Substance and Style

Accounting for Cognitive Bias in Legal Reasoning: Part 2

by Pamela Keller

Cognitive Bias

In 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.

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

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 emotions 12 (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 uninformed, 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

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. SeeId. 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

Tracy A. Cole

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.

While 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.”

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 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

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 decided 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.

[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 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. Mitchell 35 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. Steeley 36 (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. Miller 38 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,

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 Arts 46 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.

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 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

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

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 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.)

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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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 bur

dens 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.

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

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 deci

sions” 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 coercion 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.

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).

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.

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. zYounger, 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.

 is 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 fi nd an option for your schedule.

To volunteer, visit: klsprobono.org OR email: campbellc@Klsinc.org

Clinic in the Time of Coronavirus

by Michelle Y. Ewert

The 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.

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

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 reinstatement 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

though patient contact. In response, the Washburn Law Clinic implemented the Healthcare Employees Legal Preparedness (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 of private attorneys. Debi Schrock, Managing Director of Administration for the clinic, praised the alumni who volunteered with the project. She said, “When I reached out to alumni seeking attorney volunteers to assist with the HELP Project, I was overwhelmed by the positive response. We are 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 unfortunately 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 for our most vulnerable community members. I am proud of my students and colleagues for tackling those challenges! n

About the Author

Michelle Ewert is an Associate Professor of Law at the Washburn University School of Law. Previously, she worked as a legal services attorney at non-profit organizations in Baltimore, the Central Valley of California, and the greater Chicago area. If you see her on the Shunga Trail, say hello!

michelle.ewert@washburn.edu

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.