Your Partner in the Profession | September/October 2020 • Vol. 89 • No. 7
2020 KBA Awards P. 14
Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law P. 30
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14 | KBA Awards 30 | Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law Cover Design by Ryan Purcell
Special Features 23 | KBA’s Virtual Annual Meeting—Literally FABULOUS............................Karla Whitaker 44 | Washburn Law Clinic: Clinic in the Time of Coronavirus...................Michelle Y. Ewert 49 | Kansas Legal Services Helps Kansans Prevent Foreclosures Across the State 51 | IOLTA Banks of the Year
Regular Features 6 | From the Executive Director of the KBA/KBF
Embracing the Hybrid........................... Stacey Harden
7 | From the President of the KBA
Did You Miss It?............................ Charles E. Branson
9 | From the President of the KBF
KBF—It’s the Right Thing to Do...................Scott Hill
11 | From the President of the YLS
Know Your YLS Team – and Get Involved ..................................................Kate Marples Simpson
24 | A Nostalgic Touch
The Long Good-bye: Packing up the final family treasure........ Matt Keenan
26 | Substance and Style
Accounting for Cognitive Bias in Legal Reasoning:.... Part 2.................................................... Pamela Keller
52 | Law Students’ Corner
Washburn University School of Law How to Ensure Your Email Finds Me Well ............................................................. Emily Brandt University of Kansas School of Law Taking Navy Skills from Cockpit to Classroom ................................................................Jared Jevons
56 59 64 81
| Members in the News | Obituaries | Appellate Decisions | Appellate Practice Reminders
Snow White’s Second Bite at the Apple— PFRs/Summary PFRs................................Doug Shima
82 | Advertising Directory 83 | Classified Advertisements 85 | USPS Statement of Ownership
47 | Law Practice Management Tips and Tricks
Local Practice—New Normal......... Larry Zimmerman
www.ksbar.org | September/October 2020 3
THE
JOURNAL
OF THE KANSAS BAR ASSOCIATION
2020-21
Journal Board of Editors Professor 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 Kate Duncan Butler (Lawrence), kbutler@douglas-county.com Boyd A. Byers (Wichita), bbyers@foulston.com Sarah Fertig, sarah.fertig@ks.gov Connie S. Hamilton (Manhattan), jcham999@gmail.com Lauren G. Hughes (McPherson), lhughes@bwisecounsel.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, Ret. (Wichita), bkybob73@gmail.com Professor John C. Peck (Lawrence), jpeck@ku.edu 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.net Sarah B. Shattuck (Ashland), bootes@ucom.net Michael Sichter (Kansas City), msichter@wrrsvlaw.com Richard D. Smith (Topeka), rich.smith@ag.ks.gov Katherine Tracy (Overland Park), kc@ksmolaw.com Hon. Sarah E. Warner (Lenexa), warners@kscourts.org Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@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. The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. Copyright Š 2017 Kansas Bar Association, Topeka, Kan. For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, P.O. Box 751080, Topeka, KS 66675-1080.
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The Journal of the Kansas Bar Association
Let your VOICE be KBA Officers & Board of Governors Heard!
2020-21
President Charles E. Branson, CBranson@ksbar.org President-elect Hon. Cheryl Whelan, cwhelan@ksbar.org
Vice President Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Secretary-Treasurer Laura Ice, lauraice@textronfinancial.com Immediate Past President Mira Mdivani, MMdivani@uslegalimmigration.com Young Lawyers Section President Katherine E. Marples Simpson, kmarples@gmail.com Immediate Past President Mitch E. Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Katherine S. Clevenger, katherine@pcfamilylaw.com District 2 Bethany J. Roberts, broberts@barberemerson.com District 3 Angela M. Meyer, angela@angelameyerlaw.com District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Vincent Cox, vcox@cavlem.com Terri J. Pemberton, tpemberton@cox.net District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 William L. Townsley, III, wtownsley@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Dell Marie Shanahan Swearer, dell@hutchcf.org District 9 Aaron L. Kite, aaron@kitelawfirm.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Candice A. Alcaraz, calcaraz@wycokck.org District 12 Alexander P. Aguilera, alex.aguilera@leggett.com Bruce A. Ney, bn7429@att.com John M. Shoemaker, john.shoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Bruce T. Gatterman, 24thcj@pawnee.kscoxmail.com KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric K. Rosenblad, rosenblade@klsinc.org ABA State Delegate Rachael K. Pirner, rkpirner@twgfirm.com YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com KBF Representative Scott M. Hill, hill@hitefanning.com Executive Director of the KBA/KBF Stacey Harden, sharden@ksbar.org
Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.
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from the executive director
Embracing the Hybrid by Stacey Harden, Executive Director, KBA/KBF
A
(nearly) comprehensive list of things I knew were hybrid before the summer of 2020: ligers (half tiger half lion), cars that are battery operated and gas powered, mules (half donkey, half horse), and the mythical sphinx (half woman, half lion). As the summer of 2020 fades, my list of hybrid things has grown. I now understand that school, work, graduations and networking events are, for the foreseeable future, going to be hybrid. As Kansas children return to school near the Labor Day holiday, teachers are formulating lesson plans to educate, and students are preparing to learn in a new hybrid model that blends in-person teaching with remote learning. Meanwhile, parents are attempting to maneuver this hybrid world by juggling not just the demands of work, but also the requirements of their students’ school schedule, all while attempting to maintain a safe physical distance during the pandemic. To say that it is a stressful time for many is an understatement. By the time this edition of the Journal goes to press, the newness of these hybrid models will be routine. It begs the question: is a hybrid-world the new normal? Similarly, the KBA staff is working diligently in a hybrid environment. Some members of the KBA staff are hard at work in our office, while others work diligently from their homes. I could not be any prouder of the endless effort, the positive attitudes, and the work product that the KBA staff continues to produce. A shining example of the KBA staff’s efforts was the first-ever, completely virtual KBA Annual Meeting held in August. I hope that you were one of the many people
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The Journal of the Kansas Bar Association
who attended this event and were as wowed by the event as I. While virtual meetings are no longer a new thing for most of us, a virtual meeting that is stunning in every single moment from the registration to logging in to the quality of the presentations and presenters is not always the norm. The virtual annual meeting did not have the feel of a first-time virtual annual meeting – it was a superb showcase put on by the utmost of professionals, all working in hybrid environments. I am proud that those professionals are on the KBA team. Don’t worry if you were unable to attend the KBA’s Virtual Annual Meeting; certain portions of the event will soon be available on demand. Check our website and social media pages for information on how to access these on demand programs. As soon the Annual Meeting concluded, KBA staff began focusing its efforts on new and exciting membership options for 2021. While no one knows exactly what 2021 has in store for us, our goal is to offer a variety of membership options and bundles that will best serve our members in a rapidly evolving hybrid world. KBA staff is currently researching and working on membership options that will not just walk-the-walk, but also talk-the-talk in the hybrid world. The KBA wants to be a one-stop-shop for resources that will make practices stronger, access to benefits easier, and networking more efficient. If you have an idea or comment, drop me or any other KBA staff member an email or phone call. I am excited to speak with you and learn how the KBA’s dedicated team of professionals can help you achieve your goals while embracing the hybrid. (Not ligers, I do not recommend embracing those.) n
from the kba president
Did you miss it? by Charles E. Branson KBA President, 2020-2021
Screenshots from sessions held during the virtual 2020 KBA Annual Meeting!
D
id you miss it? Over 160 of you didn’t! Our virtual annual meeting was held on August 20 and 21. Despite some small technical difficulties on day two, the meeting was a great success! We heard from Governor Kelly and learned the state of the judiciary from Chief Justice Marla Luckert. There were entertaining ethics hours and fantastic training on unconscious bias, constitutional issues in public health and a review of U.S. Supreme Court Cases. A key feature of our annual meeting was the celebration of the 100th anniversary of the passage of the 19th amendment and the 150th anniversary of the 15th amendment. The fight for the right for women to vote had taken nearly 100 years for activist and reformers to win. Despite winning the right to vote 50 years sooner, it took until the Voting Rights Act of 1965 to remove the legal barriers to African Americans to freely vote in elections.
I remember my first time voting. It was November 1988. I can vividly remember walking into the retirement home a few blocks from my house and giving my name to the poll worker and walking into the strange metal frame voting booth surrounded by the red, white and blue striped curtains. I am proud to be able to say that I have never missed a major election and cannot think of many local elections where I did not exercise the ultimate expression of freedom by casting a vote for a candidate or a proposition. Often times I would wonder, does my vote really count? Should I take the time to get up early and head to the polls or go on my lunch hour or even wait in line after work? Every now and then I see a reminder of what a vote means. During the primary in August, one of my local races came down to just three votes. This example may seem trite, but I am confident there were people who were relieved that they voted and other people cursing that they did not.
www.ksbar.org | September/October 2020 7
from the kba president
There are important deadlines coming up. October 13 is the last day to register to vote in the general election. October 14 is the first day of advance voting in person and by mail. October 27 is the deadline for voters to apply for an advance ballot by mail for the general election. Mail ballots must be postmarked on or before Election Day and must be received by your county clerk by November 6. And finally, for those that want to vote on Election Day polls are open from 7:00 am to 7:00 pm on November 3. If you have any doubt whether you are registered to vote at your current residence, you can always check your status at https://myvoteinfo.voteks.org/voterview/. With elections come change. You can always count on your membership with the Kansas Bar Association to provide you with timely information and updates about the legislative session and changes in the law that could impact your practice or your clients. You can also stay in the know by reading our Legislative Blog—The Advocate and by following legislation you are interested in with our bill tracking. The KBA remains your partner in the profession. n
About the Author Charles E. Branson is the President of the Kansas Bar Association for 2020-2021. He is the Douglas County District Attorney, Before running for election in 2004, Branson was in private practice in Lawrence; his practice focused on the areas of criminal and civil litigation. A long-time active member of the KBA, Branson has served on the Executive Committee of the Board of Governors, has been the KBA Representative on the Board of Trustees of the Kansas Bar Foundation, and has also been a member of the KBA Bench-Bar Committee and the KBF Scholarship Committee. Charles and his wife Kathy have two children, Chance and Grace, and are very proud to call Lawrence and Douglas County their home. CBranson@ksbar.org
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from the kansas bar foundation president
KBF—It’s the Right Thing to Do by Scott Hill, KBF President
I
n the past two weeks, my law firm of Hite, Fanning & Honeyman LLP welcomed two new recent law school graduates—Brett Sitts and Evan Hathaway—as associate attorneys. For one of those attorneys (Evan), I have been assigned the role of “Supervising Partner,” which means that I help manage his workload, guide and mentor, and provide professional training and teaching to supplement what law school teaches all of us. On a day-to-day basis, I have found that this responsibility involves substantive support focused on research techniques, analysis and conclusions, and general writing approaches and conventions. Last week, however, I sent Evan and Brett an email to describe some of our firm’s unwritten cultural expectations— not employee handbook issues and not items subject to any repercussions, but items where participation and observance helps define who we are as a law firm. Inherently, I was describing things like attending firm social functions, or certain practices related to secretaries and paralegals. But I found myself heading down the path of describing my firm’s “culture” of bar participation. Let me take you back nearly 17 years to when I began my practice at Hite, Fanning. The summer of 2005 was my second summer as a lawyer with the firm. The annual meeting was to be held in Vail, Colorado. I recall asking Linda Parks (our firm’s managing partner and bar association juggernaut) whether I should attend and what I should attend. Her response was an overwhelming “yes.” As to what I should attend the discussion centered primarily around the Kansas Bar Foundation and its annual Fellows Dinner. Linda suggested that while the Bar Foundation was my personal choice, it is something that every lawyer in our firm, and every lawyer in the state, should consider doing, because it is the “right thing to do.” In general terms, we talked through
the comparative missions of, and the relationship between, the KBA and the KBF. She described the IOLTA program and what it did for numerous Kansans, including grant recipients themselves as well as those who received the benefit of the grant recipients’ works. The sales pitch was enough to get me to make a pledge to the Foundation and to become a Fellow. Fast forward through the next 15 years, during which time I’ve conveyed this similar message to each new associate at my firm (and many across the bar.) In those conversations, I’ve shared many of the same facts and figures as Linda once described to me—the mission, the good work, and the impact. But there is more to the story that I tell to Evan today—and that I share with all of you non-Fellows, whether you are a new attorney or a well-seasoned one. It gets back to “it’s the right thing to do.” I won’t attempt here to shift to a scholarly article, except to say that the Kansas Rules of Professional Conduct address many of our obligations for public service. See KRPC Rule 6.1-6.4. But the obligation is greater and more generalized: As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindwww.ksbar.org | September/October 2020 9
from the kansas bar foundation president
ful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. The attributes contained in this paragraph for lawyers’ conduct shall be an aspirational goal of all lawyers. KRPC, Preamble ¶6. The KBF’s missions is “...to serve the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor and integrity of the legal system by improving its accessibility, equality and uniformity, by enhancing public opinion of the role of lawyers in our society.” This mission fits squarely within—if not mirroring—the “aspirational goal of all lawyers” as set out in the above paragraph of the Kansas Rules of Professional Conduct. Is participation in the KBF the “right thing to do?”
As I read the KRPC, I think the answer is an absolute and unequivocal “yes.” I return to where I began, to my conversation with Evan: “Become a Fellow of the Kansas Bar Foundation as it is the ‘right thing to do.’” As his Supervising Partner, it is my duty to set him down the right path—both in his professional training and in professional service. Being a part of the Foundation is a step in that right direction. n
About the Author Scott Hill is a partner at Hite, Fanning & Honeyman L.L.P. He concentrates his practice in banking, business transactions, business litigation and real estate. Scott sits on his firm’s management committee and devotes substantial time to his firm’s management and marketing efforts. Raised in Independence, Kan., he graduated from Pittsburg State University and Washburn University School of Law. Scott earned his MBA at Washburn during law school. He is married to Jennifer Hill of McDonald, Tinker, and has two sons (ages 11 and 7). hill@hitefanning.com
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The Journal of the Kansas Bar Association
from the young lawyers section president
Know Your YLS Team—and Get Involved by Kate Marples Simpson, YLS President
T
he KBA YLS board is excited to continue critically thinking about how to benefit our members and increase section membership in 2020-2021. We are requesting that the Board of Governors nominate young lawyers from each district to form an advisory panel for the YLS Board so that we can better serve our members throughout Kansas. If you know a young lawyer in your area who would enjoy planning local events and recruiting new members, let me or your district Board of Governors representative know. We intend to expand socials and CLE offerings beyond the Topeka and Kansas City area to better engage and diversify our membership in rural areas. Our section leadership is also interested in nominating newer lawyers to other KBA boards. If you are interested in being nominated, or know an exceptional young lawyer who may accept a nomination, please let me know. New board members are also innovating our existing programs, adapting our programming and projects to our primarily virtual environment. Kate Butler and Crystal Ellison, our mock trial and judicial externship program coordinators, are researching ways
Kate Butler
Crystal Ellison
to continue those programs virtually if in-person events are not advisable in the spring and summer. Additionally, we are considering expanding the scope of the judicial externship program to promote diverse placements in rural areas. Matt Huntsman is taking over our CLE programming, which will include a lunch-and-learn series. Kicking off on October 9th, Professor Emily Grant will help us improve our writing skills. On November 13, we’ll be learning from KALAP Executive Director Danielle Hall about “Getting Things Done: Overcoming Stress and Managing Productivity.” In the spring, we hope to host a virtual ethics trivia night with cash prizes for the winning team and ethics CLE for all participants. We also hope to be able to offer our Sporting KC CLE and enjoy catching a home game together. Our publications team is developing a strategy to bring meaningful written content to our membership. If you are interested in contributing an article, or have ideas about how best to publish content, please contact Morgan Geffre or Sarah Stula.
Matt Huntsman
Morgan Geffre
Sarah Stula
www.ksbar.org | September/October 2020 11
young lawyers section president
we’re living in challenging times, I know that this group will be providing valuable content and services to our membership. I am feeling particularly hopeful about all we can accomplish and better days ahead, and hope you do too after reading all we have planned. I’m looking forward to working with a great board this year, and am thankful for the opportunity to contribute. n Pablo Mose
Rick Davis
Mitch Biebighauser
Josh Decker
Pablo Mose continues his work coordinating pro bono projects, including developing a handbook for lawyers responding to emergencies and disasters in Kansas. Let Pablo know if you have ideas for other pro bono work our members could be doing in Kansas. While being the ABA delegate is not as fun as it can be when we can travel, Josh Decker is still representing KBA YLS members at ABA meetings. Rick Davis, our president-elect, and Mitch Biebighauser, immediate past president, continue to lead our group and contribute to our endeavors. In writing this brief summary of the Section’s goals for this year, I noticed how often I wrote the word “hope.” While
About the Author Kate Marples Simpson is an associate at Stevens & Brand, L.L.P., in Lawrence. She previously clerked for the Hon. Carlos Murguia of the United States District Court for the District of Kansas in Kansas City, Kan., and for the Hon. K. Gary Sebelius for the U.S. District Court in Topeka. Kate graduated from KU Law. She is president of the Federal Bar Association for the Districts of Kansas and Western Missouri, president of the Judge Hugh Means American Inn of Court, and a member of the KBA Board of Publishers. In her free time, Kate enjoys gardening, hanging out with her husband Jon and their dog Scout, taking care of their 18 chickens, and ironman training. KSimpson@stevensbrand.com
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PEOPLE • • • • • •
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Lawyers Judges Paralegals Law Professors Law Students Paralegal Students
PURPOSE The KBA was formed for the following purposes: to uphold the constitutions of the United States and the state of Kansas; to advance the professionalism and legal skills of lawyers; to promote the interests of the legal profession; to provide services to its members; to advocate positions on law-related issues; to encourage public understanding of the law; and to promote the effective administration of our system of justice.
2021 KBA
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PARTICIPATION • • • • • •
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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.
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The 2020 K
Phil Lewis Medal of Distinction
The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. The recipient need not be a member of the legal profession nor related to it, but the recipient’s service may include responsibility and honor within the legal profession. The award is only given in those years when it is determined that there is a worthy recipient.
Chief Justice (Ret.) Lawton R. Nuss Following service as a Marine Corps combat engineer and then KU law school, Nuss worked for 20 years as a trial attorney in his hometown of Salina, representing a range of plaintiffs and defendants in all types of cases. Nuss was appointed to the Supreme Court by Governor Bill Graves in August 2002, becoming the first justice in nearly 25 years to move directly from the practice of law to the Court. He began serving as Chief Justice in January 2010. For the next 10 years, he presided over the Court while it exercised general administrative authority over all courts in Kansas. This included supervising approximately 300 judges and 1500 employees and administering an annual budget of around $145 million. During his career he also helped decide 17,000 cases and wrote more than 300 decisions.
His leadership was nationally featured in 2016 in both The New Yorker magazine article titled “The Political War Against the Kansas Supreme Court” and in a front page article of The New York Times. The Times noted that “Nuss . . . has emerged as a strong defender of judicial independence.” His leadership of the judicial branch during challenging times was additionally highlighted as the cover story of The Journal, the official magazine of the Kansas Leadership Center in Wichita. At the invitation of their national organization, in 2019 Nuss presented a program to other states’ Chief Justices on “The Chief Justice’s Leadership and Policy Role.” He has also served, at the ABA’s request, as a panelist at several of their annual meetings: first regarding attacks on judicial independence, and last year on “Undermining the Courts.” Nuss retired in December 2019.
Professionalism Award The Professionalism Award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession as identified by the KBA Hallmarks of the Profession.
Martha Coffman is General Counsel for the Kansas Supreme Court Office of Judicial Administration. She previously served as Chief Advisory Counsel to the Kansas Corporation Commission and Director of the Kansas Court of Appeals Central Research Staff. Other legal experiences include serving as a research attorney for Kansas Supreme Court Justice Donald Allegrucci and as law clerk for United States District Judge Earl E. O’Connor. These distinguished jurists taught her how a decision in one case can impact the law. During the years she practiced in Lawrence, KS, Martha handled primarily criminal defense, family law, and whatever paid the bills. After completing her undergraduate degree at the University of Kansas, Martha studied at the University of Pittsburgh, PA, receiving a master’s degree in anthropology. She followed her interest in how cultures resolve conflict and adapt to 14
The Journal of the Kansas Bar Association
change back to the University of Kansas for her law degree. While in law school, she participated in the Paul E. Wilson Defender Project (now the Innocence Project) and served on the Kansas Law Review. Martha loves to travel, but will always return to Kansas. She is a fifth generation Kansan, her ancestors having settled Douglas, Osage, Franklin, and Ford Counties. She lives in Douglas County with her husband, Patrick Curtiss, and their dog Finn. Having served on the KBA Awards Committee, Martha knows recipients previously receiving the Professionalism Award and is honored to be associated with them. As an attorney, she has always sought to advocate for her clients while treating everyone with respect and courtesy. To the extent she has achieved that goal, she credits the example set by her father, the Honorable Floyd H. Coffman.
KBA Awards
Distinguished Service Award
The Distinguished Service Award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient.
In 44 years of practice, Nick Badgerow has handled a wide variety of lawsuits in state and federal courts, trying more than fifty jury cases to verdict, and representing corporations, governments, lawyers, law firms, and judges. A partner with Spencer Fane LLP, he has served as a special master, mediator and arbitrator, and has testified as an expert witness in more than 25 cases. Known for expertise in the areas of attorney ethics, professional responsibility, and professional liability, Nick has published more than 70 bar journal and law review articles, presented nearly 200 seminars, is the editor and a co-author of the KBA Ethics Handbook, and is one of the authors of the KBA Employment Law Handbook. Nick has served in a number of positions, including: • Kansas Judicial Council (1994 – 2018) • Co-Chair, Civil Justice Reform Act Committee, United States District Court – District of Kansas (1995 - 1998) • President, Earl E. O’Connor Inn of Court (1996 - 1997)
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Kansas State Board of Discipline for Attorneys (2000 - 2016) • Chairman, Ethics 2000 Commission (2001 – 2002) • Member, Kansas Supreme Court Commission on Professionalism (2010 -2013) • Chairman, Kansas Ethics 20/20 Commission (2013) • Chairman, KBA Ethics Advisory Opinion Committee (1997 - 2005) • Chairman, Johnson County (Kansas) Bar Association Ethics and Grievance Committee 1989-2019). Nick has received the Kansas CLE Robert L. Gernon Award (2011) and the KBA’s Outstanding Service Award (1995 and 2009). In his non-professional life, Nick is an avid fox hunter, horseman, hiker, runner, reader, and is actively involved in the Boy Scouts of America. He and his wife of 44 years, Teresa, live in Prairie Village.
Pillars of the Community Award The Pillars of the Community Award recognizes a Kansas lawyer with a minimum of 10 years active non-specialized, general legal practice in a predominately low-density population area of Kansas and substantial practice in small or solo law firms or local government service.
Dennis Depew practiced for almost 32 years in his hometown of Neodesha. Since May of 2015, Dennis has served as the Deputy Attorney General for Civil Litigation. He and his wife Shirley continue to maintain their primary residence in Neodesha because of his civic and community involvement there. Son Derek is an Army JAG officer and son David is a graduate student at KU Engineering. Dennis has held leadership positions in the KBA and KBF for 15 years, serving as KBA President in 2013-14 and on numerous committees of both organizations. Some of his local activities include: • 21 years on the Neodesha School Board and serving as President of KASB. • Co-founder and president of the Neodesha High School Alumni Association Scholarship Fund since 1994, and helping raise its $1,250,000 endowment. In 2019, the Fund announced the Neodesha Promise scholarship program. This
program will provide full tuition and mandatory fee scholarships for virtually all NHS graduates for up to 120 credit hours. The program includes traditional college, community college, vocational-technical programs, and other specialized training. Over time, this program will contribute tens of millions of dollars to graduates of NHS. • Secretary/Treasurer of the Griffith Family Charitable Foundation since 1989. He administers a scholarship program that offers all Neodesha High School graduates a renewable scholarship to attend college, trade school or vocational-technical school. That program has awarded over $2,000,000 in scholarships since its inception. • Secretary of the Neodesha Community Foundation for over 30 years. This group currently manages a $2,000,000+ endowment for the benefit of Neodesha’s Main Street area. • Managing trustee of the John C. “Bill” Reece Charitable Trust since 2005, making lead gift of $1,000,000 that enabled the construction of the Wilson Medical Center in Neodesha. www.ksbar.org | September/October 2020 15
2020 KBA Awards
Christel Marquardt Trailblazer Award The Christel Marquardt Trailblazer Award, honors exceptional KBA members who break new ground, shatter glass ceilings or pave new paths for others to follow. The award is bestowed upon a member who has made innovative contributions to improve the legal profession or our communities, exhibiting courage, leadership, professional excellence, and service to the profession in a manner that makes a substantial and positive impact on all those who follow in his or her footsteps. The Trailblazer Award will be given to a KBA member in years in which there is a worthy recipient.
Chief Justice Marla Luckert was appointed to the Kansas Supreme Court in 2003 and became chief justice in December 2019. She was the second woman appointed to the court and is the second woman to serve as chief justice. Luckert was born in Goodland and received her juris doctor and bachelor of arts degrees—both with academic honors—from Washburn University. She served as an editor of the Washburn Law Journal and received the faculty and alumni awards for best student note. In 1980, Luckert joined Goodell, Stratton, Edmonds, and Palmer in Topeka. There were few women in private practice then, and in 1984, she was only the second woman to be named a partner of the firm. In 1992, Luckert was appointed a judge of the 3rd Judicial District. In 2000, she became the first woman in Kansas to be appointed a chief judge of a judicial district.
Throughout her career, she has mentored women attorneys and high school students interested in legal careers. Luckert has served as president of the Kansas Bar Association, the Kansas District Judges Association, and the Topeka Bar Association. She was a founding member and president of the Sam A. Crow Inn of Court, the Women Attorneys Association of Topeka, and the Kansas Women Attorneys Association. She has received distinguished service awards and other awards from Washburn University, Washburn University School of Law, and the Kansas and Topeka Bar Associations; the Robert K. Weary Award from the Kansas Bar Foundation; achievement awards from the Kansas and Topeka Women Attorneys Association; the Hon. E. Newton Vickers Professionalism Award; and recognition by many community organizations.
Courageous Judge Award The Courageous Judge Award is given to a judge who has displayed exceptional courage in the face of adversity.
Honorable Julie A. Robinson was appointed United States District Judge for the District of Kansas in 2001. She is the first African American appointed to the federal district court in Kansas and the second woman. Judge Robinson became Chief Judge of her court in 2017, effectively becoming the chief executive officer of the court, with responsibility for the court’s operations and its 200 employees. Judge Robinson was a U.S. Bankruptcy Judge from 1994 to 2001, the first female bankruptcy judge in Kansas and the second African American female bankruptcy judge in the nation. For eleven years before that, she was an Assistant United States Attorney for the District of Kansas, litigating civil and criminal cases. Judge Robinson has served the federal judiciary in a number of capacities. She currently serves on the federal judicia16
The Journal of the Kansas Bar Association
ry’s Workplace Conduct Working Group and on the board of the Federal Judges Association. She chairs the Federal Judicial Center’s District Judge Benchbook Committee. She is a past chair of the Court Administration and Case Management Committee of the Judicial Conference of the United States, a past Commissioner of the United States Supreme Court Fellows and was involved in developing Strategic Plans for the federal judiciary in 2010 and 2015. Locally she is the chair of the board of Healing House of Kansas City, a faith-based recovery community, and has served in a variety of capacities as a member of the Church of the Resurrection United Methodist Church for 30 years. She is also a proud alumna of KU Law School, where she served as chair of the Board of Governors, taught trial practice, and received the Distinguished Alumnus Award.
2020 KBA Awards
Distinguished Government Service Award The Distinguished Government Service Award gives recognition to a Kansas judge or attorney who has demonstrated an extraordinary commitment to government service.
Following graduation from St. Benedict’s College (now Benedictine College) with a degree in English literature and a timeout for the Marine Corps Reserve, Mike Heim was employed as a news reporter with the Topeka Capital-Journal. During his nearly three years as a reporter, he earned a master’s degree in public administration from the University of Kansas and joined the Kansas Army National Guard, eventually becoming an artillery officer/general’s aide. He was employed by the Kansas Legislative Research Department where he worked for 34 years until he joined the Revisor of Statutes office in 2006 where he currently works. He has staffed multiple legislative committees while working for the Kansas Legislature but has always staffed the local government committees. He obtained a law degree, magna cum laude, from Washburn University School of Law in 1982 while working full-time for
the Research Department. He began teaching municipal law as an adjunct professor at the law school in 1985 and has taught the class almost every year since. He began co-teaching the class with a friend, Don Moler, in the late 1990s. He used his notes for the local government law class as a basis for authoring Kansas Local Government Law, a legal treatise, first published in 1991 by the Kansas Bar Association and now in its sixth edition published by the League of Kansas Municipalities. He has authored several law review articles, participated in a number of CLE programs and acted as a legal consultant and an expert witness on occasion. He has been married to Linda for over 52 years; they have six children and 10 soon to be 11 grandchildren.
Outstanding Young Lawyer Award The Outstanding Young Lawyer Award is given annually to recognize the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA.
Lauren G. Hughes is a member of the Wise & Reber, L.C. law firm in McPherson, Kansas. She is a Texas native, having grown up in League City, Texas. She received her Bachelor of Arts in both English and American Studies from the University of Kansas in 2013 and her law degree from the University of Kansas School of Law in 2016. While at KU Law, Lauren served as a Staff Editor for the Kansas Journal of Law & Public Policy and served on the Editorial Board as a Staff Articles Editor. Lauren was elected as a Graduate Student Senator for KU’s Student Senate, volunteered with the Volunteer Income Tax Assistance (VITA) Program, and served as a Graduate Teaching Assistant for the undergraduate Business Law course.
Lauren practices in the areas of estate planning, estate and trust administration, and business law. She is currently Secretary/Treasurer of the KBA’s Young Lawyers Section. Lauren previously served as Co-Chair of the YLS Publication Committee, where she helped spearhead the inaugural YLS Issue of the KBA Journal (Vol. 88, No. 9). She also serves as CoChair for the Kansas Women Attorney’s Association Annual Conference. Lauren is a member of the McPherson, Wichita and Kansas Bar Associations. She is also a member of the Kansas and Wichita Women Attorneys Associations. Active locally, Lauren serves on the Board of Directors for the McPherson County YMCA, the McPherson Public Library, and is president-elect of the McPherson Chamber of Commerce. www.ksbar.org | September/October 2020 17
2020 KBA Awards
Diversity Award The Diversity Award recognizes an individual who has shown a continued commitment to diversity; a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct, as well as by the development and implementation of diversity policies and strategic plans.
Deena Hyson Bailey, Senior Employment & Labor Counsel at Cargill was nominated for the Diversity Award for commitment to cultivate a diverse, inclusive environment and promote the work of lawyers who are female, people of color, or LGBTQ. Cargill, an agriculture company at heart, strives to “intentionally drive change to create a more diverse and inclusive environment that reflects the world we feed.” Because a diversity commitment must be practical, not just aspirational, Cargill Law tracks not only the number of diverse lawyers assigned to its work, but also the time and substance of the work they perform. Deena starts all matter assignments with a discussion of assigning substantive work for diverse lawyers, including the development of diverse associates. Deena was recognized for her long commitment to women’s issues. From her work on Cargill’s Women’s Council, to
her Board of Directors work with Dress for Success, Harbor House Women’s Shelter, Wichita Family Crisis Center (current President), to serving Wichita Women Attorneys Association (past President) and Kansas Women Attorneys Association (past President), she has demonstrated a commitment to developing and ensuring opportunities for women. Deena has received the Louise Maddox Attorney of Achievement Award from the WWAA and the Jennie Mitchell Kellogg Attorney of Achievement Award from the KWAA. To help women lawyers connect in formal or informal mentoring relationships, she created a Mentoring Toolkit for KWAA. She also serves pro bono at the Sedgwick County Protection from Abuse docket with Kansas Legal Services. Deena and her husband Rick have three children, nine grandkids, several wonderful pets and they foster cats for a local rescue.
Outstanding Service Awards The Outstanding Service Awards recognize service that significantly advances the administration of justice or the goals of the legal profession and/or the KBA.
Diana Carlin Pierron is professor emerita of communication and former associate provost at Saint Louis University. She was a professor of communication studies at the University of Kansas for 24 years and dean of the graduate school and international programs for seven. Dr. Carlin served on the advisory board for the Commission on Presidential Debates from 1987-2000 and created their DebateWatch voter education program which is 24 years old. She advised several new democracies on developing political debates. Diana served as chair Pat Donahue grew up in Emporia and lives in Lawrence. He earned BA and MS at ESU (chemistry and physical science) and his JD from the University of Kansas (1979). He is admitted to practice in Kansas and Colorado and their federal courts. He is admitted to the Court of Appeals for Veteran’s Claims and to the US Supreme Court. He has over 30 years of experience representing Social Security disability claimants, veterans, and senior citizens throughout the US. Pat started law school when he was 33 years old after serving as a soldier, teacher and Boeing 18
The Journal of the Kansas Bar Association
of Kids Voting Kansas and Kids Voting USA. As vice chair of the Kennedy Center’s President’s Advisory Committee on the Arts, she brought theatre productions to over 8000 Kansas students. She currently serves as secretary of the Governing Board of Sister Cities Lawrence which supports student exchanges to Germany, Japan, and Greece and chairs club, district, and world Optimist oratorical contests. She is also an active Rotarian. KU has recognized her with the Steeples Award for Service to the People of Kansas. engineer. He is an alumni of Kansas Legal Services. Pat writes and gives presentations on Social Security, veterans law, elder law and non-profit organizations. He is the former chair (the first chair) of the KBA Elder Law Committee and the KBA Access to Justice Committee. He has served many years on the KBA CLE Committee. He is a past recipient of the KBA Outstanding Service Award (1984). Pat has served on boards of a number of non-profit and civic organizations and he is a long-time active Boy Scout leader. He served as an officer in the Marines in Vietnam.
2020 KBA Awards
Outstanding Service Awards (cont’d) Hon. Kellie E. Hogan was sworn in as Sedgwick County District Court Judge on April 24, 2020. A Wichita native, Judge Hogan earned her B.A. and Juris Doctor degrees from the University of Kansas. Earlier in her career, Judge Hogan was the Assistant Managing Attorney at Kansas Legal Services. Her primary practice focused in the areas of Child in Need of Care, Juvenile Offender, Guardianship, and Adoption. Hogan regularly served as a mediator in cases involving complaints filed with the Kansas Human Rights Commission alleging civil rights dis-
crimination, employment discrimination and housing discrimination. Judge Hogan is proud of her professional service through which she developed Regional Continuing Legal Education for juvenile court attorneys, trained new CASA volunteers on the role of the guardian ad litem, recruited and supervised law student volunteers, mentored high school students, and authored the Child in Need of Care chapter of the Kansas Bar Association Annual Survey of Kansas Law.
Karin Kirk was born and raised in Wichita and attended Wichita State University. She began her career in the legal community with the law firm of Foulston Siefkin LLP. She joined the staff of the Wichita Bar Association in 1986 and served in several different positions before being appointed executive director in 1998. In addition to being executive director of the Wichita Bar Association, she also served as executive director of the Wichita Bar Foundation, the Sedgwick County Law Library, the
Sedgwick County Law Center, LLC and the Wesley E. Brown American Inn of Court. During her career, Karin received a Wichita Bar Association Distinguished Service Award and President’s Award and has been chosen to receive the 2020 Liberty Bell Award from the Wichita Bar Association Young Lawyers Section. She is an Honorary Lifetime Member of the Kansas Bar Association. Karin has just recently retired.
William J. “Bill” Rich worked for two years with the Wichita Legal Aid Society, joined the Washburn faculty in 1977, and retired in June as the James R. Ahrens Professor of Constitutional Law. For most of his 43 years at Washburn his teaching responsibilities focused on constitutional law, jurisprudence, and related courses. He also served as Associate Dean for Academic Affairs, Acting Dean and Interim Dean. Primary scholarship topics have ranged from prison reform and school desegrega-
tion to comparative analysis of the Hong Kong Bill of Rights, with ongoing work that includes annual updates to his Modern Constitutional Law treatise. Other activities have included 19 years of work as appointed counsel representing inmates challenging conditions in Kansas prisons, and more recent work with students from both Washburn and Free University of Tbilisi drafting amicus briefs for the Constitutional Court of Georgia.
Amanda Stanley is General Counsel at the League of Kansas Municipalities. Upon graduating from The University of Kansas School of Law in 2014, she began her legal career as a clerk to Judge Kim Schroeder. She then joined the League of Municipalities as a staff attorney and was soon promoted to General Counsel. Amanda has worked on countless pieces of legislation to help cities. She has travelled the state teaching classes for local officials, written an amicus brief for the Kansas Supreme Court, and
updated numerous publications relied on by cities. Amanda has served the Kansas judicial branch by serving on two Judicial Council panels. She is the current president of the State League Department of the International Municipal Lawyers Association Amanda has chaired the KBA Diversity Committee for two years and has written numerous articles for the KBA Journal.
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2020 KBA Awards
Pro Bono Awards The Pro Bono Awards recognize lawyers or law firms that deliver direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations who primarily provide other services to the poor; Pro Bono Certificates are awarded to lawyers who: are not employed full time by an organization that primarily provides free legal services to the poor; with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that has no resources to employ paid counsel; have voluntarily contributed a significant portion of time to provide legal services to the poor without charge; and/or lawyers whose voluntary contributions have resulted in increased access to legal services for low– and moderate–income persons.
The Crawford County Bar Association’s goal is to help meet the professional needs of its member lawyers, advance the administration of justice, and serve the local area. The Bar has provided monthly lunches and CLE opportunities for attorneys to participate in. The Bar has become well known for its annual golf tournament and yearly banquet. A portion of the golf tournament proceeds help benefit the Child Exchange Center in Pittsburg, Kansas. The Bar has participated in local back-to-school drives with its members to help contribute school backpacks and supplies for local communities. Additionally, members have donated funds to purchase coats and Christmas presents for children and families. Most recently the Crawford County Bar Association and the Pittsburg Kansas Legal Service Office opened 102 expungement cases for 55 individual clients throughout 2019 for an expungement project. Ten attorneys volunteered, 31 expungements were completed and 21 are pending. Due to the work of the Bar, Pittsburg’s Mayor Dawn McNay declared February 11, 2020 as Crawford County Bar Association Day to thank participating lawyers for volunteering in the expungement drive.
The District Attorney’s Office of Wyandotte County staff are proud to earn the Pro Bono Award. D.A. Mark A. Dupree, Sr., leads an office of over 60 employees and manages a significant budget each fiscal year. D.A. Dupree and his team of employees are implementing strategic and visionary policies to expand the function of the Wyandotte County District Attorney’s Office. His administration has increased the felony trial conviction rate by 27%. D.A. Dupree has successfully created the first ever “Conviction Integrity Unit” in the state of Kansas, which is responsible for ensuring that convictions obtained previously still hold integrity today. His efforts for transforming the traditional manner in which District Attorney’s Offices have operated has been recognized nationally, with articles featured twice in the New York Times and interviewed on the nationally syndicated Roland Martin Show. Community involvement is the bedrock of the Dupree administration. It builds community trust, and that trust greatly assists in crime prevention and bringing justice. Mr. Dupree and his administration lead the way in speaking at schools, neighborhood watch meetings, church gatherings, and civic organizations. D.A. Dupree created the Brilliant Outstanding Leaders Determined to be the Difference (B.O.L.D.D) initiative. Assistant District Attorneys go into schools and work with high school students educating and exposing them to the legal process in a positive manner. Dupree is married to his law school sweetheart and former law partner, attorney Shanelle Dupree, and they have four beautiful and active children. 20
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2020 KBA Awards
Pro Bono Certificates Matt Ellis is Chief Counsel at Koch Companies Public Sector, LLC. Ellis along with Melissa Brown, Associate General Counsel, co-chair the companies’ Pro Bono Initiative launched in 2018. The Pro Bono Initiative’s vision is to use its legal resources to create opportunities for earned success among the least fortunate. The Initiative works with Kansas Legal Services to help improve lives—and by extension, our communities- through expungement drives and other pro bono efforts.
Joni Franklin has been practicing law in the Wichita area for 24 years. Her practice areas are primarily in artificial reproductive technology law, labor relations and workers compensation. Joni has dedicated a portion of her practice to pro bono representation on a regular basis, volunteering at the Sedgwick County Protection from Abuse Docket and Protection from Stalking Docket for over 23 years. She has volunteered as both an attorney and mediator on both of these dockets, and has worked closely with members of the public from all walks of life – but typically impoverished and underserved populations. She also leads continuing legal education presentations, providing these same pro bono services to her colleagues.
Cyd Gilman has spent almost 42 years representing indigent clients. After serving as a Legal Aid Society of Wichita lawyer for five years, she joined the Wichita Federal Public Defender Office in 1983, representing indigent clients charged with federal crimes for 30 years. In 2013, she joined Foulston Siefkin in Wichita as Special Counsel, where she represents retained clients under federal criminal investigation and charges, and also accepts federal criminal appointments. Expecting to retire in the near future, she feels serving as the voice for the accused, powerless and poor has been the honor of her lifetime.
Tracy Spradlin is a partner at Spradlin Kennedy, LLC, a firm assisting those in both Missouri and Kansas with criminal and personal injury matters. Her passion for animal welfare, alongside her work as a criminal defense attorney, led her to the realization that oftentimes police budgets cannot accommodate protective gear for their service animals. Going To The Dogs is an organization that works with law enforcement on both sides of the state line to raise money for K9 bullet/stab-proof vests and equip police vehicles with necessary K9 gear. Tracy has served as legal counsel to the board, assisting with their legal formation as a non-profit and aiding their fundraising since 2014. To date, they have provided more than 20 vests to local agencies, with each vest costing approximately $1,000.00.
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Honorary KBA Lifetime Member
Karla Whitaker Karla Whitaker served as the Interim Executive Director of the Kansas Bar Association and Kansas Bar Foundation from January through July of 2020, returning to the Association after her work as a KBA staff member through the 1990s—as Media Relations and Marketing Director, CLE Director, and Associate Executive Director. Since her tenure at the KBA, Karla spent most of her professional career at Washburn University School of Law, serving as Director of Admissions recruiting new law students, then further at Washburn University Foundation as the Development Director for the Law School. In that role, Karla helped lead the campaign for a new law school building on campus in Topeka; construction is expected to begin next year. Karla has appreciated her time back at the KBA, with the opportunity to work again with longtime members, who are still actively involved with the Association, as well as newer lawyers who are leading the organization with new ideas and technology. No one could have foreseen the challenges awaiting the legal profession and the KBA, as the pandemic hit this spring. Karla worked with staff to establish a remote operation in midMarch and operated virtually through mid-June. At the same time, the KBA was providing valuable services to members, particularly free webinars for Kansas lawyers to provide information and resources for operating and funding their law offices in a new virtual environment. The challenges continue, and Karla is pleased to help the KBA provide new online education and related resources for lawyers when they need it most.
2020 kba annual meeting
KBA’s Virtual Annual Meeting...Literally FABULOUS by Karla Whitaker
Participants in the first-ever Virtual 5K fundraiser for Kansas Bar Foundation charities.
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he Kansas Bar Association celebrated its Annual Meeting in a very non-traditional way this year – with its first Virtual Annual Meeting – due to safety concerns surrounding the Coronavirus pandemic. The KBA reimagined and rearranged the traditional format to focus on this historic year of celebrating voting rights as well as current and critical legal issues related to the pandemic. The two-day event on August 20-21, 2020, was attended by 160 registrants and received positive reviews. From Attendees’ Evaluations—
“This was the best virtual presentation I’ve attended! I liked all the polls and participation!” The conference celebrated the theme of “Voting Rights” and featured programs especially relevant during an election year. Kansas Governor Laura Kelly and Kansas Supreme Court Chief Justice Marla Luckert both addressed the conference live from their offices. Additionally, nationally recognized election law attorneys Jason Kaune (with Nielsen Marksamer in San Rafael, CA) and Jacqueline DeLeon (with the Native American Rights Fund in Boulder, CO) discussed legal issues arising from the administration of the 2020 election during the pandemic. The conference also recognized the 150th anniversary of the 15th Amendment and the 100th anniversary of the 19th Amendment to the U.S. Constitution as Dr. Diana Carlin and Judge J.G. Pierron explored the relationship between the changes to suffrage that have guaranteed access to the ballot today. A special program on unconscious bias and how to create a more conscious legal organization was given by Kansas City consultant Dionne King. Two hours of entertaining ethical instruction were also on the agenda, as was the U.S. Supreme
From Attendees’ Evaluations—
About the Unconscious Bias CLE: “Dionne was incredible. Seriously one of the best and most engaging CLEs I have ever taken.” Court in Review on 2019 and 2020 cases and important election law cases. Throughout the program, Virtual Awards Presentations of the 2020 KBA Award Recipients were featured. In addition to the eight hours of CLE, the meeting included a unique format in which KBA sections met. Via Zoom, all section members gathered in one “Zoom Room” then broke out into individual sessions to plan their activities for the year. The Kansas Bar Foundation sponsored a Virtual 5K during the Annual Meeting, with members and friends posting photos of their “run” or related physical activity online during the meeting. The event raised nearly $1,000 for KBF charities. The 2020 Annual Meeting was originally scheduled for mid-June in Wichita but had to be cancelled due to the pandemic. There also had been hopes of moving the meeting to the fall to be conducted in tandem with the Fall Judicial Conference; however, continued health risks forced cancellation of those live events as well. n From Attendees’ Evaluations—
About Jason & Jacqueline’s CLE: “I learned a lot about the difficulties that Native American tribal members and lower income people have with voting, both by mail and in person. Also, the importance of knowing the rules and laws so that the legal community can help assure fair and open access and voting.” www.ksbar.org | September/October 2020 23
a nostalgic touch
The long good-bye: packing up the final family treasure by Matt Keenan
The solitary piece of furniture at the family home: the Kimball.
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he final chapter of saying goodbye to a parent is not the funeral. Nor is it sorting through the clothes and divvying up the photos, the letters—or in my Dad’s case, the bottles of Pinot Noir in his wine cellar. The final act is selling your parents’ house. And if that house is where you spent all of your formative years and remained central to your life in the years post college, then it is a home. So it was with a four bedroom, three-bathroom house at 3616 17th street in Great Bend. The story goes that Dad purchased the two-acre vacant lot in 1967 from the previous owner, an insurance executive in town. A man, it seems, who was allergic to risks. The kind that come with a dwelling to be constructed on a body of water known as a sand pit. McKinney Sandpit to be precise, on the northwest edge of the city limits. The origin of the pit was never fully known, but dad said it was the product of large cranes digging halfway to China. The true depth of the pit? Not known. The creatures swimming at the bottom? Not knowable. There were claims the water would swirl and could pull down the most experienced swimmer. So naturally any parent wanting to build a house on that lot with a family of five toddlers prone to misadventure? 24
The Journal of the Kansas Bar Association
Dialing child services … The house was finished in September 1968. The ages of the young occupants: Kate 12, Tim 10, Matt 8, Marty 7 and Beth 6 months. That home and the adjoining attractive nuisance brought adventures beyond anything Larry and Ramona could have probably imagined. In the early morning of May 11, 1971, for instance, Tim tugged on the backyard trotline and when something tugged back, he climbed in the boat and hauled a state record fish – 34 pounds 8 ounces. Something called a buffalo head. A very rare species that, locals told us, flourished in very deep waters. After weighing that fish in the Dillon’s meat department (the health inspectors were AOL), the State Fish and Game officials placed it in a special tank and took it to their headquarters in Pratt. If you happened to attend the Kansas State Fair in September 1971, and your sister got scared when saw a huge creature -- yeah, that was Tim’s fish. But as time wore on, it turned out that the centerpiece of our home wasn’t the sand pit or even the beauty of the sloping backyard boasting fifty-year-old cottonwood trees. Instead, it was in the great room, with vaulted ceilings, expansive windows overlooking the lake to the north. In the northwest corner of that room was a grand piano. A Kimball.
a nostalgic touch
Mom was an accomplished pianist. In our inventory of things my parents had kept in the basement, we recently found newspaper stories from Mom’s hometown newspaper in Kingman describing a solo piano concert at age 10. At KU, she was a music education major, and in our town, she was one of a few who played the organ at St. Patrick’s for masses and special occasions. Mom also accompanied many singers in recitals and musical productions at the local Junior College. She played classical music by ear. Often, when we burst in the front door from school, Mom would be playing away. One tradition was on St. Patrick’s Day, we would gather around and start with “Oh Danny Boy” and transition to “When Irish Eyes Are Smiling.” Dad would start calling his siblings (there were many, remember, Irish?) and then work his way down the phone book. If your phone didn’t ring on March 17, your last name must fall somewhere below L. Mom passed away in June 2002, but the piano never got lonely. On trips out to see Dad, my daughter Maggie would sit before Dad and channel Ramona, playing “Pride and Prejudice” with an audience of three. Marty’s son, Tyler was an even better pianist and occupied that bench many times. But when Dad passed, we decided it was time to close this chapter. And with the possessions divided, donated or sold, there was only thing left in the house. The Kimball. Lori and I had negotiated with my siblings for it. So on Friday, April 17th, I arrived at the U-Haul off I-35 in Lenexa. The state of the world in April was bleak. Life was virtually cancelled. I surveyed my travel companion. It was industrial. I climbed in. My knees were perched just below my nose. Hell was more comfortable. No matter. I was on a mission from Larry. Get the piano, bring it back and give it company. Four hours later, I opened the front door on 17th street. Across the room was the only thing remaining. The tears streaked across my face. An accumulation of fifty years of life raced through my mind. This was it. After a couple minutes, the tears slowed and another emotion hit me. Panic. The notion of moving a 500-pound keepsake from A to B became reality. Ever tried to find a piano mover in a small town during a pandemic? Didn’t think so. Multiple calls two weeks in advance got nowhere. So Brother Tim had a plan B – he assembled a group of three ‘volunteers’ plus Tim, me and another AARP member. You have heard of three men and a truck? This was three boys and a bad UHaul.
With the benefit of a couple YouTube videos, it happened. Deconstructed, strapped against the back wall of the truck, wads of twenties dispensed, mission accomplished. I stayed the night at the Holiday Inn, and began the drive back the next day. April 18th was an overcast and blustery day. The entire world seemed to be falling apart. I-70 Ramona Keenan playing the family grand piano. was devoid of cars as far as one could see. I listened to Sirius XM’s 70’s on 7 on my phone, with the parade of songs I once listened to on Mom’s RCA radio. My wife had her intuition and called in the reinforcements. That is when my phone started to ping with calls from the children. We talked about the shared memories of Ramona and Larry, that home, the sand pit, the trotlines, the fireworks, the sein nets, carp, flathead, bass and perch. And yes, the music. Today, the Kimball has started a new chapter on the east side of the state as we make plans to get her back to another Keenan home—Maggie’s. Life is like a piano; the white keys represent happiness and the black show sadness. But as you go through life’s journey, remember that the black keys also create music. Author unknown
About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com
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substance and style
Accounting for Cognitive Bias in Legal Reasoning: Part 2 by Pamela Keller
Cognitive Bias I
n one of my previous columns, I wrote about cognitive bias and how to account for it in your advocacy.1 This column continues with the topic of cognitive bias and how these mental shortcuts can affect our legal reasoning. Our work as lawyers requires us to draw reasonable inferences from specific facts and the application of law to fact. To help students develop this skill, we teach them to recognize the difference between facts, factual inferences, and legal inferences and to objectively examine those inferences to determine their reliability and strength. The process of drawing factual and legal inferences eventually becomes second nature. But sometimes when a process becomes second nature, we can rely too much on instinct and past experience. When we do, cognitive biases can infect our reasoning. Studies of judges have shown that cognitive bias can affect the reasoning of even the most experienced and thoughtful lawyers.2 Thus all lawyers, not just lawyers-in-training, must check their inferential reasoning to make sure inferences are strong and sound, and to make sure cognitive biases do not lead to unreliable conclusions.
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A cognitive bias can be described as a natural tendency our brains have — or a mental shortcut our brains tend to take — when we process and interpret information.3 Much research has shown that our brains routinely use mental shortcuts to simulate the results of logical reasoning, saving time and reducing cognitive load.4 The shortcuts are helpful because they allow us to operate without expending valuable mental resources, but if we are not careful, they can lead to flawed reasoning. A few cognitive biases that can operate when drawing factual and legal inferences are: Availability: Our brains make judgments about how likely something is based on how easily examples come to us.5 An example is more easily “available” to our brain if we have encountered it more frequently or if it was more memorable in some way (had more personal impact, for example).6 The information that is more available will be influenced by our direct experiences, exposure to information (through stories, books, movies, media, culture, etc.), and individual memories.7 For example, drug advertising that a person remembers can
substance and style
affect that person’s perception about how prevalent an illness is, and a physician’s recent experience of a condition has been shown to increase the likelihood of the physician subsequently diagnosing the condition.8 Representativeness: Representativeness is a cognitive shortcut that causes us to infer a specific example is more representative of a larger category than it actually is or to draw inferences or estimate the likelihood of something based on its similarity to a prototype or stereotype in our mind.9 The shortcut is at work when, for example, a consumer infers a relatively high product quality from a generic brand because its packaging is designed to resemble a more popular national brand, or when a person infers that a very cold winter is indicative of the absence of global warming.10 The bias can make us conclude, for example, that a man who seems generally quiet, wears glasses, and likes soft music is more likely a librarian than a construction worker, even though male construction workers outnumber librarians in the population 10:1.11 The effects of this shortcut, like the effects of availability, will also depend on our direct experiences and exposure to information over time. Affect: This cognitive shortcut leads us to make inferences that are consistent with our emotions12 (affect is a psychological term for emotional response). The systems in our brain responsible for rational thought do not function without some input from the brain systems responsible for emotion.13 Thus, once we have an emotional reaction to a story or a case theory, our brains will have a tendency to draw inferences and reach results consistent with those emotional reactions.14 Also, if left unchecked, emotions can lead us to see people we like as having positive qualities and people we don’t like as having negative qualities.15 Confirmation: Our brains favor ideas that confirm our existing beliefs and what we think we know.16 Cognitive science suggests that even when we create an impression on fairly thin evidence, we are motivated to view additional information through the lens of that first impression.17 When we discover evidence that supports our desired conclusions, we more readily accept it.18 When we discover information that challenges that hypothesis or impression, our brains work harder to refute it.19 As lawyers, we are reaching tentative conclusions all the time, so we must acknowledge this bias can affect the inferences we draw from subsequent information. False consensus effect: We tend to overestimate the degree to which others agree with our beliefs.20 We have a tendency to believe that we see the world around us objectively and that those who disagree are unin
formed, irrational, or biased. This can create overconfidence that our reasoning reflects what most others would also conclude.21 The good news is that, as lawyers, we are already trained to examine the strengths of our own inferences. Thus, we should be more effective than most at countering cognitive biases and at helping ourselves and others see the flaws in reasoning. The following are a few tips to check your own reasoning and interrupt cognitive bias. Be open to the existence and influence of cognitive biases.22 Remember that these biases are actions our brains take reflexively and unintentionally, so don’t be defensive about having them. Approach the process of drawing inferences with great humility.23 Despite our best intentions, these mental shortcuts can be working away to provide our mind with information that is skewed by our individual experiences.24 Simply being open to the ways in which cognitive bias shapes your thinking will empower you to decrease its influence.25 Actively doubt your own objectivity.26 If you actively doubt your objectivity, you will be more likely to examine your own inferences and determine their strength. Examine the facts and assumptions on which you base your inferences. In doing so, you will engage in deliberative thought and minimize the effects of these shortcuts and your own intuitions. Pause before making a quick decision or relying on a snap judgment, and search for indicia of cognitive bias.27 Pay attention to surprise and ask yourself why you were surprised.28 Surprise is your brain’s way of telling you that something you reflexively inferred is not aligning with reality.29 Impressions formed by cognitive biases are challenged by real-world data every day.30 If you take a moment to pay attention to what surprised you, and ask yourself why you were surprised, you may identify a cognitive bias at work and interrupt it in the future.31 Deliberately expose yourself to and consciously look for counter-stereotypes or prototypes.32 Changing the underlying assumptions that form the basis of unconscious bias is key to overcoming it.33 Be more consciously aware of individuals in counter-stereotypical roles. And pay more attention to situations or outcomes that run counter to a typical pattern or “prototype” in your past experience. These are not the only cognitive biases that can affect our legal reasoning, and more strategies can be employed to combat them. But this information is a start. Consult the articles cited in the endnotes of this column if you would like to learn more. n www.ksbar.org | September/October 2020 27
substance and style 1. Substance & Style: Accounting for Cognitive Bias in your Legal Reasoning and Writing, 88 (No. 9) J. Kan. Bar Ass’n 26 (July/Aug. 2019). 2. See Elizabeth Thornburg, Unconscious Judging, 76 Wash. & Lee L. Rev. 1567, 1571-72, 1615-21 & n. 253 (2019). 3. These mental shortcuts are also called heuristics. See id. at 1609-13. 4. Lawrence M. Solan, Four Reasons to Teach Psychology to Legal Writing Students, 22 J.L. & Pol’y 7, 7 (2013) (citing Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Science 1124 (1974)). The article cites the distinguished work of Daniel Kahneman, a psychologist and Princeton University professor awarded the Nobel Prize in 2002. 5. Thornburg, supra note 2, at 1610. 6. Id. 7. Id. 8. Availability Heuristic, Behavioral Economics (July 27, 2020), https:// www.behavioraleconomics.com/resources/mini-encyclopedia-of-be/availability-heuristic/ 9. Thornburg, supra note 2, at 1610. 10. Representativeness Heuristic, Behavioral Economics (July 27, 2020), https://www.behavioraleconomics.com/resources/mini-encyclopedia-ofbe/representativeness-heuristic/ 11. Id. 12. Thornburg, supra note 2, at 1612. 13. Kenneth D. Chestek, Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of Negativity Bias, 14 Legal Comm. & Rhetoric: JALWD 1, 3-5 (2017); Wistrich et al., Heart v. Head: Do Judges Follow the Law or Follow Their Feelings?, 93 Tex. L. Rev. 855, 902 & n. 222 (2015). 14. Researchers concluded that motivated reasoning was likely at play when their study showed judges favored sympathetic parties over unsympathetic ones. See Wistrich et al., supra note 13, at 902 & n. 222. 15. Thornburg, supra note 2, at 1612. 16. Id. at 1611-12. 17. See Maureen Johnson, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed
in Recently Hotly Contested U.S. Supreme Court Decisions, 49 Ind. L. Rev. 397, 405-07 & n. 59 (2016) (citing Ziva Kunda, Social Cognition: Making Sense of People 228-232 (Mass. Inst. of Tech. Press 1999) and other sources). 18. See Id. at 405 & n. 59; Wistrich, supra note 13, at 870. 19. Id. 20. Thornburg, supra note 2, at 1614-15. 21. Id. 22. Arin N. Reeves, The Ineffectiveness of Efficiency: Interrupting Cognitive Biases for Critical Thought, 54 (No. 4) Judges’ J. 34, 35-36 (Fall 2015). 23. See Thornburg, supra note 2, at 1664. 24. Id. 25. Reeves, supra note 22, at 35-36. 26. Kathleen Nalty, Strategies for Confronting Unconscious Bias, 45 Colo. Law. 45, 48 (May 2016). 27. Id. 28. Reeves, supra note 22, at 36. 29. Id. 30. Id. 31. Id. 32. Nalty, supra note 26, at 48. 33. Id.
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
Growing Our Experience to Better Serve You Goodell Stratton Edmonds & Palmer is pleased to announce that Tracy A. Cole has joined the firm. Ms. Cole was previously a member in the Hutchinson office of Gilliland Green. Over her 30-plus-year career as a lawyer, Ms. Cole has developed an active statewide litigation practice that focuses on defending medical providers in both the courtroom and before licensing authorities. Her practice also includes Administrative Law, Civil Litigation, and Insurance and Personal Injury Defense. Ms. Cole received a B.S. with double major in Accounting and Business Administration in 1980, and her J.D. in 1989, from the University of Kansas. Tracy A. Cole
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www.ksbar.org | September/October 2020 29
Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law
W
hile researching this article, its author encountered this grace note in an unpublished Kansas appellate opinion: “Apart from acquiescence, this case presents a civil procedure quagmire. Unless absolutely necessary, I don’t venture into quagmires, especially civil procedure ones. In this case, it isn’t. So I won’t.”1 There are murkier legal concepts than the doctrine of acquiescence in judgments. Yet the doctrine nonetheless presents what could fairly be called a civil procedure quagmire. First, the signposts are sometimes difficult to read. (In a few cases, they have almost been swallowed up.) Second, falling in is fatal (at least to the right to appeal from a judgment). So—let us venture forth.
INTRODUCTION Here is a refresher on appeal basics and appellate terminology. An appeal is the transfer of the power to decide a civil or criminal case from a lower court or other tribunal to a higher court. “The right to appeal is purely statutory[.]”2 Kansas statutes provide for appeals to Kansas’ highest court, the Kansas Supreme Court, and to its intermediate appellate court, the Kansas Court of Appeals.3 Statutes specify those types of cases in which each of Kansas’ appellate courts has jurisdiction: the lawful power to decide the case. Generally, appeals are limited to questions of law, and may be brought only when the lower tribunal has issued a judgment or other final order.4 Perhaps the most important limit on jurisdiction is the deadline (generally thirty days) for filing a notice of appeal.5 Kansas’ appellate courts have interpreted this deadline as jurisdictional; that is, if the notice of appeal was filed untimely, the appellate courts lack jurisdiction to hear the case.6 The appellant is the first party to file a notice of appeal. All the other parties to the case are appellees. Appellees also become cross-appellants if they file their own notices of appeal. (Such second-or-subsequent notices of appeal in a case are “notices of cross-appeal.”)7
SUMMARY OF ARTICLE To acquiesce in a judgment means to treat it as valid and binding by accepting its benefits or its burdens. One acts inconsistently by both a) acquiescing in a judgment and b) appealing from it. The acquiescence trumps the appeal; that is, the courts dismiss the appeal of one who acts with such inconsistency. (In fact, the appellate courts hold that they have no jurisdiction to hear the appeal of the acquiescing party.) This is “the acquiescence doctrine” or, in much of this article, simply “acquiescence.” Though it can deprive an appellate court of the jurisdiction that it would otherwise have, the acquiescence doctrine is not based upon the constitutional rule that courts are to decide only “cases or controversies.” “Acquiescence” should, therefore, not be confused with “mootness.”
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
The acquiescence doctrine is similar or related to many other rules. Further, the terminology used in such cases is inconsistent; especially in older cases, the acquiescence doctrine was often applied without being named as such. Kansas’s legislature has by statute exempted certain acts from the acquiescence doctrine. Kansas was long thought to be much likelier to find acquiescence than most states. Whether this is still true is unclear. Some of Kansas’s appellate opinions on the acquiescence doctrine may be impossible to reconcile with one another. A principled reconciliation of all the Kansas acquiescence opinions would challenge the acumen of a medieval theologian, and is beyond this author’s powers or audacity. Some Kansas appellate opinions have said that an acquiescence is simply an implied waiver, thus using language that, taken in isolation, suggests that acquiescence occurs only if the appellant intended to waive the right to appeal. But that interpretation of such language is inconsistent with many Kansas appellate opinions. That is, Kansas courts have often found acquiescence even when the appellant timely, clearly, and consistently stated the intent to hold onto the right to appeal. (Acquiescence of course has the effect of an “implied waiver” of the right to appeal. But this “waiver” is usually a waiver implied in law, to which an intent to give up appeal rights is unnecessary.) There are two main common-law quasi-exceptions to the acquiescence doctrine: separability and coercion. In the first case, the plea is “I only acquiesced in a part of the judgment that couldn’t be affected by my appeal no matter what.” In the second case, the plea amounts to “I did not acquiescence in the judgment, because I was forced to ‘do’ what I ‘did’.” These could be called “quasi-exceptions” because in both cases, the litigant has not acquiesced in that judgment that is being appealed. Under the doctrine of separability, if a single judgment concerns two or more essentially distinct matters, acquiescing in the judgment about one of the matters will not destroy the right to appeal from the rest of the judgment. A judgment is “separable” if the appellate court could theoretically overturn the part being appealed while leaving the rest intact. Under that doctrine, a plaintiff’s mere acceptance of an amount that was concededly owed to it in all events does not constitute an acquiescence. Under the “coercion” exception, making a payment on a judgment debt does not constitute acquiescence if the payment is “involuntary.” A payment is “involuntary” if not making the payment would result sufficiently soon in consequences that are sufficiently unpleasant. The difficulty lies in deciding how unpleasant the threatened consequences must be, and how close the threat is to becoming realized. If the threat is too remote, or is not unpleasant enough, then the 32
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payment will be “voluntary,” and the acquiescence doctrine will bar the appeal. According to some Kansas cases, the creditor’s seizing money from the debtor or a garnishee can constitute an appealbarring “voluntary” payment if the judgment debtor does not fight hard enough to prevent the collection. There is also a “self-protection” exception to the doctrine of acquiescence. Traditionally, this exception applied to the actions of defeated parties who gave the judgment only such “recognition” as was necessary to protect the appellant’s property from the effect of a judgment obtained by someone else (such as a mortgage foreclosure). Whether the “self-protection” exception now extends beyond its traditional boundaries is unclear. In 2010, one Kansas panel of the Kansas Court of Appeals held that for a judgment creditor to hale the judgment debtor into court for a hearing in aid of execution constituted acquiescence, not selfprotection. Shortly thereafter, another court of appeals panel criticized the first and held that, when the judgment creditor filed a garnishment with the self-protective goal of inducing the appealing judgment debtor to file a bond, there was no acquiescence so long as the garnishment yielded no money. Pre-judgment “acquiescence” is not covered This article will not discuss cases in which the “acquiescence” occurs before judgment, such as by failing to object timely to the court’s admitting evidence or by complying with what would now be a non-appealable interlocutory order.8
ACQUIESCENCE PRESENTS JURISDICTIONAL QUESTION “Whether a party has acquiesced involves a question of this court’s jurisdiction and is a question of law subject to unlimited review.”9 Since the question of acquiescence is jurisdictional, appellate courts can and do raise it sua sponte.10 ORIGIN OF THE ACQUIESCENCE DOCTRINE Acquiescence—as name suggests, creates peace; related to finality of judgments “Webster’s New International Dictionary defines acquiescence as: ‘Passive compliance or satisfaction: distinguished from avowed consent on the one hand, and, on the other, from opposition or open discontent.’”11 More generally, an “acquiescence” is a choice not to dispute something that one would have had the right to dispute. In relation to the judgments of courts, “acquiescence” occurs when a litigant does something that the courts hold to constitute a binding recognition that a judgment has become final, that is, non-appealable.12 In acquiescing in a judgment, the one who acquiesces gives up a right to do something (specifically, filing an appeal to a higher court) that would prevent a
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
lower court judgment from immediately resolving the litigated dispute. “The doctrine of acquiescence prevents a party from taking the inconsistent positions of challenging a judgment through an appeal and accepting the burdens or benefits of that judgment.”13 (The forbidden inconsistency is not to be confused with inconsistency in a pleading, which Kansas’ Code of Civil Procedure expressly permits.14) The acquiescence doctrine applies to both civil and criminal cases.15 The acquiescence doctrine seems to be—and is treated as — simply a matter of common sense Older cases treat the doctrine of acquiescence as little more than a self-evident and reasonable expectation that litigants exhibit the consistency that is fundamental to rational human behavior. “‘Accepting the fruits of a judgment and thereafter appealing therefrom are totally inconsistent positions, and the election to pursue one course is deemed an abandonment of the other.’”16 Without using the term “acquiescence,” an old Kansas case states the doctrine eloquently. A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will not be heard to say that it is invalid. And surely there can be no clearer recognition of a judgment than is shown here. He claimed title. The court found against his title, but decreed him money. He says there was error in decreeing him money instead of title, and then voluntarily receives the money. The two are inconsistent, and, having received the money, he will not now be permitted to say there was error in giving it to him.17 The courts, in fact, treated the acquiescence doctrine as so self-evident that there seems to be no “leading case” for it. Many early cases apply the doctrine while citing no precedents at all. IDENTIFYING THE ACQUIESCENCE DOCTRINE BY OTHER TERMS. The courts have not always used the term “acquiescence in judgment” to identify the doctrine. The most frequently used of the (several) other terms seem to be “estoppel” and “waiver.” (“Waiver” is discussed below, especially in connection with the “self-protection” exception.) Estoppel Kansas courts have often said that acquiescence in a judgment creates an “estoppel” that bars the appeal of the one who has acquiesced. “In the [several listed Kansas] cases, which present the question of estoppel in various ways, it was de
cided that the parties appealing from adverse judgments had assumed inconsistent attitudes respecting them.”18 Note, however, that this is an unusual “estoppel,” which can arise without consideration to or detrimental reliance by, the other party.19 It is true that [the appealing party] . . . obeyed no express command of the probate court, and he took no benefits under the judgment of that court, for it gave him none; but neither of these facts is essential to an estoppel. It is sufficient that he yielded to the state’s contention and to the judgment adverse to him and undertook to obtain the land in a manner incompatible with the maintenance of his former attitude.20 In connection with the acquiescence doctrine, it makes sense briefly to distinguish some of the many estoppel doctrines that are related to and/or confusable with acquiescence. Quasi-estoppel In a case of “quasi-estoppel, “the conscience of a court is repelled by the assertion of rights inconsistent with a litigant’s past conduct.”21 Though it perhaps could be, the “conscience of the court” is not ordinarily mentioned in acquiescence cases. Judicial estoppel The term “judicial estoppel” refers to statements that the litigant made in prior litigation. Despite the use of “judicial” in the doctrine’s name, therefore, it has little to do with acquiescence.22 Election of remedies In the principle behind it, the doctrine of “election of remedies” has much in common with the acquiescence doctrine; in both cases, parties are barred from assuming inconsistent positions.23 With acquiescence, however, the inconsistency specifically consists of inconsistent attitudes taken toward a judgment already entered in the case. A cloud of estoppels The principles of various estoppel doctrines overlap. This (perhaps) creates problems for taxonomy, but not for justice. In fact it is often impossible to distinguish clearly between such estoppels, and the courts in many instances use the term ‘acquiescence’ as covering or including all the others. . . . As indicated, whether the appellees’ conduct be designated as laches, silence, waiver or acquiescence, we hold they are estopped to change their position and disrupt the orders and decisions of the probate court in the administration of the decedent’s estate[.]24 ACQUIESCENCE DISTINGUISHED FROM MOOTNESS The Supreme Court of Montana has elucidated the distinction between the acquiescence and mootness doctrines. www.ksbar.org | September/October 2020 33
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
[V]oluntariness bears on the question whether the appellant has waived his or her right of appeal, but has no bearing on the question of mootness. The fact that the appellant has voluntarily complied with the judgment does not necessarily mean the appeal is moot. Likewise, the fact that the appellant has involuntarily complied with the judgment does not necessarily mean the appeal is still ‘live.’ Rather, in deciding whether the appeal is moot, the issue is ‘whether this Court can fashion effective relief.’25 The mootness doctrine “derives directly from the case-orcontroversy limitation” on courts’ jurisdiction. “‘Any decision on the merits of a moot case or issue would be an impermissible advisory opinion.’”26 Our state’s appellate courts have also recognized the distinction between acquiescence and mootness. For instance, the Kansas Court of Appeals ruled that the judgment debtor’s failure to prevent the filing of a post-judgment garnishment did not constitute an acquiescence, but that the payment-infull of the judgment by means of the garnishment had rendered the action moot.27 (Kansas’ appellate opinions have however sometimes implied that the relevant doctrine was “mootness” when they meant “acquiescence.”)28 KANSAS’S “DIFFERENT DRUMMER” ON ACQUIESCENCE Kansas’s courts were long thought to be unusually rigorous in their willingness to find that acquiescence had occurred. Sometimes our appellate courts seemed proud of this. “Kansas has long followed a ‘different drummer’ than the majority of states concerning acquiescence. The choice to treat acquiescence differently than most states was knowingly and deliberately made early in the case law of this state.”29 An early Kansas Supreme Court case said, “In applying this [acquiescence] rule less liberality of conduct has been permitted to appellants than many other courts of last resort are disposed to allow when dealing with the same subject[.]”30 For instance, Kansas’s acquiescence law was thought harsh in holding (before being statutorily preempted)31 that the mere payment of court costs constituted acquiescence. But the Kansas Supreme Court rather defiantly implied that, if it were as easy to get a stay of judgment enforcement during an appeal in other states as it was in Kansas, those states’ courts would apply the same rule.32 The Kansas Court of Appeals has also said recently, however, that “[o]ur Supreme Court has approached acquiescence with caution,” and that “‘whether a payment is voluntary depends on . . . an intention on the part of the payer to waive his legal rights.’”33 (This “intent to waive” is discussed below.) Kansas’s “savors of acquiescence” formula “Time and again it has been held that anything that savors 34
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of acquiescence in a judgment cuts off the right of appellate review[.]”34 Though Kansas opinions had indeed repeatedly held that acquiescence barred particular attempts to appeal, it was the quoted case, Paulsen v. McCormack, that was Kansas’s first appellate opinion on acquiescence to use the vivid “savors of acquiescence” phrase. This article’s author cannot discover where, if anywhere, the Paulsen opinion’s author found the phrase. Though the acquiescence doctrine in some form seems to be ubiquitous, in the available state and federal court acquiescence opinions the “savors of acquiescence” phrase appears only in Kansas opinions or in reference to Kansas opinions. Despite its vividness, “savors of acquiescence” at first glance (or first taste?) lacks a clear meaning. Does the phrase imply that acquiescence is to be found whenever a lawyer makes, in good faith, an argument that the opponent has acquiesced (because the very raising of the question means that the savor is present to a lawyer with a sensitive-enough palate)? Does it imply that, in close cases, acquiescence should always be found? These interpretations are inconsistent with a number of Kansas cases. For instance, Younger v. Mitchell35 provides striking proof that colorable arguments for finding acquiescence are sometimes ultimately rejected. In Younger, the Kansas Supreme Court overruled the Kansas Court of Appeals’ sua sponte finding of acquiescence. This article’s author believes that the “savors of acquiescence” phrase means that, in Kansas law, it is imperative for litigants to act with consistency with respect to judgments, and that serious inconsistency merits a severe consequence (the loss of the right to appeal from the judgment). But the phrase is of little help to a lawyer who is trying to figure out just what conduct constitutes acquiescence in a judgment and what does not. “It tastes like acquiescence to me” hardly amounts to an argument, and it seems that litigants are entitled to a reasoned argument when something as important as the right to appeal is at issue. With that said, it seems that, in Almack v. Steeley36 (discussed below), the Kansas Court of Appeals’ decision depended on the “savors of acquiescence” formula— that the phrase tipped the scales to a finding of acquiescence. “Almack’s actions in this case savor of acquiescence.”37 Recent “savors of acquiescence” cases from the Kansas Supreme Court The Kansas Supreme Court most recently used the “savors of acquiescence” phrase in the 2009 Harsch v. Miller38 case. The opinion suggested that the failure to object to an interlocutory district court order had constituted acquiescence. This suggestion was unnecessary to the decision. Further, the “acquiescence” in question was not acquiescence in a judgment. Before Harsch, the Kansas Supreme Court had most recently used the phrase in Tice v. Ebeling, where, once again,
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
the putative “acquiescence” was a failure to object to a district court’s interlocutory ruling.39 The most Kansas Supreme Court opinion that both used the phrase “savors of acquiescence” and dismissed the appeal because of acquiescence is the 1982 case Matter of Hatfield.40 “Savors of acquiescence” currently seems to be only infrequently used to justify dismissals of appeals. SEPARABILITY Under the doctrine of separability, the appeal of a plaintiff survives the plaintiff’s collecting money on the judgment if that part of the judgment on which the plaintiff collected money is “separable” from those portions that the plaintiff is appealing. On the separability question, one elementary distinction is between contesting the judgment and contesting how the judgment is being collected. Even the defendant’s allowing a default judgment on the debt to be entered does not constitute acquiescence in a garnishment of exempt funds to collect the judgment.41 Acquiescence in the entire judgment “is quite different from taking an appeal from a judgment which is based on separate and distinct claims, and the claim or claims for which payment has been received are no longer in controversy. Where an appeal is taken under such conditions, the appellant is not involved in the inconsistency here present, for he has received only that to which he is entitled in any event.”42 By contrast, where the granting of the appeal would place the plaintiff’s entire recovery in question, separability does not apply. • “The general rule is well settled that unless there is a separable controversy, or unless there is some sum to which the appealing party is entitled in any event, he may not accept the benefit of the decree and later appeal.”43 • “Here the money which the plaintiff demanded and received was not absolutely owing to him as a matter of law other than by reason of the judgment below. . . . [T] he court would not be constrained as a matter of law to award the plaintiff $7,500: under applicable law a lesser sum might be awarded.”44 If the judgment is inseparable, then permitting a plaintiff to collect on a judgment while pursuing an appeal seeking more money, is not only inconsistent, it is fundamentally unfair to the defendant whose money the plaintiff has collected. [I]f this judgment should be reversed, it must be reversed in its entirety, and there would remain in the possession of the appellant money to which it had not been determined that he was entitled. He has voluntarily placed himself in the position of admitting the validity of the
whole judgment, for the purpose of accepting entire satisfaction of it by receiving money which otherwise would presumably still be in the possession of the appellee, and, having done so, cannot be heard to deny its validity for the purpose of litigating the same claim again, in an attempt to increase the amount of the award. To permit him to do this would put him in the unfair position of one who has collected in advance, in part, at least, a judgment which he has not yet obtained, and which we have no right to assume he will ever obtain.45 The case of Huet-Vaughn v. Kansas State Board of Healing Arts46 illustrates that judges can disagree about what the separability doctrine means. Dr. Huet-Vaughn, the plaintiff and appellant, was a captain in the United States Army Reserve Medical Corps., She was ordered to active duty for Operation Desert Shield. She refused the order and was convicted by court martial.47 The Kansas Board of Healing Arts then brought disciplinary proceedings against her, and she was both censured and administratively fined. She paid the fine (upon her lawyer’s advice, she said) but appealed the censure. On acquiescence grounds, the Kansas Supreme Court dismissed her appeal. “A majority of this court holds that plaintiff acquiesced in the judgment by paying the fine because she could have posted a supersedeas bond.”48 The Kansas Supreme Court reasoned, “[T]he reprimand and administrative fine...are inseparable. If plaintiff’s position is correct, both the reprimand and administrative fine would have to be reversed.”49 The implication is that the imposition of distinct punishments, of different types, is not enough to create a separable judgment. If the appellant seeks an appellate decision that would topple the entire judgment below, separability does not apply. Two of the justices dissented. Justice Six (joined by Justice Lockett) believed that the fine and the censure were separable and that the court should decide Huet-Vaughn’s appeal of the latter.50 Two hypotheticals to illustrate separability To illustrate separability, we postulate an automotive negligence personal injury suit. In the hypothetical suit, liability is uncontested, and, before trial, plaintiff Porter and defendant Dahlgren stipulate to the ultimate entry of a money judgment that includes the full amount of Porter’s damages for loss of property, lost income, and medical expenses. The trial concerns only Porter’s claim for damages for pain and suffering. The jury awards pain and suffering damages but in an amount that Porter believes inadequate. The district court enters judgment both for the stipulated damages and for the pain and suffering damages awarded by the jury. Porter timely moves for a new trial on the sole grounds that the pain and suffering damages are inadequate. www.ksbar.org | September/October 2020 35
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
After the motion is denied, Porter timely files a notice of appeal. Dahlgren’s insurance company then pays the entire amount of the judgment into court. Porter withdraws an amount equal to the total stipulated damages for destruction of property, lost income, and medical expenses, but leaves the remainder of the money untouched. Since Dahlgren conceded liability for these damages, and their amounts are liquidated, Porter’s accepting payment of these damages (and nothing more) should not bar Porter from appealing about the award for pain and suffering. This is because the amount of the award that Porter accepted was a liquidated sum to which, under the stipulation, the plaintiff was entitled in any event. That said, this author is uncertain that, on these hypothetical facts, no appellate court would find that Porter had acquiesced in the judgment by accepting the payment of a substantial part of it. To illustrate non-separability, we postulate another car wreck personal injury case. The accident occurred at an uncontrolled intersection. At trial, both liability and damages are contested. The jury finds plaintiff Palinode 40 percent at fault and defendant Discus 60 percent. The jury finds that Palinode suffered liquidated damages (property damage, lost income, and medical expenses) in the full amount that Palinode claimed. But the jury also finds that Palinode incurred pain and suffering damages of only $10,000, even though he requested $100,000.00. Palinode receives judgment on the verdict but files a motion for a new trial. The motion contends that the trail court committed reversible error by allowing allegedly unqualified experts for Discus to testify on the subjects of a) visibility at the time of the crash and b) Palinode’s pain and suffering. After the district court denies his motion for new trial, Palinode appeals, asking the Kansas Court of Appeals to vacate the judgment and order a new trial. Palinode also obtains garnishment of Discus’ wages and bank accounts and an order for hearing in aid of execution. In response to Discus’ demand that Discus’ insurer bring this harassment to an end, the insurance company pays the entire amount of the judgment (including costs and judgment interest) to the clerk of the district court. Palinode withdraws the entire amount. Under these circumstances, Palinode’s appeal is barred by acquiescence in the judgment. If the court of appeals ordered a new trial, as Palinode wants, the existing judgment would be vacated, and Palinode’s right to recover anything would be put in jeopardy. First, since liability is contested, the new jury could find that the parties were equally at fault, or that Palinode’s fault was the greater. Under Kansas’s comparative fault law, Palinode would then be entitled to recover nothing and would 36
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have the legal duty to return the money collected on the nowvacated judgment.51 Second, even if a new trial were granted only on damages, the amount of money that Palinode has already received could exceed the damages awarded in the second trial. Damages for pain and suffering are unliquidated until set by a factfinder, and the amount is in the factfinder’s discretion.52 The new jury would have no obligation to award more than the first jury did, or even as much. COERCION “The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment.”53 “In order for acquiescence to cut off the right to appeal, the acceptance of the burdens or benefits of a judgment debtor must be voluntary.”54 What is “voluntary” compliance with a judgment? Let us define “voluntariness” by its opposite. Compliance with a judgment is “involuntary” if the one who has acquiesced had no rational alternative but to comply with it. “For instance, “[a] party need not risk contempt of court to avoid an accusation of acquiescence,” and complying with a judgment under such circumstances does not constitute acquiescence.55 This rule is related to the doctrine that a payment (on an “unjust demand”) that was mistaken but nonetheless “voluntary” cannot be recovered through a lawsuit. Kansas has held that such a non-owed payment was “voluntary” if “[t]here was no legal ground for apprehending any danger on the part of the plaintiff... Neither his person nor property was menaced by legal process.”56 Since the payment was “purely voluntary, it is as certain as any principle of law can be, that it could not be recovered back. There is no pretense of fraud. There was no coercion, either by direct process or by the condition of his property.”57 The ultimate question here is “whether the payment was voluntary or truly coerced by the legal process for collection of judgments.”58 The difficulty is in deciding what constitutes such “coercion” as would render the alleged compliance with a judgment “involuntary.” For instance, if the district court has actually issued an execution order on the judgment, is paying the judgment “truly coerced by the legal process”? “Intention to waive . . . legal rights”—is it necessary? Some Kansas cases have said, “Whether in a given case a payment is voluntary depends on the facts...as indicating an intention on the part of the payer to waive his legal rights.”59 Standing alone, this language could mislead; there are in fact Kansas cases in which the intent of the one who has acquiesced not to waive appeal rights was manifest, but in which Kansas’ appellate courts have held that the acquiescence doctrine aborted the appeal.60 An acquiescence in a judgment undoubtedly has the effect of an enforceable waiver of the right
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
to appeal. But knowing this is not helpful to a lawyer or judge who is deciding whether an acquiescence has taken place. Courts have often found that litigants have acquiesced even when the latter have said consistently that they intend to appeal and have no intent to give up their rights to appeal.61 While the appellate courts may give it consideration, the litigant’s express intent not to waive appeal rights is thus not necessarily decisive. Uhlmann v. Richardson,62 a published opinion of the Kansas Court of Appeals, contains language that, in isolation, could be taken to mean that there can be no acquiescence in a judgment unless the one who has acquiesced intends to waive its appeal rights. The Kansas Supreme Court has used similar language, for example in Varner v. Gulf Ins. Co.63 “Whether in a given case a payment on a judgment is voluntary depends on the facts of the particular case as indicating an intention on the part of the payer to waive his legal rights.”64 The “intention on the part of the payer to waive his legal rights” language of Varner comes ultimately from an article in Corpus Juris Secundum on “payment.”65 The quoted section of the article concerns what constitutes an irrecoverable “voluntary” payment of a non-owed demand. In the context of the acquiescence question, the quoted language could mislead. Varner’s syllabus also says, “The mere statement of an intent not to waive the right to appeal does not make a payment involuntary.”66 The present author cannot reconcile this quoted statement with Varner’s “intention to waive” language. Specifically, he cannot see how an allegedly implied-by-conduct “waiver” of appeal rights can overcome an unequivocal statement by a party that the party intends not to waive those rights. In First Nat. Bank of Omaha v. Centennial Park, LLC, it was stated, “Bank did not waive its right to declare default after accepting late payment because promissory note contained anti-waiver clause.”67 “It is entirely unreasonable to conclude that an inference based on an assumption resting on a legal fiction can somehow take precedence over an express, clarifying statement by competent counsel.”68 It thus appears that such an “implied waiver” is implied in law, rather than implied in fact. That is, the “waiver” is a legal fiction in which an unwilling party may be compelled to play an undesired role. Issuance of execution Early Kansas cases held that issued execution always renders a payment involuntary. “The sheriff had the execution in his hands, with power to enforce it, and under obligation to do so. A payment made under such circumstances is always held to be an involuntary payment[.]”69 In another case, “such payment, having been made while an order of sale of his real estate was in the hands of the sheriff, was an involuntary payment, and did not preclude him from
thereafter challenging the validity of the judgment. The fact that this payment was made to the clerk and not to the sheriff, does not make it any the less an involuntary payment.”70 But Kansas case law now says that, even when an execution has issued, whether payment of the judgment is voluntary or involuntary depends on the totality of the circumstances. “The issuance of an execution in Kansas is not decisive in determining whether the judgment debtor’s subsequent payment is voluntary so as to cut off his right to appeal.”71 For instance, in Muckey v. Baehr, “[e]ven though [an] execution was in [the] hands of the sheriff at the time the judgment was paid, defendant acquiesced in judgment because he failed to protest to the clerk of the court.”72 Failing to prevent opponent’s enforcement of judgment Some Kansas cases indicate (logically) that failing to prevent judgment enforcement cannot constitute acquiescence if the judgment debtor does not know what the creditor is about to do: But there is one prime requirement to prove acquiescence. In order for acquiescence to cut off the right to appeal, the acceptance of the burdens or benefits of a judgment debtor must be voluntary . . . . After the district court granted the Bank summary judgment, Nichols filed his notice of appeal . . . Then, after the appeal had been docketed, the Bank withdrew funds from Nichols’ account and gave him notice after the fact that the funds had been withdrawn. We see no voluntary action by Nichols in this scenario.73 In another case, not preventing their wages from being garnished to enforce a default judgment did not constitute acquiescence by the judgment debtors.74 But, in contrast, the judgment debtor’s paying the entire judgment after he had been compelled to attend a hearing in aid of execution was held to be voluntary, and his appeal was barred. The Court of Appeals noted that no execution had been issued to enforce the judgment.75 Self-protection “It is generally the rule that a waiver of the right to appeal a judgment is not implied from measures taken by an appellant in defense of and to protect a litigant’s rights or interests.”76 This self-protection exception to the acquiescence doctrine has generally concerned acts taken to preserve property against persons seeking to enforce a judgment.77 Such acts, it seems, fall under the “coercion” exception. Can actions be considered “coerced” if, however, the judgment creditor took them in order to protect its practical ability later to enforce a judgment in its favor? In Uhlmann v. Richardson, one Kansas Court of Appeals panel answered with a qualified “Yes.”78 www.ksbar.org | September/October 2020 37
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
A judgment creditor who initiates some part of the process of executing on a judgment but does not collect any money or sell any of the debtor’s property has not acquiesced in the judgment. This is so even if the debtor, in response, posts a supersedeas bond, which protects the judgment creditor’s ability to collect the judgment while the appeal is pending.”79 If, however, “a party actually collects money obtained through a judgment, the party who collected the funds, i.e., the party who accepted a benefit from the judgment, loses the right to appeal.”80 The Uhlmann panel found that in that case the “dry-hole” garnishment had not constituted an acquiescence. Essential to this result is the failure of the garnishment to yield any money.81 In Heartland Presbytery v. Presbyterian Church of Stanley, Inc., the Kansas Court of Appeals applied the self-protection exception in a very different way. “Rather, we find that the actions taken by the appellants following the filing of their notice of appeal can reasonably be classified as measures taken to protect their right to continue to worship according to the dictates of their own consciences[.]”82
RECENT KANSAS CASES Several recent decisions of Kansas’s appellate courts are summarized below. Some of these opinions are unpublished. But even such non-precedential decisions illustrate how our appellate courts are currently applying the acquiescence doctrine. Almack v. Steeley. A Kansas Court of Appeals panel held that the judgment creditor (whatever his goal may have been) had, in obtaining a hearing in aid of execution, thereby recognized the validity of the judgment and acquiesced in it.83 Apparently, the hearing in aid yielded no recovery.84 In Uhlmann v. Richardson, discussed above, another Kansas Court of Appeals panel disagreed with the Almack reasoning and result.85 The reasoning in both Uhlmann and Almack has merit. Uhlmann reasons that, if a garnishment yields no funds, the judgment debtor does not receive the judgment’s benefits and that the acquiescence doctrine therefore does not apply. Almack, by contrast, reasons that one who attempts to collect a judgment necessarily recognizes the judgment as valid and binding, and thereby acquiesces in it. This author will not suggest how the tension between the two opinions should be resolved. West Meadows Condominium Association, Inc. v. Davis.86 A condominium association sued a property owner for unpaid fees, etc., and obtained a money judgment and foreclosure of its lien. The Kansas Court of Appeals held that, in foreclosing its lien, the association had acquiesced in the judgment and that its appeal was barred. Brummer v. Kansas Unemployment Security Board of Review.87 Fired by Cawker City for alleged “absence without 38
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leave,” ex-employee Brummer prevailed before the district court on her application for unemployment benefits. After filing its appeal to the Kansas Court of Appeals, the Board paid Brummer her awarded benefits. The Board pleaded that the payment was the result of “an administrative clerical error.” To no avail: The Board did not argue that, in paying the benefits, it had been obeying a statutory mandate or engaging in a permissible attempt to protect its rights; “it just says it made a mistake. Nothing in Kansas caselaw suggests that acquiescence turns on the absence of mistake.” The opinion confirms that, despite “waiver” language in some opinions, a litigant may commit appeal-killing acquiescence even though it did not intend to give up its appeal rights. Dieker Trailer Sales & Service v. Wright.88 After being compelled to appear for a hearing in aid of execution, pro se litigant Wright paid the c. $700 judgment against him (and costs) in full. The court of appeals dismissed the appeal, holding that Wright had, by paying, acquiesced in the judgment. Wanting to avoid the annoyance of being hauled into a hearing-in-aid was not enough to make Wright’s paying the judgment “involuntary.” In re Marriage of Torline.89 The court of appeals rejected the ex-wife’s argument that the ex-husband’s appeal should be dismissed for acquiescence. The ex-husband had mortgaged real estate after it had been awarded to him in the divorce. As the court of appeals acknowledged, this act could bar at least part of the appeal. But “the issue becomes moot in light of our conclusion that the appeal fails on the merits.” The court thus declined to rule on a potentially meritorious argument that it lacked jurisdiction to decide the appeal. The case thus shows that the rule that “acquiescence destroys appellate jurisdiction” has some flexibility; otherwise, it seems that the court could never have reached the merits of the appeal without first deciding whether it had jurisdiction over the case. Security Bank of Kansas City v. Tripwire Operations Group, LLC.90 The appellant judgment debtor (personal guarantor Nichols) filed an appeal but not a supersedeas bond. After the appeal was filed, the judgment creditor Bank set off against Nichols’s account and received full payment of its judgment. The court of appeals held that Nichols’s failure to file a supersedeas bond had not constituted acquiescence. But Nichols lost anyway. The court of appeals found that the full payment of the judgment had rendered the appeal moot. The appeal was dismissed. (The court of appeals remarked that, from the record, it was clear that the Bank had the right both to get the judgment and to enforce it through setoff.) Still Corp. v. Still.91 The court of appeals said that the record on appeal was too skimpy to allow it to find that there had been acquiescence. One who argues acquiescence to the appellate court will get nowhere without providing enough evidence to prove it. (Appellant Still, who was appealing from a judgment awarding punitive damages against him, lost on the merits anyway.)
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
Heartland Presbytery v. Presbyterian Church of Stanley, Inc.92 A “conservative” church congregation withdrew from its “liberal” denomination. The inevitable battle ensued over church property. On appeal, the denomination argued that the congregation (the appellant) had acquiesced in the judgment when the congregation’s trustees quit the “liberal” denomination and joined another denomination. The court of appeals found no acquiescence. It believed that the trustee’s actions had been “self-protective,” that is, that they constituted an exercise of the constitutionally protected freedom of worship. Nonetheless, the court of appeals remarked that acquiescence was here a “close question.” City of Kingman v. Ploog.93 Ploog, the appellant, owned real estate in Kingman that fell afoul of the city’s property-maintenance ordinances. Criminally convicted, Ploog received probation only on the condition that he pay the fines and court costs. Ploog’s payment of the fine and costs did not (according to the court of appeals) constitute an appeal-barring acquiescence. “Complying with a court order imposed over a party’s objection does not constitute acquiescence. ...A party is not required to risk a contempt of court order to avoid an accusation of acquiescence.”94
STATUTORY EXCEPTIONS TO THE ACQUIESCENCE DOCTRINE Certain actions that might otherwise be held to constitute acquiescence have been immunized from the doctrine by statute. Payment of court costs. “Payment of the costs of any action in any court in this state including, but not limited to, the payment of court reporter fees, shall not be considered an acquiescence in the judgment or any order of the court so as to prevent an appeal by the person or persons paying such costs.” K.S.A. 60-2004 (enacted 1967). Until overruled by this statute, Kansas cases frequently held that a litigant’s payment of costs constituted acquiescence in the judgment. Evidently, at least some court reporters had been going unpaid because lawyers feared that paying the fees would fall afoul of the acquiescence doctrine. (Despite the statute, the “paying costs = acquiescence” argument is, it seems, still occasionally made.)95 Eminent domain/condemnation awards. Here, it makes sense to mention statutes relating to eminent domain appeals. These statutes principally concern appeals to the district court of appraisers’ awards. The statutes immunize from the acqui-
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avoiding a quagmire: acquiescence in a judgment as a bar to appeal
escence doctrine both a) interim payments by dissatisfied condemnors into court, and b) the withdrawal of those monies by dissatisfied condemnees.96 (One of these statutes suggests that, to avoid acquiescing in the condemnation judgment, a condemnee needs to get a prior court order allowing the withdrawal. This author has found no case law on the question.)97 Workers compensation awards. Making legally-mandated workers compensation payments does not constitute acquiescence in the judgment.98 “Commencement of an action for review by the court of appeals shall not stay the payment of compensation[.]” K.S.A. 44-556 (b) (irrelevant details omitted). If it is found on appeal that the order to make the payments was in error, the employer and/or its insurance carrier can be reimbursed from the workers compensation fund. K.S.A. 44-556(c) and (d). (LIMITED) COMMON-LAW EXCEPTION: MAKING DIVORCE-RELATED PAYMENTS Making or accepting payments in connection with a divorce case is (relatively) unlikely to constitute acquiescence. “The general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.”99 “[I]t is now generally held that in divorce cases the acceptance of periodic alimony payments does not preclude an appeal based upon the insufficiency of such payments.”100 WHAT THE LAWYER SHOULD CONSIDER IN EVALUATION Several factors have played a role in the courts’ acquiescence decisions. It makes sense for a lawyer to consider these factors in evaluating whether an appellate court a) is likely to find that there was acquiescence or b) would ultimately find acquiescence if an action being considered (by the client or the lawyer) were actually taken. The author does not pretend that this list is exhaustive. Can it reasonably be argued that the acceptance of burdens was “involuntary”? If the alternative is losing liberty or property, taking some action does not constitute acquiescence.101 Imminent threats of “jail or sale” render compliance with a judgment involuntary. Can it be argued that the acceptance of benefits was merely self-protective? The question is harder if the putative acquiescence consists of an attempt to enforce a judgment. In Kansas, there is conflicting authority on the extent to which a judgment creditor can, without losing its own cross-appeal rights, take enforcement actions intended only to needle the appellant judgment debtor into posting security. Even the relatively lenient Uhlmann opinion acknowledges that, if the enforcement effort (in Uhlmann, a garnishment) actually yields money to the creditor, the creditor’s cross-appeal rights will vanish. 40
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Arguably, filing an Uhlmann garnishment (looking for an immediate bond, not immediate money) merely seeks to preserve the status quo (by preventing the appellant from getting an unfair advantage). The argument is that, if the judgment creditor has no right to prod the judgment debtor to file a supersedeas bond, the debtor would obtain an unfair advantage by appealing: That is, either the creditor would have to allow the debtor (at least potentially) to hide or dissipate assets, or the creditor (by seeking the security of a bond during the appeal) would have to give up the right to cross-appeal.102 There is, however, at least equal Kansas authority that any attempt to enforce a money judgment, whatever the intent, constitutes acquiescence even if the effort yields no money.103 Has the appellant failed to post a supersedeas bond? The failure to post a supersedeas bond can sometimes constitute an appeal-killing acquiescence, but sometimes not.104 The reasoning of these opinions seems to depend on a) what notice (if any) the appellant had that the opponent would do something to enforce the judgment, b) whether the appellant tried to get a stay of enforcement, and c) how easy it would have been (had the appellant tried) to obtain a stay (through a supersedeas bond or otherwise). Does separability apply? The separability exception to the acquiescence doctrine is established, and a lawyer should of course consider whether this exception applies. But HuetVaughn shows that there can be disagreements even over this rule. The lawyer should remember that, even if a judgment (such as a personal injury judgment) theoretically has distinguishable elements, this does not mean that the separability exception is applicable. Did the “acquiescence” consist only of accepting money that was owed in any case, without regard to the outcome of the appeal? If the answer is “yes,” then “separability” should apply, and accepting the money should not constitute an acquiescence. If the litigant’s appeal succeeds, will it have to give back what it has taken? The separability exception applies when what is paid will not have to be paid back even if the appeal succeeds. If the separability exception does not apply, collecting on a judgment will generally constitute an appeal-killing acquiescence. Was payment on the judgment made under protest? Protesting while paying will not necessarily succeed in dodging the acquiescence doctrine, but it can hardly hurt. Was the payment tendered as full payment of the judgment? It should hardly be necessary to say this, but to make a payment on a judgment and call it “payment in full” is to court appellate annihilation. How imminent was painful enforcement? Once upon a time, it was established even in Kansas that, after an execution had been issued, the judgment debtor’s payment of the
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
judgment was, as a matter of law, “involuntary” and could not constitute acquiescence in the judgment.105 The Kansas Supreme Court then changed its mind.106 “[T]he ‘Kansas rule . . . [now] holds that an issued execution is not decisive in determining whether the judgment debtor’s subsequent payment is voluntary so as to cut off the right to appeal, based on the rule that ‘anything which savors of acquiescence in a judgment cuts off the right of appeal.’”107 Nonetheless, it is still true that, the closer a judgment is to being enforced through a seizure of person or property, the less likely it is that paying the judgment will be found to constitute acquiescence. For example, if the district judge told the appellant that, if the fine was not paid immediately, the appellant would instantaneously be jailed, paying the fine as ordered should not be adjudged “acquiescence.” Has there been detrimental reliance upon the supposed act of acquiescence? The adverse party’s detrimental reliance on the purported “acquiescence” can be helpful in arguing for dismissal of the purported appeal. Would there be “disruption of court orders and decisions” if the appeal were allowed? “As indicated, whether the appellees’ conduct be designated as laches, silence, waiver or acquiescence, we hold they are estopped to change their position and disrupt the orders and decisions of the probate court in the administration of the decedent’s estate, and their claims are unenforceable.”108 How sophisticated and/or wealthy was the one who supposedly acquiesced? Kansas’s appellate courts seem less likely to find acquiescence when the one who purportedly acquiesced is poor (rather than rich) or individual (rather than corporate).109 Perhaps wealthy individuals or corporations are thought likely to have a) good legal counsel and b) resources that are adequate to get judgments stayed.
LAST WORDS Are there any true exceptions to the acquiescence rule? Arguably, no litigant may appeal from a judgment in which the litigant has acquiesced. The “separability” and “coercion” exceptions are perhaps not true exceptions. In the first case, there is no acquiescence in the particular judgment appealed from. Other judgments in the case (even if all these are embodied in the same document) are irrelevant. In the second case, there is no acquiescence at all: The supposedly acquiescing party’s hand was forced by the urgent need to safeguard property or liberty. This author suggests that the “self-protection” exception, as traditionally recognized, is also not in fact a separate exception. Rather, this exception falls under “coercion”—the overriding need to protect liberty or property. The Uhlmann self-protection exception, by contrast, is difficult to bring under the “coercion” heading. It seems a stretch to hold that a judgment creditor is acting under coer
cion when it acts with the purpose of safeguarding its ability to get the maximum recovery on the judgment that the judgment creditor itself procured. This author takes no position on whether the Kansas Supreme Court should ultimately adopt Uhlmann’s reasoning. Has the “ liberalization” of Kansas’ civil procedure had any effect on the acquiescence doctrine? In 1963, Kansas adopted a new code of civil procedure, modeled upon the Federal Rules.110 The change was thought to be “liberalizing” in placing less stress upon technical rules (for instance, rules of pleading) and increasing the emphasis on obtaining real justice.111 This liberalization of civil procedure seems however to have had little or no effect upon the acquiescence doctrine. Why? The new rules seem to have had little or no effect upon the nature of judgments. A judgment remains a binding resolution of a dispute. When a court renders a judgment, even if the judgment is still potentially appealable or has actually been appealed, it is still presumed that the underlying dispute will be resolved by the judgment. It is highly desirable that any litigated dispute be resolved. The desire to resolve disputes peaceably leads directly to the rule that, if a litigant accepts a judgment as valid and binding (by enforcing with it or complying with it), the judgment thereafter irrevocably binds the litigant. Judgment brings an end and comes at the end. Really, truly a last word Finally, this author suggests that the fatal “inconsistency” of acquiescence could often more precisely be described as a) doing X, or asking that X be done, while b) asking the appellate court to do something that could cause X to be undone or even to become wrongful. Indulging in such inconsistency is a trifling with the courts, which provide an essential public service, mostly at public expense, and do not have time to waste. n
About the Author Casey R. Law has been privileged to work in his home town, McPherson, for Wise and Reber, L.C. (and the firm’s previous incarnations) for over thirty years. He graduated from McPherson High School, McPherson College (where he later also intermittently taught Business Law), and the University of Kansas School of Law. Though he has handled many appeals, he has never participated in one in which the doctrine of acquiescence in judgments was raised, whether by a litigant or by a court. claw@bwisecounsel.com www.ksbar.org | September/October 2020 41
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
1. Explorer, Inc. v. Duranotic Door, Inc., No. 104,560, 2011 WL 5833351 at 5 (Kan. Ct. App. Nov. 18, 2011) (Atcheson, concurring). 2. Rowland v. Barb, 40 Kan. App. 2d 493, 495, 193 P.3d 499, 501 (2008). 3. K.S.A. 60-2101. 4. Id. 5. K.S.A. 60-2103(a). 6. Giles v. Russell, 222 Kan. 629, syl. ¶ 3, 567 P.2d 845, 846 (1977). 7. K.S.A. 60-2103. 8. One example is “acquiescing” by filing an amended petition instead of appealing from the order that sustained a demurrer to the original pleading. See, for example, Hodge v. Freeman, 187 Kan. 650, 652-53, 359 P.2d 845 (1961). 9. Security Bank of Kansas City v. Tripwire Operations Group, LLC, 55 Kan. App. 2d 295, syl. ¶ 4, 412 P.3d 1030 (2018). 10. Almack v. Steeley, 43 Kan. App. 2d 764, 768, 230 P.3d 452, 455 (2010). 11. Paul v. Western Distributing Co., 142 Kan. 816, 831, 52 P.2d 379 (1935). 12. Babbitt v. Corby, 13 Kan. 612, 614 (1874). In this context, a litigant can “do” something by failing to act. 13. Security Bank v. Tripwire, 55 Kan. App. 2d at 299-300. 14. Ware v. Christenberry, 7 Kan. App. 2d 1, 5, 637 P.2d 452, 456 (1981), citing Beams v. Werth, 200 Kan. 532, syl. ¶ 9, 438 P.2d 957 (1968); K.S.A. 60-208(d)(3). 15. State v. Massa, 90 Kan. 129, syl. ¶ 2, 132 P. 1182 (1913). 16. Colquette v. Crossett Lumber Co., 149 F.2d 116, 117-118 (8th Cir. 1945) (internal citations omitted). 17. Babbitt, 13 Kan. at 614. 18. Seaverns v. State, 76 Kan. 920, 921-22, 93 P. 163 (1907). 19. Old Republic Ins. Co. v. FSR Brokerage, Inc., 80 Cal. App. 4th 666, headnote 2, 678, 95 Cal. Rptr. 2d 583, 592 (2000). 20. Seaverns, 76 Kan. at 921-22. 21. Bowen v. Lewis, 198 Kan. 706, 712-13, 426 P.2d 244 (1967) (internal citation omitted). 22. McClintock v. McCall, 214 Kan. 764, 766, 522 P.2d 343 (1974), quoting 28 Am. Jur. 2d “Estoppel and Waiver,” § 71, p. 700. 23. Taylor v. Robertson Petroleum Co., 156 Kan. 822, syl. ¶¶ 3 and 4, 137 P.2d 150 (1943). 24. Bowen, 198 Kan. at 713, 714, quoting 19 Am.Jur. “Estoppel” § 62, p. 678. 25. Progressive Direct Ins. Co. v. Stuivenga, 364 Mont. 390, 408, 276 P.3d 867, 879 (2012) (internal citations omitted). 26. Najjar v Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001), quoting Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). 27. Security Bank v. Tripwire, 55 Kan. App. 2d at 301. 28. Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164, 165 (1944). “[A]n appeal does not lie from a judgment which has been performed.” Round v. Land & Power Co., 92 Kan. 894, 142 P. 292, 293 (1914). 29. Huet-Vaughn, M.D. v. Kansas State Bd. of Healing Arts, 267 Kan. 144, 147, 978 P.2d 896 (1999). 30. Seaverns, 76 Kan. at 921-922, citing Babbitt, 13 Kan. 612 (1874). 31. K.S.A. 60-2004. 32. Paulsen v. McCormack, 133 Kan. 523, 1 P.2d 259, 261 (1931). 33. Van Nguyen v. Ortiz, No. 94,884, 2007 WL 881848 at 4 (Kan. App. March 23, 2007), quoting Younger v. Mitchell, 245 Kan. 204, 209, 777 P.2d 789 (1989). 34. Paulsen, 1 P.2d at 261 (emphasis added). 35. 245 Kan. 204, 207, 777 P.2d 789 (1989). 36. 43 Kan. App. 2d 764, 230 P.3d 452 (2010). 37. Id. at 775 (emphasis in original). 38. Harsch v. Miller, 288 Kan. 280, 292, 200 P.3d 467 (2009). 39. Tice v. Ebeling, 238 Kan. 704, 713, 715 P.2d 397 (1986). 40. Matter of Hatfield, 231 Kan. 427, 429, 646 P.2d 481 (1982). 42
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41. Younger, 245 Kan. at 207. 42. Allen v. Bank of Angelica, 34 F.2d 658, 659 (2d Cir. 1929). 43. Spencer v. Babylon R. Co., 250 F. 24, 26 (2d Cir. 1918). 44. Wilson v. Pantasote Co, 254 F.2d 700 (2d Cir. 1958). 45. Allen v. Bank, 34 F.2d at 659 (emphasis added). 46. Huet-Vaughn, 267 Kan. 144, 978 P.2d 896 (1999). 47. Id. 267 Kan. at 144–45. 48. Id. at 150. 49. Id. at 147. 50. Id. at 153 (Six, dissenting). 51. K.S.A. 60-258a(a). 52. Caylor v. Atchison, T. & S. F. Ry. Co., 190 Kan. 261, 264-265, 374 P.2d 53 (1962). 53. Varner v. Gulf Ins. Co., 254 Kan. 492, 494–95, 866 P.2d 1044, 1046 (1994) quoting Younger, 245 Kan. 204, syl. ¶ 1. 54. Security Bank v. Tripwire, 55 Kan. App. 2d at 300. 55. In re Metcalf Assocs.-2000, L.L.C., 42 Kan. App. 2d 412, 423–24, 213 P.3d 751 (2009). 56. Phillips v. Jefferson County, 5 Kan. 412, 417 (1870). 57. Id. at 417. 58. Ray v. Sullivan, 5 Neb. App. 942, 949, 568 N.W.2d 267 (1997). 59. Varner, 254 Kan. at 497, 866 P.2d at 1047 (1994), quoting Younger, 245 Kan. 204, syl. ¶ 4. 60. State v. Conkling, 54 Kan. 108, syl., 37 P. 992 (1894). 61. “C. was found to be guilty of contempt of court, and adjudged to pay a fine and costs. Under protest he paid the fine and discharged the judgment, stating that he reserved the right to appeal from the judgment, which he subsequently attempted to take. Held, that his protest and reservation are unavailing, and that an appeal from a judgment that has been executed and discharged is not permissible.” State v. Conkling, 54 Kan. 108, syl., 37 P. 992 (1894). 62. 48 Kan. App. 2d 1, 287 P.3d 287 (2012). 63. 254 Kan. 492, 496, 866 P.2d 1044 (1994). 64. Id., syl. ¶ 4. 65. 70 C.J.S. “Payment” § 134, by way of Clark v. Chipman, 212 Kan. at 264, 510 P.2d at 1263. 66. Varner, syl. ¶ 5. 67. First Nat. Bank of Omaha v. Centennial Park, LLC, 48 Kan. App. 2d 714, 728-29, 303 P.3d 705 (2013), citing Riley State Bank v. Spillman, 242 Kan. 696, 701, 750 P.2d 1024 (1988). 68. State v. Davis, 311 Conn. 468, 88 A.3d 445, 464 (2014) (Palmer, concurring). 69. Auld v. Kimberlin, 7 Kan. 601 (1871). 70. Kerr v. Reece, 27 Kan. 469, 472 (1882). 71. Haberer v. Newman, 219 Kan. 562, 566, 549 P.2d 975 (1976). “This is in accord with the rule stated in many decisions of this court that anything which savors of acquiescence in a judgment cuts off the right of appeal.” 72. Almack, 43 Kan. App. 2d at 771. 73. Security Bank v. Tripwire, 55 Kan. App. 2d at 299-300. 74. Van Nguyen v. Ortiz, No. 94,884, 2007 WL 881848 (Kan. Ct. App. March 23, 2007). 75. Dieker Trailer Sales & Service v. Wright, No. 88,968, 2004 WL 1191444 (Kan. Ct. App. May 28, 2004). 76. Bank IV Wichita, Nat. Ass'n v. Plein, 250 Kan. 701, syl. ¶ 6, 830 P.2d 29 (1992); McDaniel v. Jones, 235 Kan. 93, 104, 679 P.2d 682 (1984), citing 4 C.J.S. “Appeal and Error” § 212, p. 620–21. 77. Bank IV Wichita, Nat. Ass’n v. Plein, 250 Kan. at 708-09; McDaniel v. Jones, 235 Kan. at 104. 78. Uhlmann v. Richardson, 48 Kan. App. 2d 1, 287 P.3d 287 (2012). 79. Id. syl. ¶ 5. 80. Matter of Marriage of Welliver & Dickerson, No. 116,567, 2017 WL 3822965 at 3 (Kan. Ct. App. 2017). 81. Uhlmann, 48 Kan. App. 2d at 18.
avoiding a quagmire: acquiescence in a judgment as a bar to appeal
82. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 637, 390 P.3d 581 (2017). 83. Almack, 43 Kan. App. 2d at 773 (2010). 84. “We believe Kansas currently falls in line with the minority of jurisdictions that have adopted a rule that prevents an appeal if the party takes any action inconsistent with the right of review—successful or not.” Almack, 43 Kan. App. 2d at 773. 85. Uhlmann, 48 Kan. App. 2d at 13–15. 86. No. 95,265, 2006 WL 3353773 (Kan. Ct. App. Nov. 17, 2006). 87. No. 114,698, 2016 WL 4585625 at 2 (Kan. Ct. App. Sept. 2, 2016). 88. No. 88,968, 2004 WL 1191444 (Kan. Ct. App. May 28, 2004). 89. No. 94,209, 2006 WL 1976551 (Kan. Ct. App. July 14, 2006). 90. 55 Kan. Ct. App. 2d 295, 412 P. 3d 1030 (2018). 91. No. 116,910, 2017 WL 5507708 (Kan. Ct. App. Nov. 17, 2017). 92. 53 Kan. Ct. App. 2d 622, 390 P. 3d 581 (2017). 93. No. 114,009, 2016 WL 3659856 (Kan. Ct. App. July 8, 2016). 94. Id. at 4 (internal citations omitted). 95. Rosen v. Hartstein, No. 108,479, 2014 WL 278717 at 9-10 (Kan. Ct. App. January 24, 2014). 96. K.S.A. 26-507(a); K.S.A. 26-510(b). 97. On the appeal, the district court may adjust the amount of compensation up or down. When there are such adjustments, interest is to be awarded. K.S.A. 26-511. 98. Martin v. Phillips, 51 Kan. App. 2d 393, 400, 347 P.3d 1033 (2016). 99. Gordon v. Gordon, 218 Kan. 686, syl. ¶ 4, 545 P.2d 328 (1976). 100. Brown v. Combined Ins. Co. of Am., 226 Kan. 223, 230, 597 P.2d 1080 (1979) (internal citation omitted). 101. “The expression which runs through the cases is that duress exists
when the payment of money becomes necessary to obtain the immediate liberty of person or the possession of property.” Adrico Realty Corp. v. City of New York, 250 N.Y. 29, 33, 164 N.E. 732 (1928). 102. Uhlmann, 48 Kan. App. 2d at 16-17. 103. “Filing an aid in execution on a judgment constitutes acquiescence in that judgment.” Almack, 43 Kan. App. 2d 764, syl. ¶ 4. 104. Appeals died in this way in Vap v. Diamond Oil Producers, Inc., 9 Kan. Ct. App. 2d 58, 60-61, 671 P.2d 1126 (1983) and Explorer, Inc. v. Duranotic Door, Inc., No. 104,560 (Kan. App. Nov. 18, 2011). In contrast: “We hold that Nichols’ failure to post a bond alone is not acquiescence according to case law.” Security Bank v. Tripwire, 55 Kan. App. 2d at 300. 105. Auld, 7 Kan. at 606. 106. Shown in, for example, Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164 (1944), an opinion that could serve as a poster child for the tragedy of incomprehensibility. 107. Ray, 5 Neb. App. at 948, 568 N.W.2d at 271. 108. Bowen, 198 Kan. at 714. 109. z Younger, 245 Kan. 204, 777 P.2d 789 (1989) (judgment debtor individuals did not acquiesce in judgment by failing to post supersedeas bond to prevent garnishment of bank account containing their exempt government benefits) with Vap, 9 Kan. App. 2d 58, 671 P.2d 1126 (1983) (corporate judgment debtor acquiesced by failing to post supersedeas bond). This author is not suggesting that either result was unjust. 110. K.S.A. 60-101 et seq. 111. “The provisions of this act shall be liberally construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.” K.S.A. 60-102.
PRO BONO LEGAL SERVICES • • • •
Domestic violence reports saw a double digit increase from last year during the stay-at-home order. Every court is trying to schedule the backlog of PFA hearings as fast as they can. 1% of the population of Kansas contact Kansas Legal Services for assistance each year. Using all of our resources, KLS assists all but 32% of our applicants.
This year’s unique needs have stretched our resources, but one thing is for sure:
WE NEED YOUR HELP! Volunteer! Put your professional skills to work! Opportunities range from full representation to advising people from your home. Let us find an option for your schedule.
To volunteer, visit: klsprobono.org OR email: campbellc@Klsinc.org
www.ksbar.org | September/October 2020 43
washburn law clinic
Clinic in the Time of Coronavirus by Michelle Y. Ewert
T
he coronavirus pandemic has led to dramatic changes in how the legal community operates. During the spring 2020 semester, students in the Washburn Law Clinic pivoted to an almost completely online delivery of legal services. In the Washburn Law Clinic, students provide free legal services to low-income individuals, small businesses and non-profit organizations that would otherwise be unable to obtain counsel. The students represent clients before the Shawnee County District Court, Topeka Municipal Court, and state and federal administrative agencies, as well as in transactional matters. Their representation has continued uninterrupted during the pandemic. Sadly, the students’ work during the pandemic has highlighted how low-income individuals in our community are disproportionately negatively impacted by the pandemic’s challenges. Much attention to the plight of low-income individuals affected by the pandemic has focused on job loss, problems accessing unemployment benefits, and the risk of eviction or foreclosure. Low-income families face many other negative impacts, as well. 44
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Internet and technology Shortly into the pandemic, the executive and judicial branches implemented changes to help promote access to justice in a time when in-person contact was risky. Governor Kelly passed an executive order temporarily allowing the notarization and witnessing of documents through videoconference technology.1 The courts followed suit, utilizing Zoom to conduct hearings throughout the late spring and summer. These changes were instrumental in allowing cases to progress. Ivan Moya, JD candidate ’21, described the clinic’s transition to virtual representation, saying, “With the limitation of face to face contact, we had to find new and innovative ways to reach out to our clients and earn their trust. Having the opportunity to talk to them via Zoom gave us the ability to have some semblance of normalcy in un-normal times.” Unfortunately, many low-income individuals lack reliable access to videoconferencing technology. According to the Census Bureau, in 2018, 37 percent of U.S. households with an annual household income less than $20,000 had no
washburn law clinic
internet subscription at home and about 17 percent of households with an annual household income between $20,000 and $74,999 had no internet subscription at home; in contrast, only five percent of households with an annual income of $75,000 or higher have no internet subscription at home.2 A large number of low and moderate-income individuals lack access to internet, whether through dial-up, broadband, cellular or satellite service. Daniel Beall-Hall, JD candidate ‘21, described the technological challenges experienced by some clinic clients. He said, “In one of our cases, important estate planning documents were delayed due to issues with the client’s internet connection and cell phone. During a pandemic, the delay of legal services could occur when those services are needed the most.” To accommodate clients with internet and technology limitations, clinic students and staff have notarized documents in clients’ driveways and parking lots because the clients lacked the technology to do remote notarization. Most of the clinic clients participated in Zoom hearings from the Washburn Law Clinic office because they could not participate from home. Without counsel, these clients could not have proceeded with their cases. While technology has facilitated professional and personal interactions during the pandemic, clinic students have learned how the virtual world leaves many people behind. Transportation Transportation challenges became heightened during the pandemic. Many lowincome individuals lack the money to pay court fees so are unable to reinstate suspended licenses. Without access to private transportation, people must often rely on public transportation. Unfortunately, the hours of operation and geographic service area of public transit are quite limited in many Kansas communities. Further, the easy transmission of coronavirus has made riding public transportation risky for medically vulnerable individuals. Clinic students saw firsthand the stress these transportation challenges caused their clients. Joseph Shelton, JD candidate ‘21, described a client whom he represented in a hearing to waive license reinstate
ment fees. He said, “She had been using public transportation for years to get around and run her errands. With the outbreak of COVID-19, she did not feel that public transportation was a safe option. After the court waived the license reinstatement fees, our client was grateful to be able to get her license back because that meant she could get her errands done without risking her health. I will never forget that because, for me, that is what the job is: helping people.” At a time when social distancing is a public health necessity, clinic students saw how lawyer assistance in helping regain access to transportation options is more essential than ever. Workplace safety
The pandemic has highlighted how some jobs carry more risk to physical safety than others. During the 2020 spring break, a team of clinic students went out to Garden City to prepare powers of attorney for parents who were concerned about what would happen to their children if they were detained, deported, or became incapacitated and were unable to care for their families. This project, done in collaboration with community health programs in Southwest Kansas, was designed to put in place short-term protections for families at risk of family separation. Shortly after the clinic’s project in Garden City, COVID-19 cases in Finney, Ford and Seward counties spiked.3 These communities are home to meatpacking plants, whose workers are at heightened risk of illness due to the spread of coronavirus.4 Having advance directives in place became even more important for these vulnerable workers. Tanya Buettgenbach, JD ’20, reflected on the impact of the spring break project on the clinic clients and students. She said, “The Garden City trip illustrated exactly why the clinic exists and demonstrated the dire need people have for services like a free legal clinic. We were able to provide advance directives that allowed parents to rest a little easier that night knowing their families would be taken care of in the event they became sick or were separated from their children. I will carry that trip and its impact with me throughout my career and life.” In addition to agricultural workers, frontline health care workers face heightened risk of exposure to COVID-19 www.ksbar.org | September/October 2020 45
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though patient contact. In response, the Washburn Law for our most vulnerable community members. I am proud of Clinic implemented the Healthcare Employees Legal Pre- my students and colleagues for tackling those challenges! n paredness (HELP) Project, through which clinic students and volunteer attorneys prepared advance directives and wills for at-risk health care providers who couldn’t afford the services About the Author of private attorneys. Debi Schrock, Managing Director of Michelle Ewert is an Associate Professor of Administration for the clinic, praised the alumni who volLaw at the Washburn University School of Law. unteered with the project. She said, “When I reached out to Previously, she worked as a legal services attorney at non-profit organizations in Baltimore, the Central alumni seeking attorney volunteers to assist with the HELP Valley of California, and the greater Chicago area. If Project, I was overwhelmed by the positive response. We are you see her on the Shunga Trail, say hello! fortunate to have such great alumni who readily give their time and talents to assist others in need.” Clinic students and volunteer attorneys have provided critical services to help people plan for incapacity during the pandemic, but unfortu- michelle.ewert@washburn.edu nately the underlying safety issues in many jobs persist. Implications for justice
These are just a few ways the pandemic has impacted vulnerable individuals, including many Washburn Law Clinic clients. Black and Brown people are disproportionately likely to sicken or die from coronavirus.5 Historic discrimination has led to unequal access to affordable housing, disparities in health care coverage, and significant income and wealth gaps based on race, all of which have negative health consequences. Lawyers play a critical role in combatting these systemic injustices. As Professor Gillian Chadwick, Director of the Washburn Law Clinic, explained, “Lawyers have the skills, knowledge, and power to make real lasting change in our often-troubled legal and social systems. The Washburn Law Clinic is committed to our dual service and education mission, which means we teach students how to serve their communities.” Lanna Allen, JD ’20, captured this spirit when describing their motivation for participating in clinic, saying, “The attorneys I admire most have one thing in common: they all feel most fulfilled when offering pro bono or low bono services to community members who otherwise would have no meaningful legal remedy available to them.” Washburn Law Clinic students are doing incredible work in the community to help vulnerable clients navigate an increasingly challenging world. However, there is much work yet to do, both during the pandemic and beyond, to mitigate the systemic problems that make life extraordinarily difficult 46
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1. Executive Order No. 20-20, April 9, 2020. Available at https:// governor.kansas.gov/wp-content/uploads/2020/04/EO-20-20-Executed. pdf. 2. American Community Survey, Types of Computers and Internet Subscriptions, Table ID S2801. Available at https://data.census.gov/cedsci/table?q=S2801&g=0500000US36051,36055,36117_1600000US36 63000_310M300US40380&tid=ACSST1Y2018.S2801. 3. According to the Kansas Department of Health and Environment, as of August 24, 2020, Seward County has over 1,200 reported cases, Finney County has over 1,700 reported cases and Ford County has over 2,200 reported cases, despite relatively small populations. See State Map of COVID-19 Cases by County of Residence, available at https://www. coronavirus.kdheks.gov/160/COVID-19-in-Kansas. 4. Corinne Boyer, Coronavirus Clusters Grow Rapidly in Three Western Kansas Meatpacking Counties, High Plains Public Radio, April 24, 2020. Available at https://www.hppr.org/post/update-coronavirus-clusters-grow-rapidly-three-western-kansas-meatpacking-counties. 5. Centers for Disease Control and Prevention, Health Equity Considerations and Racial and Ethnic Minority Groups, July 24, 2020. Available at https://www.cdc.gov/coronavirus/2019-ncov/community/healthequity/race-ethnicity.html.
law practice management tips and tricks
Local Practice – New Normal by Larry Zimmerman
M
anaging a legal practice during the pandemic involves three broad categories of practice management worries (so far): 1. Personal Practice Preparedness – This series of issues required lawyers to react quickly to ensure firm survival. How do we protect our clients, our staff, and ourselves while continuing critical representation and meeting payroll and expenses? What remote tools and strategies do we have on hand, and what must we obtain, install and learn? 2. Supreme Court Response – The Kansas Supreme Court has been busy rolling out 29 emergency orders tallying up to nearly 100 pages, changing everything from statutes of limitation to jury trials to courthouse and remote access. This frenzied rulemaking, while necessary, has often confused clients, judges and lawyers and has given just about every Kansan something to worry about. 3. Local Rules and Application – Your firm is running (in some capacity) and clients’ needs are no longer confined to quarantine. Figuring out how 107 courts in 31 judicial districts are going to react to the pandemic and the Supreme Court’s rules is the challenge that cannot be delayed any longer.
The Good The best among the district courts recognized the disruption under way and worked immediately to reopen in some capacity. For my money, none performed better than Johnson County. There is an old proverb that counsels, “Dig the well before you’re thirsty.” Johnson County had done exactly that by exploring video conferencing access for litigants almost a decade ago. I first kicked the tires on a virtual hearing using the BlueJeans app with Judge Vano back in 2014, and it was remarkably easy to deploy and use. That advance legwork allowed Johnson County to “reopen” for video-conference hearings in April. Johnson County’s quick response to the pandemic was also aided by an early realization that the pandemic was likely to be a long-term issue. Decision-makers responded from the beginning as if they would need to develop processes, forms, and technology that would become a new normal. By contrast, several judges, clerks and court administrators in more flat-footed districts adopted a “wait and see” approach, admitting they thought the crisis would be short-lived. Those districts squandered valuable time, and many are still struggling to reopen fully to the public. Finally, Johnson County appears to have involved the public early in its plans to reopen back in April. As the district www.ksbar.org | September/October 2020 47
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developed plans, procedures and forms, it shared them with the bar and invited comments and concerns. It was reactive to feedback given about its missteps and made changes. It continues to do so months into reopening as on-going rules from the Supreme Court and executive orders from the governor continue to alter the landscape. Johnson County’s transparency with and responsiveness to its constituents and the public are commendable and vital to its successes in preparing for and responding to the pandemic. The Runners Up Once it became clear that the pandemic was not a twoweek or even a two-month crisis, many districts worked hard to resume court operations with video conferencing. They worked within the limits of free Zoom accounts and later tapped into licensing made available by a grant and got their feet wet with a few hearings before opening for something resembling business as usual. The public response has been generally positive. Litigants and lawyers alike appreciate both the reduced potential exposure to the virus and the ease of appearing in court. Accommodations for phone appearance in Zoom hearings has helped ensure that even those without the latest technology can appear. In other words, the virus has probably done more to prompt access to justice in a few months than several years of committee meetings and reports. One hiccup with the video conferencing hearings relates to notices and instructions. The lack of uniformity is problematic. Though each county has landed on the same basic process, and all but Johnson County use Zoom, the instruction sheets and notices lawyers must send to litigants vary, with courts often wedded to their own forms. Prompt adoption of a standard notice and instruction set would be welcomed. The Not-So-Hot The most common, immediate problem presented to lawyers is the varied interpretations of the Supreme Court’s rules regarding operations during the pandemic. Continuing issues related to interpretation of suspensions of time deadlines are reported by lawyers throughout the state. One court reactivated its dismissal dockets in contravention of Supreme Court orders and then reacted to motions to suspend dismissal by saying hearing such motions was not an essential service. Another court notified litigants it was resuming hearings that had been postponed early in the pandemic response but then decided it would not allow any next actions from the hearings it set pursuant to time suspension rules. Some courts are adopting motion processes (with response deadlines) to exempt a matter from deadlines. Others are authorizing discovery but suspending deadlines to reply despite retaining pretrial and trial dates. The picking and choosing what is suspended and what is exempt leaves lawyers confused and litigants livid. 48
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Ultimately, the “worst of the worst” are those courts which have focused on limiting access to the courts in the hopes the pandemic will end soon and pre-pandemic normalcy will return. Filing limits and hearing limits allow them to appear open while denying genuine access. That position will not last and broader adoption of lessons learned throughout the state so far will ready us for future crises and increase access to justice. 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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Kansas Legal Services helps Kansans prevent foreclosures across the state
K
ansas Legal Services, in a project funded by the Kansas Bar Foundation, has helped dozens of Kansans fight or prevent foreclosure of their family homes. KLS helped these Kansans in all parts of the state through its eleven field offices. KLS attorneys spent over 1,600 hours in legal assistance through representation and advice, as well as providing education and referrals Ana Santos is pictured here with her attorney from Kansas Legal Services, Casey Johnson, after winning in Court against her abusive ex-husband who filed foreclosure on her home. Ana was so grateful for Mr. Johnson’s advocacy. Ana came to KLS when her ex-husband was trying to foreclose on her home. She speaks only Spanish. In the original divorce decree, Ana was granted possession of the marital home until her ex-husband paid her $14,500 or until it could be sold. The ex-husband never paid and Ana stayed in the home. Years later, Ana’s ex-husband filed the foreclosure case. KLS attorney Casey Johnson dove head first into this case. Over a year of litigation culminated in a trial. Mr. Johnson skillfully argued why, after years of abuse and manipulation, Ana should be entitled to the property free and clear. The Court deemed the contract for deed void, due to the fraud used to induce Ana’s signature. In addition, Ana will be awarded punitive damages against her ex-husband, which are yet to be determined. Another successful foreclosure case occurred in Riley County. When a retired military veteran and police officer fell on hard times and required extended hospitalization for
a major medical condition, he could no longer make his loan payments on his home mortgage. Events happened so quickly that it wasn’t long before the sheriff delivered court papers notifying him that the bank was going to foreclose and take away his home. Fortunately, the client connected with KLS. After meeting with an attorney at KLS, he learned that he had special rights and entitlements as a retired veteran with a VA-Loan. The mortgage foreclosure process was put on hold; and after some research was done by KLS—Manhattan Managing Attorney Paul Shipp, negotiations with the bank’s lawyer ensued. The client was informed of his right to seek a loan modification; the bank agreed. The mortgage foreclosure was dismissed and he kept his home. n
Ana Santos with KLS—Kansas City Assistant Managing Attorney Casey Johnson, after winning a fight against foreclosure of her home.
www.ksbar.org | September/October 2020 49
Kansas Bar Association Fall 2020
Bankruptcy & Insolvency Virtual CLE Conference Friday, October 2, 2020 9 am - 4 pm
6.0 CLE Credits (including 1.0 Ethics)
AGENDA
9:00 am - Chapter 12: Things to Consider When Representing the Distressed Agricultural Borrower Tom Barnes (Stumbo Hanson LLP) & Wes Smith (Stevens & Brand LLP)
Register Now!
10:00 am - Unexpired Leases & Executory Contracts
Pricing KBA Member Attorney: $190 Non-Member Attorney: $220 Paralegal: $100
Tom Gilman (Hinkle Law Firm LLC) & Eric Johnson (Spencer Fane LLP)
11:00 am - A Chapter 7 Overview with Specific Issues Patricia Hamilon (Stevens & Brand LLP) & Darcy Williamson (Williamson Law Office)
Noon - Lunch Break (On Your Own)
1:00 pm - State of the Bankruptcy Court - Judges’ Panel Chief Judge Dale Somers, Hon. Robert Berger, & Hon. Mitchell Herren
2:00 pm - Chapter 13 Updates & Tips for Practical Practice
William Griffin (Chapter 13 Trustee), Laurie Williams (Chapter 13 Trustee) & January Bailey (Prelle Eron & Bailey PA)
3:00 pm - Conflicted about Conflicts (ETHICS)
Andrea Chase (Spencer Fane LLP) & Nicholas Zluticky (Stinson LLP)
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Register online www.ksbar.org/event/ 2020Bankruptcy
iolta banks of the year
Congratulations to Country Club Bank and Bank of the West!
T
he Kansas Bar Foundation each year recognizes the banks and financial institutions that help invest in access to justice and law related education through the Kansas IOLTA (Interest on Lawyers’ Trust Accounts) program. Each year, two banks are selected as IOLTA Banks of the Year. Country Club Bank and Bank of the West are the 2020 banks of the year. The Foundation appreciates collaborating with them and has especially appreciated their support during COVID-19. Each year, the IOLTA program generates approximately $100,000 in remittances that provide grants to non-profits in Kansas. The Kansas IOLTA program has 105 banks and financial institutions that offer this service to attorneys. The Foundation also recognizes CoreFirst Bank & Trust as a Kansas IOLTA Prime Partner Bank. The Prime Partner Program is available to any Kansas bank that waives fees and pays supportive interest rates. Attorneys in Kansas have an option to participate in IOLTA. Over 4,000 attorneys have an IOLTA. The process to have your trust account be an IOLTA is easy. Visit ksbar.org/IOLTA for details. n
Country Club Bank employees in a Chief’s arrowhead formation.
Bank of the West employees displaying some company pride.
www.ksbar.org | September/October 2020 51
law students’ corner – Washburn University Law School
How to Ensure Your Email Finds Me Well by Emily Brandt
e c a r G S
ince March, how many emails have you received that started with something like: “I hope this email finds you well.” How many times did those emails find you well? What could we all be doing in our lives to ensure that our emails are finding others well in these unprecedented times? I think that the answer is giving each other more grace. Grace is an integral part of my life—the concept of free and (sometimes) unmerited help. To me, grace is more than compassion or empathy. It is an intentional act of giving aid to others, even when they may not be deserving of the help. Grace is unconditional. In these unprecedented times, we could all use a little more grace. We could all stand to give and receive more grace. What does giving more grace in law school look like? I asked a few of my peers for examples of when grace was given to them since we started law school online in March. For one, grace was their boss allowing them to work from home. They are still working from home, and the flexibility to be able to do so has ensured the ability to continue earning an income and gaining experience without the anxiety of being in an enclosed office. For another peer, grace came
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in the form of peers and professors not judging them when they were late for an online class. Even though they felt undeserving of grace, professors made sure the student had the information they needed to succeed rather than punishing them for being unable to make it to a virtual class. When a peer found out their summer position was cancelled due to COVID-19, several professors used their networks to try and find alternative employment. For me, grace has come in the form of patience. I have found myself unable to focus on a singular task or needing more clarification than I typically would. When I ask for more clarification and time on assignments, I have been met with patience and understanding. Though I may feel embarrassed to ask for an extension or a reminder about a deadline, that embarrassment quickly disappears when an extension or clarification is granted without a second thought. I think these examples resonate with a lot of law students right now. We may not always feel deserving of grace, but those around us are feeling the same way, so we should all do more to take care of our communities during these unique times. The following is a non-exhaustive list of acts of grace
law students’ corner – Washburn University Law School that I think law students should lean into right now, specifiI also asked my peers how they hope to see law students cally as we begin hybrid courses this fall. extend grace to one another during the fall semester. They Patience: The fall semester will look a lot different in law hope that classmates will realize that the choice their peers schools than ever before. Some courses will be fully online, are making to take classes either online or in-person is beothers a hybrid of online learning and in-person learning. Law ing made with each individual’s health and circumstances students and professors need to be patient with one another. in mind. The choice to take courses virtually does not, and Using so much technology in a classroom and balancing the should not, inhibit the ability of a classmate to participate in needs of students who are participating from home and those study groups and socials. They hope that classmates will take in the classroom will be a learning curve for all involved. Pa- more time to check-in on peers that we may not see as often tience ensures that all the parties involved in hybrid learning because they are not on campus. are given the latitude to make and correct mistakes. There was also a call for understanding that not everyone’s situation is the same right now, and we need to act as a colEmpathy: Each law student faces unique challenges and lective to ensure that all students are comfortable. If taking barriers to success. With the added stressors of COVID-19, classes remotely is what makes a law student the most comit is critical for us to be empathetic toward one another. Peers fortable, then we need to understand that and take extra steps may be struggling financially after losing their entire sumto include those peers in study groups and other law school mer income, be immuno-compromised, be homeschooling activities. Finally, we hope that our classmates know that they their children, or may be facing a whole host of other unforeare not alone. We are all going to need a little more grace this seen and sometimes invisible challenges to succeeding in law semester, and we hope that our peers will not be afraid to school. When a group partner is having a difficult time meetreach out when they are struggling. ing deadlines, put yourself in their shoes and try to see where they are coming from and why they are struggling before I hope that law students see that now is not the time for judging them. Empathy ensures that we are working with our isolation. Now, more than ever, law students need to focus on peers to succeed together. community-based learning. We should lean on one another Leniency: We all want law school to be our top priority— for support and work to ensure that we are all succeeding we want to do well and be active learners. However, this may When we give grace, we receive grace in return. So, if you not be possible for all of us all the time. We should not judge want to ensure that your email finds me well, extend grace the priorities of our peers. Rather, we should be lenient in our whenever possible during the fall semester. n expectations of others. We can only control our expectations; we cannot control the circumstances in the lives of our classmates. It is not reasonable to assume our peers can foresee when their electricity will go out or when their babysitter will About the Author cancel last minute. Leniency ensures that the pressure of letEmily Brandt is a current 3L at Washburn ting fellow law students down is not a hurdle to participating University School of Law. She is a lifelong in law school activities. Kansan and plans to practice in the state upon graduation in May 2021. Emily is currently Flexibility: Online learning may not be every law student’s on the executive board of the Rural Practice preference, but the reality is that online learning will be a part Organization and is a Senior Staff Writer on the of the fall semester regardless of whether classes are meeting Washburn Law Journal. She clerks for Roger in-person. Be flexible with members of your study group who Fincher, Attorney at Law, and serves as a student have opted to take their classes virtually or are uncomfortable ambassador for the law school. meeting in groups to study. Study groups can still outline and work together via platforms such as Zoom. Flexibility ensures Emily.Brandt@washburn.edu that all students benefit from collaborative learning.
KALAP Helps Lawyers Suffering from
Depression • Addiction • Thoughts of Suicide Self-referral is an act of courage. Referring a colleague is an act of compassion.
Call KALAP 24/7
785-368-8275
www.ksbar.org | September/October 2020 53
law students’ corner – University of Kansas School of Law
Taking Navy Skills from Cockpit to Classroom by Jared Jevons
A
s a non-traditional law student, it is difficult not to draw on experiences from the past to inform the present. For me that has meant relying upon my Navy career as an F/A-18F Super Hornet Weapon Systems Officer. Colloquially known as a backseater (think: Goose from “Topgun”). When choosing a new career, I sought features I enjoyed most in squadron life. Some of those features included: an ever-changing profession that maintains a high professional standard, no day ever being the same, and working alongside highly motivated individuals. Although not all skills in a Super Hornet are necessary in law school, there are many similarities between my Navy work environment and law school. So, unsurprisingly, many Navy skills and mindsets translate into law school. As I enter my third year of law school, one particular skill and one particular mindset have been helpful in navigating law school life. The skill of compartmentalizing and the mindset of being deliberately humble, approachable, and credible.
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The Skill: Compartmentalization During law school I have often applied a tool I learned in flight school: compartmentalization. It was useful throughout my Navy career and has become ingrained in my thinking ever since. Compartmentalization is a skill developed in flight students to deal with mistakes during a flight. Although compartmentalization can be used to deal with distractions from both successes and mistakes, it is most often applied in the context of mistakes. That is primarily because minor mistakes can snowball into a disastrous series of mistakes, but also because flight students make a lot of mistakes. To have a successful flight it is essential for a flight school student to avoid the snowball effect of mistakes. Avoiding the snowball effect is especially challenging when faced with a fast-paced series of graded events and each separate event is crammed with tasks. Mistakes in flight school events are problematic because the emotional response to mistakes is distracting and there
law students’ corner – University of Kansas School of Law
is no time to be distracted. For example, a flight student’s failure to make an important radio call directing the flight may cause the novice flight student to think: “Man, I really screwed up.” “Did the instructor notice?” “Will this be a refly?” As the thoughts increase inside a flight student’s head, so too does the likelihood of failure. To combat these distracting thoughts, flight instructors encourage students to compartmentalize mistakes. By compartmentalizing mistakes, the student mentally rebounds, avoids a ripple effect of mistakes, and preserves the ability to achieve pre-flight goals. Struggling flight students tend to compartmentalize poorly. Successful flight students compartmentalize by recognizing the mistake, understanding the ripple effects, correcting errors real-time, preparing for the next task, and keeping the ultimate goal in mind. Flight students compartmentalize with the understanding that chastising oneself or lamenting mistakes has limited usefulness in the midst of a graded flight event. There is time for frustration and analysis of the specific mistake, but that opportunity is post-flight when time is reserved for review. Although a student’s ultimate goal in flight school is obtaining wings of gold rather than a Juris Doctor, flight school is similar to law school because law school has its own fast-paced events, each separately crammed with tasks. It has allowed me to cope with mistakes, move on to the next task, and keep the ultimate goal in mind. For example, compartmentalization is a useful tool after an incoherent cold-call response or subpar written assignment. Compartmentalizing allowed me to raise my hand again and become a better writer. It also allowed me to enjoy time off and prepare for the next semester. While compartmentalization is a skill useful in challenging situations, being humble, approachable, and credible is a mindset employed while in the presence of others. The mindset applies whether you’re passing someone in the hallway, having a one-on-one conversation or speaking to a group.
humble makes you approachable. A humble demeanor creates an approachable presence. Being approachable meant being accessible to others. Making oneself approachable meant being inviting and friendly rather than closed-off and hostile. Sharing knowledge was critical to our success as a profession, so being approachable led to situations where our knowledge could be shared. Being unapproachable ran counter to our goal of sharing our knowledge. Importantly, humility and approachability only go so far in passing on the craft if you are not perceived to have knowledge. Demonstrating your knowledge and effectively communicating your knowledge creates credibility. Credibility requires knowing your craft and knowing it well. Credibility is a product of preparation, dedication and study. It exists at all experience levels but when built over time it can have great impact. The great thing about credibility is that one interaction makes it easier to share knowledge later. However, credibility does little good if your demeanor and presence prevent engagement. Thus, passing on the craft requires being humble, approachable and credible. Of course, this approach is applicable beyond naval aviation. No matter the stage of our legal careers, being humble, approachable, and credible is a useful tool when engaging with others. I’ve found it helpful as a fellow student, Dean’s Fellow, and co-worker. Hopefully, exhibiting these characteristics will mean I better represent myself, my university, my employer and the profession. The skills and mindsets I’ve brought from the Navy into law school are not always natural. They require deliberate effort, and so they remain in the back of my mind no matter the situation. Sometimes I’m better at accomplishing them than others. But I’ve found them useful and I hope others do as well.
The Mindset: Humble, Approachable and Credible Naval aviators consider themselves professionals. One reason they do so is because the profession requires passing a craft onto future Naval aviators. Passing on the craft is challenging and requires deliberate effort because the operating environment is constantly changing. We were students whether we had 100 flight hours, or 2,000. To best pass on the craft, we sought in our interactions with others to be humble, approachable, and credible. If we exuded those characteristics, we could better pass on the craft. Being humble meant being modest, knowing assistance is sought from those who are humble. Most people would rather not engage with someone who is boastful or arrogant. Although pride and self-confidence are a natural consequence of acquiring skill and gaining proficiency, humbleness can be exuded while being proud and confident. Furthermore, being
About the Author Jared Jevons is a 3L from Manhattan, Kansas. He received a Bachelor of Science in Geology from the University of Kansas in 2007. Upon graduation he commissioned into the U.S. Navy where he would go onto serve eleven years, fly over 2000 hours in the F/A-18F and accumulate 460 landings on an aircraft carrier. He is currently Editor-in-Chief of the Kansas Journal of Law & Public Policy, a Dean’s Fellow, Student Ambassador, and a member of the Military Law Society. jevy@ku.edu
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Members in the News N
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NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service. If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: editor@ksbar.org
New Positions Glenda L. Cafer joined the Law Offices of Morris Laing and will practice out of the firm’s Topeka office. Her practice focuses on the areas of Energy and Telecommunications Law, Public Utility and Regulatory Law, Commercial Law, and Litigation and Administrative Law. Amy Cline was appointed by Gov. Laura Kelly to fill the vacancy created by the retirement of the Hon. G. Joseph Pierron, Jr. on the Kansas Court of Appeals. Cline has lived in Wichita and was a partner with Triplett Woolf Garretson, LLC, at the time of her appointment. Cline received her undergraduate degree from Wichita State University and earned her Juris Doctor at the University of Kansas School of Law. Paul Davis has joined the Topeka-based firm of Frieden & Forbes, LLP. Davis received a B.S. in Political Science from the University of Kansas and earned his Juris Doctor from the Washburn University School of Law. He formerly served as the Legislative and Ethics Counsel for the Kansas Bar Association and had been in private practice. His practice has been focused in the areas of estate planning, probate, real estate, and government relations. Davis is a member of the Douglas County Bar, the KBA and the ABA, and serves as Vice President of Programming for the Douglas County Estate Planning Council. He served 12 years in the Kansas House of Representatives, representing the 46th District which includes east and central Lawrence. He was House Minority Leader for the final eight years of his service.
Notables Foulston Siefkin LLP saw 67 of its attorneys earn recognition in the 2021 Editions of The Best Lawyers in America© 56
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and Best Lawyers: Ones to Watch. Thirteen were honored as “Lawyer of the Year” in specific practice areas and cities: Wendell F. Cowan—Insurance Law (Kansas City, KS); Jeremy L. Graber—Corporate Law (Topeka, Kansas); Kevin J. Arnel—Nonprofit / Charities Law, Patricia Voth Blankenship—Real Estate Law, Jeff P. DeGraffenreid—Litigation - Labor and Employment, Jay F. Fowler—Bet-the-Company Litigation, Wyatt A. Hoch—Construction Law, Andrew J. Nolan—Tax Law, David E. Rogers—Product Liability Litigation – Defendants, David M. Traster—Environmental Law, Stewart T. Weaver—Elder Law, Craig W. West— Personal Injury Litigation – Defendants, William R. Wood II—Banking and Finance Law (Wichita, KS). Fifty-six Foulston attorneys were recognized in The Best Lawyers in America in these practice areas: • Stanley G. Andeel – Corporate Law, Health Care Law, Tax Law, Trusts and Estates • James M. Armstrong – Bet-the-Company Litigation, Commercial Litigation, Legal Malpractice Law - Defendants, Litigation - Antitrust, Litigation - Intellectual Property, Litigation - Labor and Employment, Litigation - Regulatory Enforcement (SEC, Telecom, Energy), and Litigation - Securities • Kevin J. Arnel – Nonprofit / Charities Law, Tax Law • Gary L. Ayers – Bet-the-Company Litigation, Commercial Litigation, Health Care Law, Litigation - Health Care, Trade Secrets Law • Brooke Bennett Aziere – Health Care Law • Donald D. Berner – Employment Law - Management, Labor Law - Management, Litigation - Labor and Employment • Matthew W. Bish – Elder Law, Trusts and Estates • Vaughn Burkholder - Employment Law - Manage-
ment, Litigation - Labor and Employment, Workers’ Compensation Law - Employers • Boyd A. Byers – Employment Law - Management, Labor Law - Management, Litigation - Labor and Employment • Wendell F. Cowan – Employment Law – Management, Insurance Law, Litigation - Labor and Employment • Jeff P. DeGraffenreid – Litigation - Labor and Employment • Holly A. Dyer – Commercial Litigation, Litigation - Intellectual Property, Personal Injury Litigation - Defendants, Professional Malpractice Law - Defendants • Tara Eberline – Employment Law - Management • Charles P. Efflandt - Environmental Law, Litigation Environmental • Jack M. Epps – Business Organizations (including LLCs and Partnerships), Real Estate Law • Jay F. Fowler – Bet-the-Company Litigation, Commercial Litigation, Litigation - Intellectual Property, Litigation - Municipal, Litigation - Trusts and Estates • Cyd Gilman – Criminal Defense: White-Collar • Jeremy L. Graber – Corporate Law, Tax Law, Trusts and Estates • Douglas L. Hanisch – Employee Benefits (ERISA) Law • Charles R. Hay – Health Care Law • Wyatt A. Hoch – Arbitration, Construction Law, Litigation - Construction Law • Christopher M. Hurst – Tax Law • Jeffery A. Jordan – Bet-the-Company Litigation, Commercial Litigation, Litigation - Banking and Finance, Litigation - Bankruptcy, Litigation - Construction • Jason P. Lacey – Employee Benefits (ERISA) Law, Litigation - ERISA • Amy S. Lemley – Personal Injury Litigation - Defendants, Medical Malpractice Law - Defendants • William P. Matthews – Copyright Law, Trademark Law • Scott C. Nehrbass – Commercial Litigation, Litigation - Banking and Finance, Litigation - Intellectual Property, Litigation - Real Estate, Personal Injury Litigation - Defendants • Andrew J. Nolan – Tax Law, Corporate Law • Michael J. Norton – Commercial Litigation, Insurance Law, Litigation - Insurance, Personal Injury Litigation – Defendants • James D. Oliver – Appellate Practice, Bet-the-Company Litigation, Commercial Litigation, Corporate Law, Litigation - Antitrust, Litigation - Banking and Finance, Litigation - Regulatory Enforcement (SEC, Telecom, Energy), Litigation - Securities, Mining Law, Securities/Capital Markets Law • Timothy P. O’Sullivan – Elder Law, Trusts and Estates • John C. Peck – Natural Resources Law, Water Law • James P. Rankin – Administrative / Regulatory Law, Employee Benefits (ERISA) Law, Government Relations Practice, Litigation - ERISA • Larry G. Rapp – Corporate Law, Equipment Finance Law
members in the news • Forrest T. Rhodes, Jr. – Employment Law - Management, Litigation - Labor and Employment • David E. Rogers – Personal Injury Litigation - Defendants, Product Liability Litigation - Defendants • Anthony F. Rupp – Commercial Litigation, Litigation - Municipal, Medical Malpractice Law - Defendants, Municipal Law, Personal Injury Litigation - Defendants • Teresa L. Shulda – Employment Law - Management • Robert Smith – Real Estate Law • Harvey R. Sorensen – Corporate Law, Mergers and Acquisitions Law, Tax Law, Venture Capital Law • Kyle J. Steadman – Insurance Law, Litigation - Insurance, Medical Malpractice Law - Defendants, Personal Injury Litigation - Defendants • Mikel L. Stout – Bet-the-Company Litigation, Commercial Litigation, Litigation - Construction, Litigation - Environmental, Litigation - Intellectual Property, Litigation - Labor and Employment, Personal Injury Litigation - Defendants • Matthew D. Stromberg – Commercial Litigation • Todd N. Tedesco – Commercial Litigation, Litigation - Intellectual Property, Litigation - Labor and Employment, Litigation - Patent • Thomas L. Theis – Health Care Law, Mediation, Medical Malpractice Law - Defendants, Personal Injury Litigation - Defendants • David M. Traster – Energy Law, Environmental Law, Litigation - Environmental, Water Law • Patricia Voth Blankenship – Real Estate Law • Darrell L. Warta – Bet-the-Company Litigation, Commercial Litigation, Personal Injury Litigation - Defendants, Product Liability Litigation - Defendants • C. Edward Watson – Employment Law - Management • Shannon D. Wead – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Litigation - Bankruptcy, Personal Injury Litigation - Defendants • Stewart T. Weaver – Elder Law, Trusts and Estates • Craig W. West – Insurance Law, Litigation - Insurance, Personal Injury Litigation - Defendants • Rachel Wetta – Litigation - Insurance • William R. Wood II – Banking and Finance Law, Corporate Compliance Law, Corporate Governance Law, Corporate Law, Financial Services Regulation Law, Franchise Law, Leveraged Buyouts and Private Equity Law, Mergers and Acquisitions Law, Project Finance Law, Real Estate Law, Securities / Capital Markets Law • Charles J. Woodin – Energy Law, Mining Law, Natural Resources Law • Issaku Yamaashi – Mergers and Acquisitions Law Eleven Foulston attorneys were included in the inaugural edition of Best Lawyers: Ones to Watch in these practice areas: Lisa M. Brown—Health Care Law; Trent R. Byquist—Banking and Finance Law, Corporate Law; Kelsey N. Frobisher—Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; David R. Green— Construction Law; Clayton J. Kaiser—Commercial Litigation, Criminal Defense: White-Collar, Health Care Law; Robert J. McFadden—Energy Law, Environmental Law; A. Nicole Rose—Commercial Litigation; Alex W. Schulte— www.ksbar.org | September/October 2020 57
members in the news Health Care Law; Sarah E. Stula—Appellate Practice; Eric Turner—Appellate Practice, Commercial Litigation, Labor and Employment Law—Management; Amanda M. Wilwert—Health Care Law John Gatz of Colby was reappointed by the Kansas Supreme Court to a third four-year term on the Board for Discipline of Attorneys for which he is chair. The board makes up part of the process for addressing ethical complaints against lawyers which begins in the Office of the Disciplinary Administrator. Three other lawyers were reappointed: Stacy Ortega, Wichita; James Rankin, Topeka; and Lee Smithyman, Overland Park. All six attorneys at Monnat & Spurrier, Chartered have been honored by Best Lawyers in America© 2021: Dan Monnat. This is Dan’s 33rd consecutive year being honored by the publication. He was named Best in four distinct practice areas: Criminal Defense–General Practice; Criminal–White Collar; Bet-the-Company Litigation; and Appellate Practice. Monnat has practiced in Wichita for more than 40 years. A graduate of California State University, Monnat holds a J.D. from Creighton University School of Law and is a graduate of Gerry Spence’s Trial Lawyer’s College. Stan Spurrier, a legal scholar who co-founded the firm with Monnat in 1985, was recognized in the areas of: Appellate Practice; Criminal Defense: General Practice; and Criminal Defense: White-Collar. Spurrier earned his bachelor’s degree from Wichita State University and his J.D., magna cum laude, from Washburn University School of Law. Trevor Riddle, listed for his fourth consecutive time in the area of Criminal Defense–General Practice, is particularly skilled in working with expert witnesses. A graduate of Oklahoma State University, Riddle earned a bachelor’s degree in philosophy, with an emphasis in the philosophy of science. He earned his J.D. from the University of Kansas School of Law. Sal Intagliata earned his sixth consecutive listing in Best Lawyers in three individual practice areas: Criminal Defense: General Practice; Criminal Defense: White-Collar; and DUI/DWI Defense. A shareholder in Monnat & Spurrier, Intagliata earned his bachelor’s degree, with distinction, from the University of Kansas. He earned his J.D. from the University of Kansas School of Law. Matthew Gorney is an associate whose practice includes criminal defense, DUI defense and appellate work. He was selected to the Best Lawyers list in the practice area of Criminal Defense: General Practice. Formerly a professional journalist, Gorney graduated from the University of Kansas School of Law. He simultaneously earned a master’s degree in journalism from KU’s William Allen White School of Journalism and Mass Communications. He earned a bachelor’s degree from Kansas State University. Eli O’Brien is an associate attorney whose primary practice includes defense of serious felony accusations, as well as DUI and DWI cases; he was honored by Best Lawyers in the practice area of Criminal Defense: White-Collar. A graduate 58
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of Washburn University School of Law, O’Brien also holds a bachelor’s degree in history from Emporia State University. Carol M. Park of Hays has been appointed by the Chief Justice of the Kansas Supreme Court to serve as chair of the Kansas Board of Law Examiners. Park is a partner in the law firm of Schwartz & Park, LLP. She has been a member of the Board since 2013 and served as vice chair in 2019. The 10-member board is comprised of judges and lawyers; it oversees and grades the twice-yearly bar exam and presides over hearings on bar applicants’ character and fitness to practice law. Park was born in Dodge City, received her undergraduate degree from the University of Nebraska-Lincoln and obtained her Juris Doctor from Washburn University School of Law. Alan Rupe, managing partner of Lewis Brisbois’s Kansas City & Wichita offices and vice chair of the firm’s Labor & Employment Practice, was recognized as Best Lawyer in the 2021 list for Civil Rights Law, Employment Law Management, Litigation – Labor and Employment, and Litigation – Municipal. Sixteen Attorneys from Triplett Woolf Garretson, LLC, have been honored by The Best Lawyers in America 2021©. Jeffery C. Dahlgren is listed in the field of Real Estate Law; Theron E. Fry–Trusts and Estates; Thomas P. Garretson–Corporate Law; Tyler E. Heffron–Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, Commercial Litigation, and Personal Injury Litigation–Defendants; J.T. Klaus–Public Finance Law; Lisa McPherson– Health Care Law; Eric B. Metz–Employment Law – Individuals, Employment Law – Management, Litigation – Labor and Employment; Rachael K. Pirner–Litigation – Trusts and Estates, Trust and Estates; Shane A. Rosson–Employment Law – Management; Thomas C. Triplett–Corporate Law, Litigation and Controversy – Tax, Tax Law, Trusts and Estates; James A. Walker–Bet-the-Company Litigation, Commercial Litigation; John P. Woolf–Bet-the-Company Litigation, Commercial Litigation. Ron H. Hamden was named Best Lawyers 2021© Mergers and Acquisitions Law “Lawyer of the Year” in Wichita in the fields of Mergers and Acquisitions Law and Real Estate Law. Andrew N. Kovar received a The Best Lawyers in America©: Ones to Watch (2021 Edition) in Wichita for Banking and Finance Law, Municipal Law, and Public Finance Law. Jeffrey D. Leonard was named Best Lawyers 2021 Litigation–Construction Law “Lawyer of the Year” in Wichita and is listed in The Best Lawyers in America© 2021 in Construction Law and in Litigation – Construction. Timothy E. McKee was named Best Lawyers 2021 Natural Resources Law “Lawyer of the Year” in Wichita and was listed in the Best Lawyers in America© 2021 in the field of Natural Resources Law.
Obituaries Richard “Dick” Bond (9/18/1935 – 7/23/2020) Dick Bond, 84, of Overland Park, KS, died on July 23, 2020 of natural causes. He was born September 18, 1935 to Ivy and Florine Bond. He graduated from Shawnee Mission High School, KU and KU Law School. He married Sue Sedgwick in 1958 and they have two children, Amy Bond of Fairway, KS and Mark Bond of TN. He is also survived by his grandchildren Spencer Davis, John “Patrick” Sokoloff and Eden Sokoloff. He was an Eagle Scout and Order of the Arrow. At KU, he was President of his social fraternity, President of his honorary fraternity and a member of the All Student Council. In law school, he was President of the Student Bar Association and a member of the National Moot Court team. After law school, he practiced law in Mission, Kansas and became the first City Attorney of Overland Park. He became Chief of Staff for Congressman Robert Ellsworth for six years, Congressman Larry Winn, Jr. for 18 years and then Congresswoman Jan Meyers. Dick was appointed to the Kansas Senate in 1986 and then elected to three four year terms. He served as Senate President from 1997 until 2001. As President, he was the principal catalyst for the major Capital Restoration Project. He has served on numerous corporate boards including five bank boards, the most recent being Bank of Blue Valley and two boards for Midwest Trust Company. His interest in education included 5 years on the Kansas Board of Regents and served one year as chair. He served many years on the KU Edwards Campus Advisory Board and as its chair. He was the originator of the Education Research Triangle that has raised millions for KU Cancer Research, KU Edwards Campus and K-State Olathe Campus. He served on a KU Chancellor Search Committee and a Vice-Chancellor Search Committee. From KU Law School, he received the Distinguished Alumni Award and the James Woods Green Medallion. From the KU Alumni Association, he was awarded the Fred Ellsworth Medallion. He was also awarded KU’s highest award, the Distinguished Service Citation and from KU Endowment Association named an Honorary Life Trustee. On the Johnson College Community Foundation, he served as its chair and received numerous awards including Johnson Countain of the Year. He was the founder of the Some Enchanted Evening annual fundraiser for students’ scholarships. Dick served KVC for many years in their capital fundraising, raising over 10 million dollars. He was President of Kansas City, KS. Rotary and a member of Overland Park Rotary and a Paul Harris Fellow. He was a Board Member of KCPT, Shawnee Mission Hospital Foundation and received the Richard Edmonds award. He was also a Board Member of the Overland Park Chamber, KU Medical Center Advancement Board, Youth Friends, Kansas Action for Children, United Way, United Community
Services, Safehome, KU Gold Medal Club, YMCA, Greater Kansas City Community Foundation, KU Law Society Chair and many others. He was also a member of the Kansas Bar Association and the Johnson County Bar Association where he received their highest award, the Justinian Award. Dick was a long time active member of Rolling Hills Presbyterian Church as a trustee, choir member, ordained elder and served on many committees. In lieu of flowers, donations in his memory may be made to Rolling Hills Presbyterian Church 9300 Nall Ave., Overland Park, KS 66207. Or, his last fundraising effort was to benefit the KU Alzheimer’s Disease Center at 3901 Rainbow Blvd., Mail Stop 3012, KC, KS 66160. Online contributions may be made at www.kuendowment.org/give. Please indicate donations are for the Dick Bond Memorial. Services are pending. Online condolences may be expressed at www.amosfamily.com (Arr. Amos Family Funeral Home 10901 Johnson Dr., Shawnee, KS 66203; 913-631-5566) (Ed. note: It was my privilege to serve on Dick Bond’s staff when he was President of the Kansas Senate. He was the consummate professional, the ultimate gentleman. He was always class personified. The world is reduced by his departure from it. Rest in peace, sir. You are missed. pVs) George William “Bill” Frick (6/7/1944 – 7/5/2020) George William “Bill” Frick passed away on July 5 in Palm Desert, CA. He was born in Ft. Scott, KS, on June 7, 1944, to Ethel and Phillip Frick (KU L ’36). According to family lore, Phil took one look at his newborn son and left for World War II. Bill grew up in Ft. Scott, attended public schools and graduated valedictorian of his class. He attended the University of Kansas, joined Phi Delta Theta fraternity, served as President of the Student Union Activities and graduated Phi Beta Kappa and With Distinction. He began law school at the University of Michigan, but he returned to Kansas to marry Helen Louise Bush whom he met on the University of Kansas summer language program in Spain. Bill completed law school at KU, was on Law Review, and upon graduation, moved to Kansas City where he joined the Dietrich Davis law firm. There his daughter, Caroline Jane Frick, was born. Bill had been active in a local environmental organization and decided to relocate to greater Washington to join the newly formed Environmental Protection Agency. Bill served as head of the water lawyers, then air lawyers and was appointed General Counsel of the Agency at age 30. His son, Charles William Frick was born in Maryland. Upon leaving EPA, Bill joined the startup law firm of Van Ness Feldman. After a decade in the Washington area, the family returned www.ksbar.org | September/October 2020 59
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to Kansas City to be closer to family and longtime friends and for Bill to become a partner in the law firm Lathrop Koontz. After three years in Kansas City, Bill was recruited back to Washington to serve as General Counsel of the American Petroleum Institute. Upon retirement from API, Bill rejoined his friends at the Van Ness Feldman law firm. He retired to travel extensively internationally with Helen Louise, who was employed by the World Bank Group. They summered in their mountain home near Estes Park, CO where Bill served as President of the Summer Residents Association, and spent their last several winters in Palm Desert, CA. Bill is survived by his wife of 53 years, Helen Louise; his daughter Caroline (Adam Brown) and grandson Will Page; his son Charles William (Bethany Medford Frick) and his grandchildren, Katie and Charlie; his sister Christie Reynolds and brother, Phillip Frick of Wichita, KS, and 10 nephews and nieces. A memorial service will be held at a later date but in lieu of flowers, the family suggests a contribution in his name to one of his favorite organizations: The University of Kansas Endowment in support of Study Abroad (P.O. Box 928, Lawrence, KS 66044); his daughter’s nonprofit, the Texas Archive of the Moving Image (www.texasarchive.org / 3908 Avenue B, Suite 306, Austin, TX 78751) or the Estes Park Public Library (https://estesvalleylibrary.org / PO Box 1687, 335 East Elkhorn Avenue, Estes Park, CO 80517). John M. Gaffney Jr. (3/1/1940 – 7/6/2020) John M. Gaffney Jr. was born March 1, 1940 to John M. Gaffney and Mary Louise (Woestemeyer) Gaffney in Kansas City, Kansas. John graduated from Washington High School in Kansas City, Kansas in May 1958. On September 14, 1963, John and Barbara Ann Middaugh were united in marriage in Lawrence, Kansas. To this union, two children were born, a daughter, Jonna, and a son, Johnny. John attended the University of Kansas, completing a Bachelor’s Degree in education, attending graduate school, and later receiving a Juris Doctor. After becoming a lawyer in 1979, John and his family moved to Anthony, Kansas where he joined Ronald D. Albright in the practice of law. John retired in the summer of 2016. John was a member of the Anthony Kiwanis Club, The Harper County Bar Association, the Kansas Bar Association, and the Kansas Honor Scholars program. On July 6, 2020, John passed away at home. He was preceded in death by his parents, his older sister Faye Wood, and his grandson Gabriel Gaffney. He is survived by his wife Barbara, his daughter Jonna, his son Johnny, his granddaughter Mackenzie, and his grandson Jack. Cremation and burial have taken place. Memorials in memory of John may be made to Wounded Warrior Project 60
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or Habitat for Humanity’s Veterans Build and may be sent in care of Prairie Rose Funeral Home, 602 E. Main St., Anthony, KS 67003. Hon. Fred Schuyler Jackson (8/5/1935 – 8/1/2020) Judge Fred Schuyler Jackson passed away Saturday, Aug. 1, 2020, after a long illness. He was born Aug. 5, 1935, to Schuyler Wood Jackson and Esther Watson Jackson of Topeka. He graduated from Topeka High School, where he began dating Mary Jo McNair. They married on Aug. 17, 1957, following their graduations from Washburn University. He then attended Washburn University School of Law, graduating with his juris doctorate in 1960. He began his career as an assistant county attorney for Shawnee County. He joined the law firm of Stumbo & Irwin before establishing his own law practice. From 1966 to 1968, he served as a U.S. Commissioner (now known as Magistrate), appointed by U.S. District Court Judge George Templar. During his 20 years of private law practice, he also served as an adjunct professor in the Washburn School of Law, where he taught negotiation and settlement. He was sworn in as a judge of the Shawnee County District Court on Aug. 18, 1980. During his years on the bench, Judge Jackson presided over numerous high-profile civil and criminal cases. When he announced his retirement, The Topeka Capital-Journal editorial board commended Judge Jackson as “a rock-solid jurist. He is, in short, a judge’s judge.” A scholar and a gentleman, Judge Jackson demanded decorum in his courtroom. When necessary, he could convey his indignation with a few measured words or a steely glance. The Capital-Journal editors wrote, “If every judge had Jackson’s sense and legal acumen, the state never would have passed sentencing guidelines that remove a lot of a judge’s discretion in criminal cases. But not every judge is Fred Jackson.” Judge Jackson retired in 1999 but continued to serve as a senior judge until 2011. For the Kansas Supreme Court, he served as one of three judges on the Kansas Judicial Ethics Advisory Panel from 1999 to 2019. He was a member of the Topeka Bar Association, Lawyers Club, the Kansas Bar Association and the American Bar Association. For more than 40 years, he also belonged to The Jayhawker Club, which was founded in the early 1900s as a men’s literary group. Judge Jackson was a voracious reader and an avid outdoorsman. He enjoyed countless hunting and fishing trips with dear friends and his son, Kent. The opening weekends of pheasant and duck seasons were high holy days, and he especially loved trout fishing in Colorado.
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He was a longtime member of the Topeka Jazz Workshop and St. David’s Episcopal Church, where he was a lay reader and served several terms on the Vestry. Judge Jackson was preceded in death by his parents and his sister, Patricia Jackson Hanvey. He is survived by his wife, Jo; his daughter, Jennifer Jackson Sanner, and her husband, Robert; his son, Kent, and his wife, Kali; six grandchildren, Rachel Sanner, Jackson Sanner, Claire Sanner, Schuyler Jackson, Elizabeth Jackson and Paul Jackson; his niece, Katy Hanvey Willard, of Spokane, Washington, and his nephew, Michael Hanvey, of Sydney, Australia. The family extends heartfelt thanks to the entire staff of Homestead of Topeka who provided extraordinary care for Judge Jackson. In lieu of flowers, the family suggests memorial contributions to St. David’s Episcopal Church. Family members will gather for a private graveside service; they hope to hold a memorial service at St. David’s when it is safe for loved ones and friends to gather. To leave a special message for the family online, visit www. DoveTopeka.com Judge Fred Schuyler Jackson Albert “Bert” Merritt Ross (11/20/1923 – 6/3/2020) Albert Merritt (Bert) Ross, age 96, Mission, KS, passed away June 3, 2020, at home in Mission Square Independent Living, Mission, KS. A graveside service was held Sat., June 13, at Chapel Hill Memorial Gardens, 701 N. 94th St., KCKS 66112. The service was also available for those unable to attend in person via Facebook live, a virtual memorial service. The Family suggests remembrance gifts to Shriners’ Children’s Hospitals, care of Abdallah Shrine, 5300 Metcalf, Overland Park, KS, or to Southminster Presbyterian Church, 6306 Roe Avenue, Prairie Village, KS 66208. Albert was born at home in Kansas City, KS on November 20, 1923, to Albert Mettee Ross and Marion Birch Damrell Ross. After graduating from Wyandotte High School Class of 1942 and a year at Kansas City, KS, Community College, he left this area in 1943 for training in the Navy V-12 program at Washburn University, Topeka, KS; then a semester at Harvard School of Business becoming a Naval Supply Officer. He served in the Pacific on a Barracks Ship [APL] that transported Soldiers and Marines to the Marshall Islands, flying home from Kwajalein in 1946. He enrolled in Washburn University that fall, graduating with a Business degree in 1947 and with a Law Degree in 1949, having become a member of Phi Delta Theta Fraternity in 1943 serving as President in the fall of 1948. He was also a member of Delta Theta Phi Legal Fraternity. Albert Merritt Ross and Ora “Gretta” (Nuttle) were married in Topeka on December 18, 1948. Mr. Ross practiced law in Kansas City and Overland Park, KS. July 5th 1949 to retirement on December 31 1995. From
1953-55 he served as the Workers Compensation Judge of Northeastern Kansas and then 1955-56 he was the Workers Compensation Commissioner of Kansas. He had served on the Kansas Governor’s Workers Compensation Advisory Committee. He was past president of the Kansas Trial Lawyers Association, Sunflower Council of Camp Fire Girls, Lenexa Optimist Club, several Shrine organizations and 1984 through 1991, Recorder of Abdallah Shriners. He served on the boards of the Kansas City Presbyterian Manor, The Presbyterian Manors of Mid America, the Church Development Corporation of the Synod of Mid America, was an Elder and former Deacon of the First Presbyterian Church of Kansas City KS, Knox Presbyterian Church of Overland Park, and Southminster Presbyterian Church of Prairie Village. When a youth he attended the first National Boy Scouts Camp held in Washington, DC, traveling with Scouts from all parts of the USA on Railroads. As an Assistant Scoutmaster of Troop 189, Countryside Christian Church, he saw his son become an Eagle Scout. His memberships included Wyandotte High School class of 1942 Reunion Committee, a member of Wyandotte Masonic Lodge No. 3, Casswell Consistory of Scottish Rite, The Oriental Band of Abdallah Temple and a former member of Yorkrite Masons and Shriners Royal Order of Jesters; he served the Oriental Band and the Jesters as President. Albert was preceded in death by his parents, his stepmother Betty Jones Ross, his brother Robert “Bob” Marion Ross, and Bob’s son Robert Marion Ross, Jr. He leaves his wife of 71+ years, four children: Harriett “Hatti” Ross of the home in Mission Square; Gretchen Ross Hill, PhD., Warrensburg, MO; Nava Ross Renaud (Chris) of Redford Township, MI; and Dr. Albert Marshall Ross, IV (Kathy) of East Greenwich, RI, eleven grandchildren, and fourteen great grandchildren. Allen L. Shelton (8/8/1943 – 8/23/2020) Allen L. Shelton, 77, of Oberlin, Kansas, died August 23, 2020, at the University Medical Center in Omaha, Nebraska. He was born August 8, 1943 at his Grandmother Desbien’s home in Damar, Kansas to James Milford and Stella Irene (Desbien) Shelton. He was their oldest child with brothers Denis, Jim, Rodney, and Maurice arriving to complete the family. Allen grew up in Hill City where he attended grade, junior high and high school, graduating in the Hill City High School Class of 1961. Allen graduated from Fort Hays State College in 1965 and then entered Washburn University School of Law in Topeka. Interestingly, his last two years of classes were spent in trailers after the June 8, 1966 Topeka tornado demolished the law school. In 1968 he received his Juris Doctor degree from www.ksbar.org | September/October 2020 61
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Washburn University, where he ranked fourth in his class. Returning to his hometown, he joined Kenneth Clark’s law firm. After Allen became a partner the firm was known as Clark and Shelton. A high point in his career was when he was hired as a special prosecutor in two high-profile murder cases in the 1970’s. Through the years he won many appeals before the Kansas Supreme Court. Later Allen practiced law in both Oberlin and Smith Center. Allen was very passionate about his work and helped an unfathomable number of people through his practice. He was devoted to his clients and was “at home” in the courtroom. Allen practiced law until his death, a career which lasted 51 years. Leisure time found Allen enjoying hunting, fishing, reading, listening to music, watching old westerns and Fox News. Photography was another interest. He found much pleasure hiking in pastures photographing wildflowers, which he later researched. Allen was such an avid KU basketball fan and enjoyed watching all types of sports on ESPN. He always looked forward to taking his oldest grandson to the local high school basketball games. Allen’s love of learning and intelligence, which enabled him to answer his children’s many questions, as well as his sense of humor, were appreciated by them. Most of all, Allen loved spending time with his grandkids who meant everything to him. They gave his life meaning. Allen was preceded in death by his parents. Survivors include his children: Jason Shelton, Wichita, Jordan Shelton, Portland, Oregon and Miranda (Tim) Gish, Oberlin; Stepchildren: Monica Larson, Carl (Des) Larson, Marissa (Kane) Robinson and Colby (Anna) Larson; ex-wives Kay Clark, Wichita and Marla (Stepp) Shelton, Oberlin; brothers: Denis Shelton, Hill City, Jim Shelton, Hays, Rodney Shelton, Haviland, and Maurice (Nancy) Shelton, Buffalo; nine grandchildren, other relatives and friends. Hill City always had a special place in Allen’s heart. He delighted in returning as often as possible to visit family and friends who will forever remember and miss him. Patricia Ann “Patti” Slider (N/A - 6/30/2020) Patricia Ann “Patti” Slider, (73), died June 30 , 2020. She was born to Charles and Beulah Slider of Lyons, Kansas. Her parents, church, and Girl Scouting were major influences on her life, as was high school teacher Elizabeth Ashlock, who helped her overcome a speech impediment and encouraged her writing. She graduated from Lyons High School, Baker University, and Central Baptist Theological Seminary (MDIV), Shawnee Mission, KS. She also attended the University of Kansas, where she received several extra-curricula honors, and St Paul School of Theology, KC, MO. She married Paul Klotz and two sons were born to them: Andrew and Charles. In 1984, she married James Wright.
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One year, Patti worked in Estes Park and Aspen, Colorado, and Los Angeles, California. In Topeka, she was the Adult Program Director for the YWCA, then when her sons were young she was a preschool teacher at the YMCA and First Lutheran Church. She worked for Kaw Valley Girl Scout Council, the Kansas Bar Association, and Washburn Law School, writing and editing publications and raising funds. While working full time, she began taking evening seminary classes in Kansas City graduating May 18, 2002, and ordained by First Christian Church (Disciples of Christ), Topeka, May 19, 2002. She served as a student associate pastor at First Christian Church, Topeka. She was the interim pastor at First Presbyterian Church, Holton, at West Side Presbyterian Church, Lawrence, interim associate pastor at First Presbyterian, Lawrence, and interim pastor at First Presbyterian, Wamego, and pastor at Oakland Presbyterian Church, Topeka. She served on several community boards and held offices in professional organizations including on national committees of ASAE, and was a charter member and second president of IABC, Topeka. She was a member of PEO, DV chapter, Topeka. She was baptized Palm Sunday, 1958, at First Christian Church, Lyons, Kansas, and was a member of First Christian Church, Topeka. Patti loved and adored her husband Jim, sons, and grandchildren, and they blessed her with great joy. She took pleasure in cooking for them, hiking and exploring nature and the national parks. She looked after several family members. She was given a 1937 Singer Featherweight Sewing Machine when 13, and for the next 15 years or so she sewed most of the clothes for her sister and herself. She worked two summers as a finisher in the men’s tailor shop of Henry’s, Wichita. Her passion was words, whether reading, or writing to proclaim God’s love so more would sing “morning by morning new mercies we see” and praise the Lord. She enjoyed flowers and gardening particularly roses and red geraniums in blueglazed pots. She is survived by son Andrew Klotz (Rene’), and their children Lucy and Conrad, and son Charles Klotz; sister Sandra Slider, and sister-in-law Robin and nephews Dustin and Matthew. She was predeceased by her husband of 33 years, Jim Wright (2017), two brothers William (2017), and Michael (2020), her parents, and step-dad Ansel Tobias. She was buried in the Lyons Cemetery; the family will gather for a worship service of Witness to the Resurrection when feasible.
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Appellate Decisions All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org
Kansas State Supreme Court Attorney Discipline ORDER OF DISBARMENT IN RE SUSAN ELIZABETH VAN NOTE NO. 16,327—AUGUST 26, 2020
FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas. HELD: The Court accepts the surrender of Van Note’s license to practice law in Kansas and she is disbarred.
Civil ADOPTION IN RE ADOPTION OF BABY GIRL G. SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED NO. 121,051—JULY 10, 2020
FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father’s parental rights were terminated. The court of appeals affirmed that ruling but reversed the award 64
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of attorney fees and remanded the case to district court for further consideration of that issue. Father’s petition for review was granted. ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 592136(h)(1)(D); (2) whether there was adequate evidence of a failure to support HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court’s decision that Father failed to support the natural mother during the last six months of her pregnancy. Father’s non-financial support was minimal and of little value to the mother and his financial support was inconsequential. DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father’s constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling. STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h) (1) HABEAS CORPUS, RIGHT TO COUNSEL BALBIRNIE V. STATE FRANKLIN DISTRICT COURT— COURT OF APPEALS IS REVERSED DISTRICT COURT IS REVERSED—CASE REMANDED NO. 115,650—JULY 24, 2020
FACTS: Balbirnie was convicted of second-degree murder, and his conviction was affirmed on direct appeal. Throughout that process, Balbirnie consistently proclaimed his innocence and blamed the murder on one of the other people present at the scene of the crime. Within one year of his conviction being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in which he claimed trial counsel was ineffective for failing to investigate and then introduce at trial a recording of a 911 call at which an eyewitness named another person as the murderer. After an evidentiary hearing, the district court found
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that trial counsel did not perform deficiently and even if he had, Balbirnie failed to establish prejudice. The Court of Appeals disagreed with the district court on the question of trial counsel’s performance, finding that the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. But the panel ultimately affirmed the district court, holding that this deficient performance did not prejudice Balbirnie. The Supreme Court granted Balbirnie’s petition for review. ISSUES: (1) Performance; (2) prejudice HELD: Balbirnie prevailed in the Court of Appeals on the issue of deficient performance and did not seek review of that decision. The State did not file a cross-petition for review either, although case law existing at the time the petition was filed suggests such a filing was not necessary. A cursory glance at the Court of Appeals’ decision shows that it correctly ruled that trial counsel’s failure to introduce the 911 call was not a strategic decision was, in fact, objectively unreasonable. A review of the evidence in its totality shows that if the call had been introduced there was a reasonable probability the jury would have made a different decision. This is true even though there was evidence of Balbirnie’s guilt. STATUTE: K.S.A. 60-420, -1507 JURISDICTION—TAXATION IN RE EQUALIZATION APPEALS OF TARGET CORPORATION BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS NO. 11,228 – JULY 10, 2020
FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County’s ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn’t learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted. ISSUES: (1) Jurisdiction; (2) scope of review HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA’s failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency’s failure to act in a timely
manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA’s refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County’s argument.
Criminal APPELLATE PROCEDURE—CONTRACTS—CRIMINAL PROCEDURE—EVIDENCE—MOTIONS STATE V. BRAUN ELLIS DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED NO. 113,762—AUGUST 28, 2020
FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error. ISSUE: (1) Stipulated facts in support of conviction on alternative charge HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). STATUTES: K.S.A. 2019 SUPP. 60-261; K.S.A. 2012 SUPP. 8-1001(K), -1567(A)(2), -1567(A)(3)
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appellate decisions APPELLATE PROCEDURE—CRIMINAL PROCEDURE— EVIDENCE STATE V. BRAZZLE RILEY DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 116,649—JULY 10, 2020
FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted. ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Case law on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value. By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error. Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument. STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455
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ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY STATE V. BURDEN SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 116,819—JULY 17, 2020
FACTS: Burden was charged with possession of drugs and drug paraphernalia. District court found she was competent to stand trial pursuant to a court-ordered competency exam and evaluation that found, in part, that Burden had “no significant impairment that is psychiatric in nature.” District court also allowed Burden to represent herself, and appointed standby counsel. Jury convicted her on drug possession charges, and acquitted on the paraphernalia charge. Burden appealed, arguing district court used an incorrect standard to determine whether she was competent to represent herself. Court of appeals affirmed in unpublished opinion. Review granted. ISSUE: (1) Standard for determining mental competency HELD: Three distinct but related concepts are examined— mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent. Indiana v. Edwards, 554 U.S. 164 (2008), allows a district court judge to deny a request to waive counsel if a defendant has a severe mental illness. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant’s severe mental illness. Here, the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that she suffers from a severe mental illness. STATUTE: K.S.A. 22-3301, -3301(1) PROCEDURE—JURIES—MOTIONS—STATUTES STATE V. CARTER SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,315—JULY 10, 2020
FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas, 298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt, 2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges. ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests
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the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt. District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting. District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation. STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203, CRIMINAL PROCEDURE—MOTIONS—STATUTES STATE V. EDWARDS SHAWNEE DISTRICT COURT—AFFIRMED NO. 120,600—JULY 17, 2020
FACTS: Jury convicted Edwards in 1996 of first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. In 2011, he filed motion for DNA testing of items found at crime scene. District court granted the motion in 2013, and for additional, independent DNA analysis of the evidence. District court held a 2017 hearing and found the DNA results were favorable to Edwards, but denied Edwards’ motion for a new trial because the DNA evidence was “not reasonably probable to lead to a jury reaching a different result.” Edwards appealed. ISSUE: (1) DNA testing statute HELD: Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-5212 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. As in State v. LaPointe, 309 Kan. 299 (2019), the non-DNA evidence against Edwards is strong. District judge did not abuse her discretion by concluding there was no reasonable probability the DNA results would have changed the original trial’s outcome. District judge’s denial of Edwards’ motion for a new trial is affirmed. STATUTE: K.S.A. 2019 Supp. 21-2512, -2512(f)(2) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE—FOURTH AMENDMENT STATE V. ELLIS LYON DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—AFFIRMED NO. 120,046—AUGUST 7, 2020
FACTS: Police were called to check on welfare of a person (Ellis) in convenience store bathroom. Ellis stated she was okay and having stomach trouble. Police asked for identification, held Ellis’s driver’s license to run warrant check, arrested her on an outstanding probation violation warrant, and found drugs and paraphernalia in subsequent search. State charged Ellis with drug offenses. She filed motion to suppress, arguing the seizure and subsequent search exceeded the scope of the encounter. State argued the attenuation doctrine set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the
search. District court denied the motion and convicted Ellis in bench trial. Ellis appealed. Court of Appeals reversed, holding the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. 57 Kan. App. 2d 477 (2019). State’s petition for review granted. ISSUE: (1) Scope of welfare check; (2) attenuation doctrine HELD: Under facts of the case, the officer lawfully engaged with Ellis and requested her identification. But police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, the officer had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some pick up order” exceeded the scope of the safety check. Ths constituted an unlawful seizure and consequent search. Application of the attenuation exception to the exclusionary rule is inappropriate on facts in this case. Factors in Strieff are applied finding all weigh against admissibility of the drug evidence under the attenuation doctrine: (1) a very short passage of time; (2) under Kansas case law the discovery of an outstanding warrant was not an attenuating factor in this case; and (3) the clarity of Kansas law forbidding the officer’s illegal conduct supports a finding of flagrant official misconduct. District court’s judgment is reversed and evidence seized subsequent to the initial conduct must be suppressed. Remanded for further proceedings. CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. and Wilson, J.): Concurs with the result but majority appears to back away from the more stringent requirements in Strief. Under Strief as outlined in State v. Tatro, 310 Kan. 263 (2019), when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Agrees with majority’s finding of flagrant misconduct, but would limit the analysis in these circumstances to that question only. STATUTES: None CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS STATE V. GREEN MONTGOMERY DISTRICT COURT—AFFIRMED NO. 116,366—AUGUST 21, 2020
FACTS: For offenses related to the killing of Green’s exwife’s boyfriend, a jury convicted Green of first-degree premeditated murder, aggravated burglary, and arson. On appeal he claimed: (1) district judge should have instructed jury on defense of voluntary intoxication; (2) district judge should instructed jury on lesser included offense of voluntary manslaughter; (3) district judge’s failure to give those two instructions deprived Green of his constitutional right to a jury trial; (4) the failure to instruct on voluntary manslaughter pushed jury to convict on first-degree premeditated murder even if jurors had reasonable doubt that State had proved its case; (5) district judge erred in admitting into evidence a videotaped interrogation of Green because officers repeatedly challenged his honesty and truthfulness during that interrogation; (6) www.ksbar.org | September/October 2020 67
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district judge erred in refusing to give cautionary instruction about testimony from jailhouse informants; and (7) cumulative error denied him a fair trial. ISSUES: (1) Jury instruction—voluntary intoxication; (2) jury instruction—voluntary manslaughter; (3) right to a jury trial; (4) constitutional right to due process; (5) evidence— videotaped statements; (6) cautionary instruction on informant testimony; (7) cumulative error HELD: Under facts in case, an instruction on voluntary intoxication was not factually appropriate. No evidence of impairment that would prevent the formation of the necessary criminal intent. Instead, Green relies on evidence of his intoxication before and after the crime. District judge correctly denied Green’s request for a voluntary manslaughter instruction. No evidence that the sleeping victim did anything as Green entered his house that could be characterized as provocation. District judge’s failure to instruct jury on voluntary intoxication and voluntary manslaughter did not violate Green’s constitutional claim of being denied right to a jury trial where no evidence supported Green’s requests for those instructions. Green’s argument for extending Beck v. Alabama, 447 U.S. 625 (1980), to noncapital cases is rejected. Under facts in case, no error under Beck’s letter or its spirit. Green’s challenge to the admission of videotaped statements he made during police interview, raised for the first time on appeal, is not considered. Even if error to not redact the interviewers’ comments on credibility, the error would be far from dispositive. Court finds no established exception to the preservation problem, and notes this case is a poster child for adherence to the contemporaneous rule. District judge did not err in denying Green’s request for a cautionary instruction on informant testimony. Neither jailhouse informant was acting as an agent for the State when the informant first received incriminating information from Green, and multiple witnesses and other evidence corroborated each informant’s testimony. Cumulative error doctrine not applicable where there is no error or only a single error. CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Green was impaired at the time of the crime. Disagrees with that portion of majority’s decision to the extent it implies the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, -455, -1507 CONSTITUTIONAL LAW—CRIMINAL LAW— EVIDENCE—STATUTES STATE V. HARRIS SEDGWICK DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED NO. 116,515—JULY 17, 2020
FACTS: Harris, a convicted felon on parole, was in an altercation when he opened a pocketknife with a 3.5 inch ser68
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rated blade for protection, then dropped it when police arrived. State charged him with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. Harris filed motion to dismiss the possession charge, claiming the statutory definition in K.S.A. 2019 Supp. 21-6304 of a “knife” was unconstitutionally vague on its face and as applied. District court denied the motion. Harris also sought to introduce evidence of parole officer who advised him he could carry a knife less than 4 inches long, and similar info in Kansas Department of Corrections (KDOC) orientation and handbook. Adopting State’s position that parole officers and KDOC staff are not legally authorized to interpret statutes, district court excluded all evidence in support of Harris’ mistake-of-law defense. Harris appealed, claiming district court erred by rejecting his vagueness challenge to the statute and by excluding all evidence supporting his mistakeof -fact defense. In unpublished opinion Court of Appeals rejected the constitutional challenge, but reversed the trial court’s evidentiary ruling on the mistake-of-fact evidence and remanded for a new trial. Review granted. ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 216304; (2) evidence—mistake of law defense HELD: Case is resolved on a facial challenge to the statute. The residual clause “or any other dangerous or deadly cutting instrument of like character” in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. Similar problem in City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013)(noise ordinance is unconstitutionally vague). This constitutional failure began with legislative enactment that impermissibly delegated legislative power to the executive and judicial branches. Because case is resolved in Harris’ favor on constitutional grounds, the evidentiary issue raised in State’s petition is not reached. DISSENT (Biles, J.) (joined by Rosen, J. and Green, J.): K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague on its face or as applied to Harris. Majority imposes too strict a standard on Legislature’s ability to formulate criminal laws. Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts, the statute is sufficiently clear to have informed Harris it was unlawful to possess his knife, and the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it. Photo of Harris’ knife is attached. Majority’s reading of Farmway is criticized. Would reverse Harris’ conviction because he is entitled to pursue a mistake-of-law defense. KDOC is legally authorized to interpret the criminal-possession statute, and the KDOC handbook could be read by Harris as containing the agency’s official interpretation of the statute. Trial court’s error in not allowing Harris to pursue a mistake-of-law defense was not harmless in this case. STATUTES: K.S.A. 2019 Supp. 21-5207(b)(4), -6304, -6304(c)(1), -6304(c)(2); K.S.A. 2018 Supp. 21-5207(b) (4); K.S.A. 2016 Supp. 21-5111(aa)(5), -5111(p)(2), 75-5217, -5217(a), -5217(b), -5217(c), -5217(d); K.S.A. 2012 Supp. 21630; K.S.A. 21-6301, -6304, 75-5201, -5216
appellate decisions CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— JURIES—STATUTES STATE V. HARRISON JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 116,670—JULY 17, 2020
FACTS: Jury convicted Harrison of various crimes committed in 2015. During deliberation, judge discussed jury question with Harrison, counsel and prosecutor all present. All agreed to send jury a written response. Harrison appealed on four claims of trial error, including his challenge at not being present when written response was passed to the jury by court staff. In unpublished opinion court of appeals affirmed the convictions, holding in part the district court violated Harrison’s constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing rather than giving the answer in open court with Harrison present, but the error was harmless. Review granted limited to the district court’s failure to have Harrison present when jury received the answer. ISSUE: (1) Response to jury’s question HELD: District court complied with both statutory and constitutional requirements. 2014 revision of K.S.A. 22-3420 allows judges to answer jury questions in open court or in writing. K.S.A. 2019 Supp. 22-3405(a) is analyzed in light of that revision. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room: the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a); K.S.A. 2019 Supp. 22-3420(d) does not require a defendant’s presence when the jury receives that response; and the defendant’s right to be present during critical stages of the proceedings is not a violation under the Sixth Amendment Confrontation Clause or the Due Process Clause of Fourteenth Amendment. Nothing in the record reasonably suggests Harrison’s presence was essential or critical to a fair and just determination of a substantial issue. Review of panel’s harmless error analysis is unnecessary. STATUTES: K.S.A. 2019 Supp. 22-3405(a), -3420(d); K.S.A. 22-2102, -3405(1), -3420(3) CRIMINAL PROCEDURE—MOTIONS— POSTCONVICTION RELIEF—STATUTES STATE V. HILL OSAGE DISTRICT COURT—AFFIRMED NO. 119,359—JULY 17, 2020
FACTS: Pursuant to amended plea agreement, Hill entered no a contest plea in 2000 to various charges including premeditated first-degree murder. No direct appeal taken. Hill then pursued various post-conviction motions: 2004 motion under K.S.A. 60-1507; 2008 motion to withdraw his no contest pleas; 2014 and 2015 motions including new motion to withdraw pleas and motion to correct illegal sentence. District court denied each motion, and when appealed, the court of appeals affirmed. Present appeal is from district court’s denial of Hill’s 2017 pro se “Motion to Set Aside a Void Judgment Under Due Process of Law and K.S.A. 22-3210.” The district court construed the motion as one to withdraw pleas under K.S.A. 22-3210, and denied the motion as untimely.
District court further found no manifest injustice supported withdrawal of the pleas, found Hill was represented by competent counsel, there was no coercion or unfair advantage taken of Hill, and his pleas were knowingly and understandingly made. Hill appealed, arguing trial court errors, including incorrectly analyzing the motion as one to withdraw plea instead of a motion to void convictions and sentence, denied Hill due process. ISSUE: (1) Due process—motion to correct illegal sentence HELD: Trial judge correctly construed Hill’s various arguments as another effort to withdraw his pleas. Hill’s 2017 motion was filed outside the one year time limitation added to K.S.A. 22-3210 in 2009, and no grounds of excusable neglect for his untimely filing are asserted by Hill or otherwise demonstrated. Hill’s motion is procedurally barred. Trial court’s decision is affirmed. STATUTES: K.S.A. 2019 Supp. 22-3210, -3210(a), -3210(b), -3210(d), -3210(d)(1), -3210(d)(2), -3210(e)(1), -3210(e)(2); K.S.A. 2017 Supp. 22-3210, -3210(e)(1); K.S.A. 60-1507 CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING—STATUTES STATE V. JUAREZ LYON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 118,543—AUGUST 28, 2020
FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process. ISSUE: (1) Due process—notice of obligation to register as violent offender HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so. CONCURRENCE (Biles, J.): Concurs with the result but www.ksbar.org | September/October 2020 69
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believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice. CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA. DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (postsentencing motion. STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 224901 et seq., -4902(e)(1), -4902(a)(5), -4904(a)(1)(A); K.S.A. 22-4902, -4905 APPEALS—APPELLATE PROCEDURE—CRIMINAL LAW—STATUTES STATE V. LINDEMUTH SHAWNEE DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—AFFIRMED NO. 116,937—AUGUST 28, 2020
FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan. App. 2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered. ISSUE: (1) Change of law—constitutional error HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions. 70
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DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim. DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness. Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements. STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1) CRIMINAL PROCEDURE—EVIDENCE—PROSECUTORS STATE V. MARTINEZ SHAWNEE DISTRICT COURT—AFFIRMED NO. 119,739—JULY 24, 2020
FACTS: Martinez convicted of first-degree premeditated murder and other crimes arising from a drive-by shooting. On appeal he claimed the prosecutor erred in closing arguments by saying “The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence.” Martinez argues this impermissibly shifted the burden of proof and infringed on his constitutional protection against compulsory self-incrimination. ISSUE: (1) Prosecutorial error HELD: Prosecutor’s statements were within the wide latitude allowed in closing arguments. The comments, when read in context, appropriately explained how the evidence supported the State’s theory of the case, and did not offend Martinez’ constitutional right to a fair trial. Prosecutor did not comment on Martinez’ failure to testify or argue Martinez had to prove that he lacked a motive or that witnesses had a motive to lie. Prosecutor did not suggest the defense had any burden to do something in response to the State’s evidence or that Martinez needed to testify and explain his action. Nor did the prosecutor shift the burden or comment on Martinez’ failure to testify by pointing out the defense’s argument rested on an inference. STATUTE: K.S.A. 60-439 CONSTITUTIONAL LAW—CRIMINAL LAW— CRIMINAL PROCEDURE—EVIDENCE— PROSECUTORS—STATUTES STATE V. MOORE RENO DISTRICT COURT—AFFIRMED NO. 121,040—AUGUST 21, 2020
FACTS: Moore was convicted of first-degree premeditated murder. The trial judge allowed State to introduce incriminating statements Moore made during police interview, finding Moore made no unequivocal request for counsel. Trial judge also denied Moore’s request for voluntary intoxication instructions on first-degree premeditated murder and lesserincluded crime of intentional second-degree murder. On appeal Moore claimed: (1) district judge should have suppressed evidence of his incriminating statements; (2) it was error to refuse to give voluntary intoxication instructions; (3) prosecutor committed error in closing argument; and (4) cumulative error denied him a fair trial.
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ISSUES: (1) Motion to suppress; (2) voluntary intoxication jury instruction; (3) prosecutorial error; (4) cumulative error HELD: District judge did not err in denying the motion to suppress. Moore’s statement that “Well, I guess it’s lawyer time now then,” considered as a whole and in context, is ambiguous. And his statement ten minutes later that he was “done, all right,” followed by continued talking on his part did not transform his earlier statement into an unambiguous invocation of right to counsel. District judge did not err in denying voluntary intoxication instructions. Even assuming such an instruction was legally appropriate, it was not factually appropriate where there was no evidence of impairment negatively affecting Moore’s ability to form the requisite intent. No error found in prosecutor’s closing argument by stating that premeditation can be seen from Moore standing there and pulling the trigger over and over again, and by decrying the American tradition of criticizing the police. These statements did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, and did not appeal to jurors’ passions or prejudices. Prosecutor’s rebuttal statement that Moore may have been eliminating his competition was error because this unsupported speculation on Moore’s motive argued facts not in evidence. In light of overwhelming evidence against Moore, however, this error was harmless. Cumulative error doctrine not applicable where only a single instance of a harmless prosecutorial error found. CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Moore was impaired at the time of the crime. Disagrees with that portion of majority’s discussion on the issue to the extent it relies on State v. Green, __ Kan. __ (this day decided), that finds the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b) APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—JURY INSTRUCTIONS—STATUTES STATE V. PATTILLO SHAWNEE DISTRICT COURT—AFFIRMED NO. 118,941—AUGUST 21, 2020
FACTS: Pattillo drove the van in which an occupant fired shots, killing Miller and hitting the residence which was occupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening Miller with a gun, felony discharge of a firearm, and aggravated endangering of a child. On appeal, Pattillo challenged whether the underlying felonies supported the felony-murder conviction, and whether sufficient evidence supported the convictions. He also claimed his convictions for discharge of a firearm and felony murder violated both the Double Jeopardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed the trial judge erred in instructing the jury. ISSUES: (1) Underlying felonies—merger doctrine; (2) underlying felonies—sufficiency of the evidence; (3) underlying
felonies—multiplicity; (4) multiple convictions and punishments; (5) jury instructions HELD: Merger doctrine applies to Patillo’s aggravated assault conviction, and under facts in case, the aggravated assault merged with the homicide. If this were the only underlying felony, the felony-murder conviction would be reversed. Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doctrine does not apply to Pattillo’s convictions for aggravated endangering a child and discharge of a firearm at a dwelling, but under facts in case, sufficient evidence supports both underlying felonies. Sufficient circumstantial evidence that Pattillo was aware of the risk to the seven-year-old who lived in the dwelling and consciously disregarded that risk. Statutes for child endangerment and aggravated child endangerment are compared to reject Pattillo’s argument that State was required to prove he knew a child was in the house at the time of the shooting. No language in K.S.A. 2019 Supp. 215601(b)(1) or the definition of reckless conduct requires that a person endangering a child must know a child is in danger. State v. Herndon, 52 Kan. App. 2d 857 (2016), rev. denied 306 Kan. 1324 (2017), is factually distinguished. Sufficient evidence also supports Pattillo’s conviction for criminal discharge of a firearm at a dwelling, and Miller’s death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child. Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test in State v. Schoonover, 281 Kan. 453 (2006), is not employed where the legislature has expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide, such as discharge of a firearm at a dwelling. Pattillo can be sentenced for both felony murder and the enhanced punishment for discharging a firearm resulting in great bodily harm. No merit to Pattillo’s jury instruction claims. Invited-error doctrine precludes review of Patillo’s claims regarding the felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district judge’s failure to instruct jury on the lesser-included offenses of criminal discharge or of endangering a child. STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b) (1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S), -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1) (A), -6308(b)(1)(B), 22-3414(3)K.S.A. 2015 Supp. 21-5402(c) (1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A) CRIMINAL LAW—CRIMINAL PROCEDURE— JURY INSTRUCTIONS—PROSECUTORS— SENTENCING—STATUTES STATE V. THOMAS CHAUTAUQUA DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, REMANDED COURT OF APPEALS—AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART NO. 115,990—JULY 24, 2020
FACTS: Thomas convicted of aggravated battery, abuse of a child, and aggravated endangering of a child. On appeal he www.ksbar.org | September/October 2020 71
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argued: (1) district court erred by giving jury instructions that allowed the jury to convict him of aggravated battery if it found he intended the conduct but not the harm; (2) prosecutor improperly inflamed the passions and prejudices of jurors during closing argument by showing them photos of the child’s injuries and repeatedly telling them to acquit only if the jurors thought it was acceptable to inflict such injuries on “your child;” (3) cumulative effect of these two errors denied him a fair trial; and (4) district court erroneously scored Thomas’ 2001 out-of-state Virginia conviction for domestic assault and battery as a person crime. Court of Appeals affirmed in unpublished opinion, finding in part the aggravated battery jury instruction was erroneous but the error was harmless, and prosecutor’s if-you-think-it’s-okay statements did not encourage jurors to consider factors outside the evidence and law. Review granted. ISSUES: (1) Jury instructions—aggravated battery; (2) prosecutorial error; (3) cumulative error, (4) sentencing HELD: District court’s aggravated battery instructions were erroneous. Under State v. Hobbs, 301 Kan. 203 (2015), “knowingly” in elements of aggravated battery means more than just proving the defendant intended to engage in the underlying conduct, and requires State to prove the defendant acted when he or she was aware the conduct was reasonably certain to cause the result. Prosecutor’s If-you-think-it’s-okay statements were error. Panel’s reasons for finding that prosecutor’s statement did not encourage jurors to consider factors outside the evidence and law are examined and criticized as conflating the analysis of error with whether error was harmless. As to the child abuse charge the prosecutor’s error was harmless. Thomas’ conviction on this charge is affirmed. As to the aggravated battery charge for which instructional error was found, the combined impact of these errors must be considered. Cumulative error denied Thomas a fair trial on the aggravated battery charge. The erroneous jury instruction allowed the jury to find guilt based on a less culpable intent than required by the statute, and State’s repeated comments urged jury to convict based on emotional consideration rather than a reasoned and deliberate consideration of facts and law. The aggravated battery conviction is reversed and case is remanded for a new trial on this charge. Assault and battery, as defined by Virginia common law, is broader than Kansas battery and could encompass behavior that is not a crime in Kansas. Under State v. Wetrich, 307 Kan. 552 (2018), district court incorrectly calculated Thomas’ criminal history score and should have scored the 2001 Virginia conviction as a nonperson crime. Remanded for resentencing. STATUTES: K.S.A. 2017 Supp. 21-6811(e); K.S.A. 2015 Supp. 21-5413, -5413(b), -5413(b)(1)(A), -5413(g), -5602, -6811(e), 22-3414(3)
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CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE— JURY INSTRUCTIONS—PROSECUTORS STATE V. TIMLEY SHAWNEE DISTRICT COURT—AFFIRMED NO. 120,414—AUGUST 7, 2020
FACTS: Timley convicted of first-degree premeditated murder. During trial, Timley’s cellphone records including the cell towers accessed were admitted into evidence without objection, and a detective using Per Call Measurement Data (PCMD) from Sprint testified about the relative position of Timley’s phone throughout the day of the shooting. On appeal Timley claimed: (1) prosecutor erred during opening and closing arguments by making statements concerning the location of Timley’s phone at the time of the shooting; (2) district court erred in admitting the detective’s cell tower maps and accompanying testimony because detective lacked necessary expertise; (3) district court committed clear error by failing to instruct jury on intentional second-degree murder as a lesser included offense; (4) district court’s failure to instruct jury on lesser included offenses violated Timley’s right to due process; and (5) cumulative error denied him a fair trial. ISSUES: (1) Prosecutorial error; (2) admission of evidence; (3)jury instruction on lesser included offense; (4) due process; (5) cumulative error HELD: Prosecutor’s remarks during closing argument did not stretch the PCMD distance from a cell tower to Timley’s phone into a certitude, and thereby did not exceed the wide latitude extended to prosecutors. Prosecutor’s opening statement, by postulating that Timley’s phone was “exactly” at the site of the shooting, barely avoided error, but even if error, no possibility the prosecutor’s remark contributed to the verdict. Under facts of the case, no expert witness was needed. The detective’s exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess. District court erred in failing to sua sponte instruct jury on lesser included offense of intentional second-degree murder, but under facts of the case, no clear error is found. In noncapital case, a district court’s failure to sua sponte instruct on lesser included offense does not violate a defendant’s constitutional right to due process. Based on State v. Becker, 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), no due process violation found in district court’s failure to issue a lesser included offense instruction sua sponte. Cumulative error claim is rejected. Only one harmless error found in district court’s failure to sua sponte instruct jury on a lesser included offense. Even if prosecutor’s opening statement was harmless error, it bore no relation to the instructional error. CONCURRENCE (Biles, J.)(joined by Rosen, J. and Ward, S.J.): Disagrees that prosecutor’s opening statement was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority. STATUTES: None
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Kansas Court of Appeals Civil JURISDICTION—MUNICIPALITIES—OFFENDER REGISTRATION CITY OF SHAWNEE V. ADEM JOHNSON DISTRICT COURT—AFFIRMED NO. 121,328—JULY 31, 2020
FACTS: Adem was convicted of sexual battery in Shawnee Municipal Court and he filed a notice of appeal to the district court. A jury convicted him as charged in district court. As part of his sentence, Adem was required to register as a sex offender under the Kansas Offender Registration Act. He now appeals that finding. ISSUES: (1) Appellate jurisdiction; (2) applicability of KORA to municipal court convictions; HELD: The court has jurisdiction to consider Adem’s appeal because KORA allows for appeals where registration has been triggered by district court findings. KORA acts in concert with, but not as part of, the Kansas Code of Criminal Procedure or other sentencing statutes. It is its own separate act with its own regulatory purposes. Adem is correct that there is no statute that specifically applies KORA to violations of municipal codes. But K.S.A. 22-4902(b)(7) defines a sex offender as any person who has been convicted of an offense that is “comparable” to one specifically enumerated in the Act. The municipal sexual battery act is identical to the state statute, and Adem was properly required to register under KORA. STATUTES: K.S.A. 2018 Supp. 22-4902(b)(5), -4902(b) (7), -4902(t)(1); K.S.A. 2017 Supp. 22-3602, -3602(a); K.S.A. 2016 Supp. 21-5505(a); K.S.A. 22-2102, -2103; -3602, -3610(a), 46-1211(b) CHILD SUPPORT—JURISDICTION CHALMERS V. BURROUGH SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,108—JULY 31, 2020
FACTS: A Florida district court required Chalmers to pay Burrough child support to help care for their daughter. The support amount was based on Chalmers’ income as a player for the Miami Heat basketball team. Chalmers retired from the team in 2018 and moved away from Florida. Burrough and the child are Kansas residents. After his employment changed, Chalmers wanted to modify his child support obligation. But he could not do so in Florida because he was no longer a Florida resident. In 2018, Chalmers filed a petition to register and modify the Florida order in Kansas under the Uniform Interstate Family Support Act (UIFSA). Burrough 74
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did not dispute Chalmers’ attempt to register the judgment, even though he did not comply with UIFSA requirements by including copies of the Florida support order with the filing. The district court registered the Florida order in Kansas and later temporarily modified the support obligation as agreed to by the parties. Burrough then filed a motion to set aside, claiming that she never agreed to the terms. Chalmers also moved for permission to amend his petition to add the required copies of the Florida support order. Burrough countered with a motion to dismiss based on a lack of subject matter jurisdiction, arguing that the Florida support order was never properly registered because Chalmers did not comply with UIFSA requirements when registering the order. The district court agreed with Burrough and vacated its modification of the support order, finding that the presence of a certified copy of the Florida support order was fundamental to registering the order in Kansas. Chalmers appealed. ISSUES: (1) Whether objection to jurisdiction was waived; (2) whether substantial compliance with UIFSA is adequate HELD: Kansas only has jurisdiction to modify an out-ofstate child support order if that order is first registered in this state. It is undisputed that Chalmers failed to attach to his registration petition two copies, including one certified copy, of his Florida order. Challenges to subject matter jurisdiction can be raised at any time, even outside of the 20-day window contemplated by UIFSA. A Kansas court has no authority to modify an out-of-state child support order until that order is properly registered in Kansas. Litigants are not expected to strictly comply with UIFSA requirements. But attachment of the Florida order was a critical component of the UIFSA registration requirements. The failure to attach two copies of the order meant that Chalmers did not substantially comply with UIFSA and the order was never properly registered in Kansas, divesting the district court of jurisdiction to modify it. DISSENT: (Atcheson, J.) UIFSA’s procedural requirements should not be equated with subject matter jurisdiction. The district court had jurisdiction to modify Chalmers’ out-ofstate child support order. STATUTE: K.S.A. 2019 Supp. 23-36,204(b), -36,205, -36,602(a), -36,602(b), -36,603(a), -36,605, -36,606, -36,607, 36,609, -36,610, -36,611(a) DIVORCE—PARENTING TIME IN RE MARRIAGE OF DAVIS AND GARCIA-BEBEK SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,110—JULY 24, 2020
FACTS: Davis and Garcia-Bebek divorced in 2014. They shared joint legal custody of two minor children and Garcia-
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Bebek had permission to take the children to visit family in his native country of Peru every other year. In 2018, Davis sought to be awarded sole legal custody of the children after Garcia-Bebek was charged with three federal crimes. Perhaps because of his legal issues, Garcia-Bebek moved back to Peru. But he asked for reasonable parenting time which would include having the children visit him in Peru for up to 30 days at a time. The district court initially ruled in Garcia-Bebek’s favor but was swayed to reconsider by Davis’s argument that Garcia-Bebek’s crimes showed that he was untrustworthy, making international parental kidnapping a realistic possibility. Garcia-Bebek appealed. ISSUE: (1) Parenting time outside of the United States HELD: The district court did not prevent Garcia-Bebek from exercising his parenting time. It just prevented him from doing so in Peru. There was nothing to prevent GarciaBebek from visiting the children in their home country. It is undisputed that there is an outstanding indictment in a federal criminal case and a warrant for his arrest in Kansas. This evidence is sufficient to support the district court’s decision preventing the children from visiting Garcia-Bebek in Peru. STATUTE: K.S.A. 2019 Supp. 23-3203(a), -3208(a) DUI—SEARCH AND SEIZURE CITY OF COLBY V. FOSTER THOMAS DISTRICT COURT—REVERSED AND REMANDED NO. 121,373—JULY 17, 2020
FACTS: A municipal court convicted Foster of DUI, and Foster appealed to district court. Prior to trial, Foster filed a motion to suppress evidence, including the breathalyzer results. During a hearing on that motion, Foster discovered that law enforcement administered the breath test before providing the implied consent advisories. The district court denied the motion, holding that at the time Foster was arrested, there was no requirement to provide the advisories because Foster was given the breath test incident to arrest. Foster was convicted after a bench trial, and he appealed. ISSUE: (1) Whether the district court erred by denying the motion to suppress HELD: The law in effect at the time of the criminal act controls. Foster was arrested on May 6, 2018, and on that date the amendments to K.S.A. 8-1001 had not yet been enacted. K.S.A. 2017 Supp. 8-1001(k) required that Foster receive notice of his statutory rights. There is not substantial evidence that Foster consented to the search and because he never received the statutory advisory, his consent could not have been knowing or voluntary. Similarly, Kansas law required that Foster be given the consent advisory even if the search of the breath test was done incidental to an arrest. It was not enough for the officer to deliver the implied consent advisories after the breath test had been conducted. That was not substantial compliance. The evidence should have been suppressed. STATUTE: K.S.A. 2017 Supp. 8-1001(a), -1001(b), -1001(k)
DUI—IMPLIED CONSENT FISHER V. KANSAS DEPARTMENT OF REVENUE DOUGLAS DISTRICT COURT—AFFIRMED NO. 118,830—JULY 17, 2020
FACTS: Officer Russell saw Fisher speeding through town. Russell caught up with Fisher, who showed signs of impairment including bloodshot eyes, slurred speech and an unsteady gait. Russell arrested Fisher and gave him the implied consent advisories from the DC-70 form. Fisher refused to take a blood or breath test without an attorney present, so Russell obtained a warrant to draw blood. The test confirmed that Fisher was under the influence, and his driver’s license was subsequently suspended. The suspension was affirmed by both the Kansas Department of Revenue and the district court, which found that reasonable grounds existed to require testing. Fisher appealed. ISSUES: (1) Probable cause to arrest; (2) adequacy of implied consent advisory HELD: Russell observed Fisher speeding and running a red light. Russell also had slurred speech and bloodshot eyes, and he smelled strongly of alcohol. Under the totality of the circumstances, there was substantial competent evidence to support the district court’s conclusion that Russell had reasonable grounds to believe that Fisher was driving under the influence. The DC-70 form given to Fisher did not tell him that he had a constitutional right to refuse to submit to the test. An arresting officer must substantially comply with statutory notice provisions. In this case, Russell substantially complied by providing the implied consent notices from the revised DC-70 form. Fisher is correct that a driver is not required to consent to a requested test. But the use of the word “requires” in the statute is not by itself unduly coercive. The text, when read in its entirety, clearly informs drivers that they have the right to refuse testing. STATUTES: K.S.A. 2016 Supp. 8-1001(a), -1001(k), -1020(q); K.S.A. 2014 Supp. 8-1025 DUI—EXCLUSIONARY RULE JOHNSON V. KANSAS DEPARTMENT OF REVENUE COWLEY DISTRICT COURT—AFFIRMED NO. 119,151—JULY 17, 2020
FACTS: Trooper LaVelle responded to reports of a onevehicle accident. He waited on the scene while EMS treated Johnson, the driver. As EMS was walking Johnson to his car, LaVelle noticed that Johnson was swaying as he walked. EMS told LaVelle that Johnson had given the wrong birth date while in the ambulance, and they noticed that he smelled strongly of alcohol. LaVelle noticed the same thing, along with bloodshot eyes. Johnson failed the field sobriety tests that he performed. As a result. LaVelle arrested Johnson and gave him a copy of the DC-70 form before asking him to submit to an evidentiary breath test. Johnson agreed to the breath test, which revealed that his breath alcohol level was over the legal limit. Johnson received the DC-27 form and his driver’s license was suspended. The Kansas Department of Revenue affirmed the suspension, so Johnson sought judicial review. The district court found that the encounter between LaVelle and Johnson was appropriate, and Johnson appealed. www.ksbar.org | September/October 2020 75
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ISSUES: (1) Reasonable grounds to request a breath test; (2) due process violation HELD: In order to request an evidentiary breath test, LaVelle needed to have reasonable grounds to believe that Johnson was driving under the influence and Johnson had to be under arrest, in custody, or involved in a car accident. In this case, Johnson was in an accident which damaged property. There was also probable cause that Johnson was driving under the influence, and the district court reviewed the evidence under the correct standard. The district court’s decision was supported by substantial competent evidence, and the appellate court will not reweigh the evidence. It is undisputed that some of the information contained in the implied consent advisory was later declared unconstitutional. But criminal DUI law does not apply here—specifically, the exclusionary rule has no application in an administrative license proceeding. And even if it did, the good faith exception would apply here. Johnson failed to prove that he suffered a violation of his procedural due process rights. And any substantive due process analysis must be specifically analyzed under the Fourth Amendment. Johnson could not prove that he suffered a substantive due process injury under the Fourth Amendment. STATUTES: K.S.A. 2015 Supp. 8-1001, -1002(a); K.S.A. 77-621(a)(1), -621(c) IMPLIED CONSENT—JURISDICTION SANDATE V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—AFFIRMED NO. 119,514—JULY 17, 2020
FACTS: Officer Jordan was driving behind Sandate and noticed that he was not maintaining a lane or signaling lane changes. Jordan initiated a traffic stop and arrested Sandate, who admitted to consuming alcohol, showed signs of impairment, failed field sobriety tests and refused a preliminary breath test. Jordan gave Sandate the appropriate DC-70 form when requesting the test and the appropriate DC-27 form after the refusal. The Kansas Department of Revenue affirmed the suspension, as did the district court after Sandate requested judicial review. Sandate appealed. ISSUES: (1) Subject matter jurisdiction; (2) substantial compliance of the DC-70 form; (3) use of the word “require” HELD: Although other panels of the court of appeals have found otherwise, the district court did have subject matter jurisdiction. Any given court of appeals panel is not bound by another panel’s decision. Each panel conducts an independent analysis and comes to its own conclusion. The DC-27 form has two components: notification and certification. It acts like a charging document and charging documents do not bestow or confer subject matter jurisdiction and defects in a complaint do not deprive a court of power to hear the case. KDOR had jurisdiction to suspend Sandate’s driver’s license. Sandate did not properly preserve for review part of his argument. The evidence before the district court shows that Jordan substantially complied with K.S.A. 2016 Supp. 8-1001(k), and Kansas has never required strict compliance. Although the DC-70 uses the word “require,” it is not coercive. STATUTES: K.S.A. 2019 Supp. 8-259, -1001(k), -1002, -1002(a), -1020; K.S.A. 2016 Supp. 8-1001(k), -1002(a), -1002(f) 76
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ATTORNEYS—CONSUMER PROTECTION HERNANDEZ V. PISTOTNIK SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,228—JULY 31, 2020
FACTS: Yudi Hernandez was badly injured in an automobile accident at the age of 13. Yudi’s older sister, Mirna, helped her family find an attorney to act on Yudi’s behalf. A family friend recommended Brad Pistotnik based on Brad’s television commercials. Yudi and her family had an initial consultation with Brian Pistotnik, and she retained the Pistotnik firm to represent her. The firm obtained settlement officers for policy limits from all involved parties. But Yudi’s father fired the Pistotnik firm and hired Steven Brave to complete the settlement. Yudi received her settlement, but Brian sued her father to recover the costs and attorney fees that were detailed in an attorney fee lien. Yudi sued the Pistotnik firm, claiming they defrauded her under the Kansas Consumer Protection Act. Brad moved for summary judgment, claiming that there was no evidence of fraud and that Yudi was not an aggrieved party under the KCPA. The district court granted Brad’s motion, and Yudi appealed. ISSUES: (1) Applicability of the KCPA; (2) fraud claim; (3) viability of discovery requests; (4) transfer of venue HELD: The KCPA does not define the term “aggrieved.” But case law clarifies that in order to recover under the KCPA, Yudi must show that she was legally harmed and that her harm was causally connected to Brad’s advertising. The filing of the attorney fee lien did not harm Yudi. And Yudi cannot show that she relied on any representations in Brad’s advertisements when hiring the firm—she was in a medically-induced coma at the time and played no part in the decision of which firm to hire. The district court correctly found that Yudi cannot recover under the KCPA. When alleging fraud, the circumstances constituting fraud must be stated with particularity. Yudi failed to establish that she relied, either directly or indirectly, on any fraudulent representation by the Pistotniks. Complaints to the Kansas Disciplinary Administrator are not discoverable, and the district court did not err by refusing to require Brad or Brian to turn over such documents to Yudi. And settlement agreements which Yudi wanted to obtain in discovery were confidential, meaning the district court did not err by refusing to compel their discovery. The district court did not abuse its discretion by transferring venue to Sedgwick County, where the defendants were located and where all the legal work was completed. STATUTES: K.S.A. 2019 Supp. 60-208(a), -209(b), -226, -2103(h); K.S.A. 50-623(b), -634(a), 60-609(a)
Criminal EVIDENCE—JOINDER—PRIOR CRIMES STATE V. BROWN SALINE DISTRICT COURT—REVERSED AND REMANDED NO. 119,460—AUGUST 21, 2020
FACTS: In 2015 Brown was charged with three counts of rape and one count of aggravated indecent liberties for crimes involving his stepdaughter, K.N. While he was in custody,
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Brown wrote both K.N. and A.N., the victim’s mother and his long-time companion. The contents of the letters caused the State to charge him with one count each of intimidation of a victim and a witness. Over Brown’s objections, the information was consolidated for one trial. After a jury trial, Brown was convicted of all charges except for intimidation of a victim. He appealed. ISSUES: (1) Admission in evidence of prior acts of domestic violence; (2) consolidation of information for one trial; (3) denials of motions for mistrial HELD: At trial, the district court admitted evidence that Brown significantly damaged property at the home during arguments with A.N. The evidence was ostensibly admitted to prove why K.N. would be fearful to disclose the sexual abuse, even though the evidence showed that K.N. did not witness these events. There was extensive testimony at trial about these domestic violence events. Although the priorcrimes evidence was relevant and material, its probative value was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not witness the behavior. And the State never asked K.N. at trial if her failure to report was due, at least in part, to Brown’s violent tendencies. The exhaustive testimony about Brown’s prior crimes, the diminished probative value of the evidence, and the fact that the State could have proven the same thing with less prejudicial evidence, results in the conclusion that the district court erred by admitting the evidence. This error cannot be considered harmless and the case must be remanded for a new trial. It is undisputed that the State established the legal requirements to consolidate all charges. The letters to A.N. and K.N. put Brown’s character into dispute that prejudiced him with the jury, all for little probative value. The district court erred by consolidating these cases for trial. There is no need to review errors in the district court’s rulings on Brown’s motions for mistrial. This case has already been reversed for two new trials. STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, -455(a), -455(b), APPEALS—CRIMINAL PROCEDURE—SENTENCING STATE V. DOMINGUEZ SEDGWICK DISTRICT COURT—REVERSED AND REMANDED NO. 12,618—AUGUST 28, 2020
FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed threeday quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.
ISSUE: (1) Revocation of probation—K.S.A. 2019 Supp. 22-3716 HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment. State’s reliance on State v. Tearney, 57 Kan. App.2d 601 (2019), is misplaced. Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions. STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10); K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716 CRIMINAL PROCEDURE—PROBATION— SENTENCING—STATUTES STATE V. DUNHAM SALINE DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED NO. 121081—JULY 31, 2020
FACTS: While on probation for drug crime convictions in two cases, Dunham committed additional crimes leading to three more cases, the last two committed while Dunham was on felony release status. Addressing all five cases the same day, district court revoked probation in Cases 1 and 2 and imposed consecutive prison sentences in the additional three cases, finding Kansas law required that sentences in Cases 4 and 5 run consecutive to each other and consecutive to Case 3. Dunham appealed claiming district court erred by concluding it lacked discretion to impose the last three sentences concurrently. He also claimed the district court abused its discretion by revoking probation, arguing drug treatment would better address his addiction. ISSUES: (1) Multiple sentences; (2) probation revocation HELD: District court erred in finding it had no discretion to impose Dunham’s sentences in Cases 3, 4, and 5 consecutive to each other. Law related to concurrent and consecutive sentencing in felony cases is examined including the interpretation of statutory language, the statutes and case law related to concurrent and consecutive sentences, and the application of applicable statutes to facts of Dunham’s case. Dunham had multiple sentences imposed on different cases on the same day, so this case is controlled by State v. Edwards, 252 Kan. 860 (1993), which interpreted the previous version of K.S.A. 2019 Supp. 21-6606(a) as allowing a court flexibility—regardless of sentence ordered in any individual case such as the consecutive prison term in Dunham’s Case 3 sentence—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate. District court’s order running the sentences consecutively is vacated and case is remanded for court to use its discretion in deciding whether the sentences in Cases 4 and 5 should be consecutive to or concurrent with each other and to Case 3. www.ksbar.org | September/October 2020 77
appellate decisions
District court did not act unreasonably by revoking Dunham’s probation. Facts support the district court’s conclusion that Dunham was no longer amenable to probation. STATUTES: K.S.A. 2019 Supp. 21-6601, -6604(f) (4), -6606(a), -6606(c), -6606(d), -6606(e); K.S.A. 2018 Supp. 22-3716(c)(8)(A); K.S.A. 2017 Supp. 21-6604(f)(4), -6606(d); K.S.A. 1996 Supp. 21-4603d, -4720(a); K.S.A. 1992 Supp. 21-4608(1), -4608(3); K.S.A. 1984 Supp. 214608, -4608(2), -4608(4), -4608(5); K.S.A. 21-4608(a), -4608(c), 22- 2801, -2802, -2804 CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— PROBATION—SENTENCING—STATUTES STATE V. LYON SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,993—JULY 24, 2020
FACTS: Lyon convicted on his pleas to charges of aggravated battery, criminal possession of a firearm, and endangerment of a person. Pursuant to the plea agreement, district court imposed dispositional departure sentence of probation with underlying prison term. District court’s calculation of criminal history included Lyon’s 2010 Kansas aggravated burglary conviction as a person felony. Probation violation warrant issued four months later, alleging in part that Lyon committed the felony offense of aggravated battery/domestic violence. Trial judge revoked probation, finding Lyon had committed misdemeanor domestic battery. On appeal, Lyon claimed the trial court’s revocation of probation denied Lyon due process because the State failed to allege he committed a domestic battery in the probation violation. He also claimed his 2010 Kansas conviction should have been classified as a nonperson felony because the elements of the 2010 version of aggravated burglary are broader than the elements of the 2017 version of the crime. ISSUES: (1) Due process—revocation of probation; (2) sentencing—criminal history HELD: District court did not err in revoking Lyon’s probation. The warrant’s allegation that Lyon committed aggravated battery/domestic violence sufficiently notified him of what the State intended to prove, and it is uncontested that substantial competent evidence supports the trial court’s finding of domestic battery. The identical-or-narrower test in State v. Wetrich, 307 Kan. 552 (2018), which applies to out-of-state offenses and to Kansas offenses committed prior to the1993 implementation of the Kansas Sentencing Guidelines Act (KSGA), does not apply to the scoring of Lyon’s post-KSGA Kansas conviction. A post-KSGA Kansas crime is properly scored as a person offense if the crime was classified as a person offense when it was committed and when the current crime of conviction was committed and when the current crime of conviction was committed even if the prior version of the earlier crime’s elements are broader than the elements of the current version. Lyon’s alternative constitutional argument under Apprendi is not properly before the court and is not considered. Whether recodification and/or statutory amendments to aggravated burglary amounted to a repeal for purposes of K.S.A. 2017 Supp. 21-6810(d)(8) is examined, finding no such determi78
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nation is required in this case. Regardless of the statutory amendments to aggravated burglary, district court properly scored Lyon’s prior conviction for aggravated burglary as a person offense. STATUTES: K.S.A. 2019 Supp. 21-5109(b), -5111(i), -6801 et seq., -6804(c), -6804(p), -6809, -6810, -6811(e)(1); K.S.A. 2018 Supp. 21-5414(a), 22-3716, -3716(b)(1), -3716(c)(8) (A), -3716(c)(9)(B); K.S.A. 2017 Supp. 21-5807(b), -5807(b) (1), 5807(e), -6810(d), -6810(d)(8), -6810(d)(9), -6811(e)(3); K.S.A. 2011 Supp. 21-3715(a), -5103(d), -5413, -5427(3), -6811(d)(1); K.S.A. 21-3412, -3701, -3715, -3716, -4843, 223716 CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURIES—PROSECUTORS STATE V. OLSMAN ELK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART NO. 120,119—SEPTEMBER 4, 2020
FACTS: Jury convicted Olsman of kidnapping and attempted rape. On appeal he claimed: (1) insufficient evidence supported the kidnapping conviction because confinement of the victim was incidental and inherent in the attempted rape; (2) district court erred in ruling the testimony of victim’s sister about victim’s reputation for dishonesty was inadmissible for lack of foundation; (3) district court erroneously instructed jury on kidnapping; (4) in closing argument and rebuttal prosecutor improperly commented on Olsman’s and victim’s credibility and inflamed passions of jury; (5) district court erred in denying Olsman’s motion for a new trial which argued in part that a deputy improperly referred to Olsman having been in jail on a previous occasion; and (6) cumulative error denied him a fair trial. ISSUES: (1) Sufficiency of the evidence—kidnapping; (2) exclusion of testimony; (3) jury instruction—kidnapping; (4) prosecutorial error; (5) motion for new trial; (6) cumulative error HELD: Olsman’s kidnapping conviction is reversed and kidnapping sentence is vacated. State v. Buggs, 219 Kan. 203 (1976), State v. Cheers, 231 Kan. 164 (1982), and State v. Richmond, 250 Kan. 375 (1992), are factually distinguished as involving takings or confinements that substantially facilitated the commission of other crimes. Unpublished Court of Appeals case, is found to be similar to Olsman’s case. Applying Buggs analysis, evidence in this case is insufficient to support the kidnapping conviction. District court did not err in relying on State v. Penn, 41 Kan. App. 2d 251 (2009), for the foundational requirements for admitting reputation evidence. Olsman’s argument that Penn was wrongly decided is unpersuasive. Under circumstances in case, including lapse of five years between events that formed the basis for victim’s reputation and events leading to trial, district court’s determination was not an abuse of discretion. Even if district court may have incorrectly stated that victim and her sister were not of the same community, Olsman failed burden of establishing that they were. Olsman’s constitutional claim fails with no showing of error in district court’s evidentiary ruling.
appellate decisions
Reversal of Olsman’s kidnapping conviction renders his jury instruction claim moot. Prosecutor’s limited and isolated closing argument statements, in particular referring to Olsman as a “liar,” were improper but overall nature of prosecutor’s argument was premised in reasonable inferences fairly derivable from the evidence and directed jury to reach its own conclusions. Prosecutor’s rebuttal comments were an improper appeal to jury for sympathy toward the victim. In light of entire record, however, no reasonable probability these comments affected outcome of the trial. Olsman fails to explain how district court’s admonishment to the deputy and its curative instruction to the jury was insufficient to cure any prejudicial effect of the deputy’s statement. No abuse of district court’s discretion is demonstrated. With reversal of Olsman’s kidnapping conviction, only identified errors bearing on cumulative error analysis are prosecutor’s comments and deputy’s testimony. On overall strength of evidence the limited prejudice from these two harmless errors did not aggregate into reversible error. CONCURRENCE and DISSENT (Warner, J.): Joins majority’s analysis of all claims but for its conclusion that Olsman’s confinement of victim within his home was insufficient to support the jury’s kidnapping verdict. Jury decided whether Olsman’s grabbing of victim’s arm and preventing her from leaving was an independently significant act, and sufficient evidence supported its assessment. Majority ventured into jury’s fact-finding role by reweighing the evidence supporting Olsman’s kidnapping conviction. STATUTES: K.S.A. 2019 Supp. 22-3501(1), 60-455, -460(z); K.S.A. 2015 Supp. 21-5408(a)(2), -5503(a)(1)(A); K.S.A. 60-419, -420. -422(d), -446, -447(a), -460(z) CRIMINAL LAW—INSURANCE— JURISDICTION—STATUTES STATE V. ROZELL WYANDOTTE DISTRICT COURT—AFFIRMED NO. 121,094—AUGUST 7, 2020
FACTS: Rozell (Missouri resident) and Lopez (Wyandotte County, Kansas, resident) were in a car accident in Missouri. Rozell submitted bodily injury claim on Lopez’ State Farm insurance to a claims representative in Tennessee who discovered the Missouri hospital bill Lopez submitted had been altered to show a post-accident date. State charged Rozell in Wyandotte County with one count of making false information and one count of fraudulent insurance act, listing State Farm as the victim of Rozell’s crimes. District court granted Rozell’s motion to dismiss the charges for lack of jurisdiction. State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who attempts to defraud a Kansas insurance policy issued to a Kansas resident, and Wyandotte County was the proper venue. ISSUE: (1) Proximate result jurisdiction HELD: District court’s dismissal of the charges for lack of jurisdiction is affirmed. Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information, K.S.A. 2019 Supp. 21-5824(a), or committing a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a),
just because he allegedly intended to defraud a Kansas insurance policy. The law related to proximate result jurisdiction is reviewed. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person’s out-of-state criminal acts within Kansas only if the statutory language of that person’s charged crime considered such negative consequences. Here, the State failed to analyze the elements of the charged crimes. Neither the making false information statute, nor the fraudulent insurance act statute consider the negative consequences of a person’s out-of-state criminal acts in the language of the statute. STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; K.S.A. 1994 Supp. 21-3734(a)(2) CRIMINAL PROCEDURE—SENTENCING—STATUTES STATE V. VAUGHN SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,340—AUGUST 14, 2020
FACTS: Vaughn was convicted of possession of methamphetamine with intent to distribute, a crime committed while he was on felony bond for a previous crime. District court imposed prison sentence to run consecutively to Vaughn’s previous sentence finding Special Rule 10 applied and required consecutive sentences, and finding Vaughn failed to show any manifest injustice. Vaughn appealed, arguing the district court had discretion to sentence him concurrently, thus applied the wrong legal standard. State’s response in part acknowledged error in sentencing journal entry’s citation of Special Rule 9 instead of Special Rule 10, to be remedied by a nunc pro tunc order. ISSUE: (1) K.S.A. 2019 Supp. 21-6606(d)—consecutive prison sentence HELD: The district court had no discretion to sentence Vaughn concurrently. If a district court sentencing a defendant for a new felony committed while on felony bond under K.S.A. 2019 Supp. 21-6606(d) imposes a prison sanction, that sentence must be consecutive unless the defendant shows manifest injustice. Here, district court’s finding of no manifest injustice is not challenged, and Vaughn’s statutory arguments and appeal to legislative history are rejected. K.S.A. 2019 Supp. 21-6606(d) and K.S.A. 21-6604(f)(4) are examined and interpreted, finding the two statutes are harmonious rather than conflicting. STATUTES: K.S.A. 2019 Supp. 21-5705(a)(l), -5705(d) (3)(C), -6604(f)(4), -6606, -6606(a), -6606(b), -6606(c), -6606(d), -6606(e), -6819(a); K.S.A. 21-4603d, -4608 CRIMINAL PROCEDURE—EVIDENCE—JURIES—MOTIONS—SENTENCING STATE V. WILLIAMS SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 120,768—JULY 10, 2020
FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent Hard-25 life sentences, but journal entry also stated www.ksbar.org | September/October 2020 79
appellate decisions
that Williams was subject to lifetime post-release supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime post-release supervision; and (5) district court erred by summarily denying his motions for post-conviction DNA testing. ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5) post-conviction motion for DNA testing HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and
used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a. Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position. No errors shown for application of cumulative error doctrine. Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime post-release supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench. Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for post-conviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court case law. STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a) (1)-(3), -2512(c); K.S.A. 22-3411a
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appellate practice reminders
Appellate Practice Reminders From the Appellate Court Clerk’s Office
Snow White’s Second Bite at the Apple – PFRs/Summary PFRs (Supreme Court Rules 8.03 & 8.03A) Petition for Review. Any party aggrieved by a Court of Appeals decision can attempt to get a second bite at the apple by petitioning the Supreme Court for review under K.S.A. 20‑3018(b) and Rule 8.03. See K.S.A. 60‑2101(b) (providing Supreme Court with jurisdiction to review Court of Appeals decisions). However, the granting of review is discretionary, “not a matter of right”, and the vote of three justices is required to grant the petition. Rule 8.03(g)(2). Structurally, the petition cannot exceed 15 pages, exclusive of the appendix, cover, certificate of service, and table of contents. Don’t forget to attach a copy of the Court of Appeals’ decision to your petition. Otherwise, a petition is structurally similar to a regular brief. The petition must be filed within 30 days after the Court of Appeals decision is filed. This 30-day period is JURISDICTIONAL. That means the Supreme Court does not have jurisdiction to hear any Petition for Review filed after the 30 days expires. Obviously, the jurisdictional lines have been blurred a bit because of COVID-19, but it’s always a good idea to timely file PFRs. Last, the time for ruling on a petition is entirely within the Supreme Court’s discretion. Remember that the statement of the issues in a petition for review, cross-petition, or conditional crosspetition should not merely repeat the issues raised in the Court of Appeals brief; rather, the issues must be tailored to address why review is warranted. The Court will not consider issues not raised before the Court of Appeals or issues not presented or fairly included in the petition for review, cross-petition, or conditional cross-petition. Rule 8.03(b)(6)(C). Build your arguments around the non-exhaustive list of reasons the court may grant review. 8.03(b)(6)(E). Don’t forget to file a cross‑petition or conditional cross-petition no later than 30 days from the date the petition for review is filed if you need to appeal an adverse ruling by the Court of Appeals. Failure to file the cross-appeal waives review of that adverse ruling. Summary Petition for Review. A little over two years ago in the summer of 2018, the Supreme Court established the Summary Petition for Review procedure for easier resolution of certain appeals. When controlling authority is dispositive of an entire appeal or no substantial question is presented by the appeal, a party may file a summary petition for review under Rule 8.03A in lieu of a petition for review under Rule 8.03. Rule 8.03A(a). The same 30-day jurisdictional time limit applies, but the content of the summary petition is more limited. See Rule 8.03A((b)(3) & (4). Apple or Poison Appeal. The Kansas Supreme Court grants an average of 10-15 percent of the petitions that are filed each year. To paraphrase a line from the Hunger Games… “The odds are not in your favor.” However, there is always a chance the Court could grant your petition. The appellate clerk’s office is only a phone call (785) 296-3229 or an email appellateclerk@kscourts.org away. For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.
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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. Growing investment company has an opening for an in-house counsel with extensive business and litigation experience; send resume to: hiringmanagerOKC1@gmail.com INTRUST Bank N.A. seeks an individual that holds a law degree with emphasis in Estate Planning. Trust Advisor is responsible for the administration and growth of comprehensive, integrated, multigenerational high level trust and wealth accounts. Uses advanced knowledge to exercise judgment and perform responsibilities which have a significant effect on the bank. Establishes work processes for self and monitors progress to ensure completion of goals as defined by their manager. This level requires the Trust Advisor to be capable of
administering multiple account relationships with revenue exceeding $1.5 Million. Apply at intrustbank.com/careers. 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 mo-
tions, trial court and appellate briefs, pleadings, probate/estate planning documents; also available to assist with legal research. Quality work; flexible. Experience includes litigation, wills/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at paulaamcmullen@ gmail.com, or (913) 940-4521 to discuss. Contract brief writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions. Attorney has briefed numerous appeals in both the Kansas and federal appellate courts. Contact me if you need a quality brief. Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com. David P. Mudrick, Mediator and Arbitrator: AV-rated, over 30 years’ experience in
employment and labor cases and in civil litigation; Past President, KBA Employment Law section (2016-18); selected numerous times for Best Lawyers in America © (Litigation—Labor and Employment and other Employment/Labor categories) and Missouri-Kansas Super Lawyers ©; past selection in Ingram’s Magazine Best Lawyers in Kansas City ©; approved by State of Kansas as Civil Mediator and as Faculty Due Process Hearing Examiner; former corporate counsel in charge of litigation & claims, including personal injury, contract, and discrimination claims. Mudrick Arbitration & Mediation, LLC (785) 5541570, dmudrick@MudrickADR.com QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 8561628 or email cgb@barnhill-morse.law. www.ksbar.org | September/October 2020 83
classified advertisements
Social Security Disability Services. Your clients that are dealing with serious injuries or illness may have a claim for Social Security disability. We have lots of experience, get good results, and we are ready to help and to augment your reputation. If you have questions, let’s talk. Our practice is limited to Social Security disability. We can travel anywhere in Kansas, Missouri, Nebraska or Colorado. Contact: Pat Donahue at Western Law (785) 832-8521 or phd@wpa-legal.org. Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.
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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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Downtown Lawrence office space & furnishings Ready to open your own practice and need office furnishings? Looking at downtown Lawrence? Local attorney retiring. Leased corner suite on Massachusetts Street with KSA & other books, attorney desk & credenza, computer desk, conference table & chairs, receptionist desk, reception seating & more. Call (785) 749-2333 (or mthorpesq@ gmail.com).
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