/opinion/internet-providers-need-to-focusmore-on-rural-areas/article_e099d748-7a8b-11ea-b2d0-bfc82ad6ee99. html. 11. Kate O’Flaherty, Are Zoom Chats Private? Here’s Why You Should Think Before Opening The App, (Mar. 31, 2020), https://www.forbes.com/ sites/kateoflahertyuk/2020/03/31/are-your-zoom-chats-private-hereswhy-you-should-think-before-opening-the-app/#4a9bf9d01979. 12. Washburn University School of Law, Covid-19 Colloquium: SocioLegal Dimensions, WASHBURN (last visited Apr. 19, 2020), http://washburnlaw.edu/practicalexperience/government/center/programs/covid19/.
law practice management tips and tricks
Pandemic Preparedness Tested by Larry Zimmerman
T
he novel coronavirus pandemic has provided a realtime opportunity for lawyers, firms, and the judiciary to implement contingency plans forged in earlier, smaller-scaled disasters. Disasters we are more experienced with like tornadoes, flooding, and fires are destructive and disruptive but the territory of that disruption is narrow and its duration limited. This pandemic is our first test under a disruption that is global in scope and undefined in duration. Lawyers throughout the country are discovering and sharing keys to our response as this pandemic continues and in anticipation of new viruses coming. Remote Capability Telephony – Getting calls routed from a firm’s number to staff operating remotely in real time has proven vital. Firms with internet-based phone systems (VOIP) seem best poised to address remote work immediately. Flipping a switch or opening an app were all it took to get inbound calls routed to staff wherever they quarantined. Additionally, all outbound calls were still announced from the firm so private numbers were not disclosed. Other options like virtual receptionist services (e.g. Ruby at ruby.com) or coordination with a phone provider to do forwarding can answer some needs but not as effectively as a well-configured internet phone solution.
Cloud-Based or Remote-Access Software – As lawyers and staff dispersed into quarantine around the country, the ability to access full case files, documents, and calendars remotely became vital. Firms who had already implemented solutions with providers like Clio (clio.com) or which had implemented and trained on remote access via virtual private networking were able to keep lawyers on cases from anywhere. Video Conferencing – We all recognized we were in a new legal environment as we watched the Kansas Supreme Court hear oral arguments over the internet on a Saturday morning. Lawyers who did not already know how to video conference figured it out quickly. Those who already knew honed their skills by securing redundant services, cleaning up their “broadcast” environment, and tweaking settings and equipment to improve the professional appearance and minimize the colder, more distant feel of video conferencing. eFiling and eCourts – The pandemic is the ultimate sales pitch for universal eFiling and eCourts. Access to the courts has been vital during the pandemic and the careful planning and implementation of court imaging, efiling, and distributed case management systems by the staff of the Office of Judicial Administration and district clerks has provided that vital access. It is hard to imagine how much worse the pandemic would be for Kansans had it hit before any of that infrastructure had been built. www.ksbar.org | May/June 2020 43
law practice management tips and tricks
Relationships
Personal Sanity
Legal Community – As news of the pandemic started seeping into our general news awareness, professional listservs, associations, and even the hallways at dockets turned into brainstorming sessions on how to respond and prepare. More than one attorney reports that she had only begun developing remote work capabilities when the crisis began but was able to put things together quickly because of connections with her lawyer peers. Formal and informal networking groups are providing business continuity advice, referrals, pro bono representation, and moral and mental support as the pandemic drags us along. Suppliers/Vendors – It is still a badge of honor for many lawyers – especially small and solo practitioners – to be able to hunt an item down on the internet at a killer price for twoday delivery. This pandemic has revealed that may be a fun hobby but not necessarily good business. As everything from hand sanitizer to toilet paper disappeared and then demand for masks, gloves, and other protective equipment developed, hunting the internet wastelands for merchandise became a mess. Scammers, hoarders, and price gougers complicated things. Meanwhile, lawyers with established relationships with supply companies were able to outsource that hunt and obtain goods faster and usually cheaper (especially considering lawyer/staff time clicking around). Banks and Bankers – This pandemic turned into a financial crisis in short order. The majority of the federal response has been administered through banks. Lawyers and firms with established relationships with capable, local bankers have consistently been at the top of the list for response. Many lawyers have learned that the too-big-to-fail banks are also too-big-to-help.
Manage Expectations – Most lawyers appear to have kept right on working through all phases of the pandemic. They could access files, meet with clients, and file with the courts. It probably felt like business and almost usual for them. Abundant scientifically gathered psychological data indicates that is simply not the case. This pandemic situation with its financial disaster component represents a survival situation. No matter how well the mind is pretending life is normal, the body is reacting to survive. We should not drive ourselves or allow clients or courts to drive us to normalcy when things are anything but normal. Distractions – As we sent our staff home, the calls and walk-ins declined, and court dates evaporated, I assumed it would feel like a mini-vacation. Instead, I went home each night more exhausted than I have ever been. Long walks, reading, meditation, and video games provided the distractions needed to wind-down and prepare mentally for the next day. I have come to understand how vital hobbies and habits are to effectively accomplishing the professional work of a day. A bright spot in the midst of this pandemic has been discovering that we as lawyers and a legal community can adapt quickly. We are rising and will continue to rise to the occasion for our clients and profession. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee.
kslpm@larryzimmerman.com
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Members in the News
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Ed. Note: It should come as no surprise that current conditions, dictated by the COVID-19 corona virus pandemic, have had quite a chilling effect on lawyers, law firms and the courts. Predictably, there have been very few news items sent in to us by our clipping service. Certainly, this trend will reverse as restrictions are loosened and more people will seek legal assistance and more cases will move through the system. Even the news regarding those who have passed away is exceedlingly slow in coming in; until we receive an official obituary, it seems imprudent to print anything in The Journal. However few we have to recognize, we are very proud of those who have been honored in one way or another. But we are also very proud of all of our members for holding it together in these times, unprecedented in our lives. Thank you for all you do!
Notables Mark Dupree, Wyandotte County Attorney, is among four new members to have been appointed to the Kansas Sentencing Commission. Considered one of the most powerful of Kansas commissions, the KSC reviews and makes recommendations for changes to the sentencing grid, the formal structure that establishes sentencing parameters for all Kansas crimes. Dupree is the first African American to serve as a district attorney in the state of Kansas.
John F. Wilcox , Jr. of Dysart Taylor in Kansas City, MO, was elected President of the Transportation Lawyers Association at its annual meeting which was held virtually rather than in Florida as originally planned. As required by the association’s succession plan, he has served as secretary/ treasurer, second vice president, first vice president, presidentelect and now president. Wilcox has represented trucking industry clients, advising motor carriers, drivers, 3PLs, shippers, manufacturers and governmental entities in wrongful death, serious personal injury and property claims. Wilcox is the seventh lawyer of Dysart Taylor to hold this office. The TLA has been in the forefront of educating transportation attorneys for more than 75 years. www.ksbar.org | May/June 2020 45
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 Criminal APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—SENTENCES STATE V. BROXTON WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART NO. 114,675—APRIL 17, 2020
FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with firstdegree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion. As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate. 46
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As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error. As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018). Review granted on Broxton’s petition and the State’s crosspetition. ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate. District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record. The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statute prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams, 311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing. STATUTES: K.S.A. 2019 SUPP. 60-261, -455; K.S.A. 216810(D), -6811(C), -6811(J), 60-455
appellate decisions
APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— SENTENCES—STATUTES STATE V. CORBIN SALINE DISTRICT COURT—AFFIRMED NO. 119,665—APRIL 17, 2020
FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and Corbin appealed. ISSUE: (1) Intellectual disability HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 216622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i) CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—DUE PROCESS—JURY INSTRUCTIONS STATE V. CRAIG GEARY DISTRICT COURT—AFFIRMED NO. 119,660—MAY 1, 2020
FACTS: Craig was charged with first-degree murder under theories of premeditated murder and felony murder, conpiracy to commit first-degree premeditated murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of firearm by a convicted felon. After district court instructed jury on felony murder, premeditated murder, and intentional second-degree murder as a lesser included offense of premeditated murder, jury found Craig guilty of both firstdegree felony murder and second-degree intentional murder. Craig filed motion for new trial because jury convicted him of two murder offenses for the same killing. District court denied the motion and instead sentenced Craig on the more serious felony murder. Craig appealed claiming the two murder convictions for the same killing violated his due process
rights, and after jury was discharged the two guilty findings were legally irreconcilable. He also claimed the district court should have instructed jury on voluntary intoxication given evidence of Craig’s use of alcohol and marijuana and unclear communication shortly before the shooting; ISSUES: (1) Two murder convictions for the same killing; (2) voluntary intoxication instruction HELD: District court’s jury instructions in this case are examined, finding them to be legally correct. Craig failed to show that his first-degree murder sentence was imposed in violation of due process right to have jury find each element of the offense beyond a reasonable doubt, or that jury’ first- and second-degree murder verdicts were so irreconcilable as to require a new trial. Irreconcilable verdicts in State v. Hernandez, 294 Kan. 200 (2012), are distinguished. District court properly sentenced Craig on the first-degree felony-murder conviction. Question of whether conspiracy to commit a robbery is a specific intent crime, making a voluntary intoxication instruction legally appropriate, remains unresolved in this case because such an instruction was not factually appropriate. Evidence about Craig’s state of mind does not establish any impairment that deprived him of the ability to form the requisite mens rea; no evidence of any memory loss or inability to recall events before or during commission of the crimes; and Craig never relied on voluntary intoxication in defending himself. STATUTES: K.S.A. 2019 Supp. 21-5109(b)(1), -5402(a) (2), -5402(d), -5403(a)(1), 22-3414(3), -3601(b), -5205(b); K.S.A. 22-3421, 60-2101(b) CONTRACTS—CRIMINAL PROCEDURE—EVIDENCE STATE V. FRAZIER GEARY DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED NO. 117,456—APRIL 17, 2020
FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea
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agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement. ISSUE: (1) Withdrawal of plea—plea agreement HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea. STATUTE: K.S.A. 2019 Supp. 22-3210(d)(1) APPEALS—CONSTITUTIONAL LAW— CRIMINAL PROCEDURE STATE V. HARRIS ATCHISON DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED NO. 117,362—APRIL 17, 2020
FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues. ISSUE: (1) Waiver of right to jury trial HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right. District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed. STATUTES: None
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CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS STATE V. UK LYON DISTRICT COURT—AFFIRMED NO. 119,712—APRIL 17, 2020
FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.” ISSUES: (1) Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop, 223 Kan. 302 (1978), which the court declines to do. District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself. STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404 CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE—FIFTH AMENDMENT—MOTIONS STATE V. LEMMIE SALINE DISTRICT COURT—AFFIRMED NO. 119,439—MAY 1, 2020
FACTS: For shooting and killing a victim during a robbery, jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. In pretrial motion to suppress evidence obtained and derived from his phones, Lemmie alleged a detective obtained the phone passcodes in
appellate decisions
violation of his Fifth Amendment right against self-incrimination. District court denied that motion, finding disclosure of the passcodes was not compelled and the codes were not testimonial. Lemmie appealed, claiming: (1) the detective’s testimony about Lemmie giving her the phone passcodes violated his constitutional right against self-incrimination; (2) district court erred by admitting two statements made by a coconspirator after Lemmie shot the victim, and by asking State if the contemporaneous statement hearsay exception applied; (3) insufficient evidence supported his first-degree murder conviction; (4) district court erred by admitting K.S.A. 60-455 testimony that Lemmie was upset over a missing methamphetamine pipe. ISSUES: (1) Fifth Amendment—testimonial status of passcodes and passwords; (2) hearsay evidence; (3) sufficiency of the evidence, (4) K.S.A. 60-455 evidence, (5) cumulative error HELD: Kansas Supreme Court has not yet addressed the “rich and rapidly developing area of the law” of the testimonial status of passcodes and passwords, and does not do so in this case. Any possible constitutional error arising from district court’s refusal to suppress evidence that a detective obtained phone passcodes from Lemmie was harmless. No incriminating evidence from the phones was introduced at trial. District court did not err in admitting the coconspirator’s two statements. Even assuming the statements qualified as hearsay, they were admissible as statements of a coconspirator, K.S.A. 60-460(i)(2), one of the grounds on which the district court judge relied. A district judge admitting evidence on two grounds, including one originating with the court, when the one already advanced by a party would suffice is not judicial misconduct. State provided more than ample evidence to convict Lemmie of first-degree murder. No abuse of district court’s discretion arising from admission of K.S.A. 2019 Supp. 60-455 evidence of Lemmie being upset over a missing methamphetamine pipe. No error in district court’s conclusion that the missing methamphetamine pipe was relevant to motive. Cumulative error doctrine does not apply where there is only one assumed nonreversible error with respect to passcode testimony. STATUTES: K.S.A. 2019 Supp. 60-455, -455(a), -455(b); K.S.A. 60-404, -455, -460)d), -460(d)(1), -460(d)(2), -460(i) (2) CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—SENTENCING STATE V RANDLE SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,720—MAY 1, 2020
murder and criminal discharge of firearm. He requested a dispositional/durational departure sentence, listing four mitigating factors; sentencing court denied the request, finding no substantial and compelling bases for departure. On appeal Randle claimed district court erred by: (1) refusing Randle’s request for jury instruction on unintentional but reckless second-degree murder as a lesser included offense of first-degree murder; (2) allowing hearsay statements into evidence; (3) admitting gruesome and unnecessary photographs and crime scene video into evidence; and (4) refusing to grant Randle’s motion for a departure sentence. ISSUES: (1) Jury instruction—lesser included offense; (2) alleged hearsay evidence; (3) photographic and video evidence; (4) sentencing—mitigating factors HELD: Misstatement in State v. Fisher, 304 Kan. 242 (2016), for analyzing jury instruction claims is identified and disapproved. Under Kansas caselaw, when a defendant requests a lesser included offense instruction, an appellate court reviews the evidence in the light most favorable to the defendant. Randle’s requested instruction was legally appropriate, but even assuming the instruction was factually appropriate, the error was harmless. Overwhelming evidence supports the first-degree premeditated murder conviction. And jury, provided with choice between first-degree premeditated murder and second-degree intentional murder, convicted Randle of the more severe crime that required a premeditation finding. District court did not err by admitting the two out-of-court statements. Alleged hearsay statements are examined, finding one was not hearsay. The other was classic hearsay, but allowed because the statement was made by a person present at trial and available for cross-examination, K.S.A. 2019 Supp. 60-460(a). No error in admitting eight of the 128 autopsy photos, selected to explain the nature and extent of fatal injuries, their location on the body, and coroner’s opinions based on injuries depicted. No error in admitting the six-minute crime scene video. Similar argument, that a crime scene video was irrelevant, cumulative, and more prejudicial than probative, was rejected in State v. McCaslin, 291 Kan. 697 (2011). No error in admitting two photographs of Randle while in custody, in street clothes, and without handcuffs or other restraints. Randle did not challenge relevancy, and this evidence was not unduly prejudicial. Randle’s reliance on previous cases holding his listed mitigating factors to be substantial and compelling reasons to support a departure sentence is rejected. Mitigating factors that may justify departure in one case may not justify a departure in another case. STATUTES: K.S.A. 2019 Supp. 21-6620,: -6815(a), 22-3601(b), 60-459(a), -460, -460(a), -460(i)(2); K.S.A. 60-404, -2101(b)
FACTS: Randle and two others fired shots into apartment, killing a victim inside. Randle was convicted of first-degree
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Kansas Court of Appeals Civil ACQUIESCENCE—CHILD SUPPORT—JURISDICTION IN RE HENSON SEDGWICK DISTRICT COURT—REVERSED AND REMANDED NO. 120,543—APRIL 17, 2020
FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple’s children; Chris was ordered to pay child support and half of the children’s medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris’s child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris’s child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris’s employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris’s arrearage should be based off that judgment. Chris appealed ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees HELD: Chris’s challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris’s child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited cir50
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cumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris’s child support obligation. California’s child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That factfinding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris’s arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2). STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 232715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a) SEXUALLY VIOLENT PREDATOR IN RE CARE AND TREATMENT OF RITCHIE BARTON DISTRICT COURT—AFFIRMED NO. 121,627—MAY 1, 2020
FACTS: Ritchie was civilly committed to the Larned State Hospital under the Kansas Sexually Violent Predator Act. By April 2017, Ritchie earned the right to transitional release. He remained in the transitional release program until February 2019, which he was removed from the program and returned to Larned State Hospital. The removal was prompted by concerns about Ritchie’s behavior and staff’s belief that he was a danger to the general public; Ritchie violated the rules of transitional release in many ways, including several occasions where he contacted his victims. The State scheduled Ritchie’s probable cause hearing but had to delay it because of scheduling conflicts for counsel and witnesses. Ritchie moved to dismiss the motion to revoke transitional release, arguing that the two-day timeframe for the probable cause hearing was jurisdictional. ISSUES: (1) Is the statutory requirement that a hearing be held within two working days jurisdictional; (2) whether Ritchie was entitled to return to transitional release
appellate decisions
HELD: As with most time standards of the KSVPA, the “two working days” requirement of K.S.A. 59-29a08(k) is directory, not mandatory. Any delay beyond the two days did not violate Ritchie’s constitutional rights. He was still heard in a meaningful time and manner. There was sufficient evi-
dence that Ritchie violated the terms of his conditional release placement, justifying his return to confinement at Larned. STATUTE: K.S.A. 2019 Supp. 59-29a01, -29a01(b), -29a08(j), -29a08(k), -29a10
Appellate Practice Reminders From the Appellate Court Clerk’s Office
Changes for 2020 Annual Attorney Registration & Other Corona Virus Extensions The Attorney Registration Office learned a lot in our first year of online registration. We have implemented two changes that we hope will allow attorneys to overcome the hurdles that may have prevented their online registration last year. First, we now have American Express as a credit card option for online payment. Second, we have the technology in place to allow a multi-attorney single payment, ie., the attorneys in a law firm could pay one single payment for all the attorneys in the firm. We heard your issues and we hope we have addressed your biggest concerns. Due to the Coronavirus outbreak, the Supreme Court has also issued multiple orders affecting attorney registration and continuing legal education requirements. Administrative Order 2020-RL-033 extends until September 30, 2020, the reporting deadline for continuing legal education that is required by Supreme Court rule to be completed between July 1, 2019, and June 30, 2020. An attorney unable to complete the education within the compliance period is automatically granted an extension until September 30. The order also waives a limit on continuing education hours delivered by prerecorded programs. Kansas Continuing Legal Education will consider provider applications received after the date of the order through September 30 that seek accreditation
for prerecorded programming of more than six hours. Provider applications submitted before the date of the order will not be reconsidered for additional credit hours. The annual report of continuing education typically sent to active attorneys in August will instead be sent in October 2020. Administrative Order 2020-RL-034 extends until September 30 the deadline for attorneys to pay the annual continuing legal education registration fee. Payments must be received or postmarked by September 30. If payment is made after the deadline, the attorney must pay a $50 late fee. Attorneys who fail to meet the minimum requirements set out in Supreme Court rules for continuing legal education, or who fail to pay the annual fee and any applicable late fee, may be suspended from practicing law. Administrative Order 2020-RL-035 extends until September 30 the deadline for annual attorney registration for the 2020-2021 licensing period. The annual registration fee must also be paid by September 30. Attorneys who fail to register and pay the annual registration fee and any applicable late fee may be suspended from practicing law.
Make sure you a familiar with the above changes. For questions about registration issues contact Kansas Attorney Registration: registration@kscourts.org and for the CLE Department contact: cleadmin@kscle.org. For questions about appellate procedures and practices, Call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.
www.ksbar.org | May/June 2020 51
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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.
Missouri Court of Appeals Western District Seeking Staff Counsel. Five years of experience with significant work in appellate practice. Must be memeber in good standing with Missour Bar or in another state. Salary range $74,700 - $76,452 with full state employee benefits. Contact Kimberly Boeding at kimberly.boeding@courts.mo.gov for full job description and application process information. Deadline to apply is June 3. Start date is July 20, 2020. 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, Topeka, is now practicing as Mudrick Arbitration & Mediation, LLC • 785-554-1570 • DMudrick@Mudrickadr. com Mudrick is AV-rated with over 35 years’ experience in employment and labor law. He is approved by the State of Kansas as a Civil Mediator and Teacher Due Process Hearing Officer. Mudrick is past president of KBA Employment Law Section. Named 2019 Labor Law Management Topeka Lawyer of the Year and 2020 Employment Law Management Topeka Lawyer of the Year. Selected for Best Lawyers in America in Labor Law Management, Labor and Employment Litigation. Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com.
www.ksbar.org | May/June 2020 53
classified advertisements 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. 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. WANTED: Due to retirement, candidate needed for Sumner County Attorney. Experience preferred. Financial backing and community support is present. Contact Mike Brown at 316-777-1186 or elderlawks@gmail.com.
Office Space Available Manhattan Office Space for Rent. Located in the Colony Square office building in downtown Manhattan. One minute from the Riley County Courthouse. The available space consists of two offices and an area for a secretary/paralegal. Large reception area and kitchen. High speed internet. Open to either office sharing or “Of Counsel” arrangement. For more information, all 785-5399300 or email to office@jrlclaw.com Office 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. 54
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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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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.