November/December 2020 Journal

Your Partner in the Profession | November/December 2020 • Vol. 89 • No. 8

2021 Membership Now Open Join & Renew Online Details Inside

Soy Abogada (I am a lawyer.)

by Mary Feighny P. 26

COVID-19 v. Criminal Defendants

by John Eric Rapp & Ben Bigham P. 32

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26 | Soy Abogada (I am a lawyer.)

by Mary Feighny 32 | COVID-19 v. Criminal Defendants

by John Eric Rapp and Ben Bigham

Cover Design by Ryan Purcell

Special Features 29 | Reflections on Pro Bono Service at KU Law....................................Meredith A. Schnug 40 | Third Annual KBA Photography Contest • RESULTS 48 | The 19th Amendment: Commemorating 100 Years................................Sarah M. Otto 52 | No Visible Bruises – a Book Review............................ Sara Rust-Martin and Lindsie Ford

Regular Features 11 | From the Executive Director of the KBA/KBF

Stealing Joy from the Grinch................. Stacey Harden

12 | From the President of the KBA

KBA Membership: Supporting Your Success ..................................................... Charles E. Branson

14 | From the President of the KBF

KBF: Providing Access to Needed Legal Services ...................................................................Scott Hill

18 | From the President of the YLS

The Future of Live Virtual Hearings: Some Benefits... and Concerns for Consideration ..................................................Kate Marples Simpson

21 | A Nostalgic Touch

A Buried Treasure Finally Sees Daylight .............................................................. Matt Keenan

23 | Substance and Style

50 | Law Students’ Corner

Washburn University School of Law Why Scientists Can Make Good Lawyers .............................................................. Daniel Sloan

55 | Law Practice Management Tips and Tricks

Lawyer’s Gift Guide........................ Larry Zimmerman 57 | Law Students’ Corner University of Kansas School of Law A Time for Change................................Erin T. Nisley

60 62 67 83 84 85

| Members in the News | Obituaries | Appellate Decisions | Appellate Practice Reminders........... Doug Shima | Advertising Directory | Classified Advertisements

A Break for the Procrastinator........... Betsy Brand Six

www.ksbar.org | November/December 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 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 2020 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.

4

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, ksimspon@stevensbrand.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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with a

Nomination

• Phil Lewis Medal of Distinction • Distinguished Service • Professionalism • Pillars of the Community • Christel Marquardt Trailblazer Award • Distinguished Government Service • Courageous Attorney • Outstanding Young Lawyer • Diversity • Outstanding Service • Pro Bono

Learn more online at

6

www.ksbar.org/awards

The Journal of the Kansas Bar Association

2021 Awards of the KBA

The KBA Awards Committee is seeking nominations for award recipients for the 2021 KBA Awards. These awards will be presented at the KBA Annual Meeting. Below is an explanation of each award and a nomination form for completion. The Awards Committee, chaired by Sara Beezley, of Girard, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention!

Deadline for nominations is Friday, March 5.

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.

• A recipient need not be a member of the legal profession or related to it, but the recipient’s service may include responsibility and honor within the legal profession; • This award is only given in those years when it is determined that there is a worthy recipient.

Distinguished Service Award

This 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.

•

•

The recipient must be a lawyer and must have made a significant contribution to the altruistic goals of the legal profession or the public; 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.

Professionalism Award

This 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.

Pillars of the Community Award

This award is available to a Kansas lawyer and KBA member with a minimum of 10 years active nonspecialized, general legal practice in a predominately low-density population area of Kansas. Recipients will have had substantial practice in small or solo law firms or local government service. Requirements are flexible but consideration will be given to the following factors, including how such factors apply to the lawyer’s community:

• • • • • • • • • • •

the variety/diversity of law practiced impact/high profile law work general contributions to the law and legal profession specific contributions to the legal profession mentoring and support for legal education contributions to the State/community notable civic activities periods of elected or appointed public/government service military service examples of volunteerism and charitable activity reputation in the organized bar, state and community

This award may be but need not be given every year. More than one recipient can receive the award in one year.

Page 2 Awards of the Kansas Bar Association (Con’t.)

Christel Marquardt Trailblazer Award

This award is named in honor of Hon. Christel Marquardt, the first woman to serve as President of the Kansas Bar Association, by recognizing 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 award will be given to a KBA member who demonstrates qualities Judge Marquardt has exemplified, such as:

• Service to the Bar or to the legal profession generally; • Courage in challenging societal, institutional, or historical barriers; • Innovation and carving a path for future lawyers through mentorship, hard work, and compassion; • Leadership by word and example.

The Trailblazer Award will be given in years where there is a worthy recipient.

Distinguished Government Service Award

This award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service. The award shall be given only in those years when it is determined that there is a recipient worthy of such award.

Courageous Attorney Award

The KBA created a new award in 2000 to recognize a lawyer who has displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include a small town lawyer who defended a politically unpopular defendant and lost most of his livelihood for the next 20 years, a criminal defense attorney who defended two members of the white supremacist movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a worthy recipient.

Outstanding Young Lawyer

This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA.

Diversity Award

This award recognizes an individual who has shown a continued commitment to diversity; or 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, which include the following criteria:

• A consistent pattern of the recruitment and hiring of diverse attorneys; • The promotion of diverse attorneys; • The existence of overall diversity in the workplace; • Cultivating a friendly climate within a law firm or organization toward diverse attorneys and others; • Involvement of diverse members in the planning and setting of policy for diversity; • Commitment to mentoring diverse attorneys, and; • Consideration and adoption of plans to continue to improve diversity within the law firm or organization, whereas; • Diversity shall be defined as differences of gender, skin color, religion, human perspective, as well as disablement.

The award will be given only in those years when it is determined there is a worthy recipient.

Page 3 Awards of the Kansas Bar Association (Con’t.)

Outstanding Service Award(s)

These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA.

• No more than six Outstanding Service Awards may be given in any one year.

• Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations.

Outstanding Service Awards may recognize:

• Law-related projects involving significant contributions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; • Work by a public official that significantly advances the goals of the legal profession or the KBA; and/or • Service to the legal profession and the KBA over an extended period of time.

Pro Bono Award(s)

This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor.

• No more than three Pro Bono Awards may be given in any one year.

In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria:

• Lawyers who are not employed full time by an organization that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, 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 does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons.

KBA Awards Nomination Form Nominee’s Name _______________________________________________________________ Please provide a detailed explanation below of why you have nominated this individual for a KBA Award.

Attach additional information as needed. q q q q q q

Phil Lewis Medal of Distinction Distinguished Service Award Professionalism Award Pillars of the Community Award Christel Marquardt Trailblazer Award Distinguished Government Service Award

q q q q

Courageous Attorney Award Outstanding Young Lawyer Diversity Award Outstanding Service Award q Pro Bono Award/Certificates

_____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ Nominator’s Name _____________________________________________________________ Address ______________________________________________________________________ ______________________________________________________________________ Phone _____________________________ E-mail ___________________________________ Return Nomination Form by Friday, March 5, 2020, to: Deana Mead at dmead@ksbar.org or KBA Awards Committee Attn: Deana Mead PO Box 751080 Topeka, KS 66675-1080

from the executive director

Stealing Joy from the Grinch

by Stacey Harden, Executive Director, KBA/KBF

I

’m writing to you on a cold and snowy October morning, and I’ll be honest, I’m not happy about the cold and snowy part. Fall is my favorite season. The colors on the trees, the re-introduction of soups and chili, the smell of burning leaves, FOOTBALL and fireplaces are just a few of the things that I love about autumn in Kansas. Watching snowflakes fall slowly and peacefully on the still green grass and the auburn colored leaves while I sip coffee from my Halloween mug makes me grumble under my breath. Snow means autumn is nearly over; my favorite season will give way to the cold, dark winter. And frankly, I’m not sure I’m ready for it.

As a sour, Grinch-like frown settles on my face, I thought about a favorite holiday book where a fictional Grinch famously tried to steal Christmas from the fictional citizens of Whoville. Why was the Grinch so grinchy? Was it because of snow in October? Perhaps his shoes were too tight? Maybe his head wasn’t screwed on just right? There is no real answer for why the Grinch was so grinchy, but I am convinced now more than ever, that the Grinch may be responsible for the first ten months of 2020. A pandemic that has taken the lives of over 225,000 Americans and impacted millions more, a polarizing election cycle, social unrest, hurricanes, forest fires and murder hornets all feel like the wonderfully awful ideas of something with a heart two sizes too small.

Determined to shake the grip of the Grinch, I arm myself with a fresh cup of coffee and remind myself that the Grinch and his wonderfully awful idea was not able to stop the citizens in Whoville from feeling joy. But this isn’t fiction – the 2020 Grinch stole more than just presents and packages, ribbons and bows; the Grinch took our weddings and funerals, our graduations and birthday parties, March Madness and

Opening Day, and it feels more and more likely with each passing day, week and month, that the Grinch may sink its long green fingers into 2021 as well. With everything the 2020 Grinch has taken from us, can we still find the joy in 2020?

I believe we can. As we approach a holiday season unlike any we have had to face before, joy may be harder to find, but that does not mean it isn’t there. For me, I am going to go back to basics and seek out the simplicity of joy during this holiday season. Here are a few of the simple things that make my Grinch-like frown disappear: music, because honestly, there isn’t anything better than holiday music; my children, who are not little anymore (22, 19 and 16), but are still genuinely in love with holiday traditions like pancakes and movies and stockings, that began on my eldest’s very first Christmas; my Boston Terrier, Moose, who with his boundless energy can happily tear into a holiday package faster than a speeding bullet; my sister, who is not just a friend, but also a talented colleague that I am blessed to be able to work beside every day; my Mom, who retired in 2020 after working hard at the same business for 45 years and is now living her mostdeserved life; my nephew and niece whose innocent squealing laughter elicits pure joy; my fiancé, my biggest cheerleader, who takes the time every single day to talk about the love in our lives; and my KBA teammates who make every working day an adventure and who never fail to amaze me with their optimism, their activism and their positive attitudes.

My wish for each and every one of you is that you find your joy this holiday season. Steal it back from the 2020 Grinch.

It may not be easy, but somehow or other, it will come all the same. n www.ksbar.org | November/December 2020 11

from the kba president

KBA Membership: Supporting Your Success

by Charles E. Branson KBA President, 2020-2021

I

t is that time of year. The leaves are changing, the weather is getting colder and you have, hopefully, completed all those little winterization tasks with your car and your house. As we get ready for the arrival of winter, just like many of our furry friends in nature, we are getting ready for next year.

Often, attorneys and firms spend this time getting ready for the next year, too; reviewing office contracts and leases, and calendaring events and important dates. One important thing to do is to renew your Kansas Bar Association membership so you don’t lose out on all the major benefits and opportunities membership provides.

Online renewal is now available at the KBA website. Take advantage of early renewal in November and receive a free ethics CLE webinar with Stuart Teicher on December 8th.

I am often asked, “Why is the KBA important to you?” It never takes me long to answer. To me, membership is a way to support our profession. It is a way to partake in and express my enthusiasm, devotion and high regard for the legal field.

It is the spirit of its members, its esprit de corps, which creates

12

The Journal of the Kansas Bar Association

pride in one’s profession. That sense of pride and the many benefits associated with membership keep me coming back to the KBA year after year.

So what are the reasons others become members? Membership provides fantastic networking opportunities through events and section memberships specific to your law practice or interests. You will be able to stay current on legal topics and hone your skills with timely continuing legal education opportunities.

Membership includes the The Journal of the Kansas Bar Association, chock-full of scholarly articles and important information for the profession, including practice tips, member news and legislative updates.

Membership also gives you access to a host of valuable services and discounts. Casemaker is the legal case law research platform free to you as a member of the KBA — a value exceeding your membership dues! As a member you will have access to not only this service, but you will have access to other free services and discounts through our many affinity partners, including:

from the kba president

Ruby Bradley Software CosmoLex Insurance Specialist, Inc. Clio Go Next Visa ABA Retirement Funds ALPS

TBG Conferencing About the Author Principal Charles E. Branson is the President of the LawPay Kansas Bar Association for 2020-2021. He is Legal Directories Publishing the Douglas County District Attorney. Before Company running for election in 2004, Branson was in private practice in Lawrence; his practice MyCase focused on the areas of criminal and civil Rocket Matter litigation. A long-time active member of the KBA, Branson has served on the Executive Credible Committee of the Board of Governors, has Office Depot/Office Max 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.

2020 has been one of the most challenging years that I can remember. Personally, my membership with the Kansas Bar Association has allowed me to conveniently meet my CLE needs, stay abreast of changes in the law and important upCBranson@ksbar.org dates by the courts, and network with some of the finest attorneys in the state.

No matter your reason to renew or start your membership with the KBA, membership in the Kansas Bar Association is supporting your success. n

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from the kansas bar foundation president

KBF – Providing Access to Needed Legal Services

by Scott Hill, KBF President

O

ver the next few issues, I would like to spotlight a few of the invaluable programs administered by the Kansas Bar Foundation. I begin with our newest program – the Community Redevelopment & Homeowners Assistance Grant Program (CRHA) – which also happens to be the largest fund currently administered by the KBF. In August 2014, following years of litigation between Bank of America (BOA) and the U.S. Department of Justice, centered around BOA’s (and its current and former subsidiaries including Countrywide Financial Corporation and Merrill Lynch) mortgage lending and servicing practices, the U.S. and BOA came to a $16.65 billion settlement agreement.

Under terms of the settlement, BOA agreed to resolve federal and state claims against BOA by, among other things, making donations to state-based Interest on Lawyers’ Trust Account (IOLTA) organizations that provide funds to legal aid efforts. These billions of dollars of funds would provide relief to struggling homeowners, including funds that would help defray tax liability as a result of mortgage modification, forbearance or forgiveness.

Funds from the settlement were allocated to each state based upon the federal poverty census data and formula used by the Legal Services Corporation. KBF, as the Kansas IOLTA administrator, received $3,273,938.50 from the national settlement to be used for the CRHA grants. Eligibility is restricted to legal aid organizations domiciled in Kansas.

For the purposes of these grants, “legal aid organization” is defined as any not-for-profit organization or distinct part of a not-for-profit organization that regularly makes civil legal assistance available to low-income individuals or groups without charge or at greatly reduced cost.

14

The Journal of the Kansas Bar Association

The CRHA grants are broken up into two categories: Community Redevelopment Legal Assistance and Foreclosure Prevention Legal Assistance.

Community Redevelopment Legal Assistance grants are intended to support and promote economic development by providing legal services that revitalize or stabilize low and moderate-income communities with programs such as support to non-profits or small businesses on projects that generate affordable housing or job creation. Strategies may cross a broad range of options from counseling advocacy groups, transactional law, representation, or policy and impact work, but should reflect an understanding of the current needs and challenges within the communities served, and knowledge of successful models for meeting those needs. The grant applicant should have the established partnerships that are necessary to achieve the stated goals. The KBF looks to applicants to develop creative projects with far-ranging and lasting impact on communities.

Foreclosure Prevention Legal Assistance grants are to be used for foreclosure prevention legal assistance, or foreclosurerelated legal assistance issues, in the context of the specific circumstances faced currently by the communities served. Those would include assistance to homeowners receiving notice of arrearage, assistance to homeowners threatened with court action or notice of foreclosure, loan modifications to avoid foreclosure, legal assistance with violations resulting in foreclosure notice, and foreclosure mitigation. Strategies may be across a broad range of options from advice and counsel, representation, mediation programs, or policy and impact work.

For the 2021 grant year, Kansas Legal Services has been awarded a $200,000 CRHA grant. Under its proposal, KLS

from the kansas bar foundation president

will provide direct legal assistance to persons facing foreclosure proceedings, including legal advice and individual representation. Direct services to the public will include legal assistance in foreclosure prevention and information through the KLS website on housing stability issues; those include foreclosure prevention, loan modification and working with lenders to implement reasonable payment plans. KLS will also provide legal assistance to persons who face barriers to stable housing and safe neighborhoods. KLS further proposes to assist with community redevelopment by creating safer and more secure neighborhoods. In the period of time defined by the COVID-19 pandemic, those sorts of housing issues are paramount to our state’s recovery.

KLS was also awarded three $25,000 CRHA grants for the 2021 grant year to provide expungement clinics in areas throughout the state. KLS, in collaboration with local attorneys, will provide direct legal assistance to individuals facing serious and persistent legal barriers to employment and home ownership. Barriers may include legal matters that directly limit an individual’s ability to get or keep a job for which they are otherwise qualified. Examples include the expungement and sealing of criminal records; access to/reinstatement of driver’s licenses; other credentialing or occupational licensing

When the professional

issues; identity theft; credit repair; child care or child custody issues to accommodate work schedules; wage theft; and/or access to transportation.

For more information about these grants and for the many other programs administered by the KBF, please visit our website at www.ksbar.org/mpage/kbf 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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Now More Than Ever, Where You Bank Matters.

The Kansas Bar Foundation uses interest from IOLTA accounts to fund programs that provide civil representation to victims of domestic violence and programs that provide representation to children identified as in need of care.

If every Kansas lawyer moved to an approved IOLTA financial institution, it could mean thousands more in revenue to offer more legal services to underserved Kansans and to help protect the most vulnerable among us.

For more information on setting up an IOLTA account with one of our approved financial institutions, please visit https://www.ksbar.org/mpage/iolta

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The Journal of the Kansas Bar Association

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www.ksbar.org | November/December 2020 17

young lawyers section president

The Future of Live Virtual Hearings: Some Benefits and Concerns for Consideration

by Kate Marples Simpson, YLS President

D

ue to the COVID-19 pandemic, most governing entities have issued orders balancing the need to minimize in-person contact with the need to continue to function. State and federal courts are no exception. Many court proceedings have been live-streamed for the first time ever, providing public access and allowing parties to appear virtually. But the shift to virtual dockets has not come effortlessly to all. This transition to virtual hearings has required many to become more technologically savvy in short order.

It also has left some confused about what constitutes appropriate attire and conduct for virtual court appearances. Take Florida, for example, where the lack of decorum in virtual hearings led one district court judge to write a letter to the bar condemning certain practitioners who had appeared while either still in bed, at the pool, or with no shirt. Jacey Fortin, When Court Moves Online, Do Dress Codes Still Matter? The New York Times, (November 1, 2020, 9:40 a.m.), https:// www.nytimes.com/2020/04/15/us/coronavirus-lawyerscourt-telecommute-dress-code.html.

Given the increasing role that virtual appearances are likely to play in our COVID and post-COVID world, I thought it worth considering more closely the pros and cons of virtual hearings. So, I’ve asked some of the smartest people I know about their thoughts on the subject.

Stephen McAllister, U.S. Attorney for the District of Kansas and former clerk to Justice Thomas and Justice White provided some insight into positive developments at the Supreme Court of the United States. McAllister sees a number of benefits in Supreme Court arguments going virtual. “One is that the public has been able to listen to oral arguments live, for essentially the first time ever. The courtroom is so 18

The Journal of the Kansas Bar Association

small, holding at most a few hundred people, that ordinarily only a tiny fraction of Americans can actually hear the live action version of an oral argument in cases that may affect the entire country. But with virtual oral arguments available online, anyone with internet access via a phone or computer now can listen to these important arguments in real time.

That is a huge step forward in terms of public access to the Supreme Court’s work and decisional process.” The live-stream format has also led to beneficial procedural changes for the Court. Chief Justice Roberts controls the questioning, providing each Justice the opportunity and approximately even time to ask questions. McAllister observed that a “definite benefit has been that the virtual argument format has caused Justice Thomas to use the voice he has always had. He has never liked the often rough and tumble in person format, with Justices interrupting each other or the lawyers, cutting short answers, and often short-circuiting lines of inquiry. So now America has seen Justice Thomas’s style of questioning and his intellect. He is highly prepared and incisive in his questioning, and his voice has been a positive contribution to the oral arguments.” Going forward this begs the question of whether the Court will continue to livestream oral arguments and whether the Court will continue with the stricter format, with time limits on the Justices themselves.

Except in one respect, the virtual shift offers no new advantage for educators. Professors Lumen Mulligan, Rick Levy and David Rubenstein all noted that they are assigning or encouraging students to listen to virtual court proceedings, although most or all of them did so prior to the pandemic. Professor Mulligan explained “I assigned students in my Jurisdiction class to listen to the oral arguments in the Ford Motor Com-

from the young lawyers section president

pany v. Bandemer case, a personal jurisdiction case argued at the Supreme Court a few weeks ago. But, again, those audio files have been online for such use at SCOTUS for years with minimal delay.” The Kansas Supreme Court has also been posting videos of proceedings to YouTube for some time. Professor Levy said, “I can say that the accessibility of oral arguments (or other government processes) through virtual means would have many uses in connection with teaching law—especially in first-year legal research and writing courses that have an oral argument component. I have not had many opportunities to have students watch oral arguments, but I did encourage my Introduction to Constitutional Law students last spring to watch the oral argument on the validity of the Governor’s emergency order.” Professor Rubenstein assigns oral argument listening/watching in a few of his classes. “For example, in my legislation class, we might listen to an oral argument involving statutory interpretation as part of a case study in which students are also assigned to read the briefs.

I think there is value in that.” So, from an educator’s point of view, the difference now may be one of awareness rather than accessibility. But for many state district court cases, this is the first time proceedings have been livestreamed, making it easier for law students, practitioners, and the public to virtually drop in and see what is happening at the court. By pinning the Douglas County Court’s YouTube channel to my browser, I am now able to refresh and see what hearings are happening throughout the day. https://www.youtube.com/ channel/UC6aHtmhsNdkqYoYpY67NKhA. Notwithstanding these advantages, issues surrounding credibility came to Professor Rubenstein’s mind. How do we judge credibility or appear credible virtually? Citing an article from Psychology Today, Professor Rubenstein noted the difficulty inherent in deception detection, even in person. Joe Navarro M.A., The Truth About Lie Detection: We do it every day, but most of us only do it half right, Psychology Today, (Nov. 1, 2020 12:13 p.m.), https://www.psychologytoday.com/us/ blog/spycatcher/201203/the-truth-about-lie-detection. The credibility question raises the issue of virtual communication generally. Professor Rubenstein posed the question this way: “For example, where do you look when you speak to someone on Zoom? Directly into the camera (in which case you might miss the listener’s facial reactions)? Or do you look at the screen, to watch for listener reactions, in a way that avoids eye contact? Whether this is in the context of an adjudicatory proceeding or oral argument, I think these differences may matter, or they may not, but I don’t think we’ve figured that out yet.”

Professors Levy and Rubenstein also noted some potential concerns about virtual hearings in the future. Professor Levy offered that, “while increased access is definitely a good thing and virtual meetings make it possible for people to overcome distance and other obstacles that might otherwise limit their

participation in government, there are also some potential issues. In administrative law, for example, the temptation might be for agencies to conduct virtual hearings to avoid the cost of holding live hearings in remote parts of the state. The extent to which that sort of virtual hearing would satisfy the demands of procedural due process would depend on the interests at stake and other factors that might suggest the need for a live hearing. Aside from constitutional considerations, virtual meetings and hearings present their own access issues, insofar as there is differential access to and facility with the technology for virtual formats. And fundamentally, virtual access is not the same as live participation and so should not be viewed as interchangeable with it.” Citing a July 2019 article, Professor Rubenstein indicated that the use of video recording in immigration removal proceedings “has been a subject of much debate prior to COVID-19. The challenges around video conferencing for immigration might have parallels to other (potential) uses of this technology in other administrative contexts.” Stephen Franklin, Miriam Annenberg & Ankur Singh, Video Hearings in Immigration Court are Harming Immigrants’ Cases, Pacific Standard, (Nov. 1, 2020 12:45 p.m.), https://psmag.com/social-justice/video-hearingsin-immigration-court-are-harming-immigrants-cases (citing issues with translators, technical malfunctions, including poor audio and image quality, inability for detainees to obtain or present evidence, and the inherent difference between seeing and speaking to detainees in person versus virtually, among other concerns).

Though many questions remain about how live, virtual access to proceedings will develop, they are likely here to stay.

The prevalence of livestreaming proceedings increased significantly as a COVID-19 emergency measure, but if continued and expanded with proper consideration for valid concerns, may provide a lasting benefit, providing more public access to adjudicative proceedings—a hopeful prospect following a difficult time for many. n

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

www.ksbar.org | November/December 2020 19

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a nostalgic touch

A buried treasure finally sees the daylight

by Matt Keenan

Old Glory over Keenan’s porch.

O

f all the Hollywood scripts that end up in the theaters, none is more familiar to me than the “coming of age” movie. Before the words “super hero” were ever conjoined, before anyone dared to pay money to see a ten-year-old command a flock of owls with a wooden stick, before werewolves and spaceships, there was a crazy idea that you could tell an interesting story that would capture a large audience without using special effects.

In this genre, you have a large collection of iconic movies: The Graduate, 16 Candles, The Breakfast Club, Ferris Buhler’s Day Off, Stand by Me – or more recently, Almost Famous. Even more contemporary examples are worthy, such as Juno, Edge of Seventeen, and Lady Bird. All great movies offering a clear message and the triumphant notion that you can learn from your own mistakes, grow up and find a pathway to make the world better.

If the day ever arrives when my phone rings with someone with area code 213, I will tell them the story of the summer of 1980. The three months I spent as a summer intern for Congressman Keith Sebelius.

And the yarn would begin on May 23, 1980, when I climbed out of Mona and Larry’s 1977 Chrysler Station Wagon at the Wichita Mid-Continent Airport and four hours later was standing at First Street, Southeast, Washington, DC. The nation’s capital. A distance of 1,251 miles, from my van-

tage point, it was a billion light years removed from zip code 67530. From the middle of nowhere to the middle of it all.

From dud to stud. Nobody to somebody.

This was my moment.

1980. That year Jimmy Carter was President and Ronald Reagan was on his way to being Carter’s opponent. It was an age when politics and politicians were honorable and noble.

Bob Dole was a megawatt star, and Kansas – and political science – were cool. It was also the year 52 Americans were being held in Iran. Yet despite that crisis, the world was seemingly normal.

I had an unbridled appetite for meeting people and sharing the notion that everything revolved around the Capitol, and sometimes a kid from Kansas.

Back then, they put the congressional summer clerks in dorm rooms at George Washington University. I was in Francis Scott Key Hall, which was exactly three blocks west of the White House. The living quarters doubled as a phone booth.

No matter. In that summer, I spent a total of four hours there.

The first night, there was a huge party on one floor. Whatever is the opposite of social distancing is what we practiced. My list of friends exploded. Interns from every state. It was like the United Nations General Assembly was in session, and I was Kurt Waldheim. In my book, shyness was not a virtue. www.ksbar.org | November/December 2020 21

a nostalgic touch

The friends I made in those months remain some of my Two specific things stuck with me in the internship. dearest friends even today. Jim O’Connor, from New Jersey, That was the year I learned of something called the clerking for his Congressman Cap Hollenbeck, Chuck Tem- “autopen”. Another name for this device is the auto sign. I pleton from Des Moines working for Senator John Culver have read that it was a secret if any politician actually used (who was defeated that November by Charles Grassley), and one – lest some poor constituent think that a machine, not Stephen Hill from Blue Springs, Mo., working for Congress- their hero, signed their letter, now framed and hanging above man Ike Skelton. their couch. I am going to go public right now and say if you My days were filled with the Smithsonian, the Library of got a letter from Keith Sebelius in July 1980 on wheat price Congress and the National Archives – where I saw the Dec- supports, you should take a seat right now because I have laration of Independence and squinted to read the signatures. something tell you.

“Darn! No one named Keenan!” I stared at the Spirit of St. I signed it with the autopen.

Louis hanging in the Air and Space Museum. One evening, I The other thing was the U.S. flag. At some point, someone walked to Georgetown and saw where they filmed The Exorcist. said to me, “You should get a flag.” I had a thing for flags.

On a weekend in June, we took a road trip in Jim O’Connor’s After all, I was an Eagle Scout and had been tutored on how car – something called a Renault. I really can’t call it a ‘car.’ to fold, fly and respect the Stars and Stripes.

Sure, it had four wheels, but beyond that, it made the Ford Turns out, they had a tradition to fly a flag over the Capitol.

Pinto look desirable. Jim, Steve and I took it to NYC. We Something called The United States Capitol Flag Program went to the Empire State Building, rode the subway, and Jim which provides flags flown over the Capitol. So I put my introduced me to a billion people with, “He’s from Kansas.” name in, and sure enough, I got one of those flags for Dad. I know this may shock you, but I was loaded with snappy When I left, I packed it carefully in my bag. comebacks. On the trip back, we stopped in Atlantic City, and I tasted caviar for the first and last time. I took grainy, I landed in Wichita in mid-August, and cried crocodile unfocused pictures that today are considered art deco. On tears in the backseat of Larry and Mona’s car. I never wanted Sunday night when we returned to DC, Jim took a sharp to leave, I explained. I had Potomac fever. Dad had the percorner in front of the White House on Pennsylvania Avenue, fect antidote for my whining. When we rolled into 3616 17th and the car door flew wide open. No one died.

Street, the lawn mower was waiting for me. Two hours later, Other things about that summer were noteworthy. Maybe I had the start of a real fever – the kind that happens when just to me. On May 23, The Shining was released. I took a grass clippings go in one nostril and out the other in 100 bus to see it with a fellow intern named Maggie Byrne from degree heat with 99 percent humidity. I returned to KU for upstate New York. I have seen that one movie just once but my senior year and found a new set of priorities: to return to for some reason, it replays in my head often. That summer, Barton County and add one more Keenan to the law firm of Elton John released the song Little Jeanie. Every time I hear Keenan, Keenan, Keenan and Keenan. it on 70’s on 7, I climb in a time capsule. In a crowded sports That part may not make the movie. bar that June, Jim, Steve and I watched Jack Nicklaus win And when Dad’s house was being readied for sale, I found the U.S. Open, setting a new scoring record. Three weeks an 8x10-inch cardboard box in the basement. It was buried later, on Saturday July 5, I watched the Wimbledon finals beneath a stack of photo books of a trip Mom and Dad took in the lobby of the dorm, a match between Björn Borg – the somewhere many years ago. I opened it up and the memories four-time defending champion – against rival John McEnroe. of that summer came rushing back. The flag and an authentiEven today, experts describe it as one of the greatest and most cating certificate were inside. exciting matches of all time.

On Sunday October 18, exactly forty years and 120 days I met Keith Sebelius only once that summer. It was his final after those stars and stripes last saw daylight, I unfurled it term as a representative from the First Congressional District. over our front porch.

Pat Roberts was running for his seat. The congressman was no doubt more focused on returning to Norton and resuming “I was 12 going on 13 the first time I saw a the life he enjoyed before politics. I never had the opportunity dead human being.” Gordie Lachance to express how appreciative I was that the son of a Democrat Stand By Me would get that kind of opportunity. Two years later, on August 5, Keith Sebelius died of prostate cancer.

About the Author For interns, the primary job was to conduct tours for the constituents. If you toured the Capitol with a guide who was Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. extremely mature and knowledgeable, that wasn’t me. This was catnip for young, immature, political wannabees. mkeenan@shb.com

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substance and style

A Break for the Procrastinator

by Betsy Brand Six

I

know you are procrastinating. Not only are you reading the Kansas Bar Journal, but you are reading a column about procrastination. You say you are just taking a break – a classic procrastinator line.

Why else do I know that you are procrastinating? Because it is human nature. You cannot blame it on the Internet or the ever-present world of instant gratification we carry with us on our phones. Procrastination has been with us since the beginning. Aristotle and Plato vexed about it.1 It is part of our biology to have a bias for the here and now and to seek positive rather than negative stimuli. Our body is wired to survive: If you have not eaten anything all day, your body focuses on the hunger rather than a long-term goal like losing weight. Our brain naturally wants to prioritize a short-term need over a longer term one. When you procrastinate, you avoid behavior that is painful, and so, at least in that moment, you are happier. But the procrastinator exchanges short-term pleasure for long-term pain.

Why can it be so difficult for us to suffer now for the betterment of our future selves? Research has shown that our brain struggles to associate our current self with the person we will be or hope to be in the future. In one study, researchers had subjects think about themselves in ten years, think about themselves in the present time, and think about a celebrity like Natalie Portman or Matt Damon.2 When they looked at the subjects’ brain scans, there were more similarities between their brains when they were thinking of the celebrities and thinking of their future selves than between their present and future selves.3 In other words, we tend to think of our future selves as an entirely different person. In another study, researchers asked a group of participants how much they would be willing to drink of an unappealing mixture of ketchup and soy sauce.4 They asked other participants how much they would be willing to drink in two weeks. While people would, on average, only agree to drink two tablespoons that day, they would burden their future selves with drinking half a cup.5 www.ksbar.org | November/December 2020 23

substance and style

Some scientists distinguish between situational procrastinators and chronic ones.6 I think all procrastination is situational. The real difference seems to be how important the task is that you avoid. If you procrastinate on a task that just does not need to be done – my desk is proof positive that you do not need to declutter – then it is not a large concern. If you procrastinate on a task that others will eventually do for you – say, by letting the kitchen trash bag pile high – your only real consequence might be annoying your spouse. If the task, however, is something that must be done and you are the only one who will or can do it, then procrastination is more problematic.

But there are also levels of procrastination. Some of us are amateur procrastinators while others are masters at it. It is a combination of these two, the importance of the task and the amount you procrastinate, that ultimately determines how much disruption your procrastination causes.

Consider this matrix. If you are in the yellow zone, you procrastinate a little bit about things that are not that important. If you procrastinate a lot about things that are not that important, you are in the pink zone. But if you procrastinate about important matters, especially those connected to the practice of law, you are in the orange or red zones; you can get yourself into trouble.

Over the years, I’ve worked with several students firmly in the red zone. They turned in multiple assignments late or struggled to turn in an assignment at all. I have also worked with students who struggled to put in the time needed to pass the bar exam. Whatever your zone, you can learn from those red-zone procrastinators and from the scientists who study them.

Research has shown that for people in the red zone, procrastination is not a time-management problem but is instead a problem of regulating emotion. We all procrastinate to avoid an unpleasant task. But for those in the red-zone, what makes 24

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the tasks unpleasant is that they lack confidence in their ability to satisfactorily complete them. By satisfactorily, I mean to the standards they have set for themselves, and often those standards are very high. So they avoid the task to avoid the fear of failure.

Postponing the task, however, increases the anxiety associated with it. The person feels bad about having procrastinated and now has less time to complete the task. Those negative feelings can make it even harder to turn to the task because it reminds the person that she has procrastinated, which makes her feel even worse. A vicious cycle begins.

So take a look at the times when you procrastinate. If you ignore those purely tedious tasks, I suspect you will see that you have a tendency, either large or small, to avoid doing things where you lack self-confidence. If you are more confident in your writing than your public speaking, you may devote hours to writing a letter to the client rather than just calling him or her on the phone. If you lack confidence in your writing, you may make every phone call, no matter how unimportant, before you sit down to try to tackle drafting that brief.

So what is the solution? That depends on your level of procrastination. If you are in the pink and yellow zones, some basic time management suggestions may work for you7: Break larger tasks into smaller, manageable chunks, reward yourself for small successes, or minimize your distractions. If necessary, you can even buy a device to lock up your phone for a set period of time.8 If you are in the orange or red zone, however, consider whether you may be procrastinating because you lack confidence in your ability to satisfactorily complete the avoided task. If that is the case, you need to address your emotional response to the task to have an impact on your behavior.

substance and style

are unavoidable aspects of being human. Try to maintain a balanced view and be patient with yourself. We are often more compassionate with others than we are with ourselves. Consider what you might say to a friend or loved one who struggles with a task, and then give yourself the same, kind-hearted support.

So the next time you find yourself surfing the Internet instead of getting your work done, distract yourself instead with assessing your emotional reaction to the task you are avoiding. And then be kind and forgive yourself. In other words, give yourself a break. n

• Forgive yourself. While it may seem intuitive to use the pain of procrastination as a deterrent for future negative behavior, the research shows this often is not effective. One study of college students found that students who were able to forgive themselves for procrastinating when studying for an exam ended up procrastinating less when studying for a subsequent exam.9 By forgiving themselves, the students were able to avoid unnecessarily adding negative feelings to an already stressful task. So rather than ruminate about your procrastination, forgive yourself and try to start or re-start with a clear conscience.

• Adjust your expectation. Consider whether you have set standards for yourself that are unrealistically high.

While it can be good to have goals to strive for, unrealistic expectations set us up for failure and unhappiness.10 If you lack the time to do your best, you will inevitably do worse than you otherwise would. For some red-zone procrastinators, this is part of their brains’ attempt to avoid negative feelings: Rather than face the possibility of not living up to their own expectations, they find it less painful to blame the failure on procrastination. So by lowering your expectations in the short term, you give yourself the opportunity to meet those expectations and, ultimately, the time to work toward exceeding them.

• Practice self-compassion. Research has found procrastinators have higher stress and lower self-compassion.11 Because procrastination inevitably increases stress, the best way to break the cycle is to learn to be more compassionate with yourself. Self-compassion is different from self-esteem.12 While individuals with high self-esteem might simply ignore or deny their mistakes, people with high self-compassion acknowledge their failings but maintain a healthy attitude about their relative importance. To be self-compassionate, treat yourself with kindness and understanding in the face of your mistakes. Recognize that pain and failure

1. See Procrastination: A Greek and Roman Tradition, SENTENTIAE ANTIQUAE, (December 5, 2017), https://sententiaeantiquae.com/2017/12/05/ procrastination-a-greek-and-roman-tradition/.

2. Hal Ersner-Hershfield, et al., Saving for the Future Self: Neural Measures of Future Self-Continuity Predict Temporal Discounting, 4 SOC. COGNITIVE & AFFECTIVE NEUROSCIENCE 85–92 (Mar. 2009), https://www. ncbi.nlm.nih.gov/pmc/articles/PMC2656877/.

3. Id. 4. Emily Pronin, et al., Doing Unto Future Selves as You Would Do Unto Others: Psychological Distance and Decision Making, 34 PERSONALITY & SOC. PSYCHOL. BULL. 224-36 (Feb. 2008).

5. Id. 6. See Eric Jaffe, Why Wait? The Science Behind Procrastination, 26 OBSERVER (April 2013), https://www.psychologicalscience.org/observer/ why-wait-the-science-behind-procrastination.

7. See Betsy Brand Six, Killing Time, 81 JOURNAL OF THE KANSAS BAR ASSOCIATION 14 (Dec. 2002).

8. See https://sharktanktales.com/kitchen-safe-shark-tank-update/ 9. Michael J.A. Wohl, et al., I Forgive Myself, Now I Can Study: How Self-forgiveness for Procrastinating Can Reduce Future Procrastination, 48 PERSONALITY & INDIVIDUAL DIFFERENCES 803–08 (2010), https://law. utexas.edu/wp-content/uploads/sites/25/Pretend-Paper.pdf 10. Carsten Wrosch., et al., Adaptive Self-Regulation of Unattainable Goals: Goal Disengagement, Goal Reengagement, and Subjective Well-being, 29 PERSONALITY & SOC. PSYCHOLOGY BULL., 1494–1508 (2003).

11. Fuschia M. Sirois, Procrastination and Stress: Exploring the Role of Self-compassion, 13 J. SELF & IDENTITY 128-45 (2014), https://www. tandfonline.com/doi/abs/10.1080/15298868.2013.763404.

12. Kristen D. Neff, et al., An Examination of Self-compassion in Relation to Positive Psychological Functioning and Personality Traits, 41 J. OF RES. IN PERSONALITY 908–16 (Aug. 2007), https://www.sciencedirect. com/science/article/pii/S009265660600095X

About the Author Betsy Brand Six, a native Kansan, practiced environmental law for thirteen years before she stopped procrastinating and put forth the effort to get a job in academia. She is a Clinical Professor and the Director of Academic Resources at the University of Kansas School of Law. She has set realistic expectations about how interesting and entertaining this article will be and appreciates that she completed it (largely) on time. She is also grateful to her husband for taking out the trash. bsix@ku.edu www.ksbar.org | November/December 2020 25

pro bono immigration efforts

Soy Abogada. (I am a lawyer.)

by Mary Feighny

E

ach interview would start with my name and this statement: “I do not represent the United States government. I am not a government official. I represent you.”

After my interpreter, Susana Valdovinos translated, the woman, generally holding a squirming child on her lap, would nod affirmatively. Then, “Tell me why you left (insert country).”

This question unleashed stories of armed drug cartels roaming neighborhoods eyeing middle-school aged boys as potential mules and tween girls for entertainment. Death threats and kidnappings awaited families that complained to an outmanned and often corrupt police force.

Susana and I weren’t in Kansas anymore. We were in Dilley, Texas, home to the South Texas Family Residential Center, a 2400-bed detention facility for immigrant women and their children who crossed the border to apply for asylum.

With about 28 lawyers and interpreters from throughout the United States, Susana and I spent a week in Dilley last November as participants in the American Immigration Council’s pro bono project preparing clients for their interviews with asylum officers and immigration judges.

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Dilley, a city of about 4000, is south of San Antonio and a couple of hours north of the Mexican border. There is no Starbucks, yoga or hummus. The landscape is wide swaths of brown grass and tumbleweeds. We heard more Spanish than English in our search for alternatives to the vending machine food at the Day’s Inn which was filled with big trucks and burly men in camo garb. Most of Dilley’s residents work in construction, the state prison, and the detention facility operated by Immigration & Customs Enforcement (ICE) but managed by the private prison group, Core Civic.

After checking in, Susana and I did some ‘recon’ looking for the detention facility and a place called “The Ranch” which is a large, ancient home where the volunteers meet to discuss assignments and make plans for the week. The Ranch is tucked away off the highway in a remote area that you can get to only by traveling down a long and narrow gravel path.

Think El Chapo’s compound. Luckily, a Customs and Border Control officer sitting in his jeep off Highway 85 pointed us in the right direction. My pasty complexion and matronly demeanor no doubt put him at ease.

pro bono immigration efforts

The volunteer attorneys hail from a variety of legal back grounds; the majority, like myself, have no immigration law expertise. Law professors, law students, business litigators, probate attorneys and other private practitioners united by a desire to “do something.” Several KBA members have participated in the Dilley Pro Bono Project, including former KBA President Mira Mdivani, Danielle Atchison, Heather Landon, Sarah Stewart, and Karen Torline.

After a training session on Sunday night, we arrived at the facility early Monday morning. When the families enter the United States, the women go to Dilley and the husbands are taken to another facility as are any unaccompanied minors who are not the biological children of the couple. Those children are sent to facilities throughout the U.S. One of our jobs was to search a data base to locate the spouses. Cell phones are confiscated so contact with family members is limited to a few land lines that can be accessed only if the woman is accompanied by her attorney.

Each day, we went through a security check similar to a TSA check, which included depositing a driver’s license and, for the attorneys, a state bar card. Again, no cell phones.

Once we received our visitor badges and passed a picture of an unsmiling President Trump, we entered a large visitation trailer. Dozens of women, sitting in plastic chairs, clothed in multi-colored jail-issued sweats waiting to be summoned by the Project’s permanent staff comprised mostly of Millennials whose energy and enthusiasm were a balm to the older attorneys, frustrated by spotty Internet, erratic scanning equipment and no coffee.

burst into the bull pen to check on their mothers. Except for a lawyerly handshake, we were cautioned not to hug.

The first step in the asylum process is convincing an asylum officer that the applicant has: (1) suffered persecution or has a “well-founded” fear of persecution by a government agent or a private actor that the government is unable or unwilling to control; and (2) the persecution is due to the applicant’s race, religion, nationality, political opinion, or membership in a “particular social group” (e.g. family, union member, LGBT).

If the asylum officer makes a positive finding, the applicant is released from the facility and may remain in the U.S. while pursuing asylum through the immigration courts. A negative finding means that the applicant remains detained but the decision may be reviewed by an immigration judge, with an appeal to the Board of Immigration Appeals. Once the appeals are finished or the applicant gives up along the way, the government buses her and her children over the border to Laredo or Reynosa. Often times, gangs are waiting to take the families and hold them for ransom – thinking that their American sponsors have money.

The percentage of positive findings has dropped from 90 percent a few years ago to 10 percent, due to increasingly narrow interpretations of the law by the courts and the Attorney General. It’s no longer sufficient to be beaten and raped by your partner or threatened by drug cartel members for complaining to the police. Wanting a better life for your children doesn’t cut it.

After our days at the jail were finished, we spent our evenings typing notes and uploading them into the database for future volunteers. Our week was over on Friday night and, like Dorothy Gale, we were whisked back to Kansas.

The misery that Susana and I observed was tempered by the strength of our clients. Under extreme circumstances, these women made a decision, grabbed their kids, and walked or bused great distances to the border, knowing that they could end up back in their home countries. In these COVID times, masks and early bar closings don’t seem so bad. n

About the Author

Guards and cameras were ubiquitous – a constant reminder that we were there by the grace of Core Civic. Lawyers and interpreters met with clients in small offices. The children – ensconced in a playroom with Disney fare on a big screen; the sound of “Let It Go” blaring in the background – would

Mary Feighny is the deputy city attorney for the City of Topeka. In that capacity, she advises the planning, public works, and finance departments.

Prior to joining the city legal department, she was the deputy attorney general overseeing the Legal Opinions & Government Counsel division of the Kansas Attorney General. mfeighny@topeka.org

www.ksbar.org | November/December 2020 27

Thank you for your years of service, Art

Arthur E. Palmer, named partner of Goodell Stratton Edmonds & Palmer, has retired from practice. Art joined GSEP in 1964 from his position as an Assistant Attorney General of Kansas.

Among his many notable accomplishments, Art is a past president of the Topeka Bar Association, Capital Civitan Club, Downtown Topeka, Inc., and the Kansas Bar Foundation, and past chairman of the Kansas Board for Discipline of Attorneys.

He was also GSEP’s managing partner for 20 years. In April 2005, Mr. Palmer received the TBA’s Warren W. Shaw Distinguished Service Award.

Arthur E. Palmer

515 S KANSAS AVE | TOPEKA, KS 66603 | 785.233.0593 | WWW.GSEPLAW.COM

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pro bono at the university of kansas school of law

Reflections on Pro Bono Service at KU Law

by Meredith A. Schnug

2020 KU Law Guardian Assistance Program participants.

I

was in college when I first read Walking With the Wind, John Lewis’s memoir of the Civil Rights Movement. I remember reading the book in excited preparation for Congressman Lewis to visit campus, and his story was especially moving to me at that time because of its connection to place.

During Freedom Summer of 1964, young people and volunteer attorneys from across the country gathered in Oxford, Ohio, at what was then Western College for Women. There, they trained in techniques of nonviolent resistance and prepared to travel South to register Black voters. Lewis recalled that time in Oxford as harmonious, in a “bucolic setting…[s] erene, tree-shaded, sleepy.”1 Those beautiful grounds are now part of the Western Campus of Miami University, where I attended college. When you walk the by the woods on Western

Campus and over the old stone bridges you can’t help but be moved by the idealism of the young activists who gathered there, decades ago, and knew it was long past time to make change.

Congressman Lewis did not make it to campus that year as planned, due to a House vote that he could not miss. But with his passing, and in the wake of protests for racial justice, many of us are again reflecting on the ideals that shaped his life and his service. He called for all of us to “help create a beloved America, a beloved world where no one is stepped on or left behind because of their race or their class.”2 For lawyers, the call to serve our community is enshrined in our professional code of ethics. We are public citizens and “should seek improvement of the law, the administration of www.ksbar.org | November/December 2020 29

pro bono at the university of kansas school of law

KU Law Clean Slate Expungement Clinic participants, February 2020

justice and the quality of service rendered by the legal profession.”3 Moreover, we must be “mindful of deficiencies in the administration of justice…and devote professional time and civic influence” to ensure that access to justice is not restricted by race or class.4 We have work to do.

Building the Skills At KU Law, we are committed to helping students develop an understanding and appreciation of their “special responsibility for the quality of justice.”5 Through KU’s Pro Bono Program, students have the opportunity to serve the public while developing their lawyering skills and professional identity. We define pro bono service as uncompensated, supervised, law-related work that benefits the public. In the past year, students devoted thousands of hours to working in legal aid, district attorney, and public defender offices. They served as court-appointed special advocates (CASAs) for children in foster care and performed legal work for non-profit agencies.

Throughout the year, dozens of law students volunteered their time to a unique student-led project housed within the law school, the KU Court of Parking Appeals. Individuals who receive a traffic ticket on campus may appeal the ticket and request a hearing, in which law students serve in the roles of attorneys and judges. Student attorneys advocate for their client’s positions based on prior decisions from the court, and the student judges issue written opinions that become precedent to guide future judges’ decisions. Engaging in this hands-on practice provides students an opportunity to learn legal analysis and advocacy skills, while providing litigants the all-important opportunity to be heard.

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Law students also participated in several pro bono projects facilitated by the law school in partnership with other firms and agencies. In collaboration with the Douglas County District Attorney’s Office, the school hosted its fourth annual Clean Slate Expungement Clinic in February. At the event, students met with dozens of individuals seeking to expunge past criminal records. Although the pandemic presented new challenges in completing those cases, legal interns in KU’s Legal Aid Clinic continue to pursue expungement for eligible clients.

In March, right before stay-at-home orders went into effect, eight law students met with Wichitaarea families seeking to obtain legal guardianship of their adult children with cognitive disabilities.

The Guardianship Assistance Program is a collaborative pro bono effort involving Hinkle Law Firm, the Arc of Sedgwick County, CoreNorth Capital Planning, attorney Jennifer Stultz, and numerous other local attorneys who volunteer their time to the project. After conducting the interviews, students then drafted petitions to help twelve families obtain guardianship of their children and security for the future.

Responding to Need When the stay-at-home orders went into effect, KU’s pro bono efforts shifted to address new legal needs. One quick response by the law school was to develop a pop-up Advance Care Planning Clinic for essential workers in healthcare settings. Led by Professor Lumen Mulligan, director of KU’s Medical Legal Partnership (MLP), Juliann Morland Davee, managing attorney of the MLP at Lawrence Memorial Hospital, and Lindsey Collins, managing attorney of the MLP at KU Medical Center, KU law students helped frontline workers complete advance care planning documents. The clinic recruited and trained students within the span of two weeks, and all work was done remotely. Students gained valuable legal experience while at the same time providing some peaceof-mind for critical workers vulnerable to the virus.

The law school also developed the KU Legal Corps to provide students with pro bono opportunities over the summer. The Legal Corps provided legal research and project assistance to local non-profit agencies, who also faced new challenges in serving their client populations during the pandemic. Students performed pro bono research for The Willow Domestic Violence Center and CASA of Douglas County.

Another Legal Corps project involved researching and developing a legal needs assessment tool for Legal Aid of Western Missouri (LAWMO). LAWMO will use the resulting data and research to determine how best to meet the needs of the

pro bono at the university of kansas school of law

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low-income population in its service area. Through the Kansas Supreme Court Access to Justice Project, law students researched and inventoried the legal forms available to pro se litigants in an ongoing effort to promote access to justice.

All of these projects provided students the opportunity to develop their lawyering skills while serving the public good.

As so many individuals suffer now—from loss, illness, unemployment, racism—the legal community can make such a difference through our service, big or small. I trust that our law students will continue to bring the energy and idealism we need to respond to the challenges of today.

John Lewis was just a young boy when he first answered a call for help. When a windstorm ripped through Alabama and began to rock his aunt’s house from the foundation, she called him and his young siblings and cousins to walk to the corners of the house being lifted by the wind. The children held hands and walked with the wind, back and forth, to keep the house in place. Throughout his life, Lewis remained hopeful that change would come. He believed that when storms come, people of conscience should not leave the house but rather, come together and move toward the weakest corner. This past year has stripped bare the weakest corners; we know where they are. I hope now, in one way or another, we all walk toward them. n

Email: Clifford Cohen • cac@studentrightslawyers.com Licensed in Kansas, Missouri and Colorado Andrew Duncan • ad@studentrightslawyers.com Licensed in Kansas and Missouri

About the Author Meredith A. Schnug is a clinical associate professor and the Associate Director of the KU Legal Aid Clinic. She also coordinates the law school’s Pro Bono Program. mschnug@ku.edu

1. John Lewis, Walking With the Wind: A Memoir of the Movement 255, 256 (1998).

2. John Lewis, 2016 Commencement Address, Washington University in St. Louis, https://source.wustl.edu/2016/05/john-lewis-2016-commencement-address-washington-university-st-louis/.

3. KAN. RULES OF PROF’L CONDUCT Preamble ¶ 6 (1988).

4. Id. 5. KAN. RULES OF PROF’L CONDUCT Preamble ¶ 1 (1988).

www.ksbar.org | November/December 2020 31

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www.ksbar.org | November/December 2020 33

covid-19 v. criminal defendants

federal charges either no later than 70 days after either (1) the indictment or (2) after the defendant’s first appearance in court, whichever is later.10 The orders made by federal courts to suspend in-court proceedings11 may be permissible in the Speedy Trial Act’s catch-all provision, which allows extensions for the tolling of those time periods.12 However, nowhere in the Act are those orders definitively permissible.13 Even though a continuance may be granted when “…continuation of such proceeding [is] impossible[,]” there is no way to determine if the limiting of in-person court proceedings as a result of a pandemic would constitute a finding that court proceedings are impossible.14 Until federal precedent is available on the constitutionality of such orders in the wake of a pandemic, the uncertainty of their validity will remain.15 Concurrently, in Kansas, administrative orders have been entered by the Kansas Supreme Court, which limit the expiration of speedy trial protections enumerated in K.S.A. 22-3402.16 Normally, a criminal defendant in Kansas must go to trial within 150 days of the defendant’s arraignment on the charges.17 However, this period can be extended without violation of the Sixth Amendment of the United States Constitution so long as it does not fail the four-factor Barker test recently adopted by the Kansas Supreme Court. To pass this test, the following four factors must be evaluated “… (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his or her right, and (4) prejudice to the defendant.”18 Without a concrete end date to the COVID-19 pandemic in sight, prosecutors will have to hope criminal defendants either (1) consent to continuing their trials remotely and avoid this issue entirely, or (2) entrust that the orders suspending the expiration of speedy trial times will pass the four-factor Barker test.

Further, unlike jurors and court staff who can remain at home while these orders delay criminal proceedings, many criminal defendants are subject to lengthened stays in prisons and jails while awaiting trial. Unfortunately, the places where criminal defendants are held is where the risk of contracting the COVID-19 virus is often the highest.19 “Incarcerated people are infected by the coronavirus at a rate more than five times higher than the nation’s overall rate.”20 This also opens a Pandora’s Box of Eighth Amendment issues related to holding those accused in an environment where they are at a higher risk of becoming infected with COVID-19.21 Generally speaking, officials overseeing the holding of accused criminals must “respond reasonably” to substantial risks 34

The Journal of the Kansas Bar Association

to inmate health and safety to ensure they do not infringe on their Eighth Amendment rights.22 If institutions holding people with pending criminal charges fail to (1) implement proper holding policies (such as allowing for proper social distancing), (2) maintain reasonably sanitary conditions, (3) identify and take additional precautions for high-risk inmates, (4) quarantine sick inmates, or (5) provide treatment for those diagnosed with COVID-19, those institutions have potentially violated inmates’ Eighth Amendment rights and may be liable for the violations.23 The Right to an Impartial Jury Criminal defendants are also afforded the right to an impartial jury under the Sixth Amendment of the United States Constitution24 and Kansas’s state constitution.25 One of the most important components of an impartial jury is that it accurately reflect the diversity of the community from which it is selected.26 Areas where courts have resumed jury trials during the COVID-19 pandemic are experiencing decreases in the number of people willing to report for jury duty due to fear of contracting COVID-19.27 Those individuals who do not report for duty because of this fear are most often those medically or economically vulnerable to the virus.28 This results in jury pools being underrepresented by the following demographics: elderly people, immuno-compromised individuals, racial and ethnic minorities, and even women (likely due to more children staying at home because of remote schooling.)29 With the lessened availability or altogether lack of availability within these demographics for the jury selection process, jury pools are a much less accurate representation of the community from which they are selected.30 The less diverse the jury pool, the lower the likelihood that a criminal defendant will have their case tried before an impartial jury.31 Additionally, if the solution to in-person jury concerns is to switch to remote criminal jury trials—either through Zoom or other equivalent video conferencing programs—it can still be damaging to criminal defendants. No court has ruled on the constitutionality of remote jury trials in criminal proceedings.

The Supreme Court has only allowed virtual witness testimony in narrow circumstances completely unrelated to a pandemic.32 Studies have shown that with less proximity to a criminal defendant, the less empathy jurors will feel when evaluating the charges against the accused.33 Current courtroom policies such as the accused wearing a mask or barriers placed between the accused and the courtroom have the potential to further dehumanize criminal defendants to jurors hearing their case, and may influence their sentencing negatively.34 Moreover, the software programs used to conduct these remote trials have been shown to decrease the retention of information and attention spans of those utilizing them.35 This may inhibit a fair trial because jurors will pay less attention to the evidence presented and resulting verdicts may not be as informed as they would have been traditionally at an in-person jury trial.36

covid-19 v. criminal defendants

The Right to Confront the Accuser(s) Under the Sixth Amendment of the United States Constitution (and incorporated in the Kansas State Constitution under the Fourteenth Amendment),37 criminal defendants are afforded the right to “see[] the witness[es] face to face, and [] subject[] [them] to the ordeal of a cross-examination.”38 Although remote trials could require the government’s witnesses to be present in a video conference call for the defendant to see them, is this actually equivalent to the physical appearance traditionally required to satisfy the accused’s Sixth Amendment right to confrontation?39 Further, many nonverbal forms of communication have been proven to be lost over remote means of trial, such as eye contact, facial expressions and body language.40 All of those forms of communication are imperative for jurors and the accused to determine a witness’s credibility and overall demeanor, which are core principles of the accused’s Sixth Amendment right to confrontation.41

Kansas’s state constitution also more explicitly enumerates these same rights through incorporation of the language that identifies an accused’s right to (1) “…appear and defend in person…”and (2) “…meet the witness face to face…”42 If criminal jury trials are conducted remotely as allowed by the administrative orders passed in May by Kansas’s Supreme Court,43 how would lower courts reconcile compliance with those constitutional rights of the accused in a remote trial setting? Traditionally, the only way the accused’s right to confront witnesses offering testimonial statements is if a defendant voluntarily waives this right either: (1) through their own actions or (2) in consideration of advice from their counsel.44 That begs the question, if the accused can watch a witness testify over Zoom, is it the same as being physically “face-to-face” with a testifying witness? Kansas case law does allow for introduction of testimonial statements without physically confronting the accused if a witness is unavailable at trial and was available for cross-examination by the accused prior to the statements.45 Thus, to even have a chance of success of presenting testimonial statements made by witnesses not physically present at trial, prosecutors will have to either (1) establish that a witness’s absence at trial is due to their unavailability as defined in K.S.A. 60-459,46 or (2) in a remote trial setting, determine whether the live video of a

witness offering testimonial statements satisfies the accused’s right to confront the witnesses.47 The Right to Effective Assistance of Counsel The last Sixth Amendment constitutional right impacted by any disruption to standard operating procedures within criminal courts is the right to effective assistance of counsel.48 Ineffective assistance of counsel occurs when both (1) an accused’s counsel has fallen below an objective standard of reasonableness, and (2) the ineffective counsel resulted in an objectively reasonable probability that the outcome of the criminal proceeding would have been different without the ineffectiveness.49 This leaves two questions that must be answered: first, what is an objectively reasonable standard of representation during the COVID-19 pandemic or in remote court proceedings? Second, what types of deviations from this reasonable standard of representation are severe enough to alter the outcome of a criminal proceeding? The answers to these questions are one and the same and are very simple: no one knows. Without precedent to look to, the attorneys’ decisions during this primarily remote age of representation may unknowingly undermine their client’s right to effective counsel, leaving practitioners exposed to liability for their ineffective decisions.50 Further, even if counsel is not found constitutionally ineffective, they may be subject to potential liability under their state bar.51 Even in the absence of participation in a remote jury trial, the risk of ineffective counsel is compounded if an attorney cannot be physically present with their clients. If conversations that would normally occur in a private setting are instead occurring remotely via video technology, there is a heightened risk of these programs being infiltrated and confidential communications becoming public.52 Client and attorney safety also becomes an issue when their correspondence is no longer privately conducted and is at a heightened risk of being intercepted.53 Moreover, traditionally well-funded prosecutors and their offices may be better equipped than lesser funded public defenders to manage cases in a remote age of litigation where access to technology is necessary.54 This may result in access to resources being even more influential in conviction rates than it already has been historically.55 Additionally, if the criminally accused is subjected to lengthened periods of holding due to suspension of court proceedings, prosecutors and other state actors are in a much better bargaining position for plea deals than those that represent the accused.56 For example, in order to escape environments where the risk of contracting COVID-19 is much higher, public defenders may be commanded by their clients to enter plea agreements that may not be as favorable as they would have received in a pre-pandemic setting just to avoid the risk of contracting the virus.57 www.ksbar.org | November/December 2020 35

covid-19 v. criminal defendants

Lastly, in the event that remote or in-person criminal jury About the Authors trials begin after a disruption such as a pandemic, it is difficult to appropriately weigh the benefits and risks of particiJohn E. Rapp is an attorney at Hinkle Law Firm pating in a remote trial versus waiting for normal court proLLC. Mr. Rapp’s practice includes civil and ceedings to resume. For every potential benefit, e.g., a faster criminal litigation. He is a member of the National resolution of the accused’s charges, there is an endless numAssociation of Criminal Defense Lawyers, the National College for DUI Defense, the Wichita ber of uncharted risks, e.g., safety of those involved in any Bar Association, the Kansas Bar Association, and in-person court proceedings.58 Because the issues presented the American Bar Association. He is licensed to are unprecedented, the information available to attorneys to practice in municipal, state, and federal courts in make informed decisions in this era of remote representation Kansas as well as the United States District Court 59 is unfortunately lacking. for the Western District of Missouri.

Conclusion The Sixth Amendment ensures fundamental rights for the criminally accused in state and federal courts, as well as attorneys on both sides of a criminal proceeding that are wellversed in its requirements in their standard practice. But when “normal” is disrupted, all parties involved need to be aware of the above considerations during that disruption. Ultimately, the current COVID-19 pandemic has presented a plethora of new complications that lawmakers must consider before deciding how to move forward with criminal trials. Lessons learned and case law developed from the current disruption will hopefully ensure that the methods and procedures utilized to promote judicial efficiency both ensure participant safety and preserve the rights of criminal defendants enumerated in the Sixth Amendment. n 1. U.S. Const. amend. VI. 2. Kan. Const. Bill of Rts. § 10; State v. Lawson, 296 Kan. 1084, 1088, 297 P.3d 1164, 1168 (2013).

3. Administrative Order No. 2020-PR-056 (May 27, 2020), https:// www.kscourts.org/KSCourts/media/KsCourts/Orders/2020-PR-056.pdf.

This order allows for remote proceedings in “…any essential or nonessential court proceeding or any portion of a proceeding, including all criminal, juvenile offender, civil, probate, child in need of care, or other proceeding under the jurisdiction of Kansas district courts or appellate courts.” Id. 4. Administrative Order No. 2020-PR-057 (May 27, 2020), https:// www.kscourts.org/KSCourts/media/KsCourts/Orders/2020-PR-057.pdf.

5. See, e.g., Administrative Order No. 2020-PR-056 (May 27, 2020), https://www.kscourts.org/KSCourts/media/KsCourts/Orders/2020PR-056.pdf; see also Administrative Order No. 2020-PR-057 (May 27, 2020), https://www.kscourts.org/KSCourts/media/KsCourts/ Orders/2020-PR-057.pdf.

6. K.S.A. § 22-3402 (2020); State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169, 173 (2004) (Four factor test adopted in Kansas used to determine if a defendant’s rights to a speedy trial have been violated); State v. Brownlee, 302 Kan. 491, 509, 354 P.3d 525, 539 (2015) (Evaluation of when an amendment to the speedy trial rights are valid); State v. Petrin, 213 Kan. 258, 261, 515 P.2d 748, 751 (1973) (any continuances authorized by statute are made in the discretion of the trial court).

7. State Court Closures in Response to the Coronavirus (COVID-19) Pandemic, 2020, BALLOTPEDIA (April 15, 2020), https://ballotpedia.org/ State_court_closures_in_response_to_the_coronavirus_(COVID-19)_ pandemic,_2020. At the start of the COVID-19 pandemic, thirty-four states suspended in-person proceedings throughout the entire state, including Kansas. Id. 8. See The S. Dist. of N.Y., Response to COVID-19 (Coronavirus), U.S. DIST. COURT S. DIST. OF N.Y., https://www.nysd.uscourts.gov/covid19-coronavirus (last visited July 20, 2020).

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jrapp@hinklaw.com

Ben Bigham is a third-year law student at Washburn University School of Law and expects to graduate in May of 2021. At Washburn, he serves as a staff writer for the Washburn Law Journal. Ben holds a Bachelor of Science in Petroleum Engineering from the University of Kansas. During the summer of 2020, Ben clerked for Hinkle Law Firm LLC at their Wichita office.

benjamin.bigham@washburn.edu 9. Administrative Order No. 2020-PR-057 (May 27, 2020), https:// www.kscourts.org/KSCourts/media/KsCourts/Orders/2020-PR-057.pdf.

“All deadlines and time limitation to bring a defendant to trial established

by K.S.A. 2019 Supp. 22-3402 and its amendments are suspended until further order or this order’s expiration under H. Sub. for S.B. 102.” Id. 10. 18 U.S.C. § 3161(b)–(c) (2020).

11. See Court Orders and Updates During COVID-19 Pandemic, UNITED STATES COURTS, https://www.uscourts.gov/about-federal-courts/courtwebsite-links/court-orders-and-updates-during-covid19-pandemic (last visited Oct. 11, 2020). Each court has a different delay enforced for in person proceedings. Id. For example, the First Circuit extended the deadlines for non-emergency filings by thirty days, while the Fourth Circuit didn’t grant extensions but moved to remote proceedings. Id. 12. 18 U.S.C.§ 3161(h)(1)–(8).

13. See id.

14. 18 U.S.C. § 3161(h)(7)(B)(ii).

15. White Collar Defense and Investigations, Criminal Statutes of Limitations and Speedy Trial Act Considerations During the COVID-19 Pandemic, COVINGTON, at 3 (April 3, 2020), https://www.cov.com/-/media/files/corporate/publications/2020/04/criminal-statutes-of-limitationsand-speedy-trial-act-considerations-during-the-covid-19-pandemic.pdf; see also Jordan S. Rubin, Coronavirus Containment Collides With U.S. Constitutional Rights, BLOOMBERG LAW (March 31, 2020) https://news. bloomberglaw.com/us-law-week/coronavirus-containment-collides-withu-s-constitutional-rights. The president of the National Association of Criminal Defense Lawyers commented on the recent federal orders suspending court proceedings as “completely new territory” to navigate with Sixth Amendment issues. Id. 16. Compare Administrative Order No. 2020-PR-057 (May 27, 2020), https://www.kscourts.org/KSCourts/media/KsCourts/Orders/2020PR-057.pdf, with § 22-3402.

17. K.S.A. 22-3402(a).

covid-19 v. criminal defendants 18. Rivera, 277 Kan. at 113.

19. Covid-19’s Impact on People in Prison, EQUAL JUSTICE INITIATIVE (August 21, 2020), https://eji.org/news/covid-19s-impact-on-people-inprison/.

20. Id. 21. See U.S. Const. amend. VII. (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

22. Farmer v. Brennan, 511 U.S. 825, 834, 844–45 (1994).

23. Michael J. Bentley et al., The Coronavirus (COVID-19), Prisons, and the Eighth Amendment, Bradley (March 24, 2020), https://www.bradley. com/insights/publications/2020/03/the-coronavirus-covid19-prisonsand-the-eighth-amendment.

24. U.S. Const. amend. VII; Taylor v. Louisiana, 419 U.S. 522 (1975).

25. Kan. Const. Bill of Rts. § 10; State v. Miller, 308 Kan. 1119, 1119, 427 P.3d 907 (2018).

26. Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 165, 85 L. Ed. 84 (1940); State v. Robinson, 303 Kan. 11, 74, 363 P.3d 875 (2015).

27. Kate Larsen, Coronavirus Impact: Pandemic creates challenges as San Francisco tries to resume jury trials, ABC (July 2, 2020), https://abc7news. com/san-francisco-jury-duty-coronavirus-court-can-you-get-out-offor/6290711/. Only 60% of jurors called to duty reported in the month of June in San Mateo County in San Francisco, California. Id. Additionally, in a survey involving 241 participants, around 40% said they would not serve jury duty due to their fear of contracting COVID-19. Who Will Show Up for Jury Duty?, DISPUTE DYNAMICS, https://calemploymentlawupdate.proskauer.com/files/2020/05/COVID-jury-differences.pdf (last visited July 20, 2020).

28. Nina J. Ginsberg et al., Criminal Court Reopening and Public Health in the COVID-19 Era, NACDL, at 10 (June 2, 2020) https://nacdl.org/ getattachment/56802001-1bb9-4edd-814d-c8d5c41346f3/criminalcourt-reopening-and-public-health-in-the-covid-19-era.pdf.

29. See id. at 10–11.

30. See id.

31. See id. at 11.

32. See Maryland v. Craig, 497 U.S. 836, 848, 110 S. Ct. 3157, 3165, 111 L. Ed. 2d 666 (1990) (only in limited situations may an otherwise available witness testify remotely, such as “…to safeguard the physical and psychological well-being of child victims” in criminal child abuse proceedings. Even in those limited situations, the least restrictive remote methods must still be employed.)

33. Ginsberg, supra note 28, at 9–10 (finding that virtual mechanisms that separate and place distance between the accused and the jury “… reduce [ ] juror empathy.”).

34. Id. at 10 (concluding that depriving the jury the full experience of seeing a defendant physically in person, many of the non-verbal cues that jurors use to assess credibility will be lost and not considered during the trial, potentially impacting verdicts issued).

35. See id.

36. See id.

37. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. E.d 2d 923 (1965); State v. Laturner, 289 Kan. 727, 218 P.3d 23, 26 (2009); State v.

Miller, 293 Kan. 535, 556, 264 P.3d 461, 476 (2011) (held the right of the accused to confront witnesses in criminal trials is similarly recognized under both the United State and Kansas constitutions).

38. Crawford v. Wash., 541 U.S. 36, 57, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177 (2004); U.S. Const. amend. VI. 39. Compare Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 2803, 101 L. Ed. 2d 857 (1988), with State v. Wedgeworth, No. 88,903, 2006 WL 319338, at *3 (Kan. 2006) (unpublished opinion). The United States Supreme Court refused to even allow a screen between an accused and a child, when the child was one of the accused’s alleged victims of sexual assault crimes because it unconstitutionally restricted the accused’s right to confrontation. Coy, 487 U.S. at 1020. In Kansas, the Kansas Supreme Court thought a similar situation was permissible in the limited situation when enumerated by statute for children who testified against the person accused of sexually abusing them. Wedgeworth, 2006 WL 319338, at *3.

40. Ginsberg, supra note 28, at 10.

41. How Body Language Can Impact Witness Credibility, LITIGATION INSIGHTS (Jan. 31, 2018) https://www.litigationinsights.com/body-language-can-impact-witness-credibility/.

42. Kan. Const. Bill of Rts. § 10; Miller, 293 Kan. at 556 (holding that any witness’ testimonial statements presented in a criminal trial by the prosecution are inadmissible unless “[(1)] the witness appears at trail or, [(2)] if the witness is unavailable to testify at trial, the defendant had a prior opportunity for cross-examination.”). The only time a Kansas court has not required physical presence at a criminal trial of an otherwise available witness offering testimonial statements was in Wedgeworth, where the court permitted live video testimony for children testifying against their alleged sexual abuser. 2006 WL 319338, at *3. Even in this situation, the court clarified that the only reason for allowing the remote testimony instead of live in-person testimony was because of the existence of a statute (K.S.A. 22-3434) that permitted it and the requirements under the statute were fully satisfied. Id. 43. Administrative Order No. 2020-PR-056 (May 27, 2020), https:// www.kscourts.org/KSCourts/media/KsCourts/Orders/2020-PR-056.pdf.

This order allows for remote proceedings in “…any essential or nonessential court proceeding or any portion of a proceeding, including all criminal, juvenile offender, civil, probate, child in need of care, or other proceeding under the jurisdiction of Kansas district courts or appellate courts.” Id. 44. Kenreck v. State, 198 Kan. 21, 23, 422 P.2d 894, 897 (1967) (holding that a voluntary forfeiture of this right is if a prisoner escapes prison prior to their trial date); State v. Maxwell, 151 Kan. 951, 102 P.2d 109, 109 (1940) (holding that when a defendant fails to attend trial when presented the opportunity to, the right to confrontation is waived).

45. Miller, 293 Kan. at 556 46. See State v. Jefferson, 287 Kan. 28, 35, 194 P.3d 557, 560 (2008) (holding that unavailability can be established under K.S.A. §60-459(g)); See also K.S.A. 60-459(g)(1)-(5) (2020). The most likely exception for COVID-19 related unavailability in this statute is (3), which defines a witness as unavailable if they are “unable to be present or to testify at the hearing because of death or then existing physical or medical illness.”

Even under this exception, the success of establishing such unavailability is still low.

47. In Kansas, this has only has been established where a statute contemplated the need and reasons for remote testimony. See Wedgeworth, 2006 WL 319338, at *3. No such statute exists in a post-COVID era for generally allowing live remote testimony.

48. U.S. Const. amend. VI. 49. Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).

50. See Ginsberg, supra note 28, at 11 (The study proposed an interesting hypothetical as follows: “[Imagine] an accused who is detained pretrial must not be compelled to choose between the right to a speedy trial (potentially motivated by threat of contagion in detention), on one hand, and the right to confront prosecution witnesses and be physically present and participate in the trial, on the other.” There is no way to know which of these decisions is reasonable in light of the other alternative until practitioners have more information to base these decisions on.

51. See KRCP 1.1 (2020 Kan. S. Ct. R. 226) (“A lawyer shall provide competent representation to a client.”).

52. See Nick Statt, ‘Zoombombing’ is a federal offense that could result in imprisonment, prosecutors warn, THE VERGE (Apr. 3, 2020) https://www. theverge.com/2020/4/3/21207260/zoombombing-crime-zoom-videoconference-hacking-pranks-doj-fbi.

53. See Winston & Strawn LLP, Problems With Tolling The Speedy Trial Act During Pandemic (May 6, 2020), https://www.winston.com/ en/thought-leadership/problems-with-tolling-the-speedy-trial-act-duringpandemic.html.

54. Ginsberg, supra note 28, at 12.

55. See id.

56. Id. at 11.

57. See id.

58. See Winston & Strawn, supra note 53.

59. See Five trial-court circuits chosen for “virtual” civil jury trial pilot program due to pandemic, FLA. SUPREME COURT (June 3, 2020), https:// www.floridasupremecourt.org/News-Media/Court-News/Five-trial-courtcircuits-chosen-for-virtual-civil-jury-trial-pilot-program-due-to-pandemic. Pilot programs in Florida for starting civil jury trials remotely are still in very early stages of development and have yet to be started for criminal jury trials. www.ksbar.org | November/December 2020 37

Have you considered becoming a Kansas Bar Foundation Fellow?

The Kansas Bar Foundation

• increases access to legal services for underserved communities • helps promote access to justice for all Kansans • funds scholarships that benefit Kansas law students • administers the IOLTA grant process benefitting organizations that provide civil legal services and the administration of justice to Kansans • supports efforts to educate the public regarding the law We encourage all Kansas lawyers to become Fellows—it’s an excellent way to give back to your profession, to fund key law and justice programs and to provide volunteer opportunities for you and your colleagues.

Your $1,000 pledge may be made online or through the mail.

You may pay in annual installments of $100.

Online: www.ksbar.org/pledge By mail: Kansas Bar Association • PO Box 751080 • Topeka, KS 66675-1080 Already a Fellow? Wonderful! Please consider increasing your pledge and move to a higher level of giving!

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If you have questions, please contact Lisa Leroux-Smith: llerouxsmith@ksbar.org

The Journal of the Kansas Bar Association

The Kansas Bar Foundation is pleased to announce the availability of its 2021 law student scholarships The Capitol Federal Foundation Diversity Scholarship $500.00 award to a 3L at WU and KU

Case, Moses & Zimmerman, P.A. Law Student Scholarship $1,000.00 award to a 2L at WU, KU, Creighton, or Oklahoma City

The Frank Rice Scholarship $5,000.00 award to a law student who is a Kansas resident at WU or KU

The Justice Alex M. Fromme Memorial Scholarship $1,000.00 award to a law student who is a Kansas resident at WU or KU

The Hinkle Law Firm Scholarship $3,000.00 award to a law student at WU or KU

The Lathrop & Gage Student Scholarship $2,000.00 award to a law student at WU or KU

The Maxine S. Thompson Memorial Scholarship $1,000.00 award to a Kansas resident at WU or KU

The Frank Norton Scholarship $2,000.00 award to a 2L or 3L at WU with no other scholarship support

The John E. Shamberg Memorial Law Student Scholarship $3,000.00 award to a 2L or 3L at WU with no other scholarship support

The application is available now through December 31, 2020 at 5:00pm Apply here: https://www.ksbar.org/mpage/scholarships Questions? Email: sharden@ksbar.org

www.ksbar.org | November/December 2020 39

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the 19th amendment: commemorating 100 years

The 19th Amendment: Commemorating 100 Years

by Sarah C. Otto

2

020 marks the 100th anniversary of the ratification of the 19th Amendment. The text of the Amendment reads: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.” Achieving this monumental change required a long and difficult struggle, including decades of protests, marches, and lobbying.

Suffrage in Kansas Nearly a decade before the ratification of the 19th Amendment, Kansas extended equal voting rights to women. But women’s suffrage had been on the Kansas horizon since the State’s constitutional convention in 1859, where prominent suffragist Clarina Nichols petitioned for equal voting rights.

Eight years later, in 1867, the State Impartial Suffrage Association coordinated a voter outreach program to support expanding suffrage to all Kansans “without regard to sex or color.”1 The Association disseminated a circular, which declared “that governments derive their just powers from the consent of the governed.” The circular noted with sweeping language that with expanded suffrage, “Kansas will be free, and occupy the proudest place, in all time to come, in the history of the world.”

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Kansas women achieved the first step toward full suffrage in 1887, when the state granted women the right to vote in local elections, if they lived in certain Kansas cities. That year, Susanna Madora Salter was elected mayor of Argonia, Kansas – one of the Kansas cities in which women could vote in local elections. Salter, who was only 27 years old at the time, was the first woman elected mayor in the United States. She received an overwhelming two-thirds of the vote and, by all accounts, fulfilled her duties as mayor well.

In 1912, after decades of hard work, Kansas became the eighth state in the nation to grant women full suffrage. And even after Kansas women fought for and won the right to vote, they kept pushing for national suffrage.

The 19th Amendment Congress passed the 19th Amendment in 1919. The Amendment was subsequently ratified in 1920. That year, over 8 million women voted in the national election. The centennial of the 19th Amendment provides an opportunity to commemorate 100 years of women’s Constitutional right to vote and to recognize the actions of dedicated suffragists who were integral to the ratification of the Amendment.

The suffrage movement relied in part on protests to spread the message of women’s suffrage throughout the country.

Although Kansas had extended suffrage to women, Kansas

the 19th amendment: commemorating 100 years

women joined these efforts by traveling to Washington, D.C. Despite its shortcomings, the 19th Amendment is, neverto protest outside the White House for nationwide voting theless, a powerful example of how the contributions of womrights. Thousands of women participated in marches for suf- en shape history. It is an important reminder that, through frage, and hundreds of women were hospitalized after specta- dedication and organization, we have the ability to bring tors attacked the activists. about a more equitable system of laws and government. In In Kansas City, a group of women’s suffragists circulated a the words of suffragist Carrie Chapman Catt: “To the wrongs petition in 1919 and were able to secure the signatures of over that need resistance, To the right that needs assistance, To the 40,000 people who were in favor of suffrage – a particularly future in the distance, Give yourselves.” n impressive feat considering the signatures were obtained during a resurgence of the 1918 influenza pandemic. Because of About the Author the dedicated efforts of suffragists, public sentiment built and the 19th Amendment was passed by Congress in June of 1919 Sarah C. Otto is an associate at Foulston Siefkin and ratified in August of 1920.

LLP. Sarah’s practice includes both employment disputes and commercial litigation. She also Finally, a discussion of the women’s suffrage movement advises clients on cutting-edge technology would be incomplete without mentioning a complicated hisand data privacy legal issues. Sarah received tory of race and class issues. Black women were vital to the her J.D. from the University of Kansas, where she participated in three national moot court success of the women’s suffrage movement. For example, competitions and served on the Law Review.

Kansas suffragist Carrie Langston (mother of poet Langston Before attending KU, Sarah was a K-State Hughes) wrote articles supporting suffrage that were pubWildcat and competed nationally in collegiate lished in a local Atchison, Kansas newspaper. But, at times, policy debate. other suffragists relied on appeals to racial and class divisions to garner support. Although the 19th Amendment was a sig- sotto@foulston.com nificant expansion of voting rights, many individuals still faced race- and class-based voting restrictions, including reg- 1. https://www.kshs.org/index.php?url=km/items/view/215229 istration rules, literacy tests and poll taxes.

THANK YOU

Michael Manning for your dedication to the legal profession. Your distinguished career is a reflection of your passion, leadership and uncanny ability as a premier trial attorney.

We congratulate you on being honored at your alma mater, Washburn University School of Law, with the Michael C. Manning Advocacy Suite and Courtroom.

www.ksbar.org | November/December 2020 49

law students’ corner – Washburn University School of Law

Why Scientists Can Make Good Lawyers

by Daniel Sloan

A

lthough the endeavors of scientists and lawyers require similar methodologies, my admittedly limited research suggests that no United States Supreme Court justice has ever had a background in the hard sciences. In all fairness, the term “scientist” is a relatively recent linguistic invention. Perhaps my efforts to find such a justice would have been more fruitful had I emphasized terms like “natural philosopher” or some other equivalent. If any savvy practitioner comes across this article and is aware of a United States Supreme Court justice who had a background in the hard sciences, please pass this information along. In any case, please take my words with a grain of salt. After all, if none of the presidents of this country have valued science enough to appoint a scientist to this nation’s highest court in the last 244 years, then who am I to dissent?

Of course, the United States Supreme Court’s job is to “say what the law is,” as Justice Marshall famously said in Marbury v. Madison. Scientists, with their need for experimentation, might not be a perfect fit for the nation’s highest court. An error in our nation’s highest court can take half a century to correct. Errors in the laboratory sometimes lead to wonderful devices like the post-it note. If there is a particular place for scientists within the judiciary, it is probably in specialized courts. Also, the practice of law is not confined to the judiciary. If this country truly did not value science, then it would not have been the first to plant a flag on the surface of the moon.

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To show the value of scientists in the legal profession, we must first inquire as to the methodologies of both fields. The scientific method generally involves the following steps: (1) Ask a question; (2) conduct background research; (3) construct a hypothesis; (4) test your hypothesis by doing an experiment; (5) analyze the data and draw a conclusion; (6) communicate the results to other scientists so that they can verify for repeatability; and (7) rinse (sometimes literally, depending on the experiment conducted at step 4) and repeat.

Compare the scientific method with legal research and analysis, which can—with variation, of course—be broken down into the following steps: (1) Gather and understand the facts; (2) conduct background research to find the law in your jurisdiction; (3) determine what legal theories to pursue; (4) analyze the binding and persuasive precedent; (5) use primary legal authorities to support your arguments while matching the facts to relevant law; and

law students’ corner – Washburn University School of Law

(6) present those arguments to a judge, jury or the opposition for settlement purposes.

As you may have noticed at this point, the methods behind the madness of both of these fields are similar. For comparison purposes, let’s imagine that a potential client has come to the office to find what legal remedy they might have when a doctor leaves a pair of scissors inside the patient following an operation. Remember, I am just a law student, so this example may leave out some key details.

Under the scientific method, (1) We ask the question, are there remedies available to our potential client?

(2) We then research the “background” information on the duty of care that a physician owes.

(3) Next, we construct a “hypothesis” in the form of a negligence claim.

(4) We “test” this hypothesis by looking at the “tests” performed by other similarly situated clients that have pursued this theory.

(5) We analyze the case law, which tells us that we can bring the claim.

(6) We then “communicate” our conclusions to the client and the jury.

(7) We rinse and repeat the process the next time someone comes in with a surgical knife stuck in their guts—adapting our “hypothesis” for the needs of their particular situation. The metaphor, as mentioned, is not perfect, but it provides an illustration of the parallels between legal and scientific methods.

Labels aside, both fields ultimately seek truth. No reasonable person would seriously deny that there are times that the biases of researchers affect their research. It is a human tendency to try to find evidence that supports our viewpoints.

Likewise, even lawyers can have difficulty being entirely objective when their client’s interests are at stake. But the genuinely great scientists and lawyers of the world have something in common. They look to find views in opposition to theirs and confront those views in a way that seeks truth. These truths are based upon the truths found by previous generations. A foundation of centuries of work in both fields has culminated into the society in which we live today. As in a phrase popularized by Isaac Newton, “If [we] have seen further, it is by standing on the shoulders of giants.”

There are of course, ample reasons that scientists do not become lawyers and that lawyers do not become scientists.

The opportunity cost alone is huge. Why would an individual who can support their family risk the potential failure that having such a varied background might produce in this era

of specialization? Further, many scientists tend to be quite introverted, which does not always fit the Hollywood image of the well-spoken litigator who precisely and concisely conveys their points and wins the hearts of jurors.

Yet, these fields are not so different as they appear. Introverts already have a place in the law as transactional lawyers (and some litigators, of course). Without scientists in the legal field, it would be difficult to find individuals who have the technical expertise to adequately communicate with clients to prosecute patents. Having more scientists in the legal field is one of the many ways that we can continue to add diverse viewpoints to the legal field. Among all disciplines, the legal field benefits the most from diverse backgrounds.

I would still like to see at least one U.S. Supreme Court Justice with a scientific background within my lifetime. Only then will I be able to fully test the limits of my hypothesis— that scientists make great lawyers. Fortunately, there have been plenty of control experiments that show how successful non-scientists are in our nation’s highest court. Until the day a scientist arrives on the Supreme Court, I eagerly observe the other scientists in the legal field to see if it is time to adjust my hypothesis. n About the Author Daniel Sloan is a 2L law student at Washburn University School of Law. He is currently an Extern to the Honorable Julie A. Robinson, a teaching assistant to Prof. Jeffrey Jackson for first year legal writing, a research assistant to Prof. Marsha Griggs, an Academic Fellow for Washburn Academic Support, an Articles Editor for the Washburn Law Journal, President of the Business Law Society, and President of the Moot Court Council. Daniel was a clerk at Fleeson, Gooing, Coulson & Kitch, L.L.C. during summer 2020.

He holds a B.S. in Biological Sciences from Missouri University of Science and Technology. He enjoys cooking, karaoke and spending time with his beautiful wife, Jessica. daniel.sloan@washburn.edu

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www.ksbar.org | November/December 2020 51

book review

No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us Book Review

by Sara Rust-Martin, JD, MSW and Lindsie Ford, JD

W

hat we don’t know about domestic violence can kill us. In fact, domestic violence kills three women every day. Domestic violence homicides are pervasive. Even here in Kansas, we experience them at an alarming rate. It is this sense of alarm and desperation that Rachel Louise Snyder captures in “No Visible Bruises.”

Rachel Louise Snyder uses real stories from across the country to give the reader a clear glimpse into the world of domestic violence.

This is a world we hope to never see or experience, but she takes us into the very center of it with grit and compassion.

She shares memories from the surviving members of a young family murdered by an abusive husband and father. She takes her reader to support groups for batterers serving time behind bars. She transports her readers to a task force meeting where community leaders try to unravel the mystery of why so many women are dying at the hands of their loved ones.

What sets this book apart from the multitude of others written about domestic violence is the unique perspective Rachel Louise Snyder offers. Instead of reciting statistical data and basic facts, this book focuses on the lived experiences of so many. It tells their stories. These stories are often shared in fragmented ways with courts and professionals, but not in the way this author reveals them. She gives us the human lived 52

The Journal of the Kansas Bar Association

experience, and part of what makes it so compelling is that the stories presented are not just from survivors.

The book begins by speaking to the family left behind after a grisly set of murders. It examines the days and weeks leading up to the murder. It shows how the tension and turmoil in the relationship, and the escalation of the abuser, built over time. We learn how a young woman fell in love with the man who would one day murder her and their two children before taking his own life. We see how she tried to leave him but could never safely get her children out from under his control.

Rachel Lousie Snyder later shows the perspective of young men engaged in a batterer’s intervention program. We hear, in their own words, what led them to batter, how they felt in the moments leading up to an altercation, and the tricks they used to tell themselves that it was okay.

These stories and experiences are essential for us to know and internalize because this is the life so many survivors are living when they come to us for help. We can dismiss the tactics and violence as “fights” between two people, or we can begin to understand the control and domination tactics used by those who abuse their intimate partners. When we really understand this lived experience, then we can begin to develop our own set of strategies to offer assistance, counsel and help that is effective for these survivors and their families. n

The Kansas Bar Association’s Diversity Committee Presents

Indian & Tribal Law 3.0 Credit CLE Webinar Monday, December 7th 9:00 am - Noon Register Today at www.ksbar.org/event/IndianLaw PRICING: KBA Members: $165 Non-Members: $215

• 9:00 - Ethical Dilemmas for Tribal Attorneys (1.0 Ethics) Presented by Blake Follis, Peebles Kidder Bergin & Robinson LLP

Attorneys representing tribal governments, both outside and in-house counsel, often find themselves very much akin to in-house corporate attorneys. The common dilemma associated in representing tribes is determining who the client is? Navigating this prevalent issue and helping the tribal client reach its objectives can be difficult at times, but also very important to the stability of the tribe and its government. Attorneys must be mindful of their ethical duties when advising the tribal government and be cognizant of attempts to commandeer their services; as they do not represent the individual government officials individually, but rather the tribal citizenship collectively.

• 10:00 - Indian Child Welfare Act: Litigation & Legislation (1.0 General) Presented by Professor Kate Fort, Indian Law Clinic, Michigan State University

Prof. Fort will provide an overview of the Indian Child Welfare Act, discuss key cases from across the country from 2019 and 2020, and provide an update on the current state of federal litigation. In addition, Prof. Fort will address some of the recent state legislation and court rules that states have adopted to protect the Indian Child Welfare Act.

• 11:00 - Violence Against Women Act & the Missing and Murdered Indigenous Persons Crisis (1.0 General) Presented by Mary Kathryn Nagle, Pipestem Law, PC

The 2019 re-authorization of the Violence Against Women Act stalled in the Senate as a result of Senator Joni Ernst’s refusal to take up the bi-partisan House bill, H.R. 1585. With the Republicans maintaining the Senate, it’s unclear whether they will work with the House to pass the bi-partisan version of VAWA that passed the House in April of 2019, but advocates will surely continue to fight a re-authorization of VAWA that expands on the restoration of tribal criminal jurisdiction passed in 2013. With regards to the MMIW/MMIP crisis, President Trump recently signed both the Savanna’s Act and the Not Invisible Act into law. The passage of both of these Acts is a victory for Indian Country, but much remains to be done to truly address this crisis.

This December, cozy up with a KBA Ethics CLE

presented by Stuart Teicher, "the CLE Performer"

#Hashtag Ethics

Tuesday, December 8, 2020, noon-1:00 pm Get this CLE for FREE if you renew or become a member of the KBA by December 6th. Visit www.ksbar.org/membership. presented by Sean Carter, "Humorist at Law"

From Competence to Excellence: The Ethical Imperative for Excellent Client Service Tuesday, December 15, 2020, noon-1:00 pm presented by Sean Carter, "Humorist at Law"

Ethical Jeopardy: A CLE Game Show Thursday, December 17, 2020, noon-1:00 pm presented by Sean Carter, "Humorist at Law"

From Suits to Stripes: Why You Should Not Do What TV Lawyers Do Tuesday, December 22, 2020, noon-1:00 pm

for more information or to register, visit www.ksbar.org/cle

law practice management tips and tricks

Lawyer’s Gift Guide

by Larry Zimmerman

T

he shopping season is upon us and experts anticipate most of it will be done online this year due to the pandemic. As you plan your purchases for family and friends this year, consider small, local vendors first as it has been a terrible year for them. Gift cards for services and restaurants, handmade and artisan gifts from local crafters, and even brand name items from local or smaller chain retailers all benefit our communities as well as our gift recipients. That said, there are some items which may be particularly interesting for lawyers and the people who love them.

Talkbox – It can be tough to maintain confidentiality and privacy for remote work when a pandemic sends kids and spouses home with us. The Talkbox is a secure workspace a bit larger than a phone booth that you can drop anywhere in your home. It’s soundproofed and outfitted for work with a locking door, desk, monitor, lighting, and power outlets.

Using a Talkbox helps confine work to a small space while leaving the rest of your home for family. Prices start at $3,500 at talkboxbooth.com.

BioVYZR – Need to step out into the virus-infected world in safety and comfort? The BioVYZR may be the answer. Like a space helmet, the BioVYZR provides complete coverage of your head providing protection from contaminants with a built-in air purifying system. A 10,000 mAh rechargeable battery powers a positive air pressure system that constantly circulates air through a KN95 filter. The viewing window cannot fog up and the hearing impaired can see every facial expression a mask would hide. Special advance pricing starts at $379 at vyzrtech.com.

I Dissent – You might find yourself indoors a bit more this holiday season and a law-themed game can be the perfect distraction. I Dissent is a party game for 3-9 players (can be played over Zoom). The game is an absurd and light-hearted tribute to Justice Ruth Bader Ginsburg and requires players to cast an opinion on an issue and then sway teammates to join you. A carefully played dissent can boost points though so ponder your moves carefully. The game is a Target exclusive for $20 (with a portion of proceeds going to the American Civil Liberties Union).

Ghost Court – Another party game for lawyers enduring long, dark winter nights in quarantine. Ghost Court is an independent offering where players go to small claims court to litigate between the living and the dead. Each case moves quickly with roles for lawyers, parties, judges, clerks, and more trying to get justice for aggrieved poltergeists and weary humans. Available at Bully Pulpit Games (bullypulpitgames. com) for $25.

Lawyerist – If the lawyer on your lists is more interested in self-development than stuff, then Lawyerist may be just the gift. Lawyerist is a community and resource site providing expertise in starting, running, and developing a small firm.

The website offers pages and pages of free resources including product reviews, firm financial instruction, and strategy guides. The value ramps up significantly, however, by enrolling in the coaching program. The beginner will have access to an intensive 10-week course with small group coaching that will plant your feet firmly as a solo or small firm manager.

Starts at $1,500 for three months at lawyerist.com.

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 | November/December 2020 55

law practice management tips and tricks

Simpsons Caricature – The Simpsons has been on TV (and big screens) for 32 seasons now and has featured dozens of infamous lawyers, judges, and courtroom scenes. You can get a custom character drawn of your favorite lawyer Simpsons-style on Etsy.com. It’s just $30 from the seller, CartoonPortrait.

Oblio Wireless Charging Station – Our cell phones are a jungle of bacteria and viruses. Some studies have suggested they harbor more disease-causing bacteria than a toilet seat even! Gross. Oblio tackles the problem with an aesthetically beautiful wireless charging vase. Drop your phone in the vase and it wirelessly charges while getting a controlled dose of bacteria-killing UV light. The charger also hides the screen from you providing a little bit of needed downtime for you while it charges. The Oblio is just $80 at lexon-design.com.

Samsung T7 Portable Drive – Backing up data regularly continues to be one of the best defenses against computer failure and malware attacks. The Samsung T7 provides a solid state (no moving parts) backup option in a tiny, 2-ounce package. It offers super-fast file transfer and storage of 500GB, 1TB, or 2TB. Best of all, your data is secured with AES-256 encryption that unlocks with your fingerprint. The 1TB model sells for $170 at online retailers like Amazon.com, BHPhoto.com, or BestBuy.com.

LEGAL INTERPRETERS SIGN LANGUAGE & 100+ FOREIGN LANGUAGES ON-SITE • OVER THE PHONE DOCUMENT TRANSLATION Interpreters & Translators for courts, depositions, and client meetings

Ekster Parliament Wallet – The Parliament Wallet is the sort of device that brings technology to a place you might not have realized needed it – until you try it. The unisex leather styling is available in seven colors and holds up to six cards in an RFID-save vault. The push of a button fans them out to make it easy to grab and a solar-powered tracker allows for two-way ring and ping of your wallet and phone. $110 from ekster.com.

Twelve South Airfly Pro – Have a pair of Bluetooth headphones you love but a device that only takes a headphone jack (e.g. treadmill, airline seat, game system)? The Airfly Pro is a small dongle that plugs into the jack and then pairs with your favorite Bluetooth headphones (or speaker). $45 from twelvesouth.com 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

Save the Date!

Oil, Gas & Mineral Law Winter CLE Series January 12th - 14th Noon hour webinars

Contact Kim Chao 913.491.1444 kim.chao@translationperfect.com www.TranslationPerfect.com 56

The Journal of the Kansas Bar Association

www.ksbar.org/cle

law students’ corner – University of Kansas School of Law

A Time for Change

by Erin T. Nisly

T

he ancient Greeks engaged in training their physical and mental faculties to produce a broad, enlightened, mature outlook which was combined with maximum cultural development. During this pandemic, I have thought more about how this type of training and refinement can apply to my character, soul, body and mind. I have wrestled with a question on this subject: “How will I learn to die better, scrutinize better, interrogate better, criticize better, so that I can live better; more courageous, more critically, more visionary, more love, more courage – the process of paideia.”1 Refining oneself during a global pandemic proves difficult, and it is no easier as a law student. Last year I entered law school amidst an unstable economy, a dysfunctional government, and social unrest. I did so knowing that I would face student debt, food insecurity, unforgiving academic rigor and mental health concerns. I also entered law school with the goal to study doggedly and to learn deeply so I could help serve others. I believe that I could do better if I was given an environment that allowed me to study with freedom, intellectual curiosity, and passion instead of fear of grades coupled with a relentless schedule. In a pandemic, I am beginning

to see that a storm of potentially damaging results is upon students.

I pose that right now is the right time to heed the warning signs of a mental health crisis among law students and do something about it. In 2016, J.M. Organ, D. Jaffe, and K. Bender conducted a survey of fifteen law schools with over 3,300 law students participating. This survey showed seventeen percent of participants experienced some level of depression, fourteen percent experienced severe anxiety, twentythree percent had mild or moderate anxiety, and six percent reported serious suicidal thoughts in the past year.2 Other data shows that depression among law students is eight to nine percent prior to matriculation, twenty-seven percent after one semester, thirty-four after two semesters, and forty percent after three years.3 What are law schools doing to account for these shocking statistics? How will a global pandemic impact these numbers – how will it impact these students?

A 2015 study compared the impacts on lawyer happiness derived from success factors like student loan/debt, class rank, and making law review against the happiness derived from www.ksbar.org | November/December 2020 57

law students’ corner – University of Kansas School of Law

other “human” factors like autonomy, relatedness, competence, internal motivation, autonomy and support, and intrinsic values. As the human factors increased, so too did happiness.4 Now more than ever, I think we need to ensure we are deliberate and intentional in reaching out to one another and promoting the “human” factors in law school.

I acknowledge the benefits of the current law school environment. The Socratic Method taught me the value of preparedness. The amount of coursework helped me learn to manage my time. I also realize that law school grading enables employers to select qualified candidates for future positions. However, these traditional law school pressures impact the “human” factors in a negative way by decreasing students’ willingness and ability to be vulnerable and relate to peers and professors.

To combat against mental health problems, we need to make law school a safe space to be vulnerable. Dr. Brené Brown has conducted numerous studies about the strength and power derived from vulnerability.5 After years of research, her studies show that vulnerability leads to strength and increased success. When we open up to one another and acknowledge “this is something I struggle with” or “right now, this is really hard for me” it allows us to recognize a problem, fix it, and relate to one another. The support I felt when professors and leaders engaged in vulnerable conversations and situations with me proved invaluable for my wellbeing during my 1L year. For example, one leader at KU Law connected me to counseling services and assured me that I could still sit for the bar exam, even if I sought mental health services. By talking with professors and other students about my struggles with absorbing class material, handling my PTSD in my criminal law class, or navigating food insecurity, I addressed my problems and had support to fix them. Interactions like these helped me realize I am not alone, and that support is available; they also helped me refocus on my purpose for attending law school and the process of paideia. This type of culture makes all the difference.

People with power have a great opportunity to change the culture they are in by exemplifying what that change looks like. When professors are vulnerable in times of crisis, students remember that this time is hard for everyone; it provides encouragement and reminds us that we can get through tough times. When I see a professor going through something difficult or when they mention they are having a rough day, and yet, they are still willing to come teach me, it makes me want to press on too. Do your part: be vulnerable, reach out, and curate a culture of care and support. It could mean the difference between a student dropping out of law school and persevering to become a valuable member of the bar.

My experience shows that KU Law professors and leadership can help students combat mental health issues and the stigma associated with mental health. Additionally, KU Law 58

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provides weekly peer listening at Green Hall (through Counseling and Psychological Services-CAPS),6 access to financial aid for mental-health services through the KU Law’s emergency fee, biweekly mindfulness sessions with law librarian, Blake Wilson, and the KU Staff Fellows Program which is a 12-15 member group that is tasked with investigating resources and the stigma associated with mental health.7 However, in the current system of law school teaching and grading, these programs, services, and acts of kindness may be merely retroactive damage-control measures to clean up messes that law school made or contributed to. To address that, I believe there is an opportunity to create a new law school culture, which not only ensures that law students thrive, but has the chance to impact the legal profession holistically.

Peers who listen, help one another, and model balance are enormous aids to increasing positive mental health. How can we create an environment that fosters this behavior? One idea is to provide students with breaks that allow them to rejuvenate, catch-up, and maintain perspective. We could achieve this through fall/spring breaks or attending zoom meetings to “catch-up” with one another. Law schools might also consider adding wellness practices into doctrinal courses or providing a class focused on resilience, mindfulness, and the skills needed for healthy living later in practice.

Law schools are quick to employ external rewards like grades, recommendations, law review, and high-paying jobs.

External rewards induce behavior, they work quickly, and they serve as a measurement and a sorting tool. However, intrinsic rewards of learning are not second-best to extrinsic ones; intrinsic rewards like learning for enjoyment and interest, or the pursuit of paideia, produce positive, sustainable results. They may prove subtle and develop slower, but intrinsic rewards have long lasting effects.

One intrinsic reward linked to the “human” factors of relatedness, internal motivation, and support is mentorship. I believe increased opportunities to mentor other students could increase mental health. KU Law has a mentoring program called 3-1. Third-year students mentor first-year students, providing mentees with academic and relational support and mentors with a sense of purpose. There are currently mentorship and teaching assistant positions for the highest-grade earners that usually come with the benefit of an extra credit and recommendations from professors. The 3-1 mentorship program does not provide external rewards (no grade, no credit, no recommendation) and yet, it has wide student involvement. I think this serves to reaffirm that students respond to and are motivated by more than extrinsic rewards, that the intrinsic rewards have deep value among students, and that employing more opportunities like this one could benefit students.

Another intrinsic reward related to the “human” factors of competence, internal motivation, and autonomy is “learning

law students’ corner – University of Kansas School of Law

for the sake of learning”. This intrinsic reward is in direct opposition to the current law school grading policy. Studies confirm that grades are not necessary to motivate learning, so I think there is an argument that grading reform could be an option.8 Grading reform could increase student relatedness and encourage students to support one another. This support might combat loneliness, depression, and anxiety that is fueled by competition. Law schools have the authority to change the current grading policy if they choose to. They could measure each student and assess them based on their own merit, untethered from other students’ abilities. I realize that changing this system will likely result in other less-than desirable outcomes. I also recognize that choosing countercultural grading policies might influence how employers view a law school and may disadvantage students because other law schools use grading systems. However, at the very least, we should take time to reassess current grading mechanisms and we should never be unwilling to critique them. Now is a great time to ask what interest law schools are serving when statistics associated with law school point to depression, anxiety, unhealthy stress, and suicide as outcomes. Are the consequences of these policies worth promoting and protecting? Our community should always seek to serve students, employers, and law schools in a way that promotes important interests without damaging students’ health.9 These ideas might combat the pressing crisis regarding law students’ mental health. They are also ideas that would allow me to get back to the process of paideia, instead of surrendering to the stifling, toxic atmosphere of competition that quite frankly, with or without a pandemic, leaves many of us hopeless, feeling less than, and on the verge of mental health crises.

Students: let’s do our part to create a healthy environment by taking responsibility for our own health by reaching out to one another, to health professionals, and to professors. To those with the power to change what students cannot: please, come alongside us with continued support so that students are not harmed more than they were before entering this profession. Now more than ever, we need to work collectively to promote positive mental health.. n

1. See Cornel West, Dartmouth College, The Historical Philosophy of W.E.B Du Bois, YOUTUBE (July 27, 2020), https://www.youtube.com/ watch?v=_00JnuJyovc.

2. J.M. Organ, D. Jaffe & K. Bender, Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. LEGAL EDUC. 116 (2016).

3. Lawyers & Depression, Dave Nee Foundation, http://www.daveneefoundation.org/scholarship/lawyers-and-depression/ (last visited Oct. 25, 2020).

4. See generally Lawrence S. Krieger & Kennon M. Sheldon, Ph.D., What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, 83 GEO. WASH. L. REV. 554 (2015).

5. See generally Brené Brown, TED Talk: The Power of Vulnerability, YOUTUBE (Jan. 3, 2011), https://www.youtube.com/watch?v=iCvmsMzlF7o; BRENÉ BROWN, WOMEN & SHAME: REACHING OUT, SPEAKING TRUTHS AND BUILDING CONNECTION 58-66 (2004).

6. CAPS COVID-19 Support, COUNSELING AND PSYCHOLOGICAL SERVICES (CAPS), https://caps.ku.edu/ (last visited Oct. 27, 2020).

7. See University of Kansas, Human Resource Management: Staff Fellows Program 2019-2020 https://humanresources.ku.edu/staff-fellowsprogram2019-2020 (last visited Oct. 25, 2020) (providing a brief presentation on the results of KU’s Fellows Program); KU Staff Fellows, Mental Health at KU: Addressing Stigma, Barriers and Resources, http:// humanresources.ku.edu/sites/humanresources.drupal.ku.edu/files/files/ learning/2019-20_KU_Staff_Fellows_Report_FINAL.pdf.

8. See Barbara Glesner Fines, Competition and the Curve, 65 UMKC L. REV. 879, 884 (1997).

9. See generally Barbara Glesner Fines, Competition and the Curve, 65 UMKC L. REV. 879 (1997).

About the Author Erin Nisly is a second-year law student at the University of Kansas School of Law. Prior to law school, she worked in community development in Houston’s OST-South Union area. Erin currently serves as a 2L Representative for the Student Bar Association, is the vice-president for the International Law Society, and is a member of FirstGeneration Professionals. She is grateful for all the professors, fellow students, librarians, and deans who provided feedback on this article and who make law school a better place to be. etnisly@gmail.com

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 | November/December 2020 59

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 Kathryn T. Alsobrook has joined Dysart Taylor Cotter & McMonigle, P.C. as an associate. Alsobrook defends personal injury and discrimination claims, focusing in the areas of transportation, labor and employment, and insurance defense. She also advises clients on pre-litigation employment matters and conducts and defends depositions of litigants, expert witnesses and corporate representatives. Alsobrook received her undergraduate degrees from the University of Kansas and a J.D. from St. Mary’s School of Law. She is licensed to practice in Kansas, Missouri and Texas.

Gabriella Ferraro, Christopher Grause, Sabrina Hernandez, Emily Matta and Nancy Musick have joined the law firm Foulston Siefkin LLP. Musick will work in the firm’s Overland Park office while the other four will be based out of the firm’s Wichita office.

Ferraro is a member of the firm’s healthcare law practice group. She received her J.D. from Washburn University School of Law and her undergraduate degree from Benedictine College. As an undergrad, Ferraro interned in Washington, D.C. for Sen. Pat Roberts and was a summer associate at Foulston for two years.

Grause is part of the firm’s transactional law practice group. He received his undergraduate degree from Washburn University and his J.D. from Washburn University School of Law.. He was a summer associate for Foulston for two years and worked as a law clerk in the firm’s Topeka office during the spring of 2019.

Hernandez, a member of the litigation practice group, earned her J.D. from the University of New Mexico School of Law. She was a Foulston summer associate and interned for 60

The Journal of the Kansas Bar Association

Hon. Jimmie V. Reyna at the U.S. Court of Appeals for the Federal Circuit. While in law school, Hernandez volunteered in the Economic Justice Clinic. Her undergraduate degree from San Francisco State University was in communications and Latina/os studies.

Matta, a member of the employment and labor practice group, received her J.D. from the University of Kansas School of Law. A graduate of Wichita State University, Matta is a former Foulston summer associate and served as a judicial extern for Hon. Steven Leben at the Kansas Court of Appeals.

Musick, who joined the firm’s employment and litigation practice group in Kansas city, also received her J.D. from the University of Kansas School of Law. A two-year Foulston summer associate, Musick also clerked for Hon. Daniel D. Crabtree fir the 2019-20 term. She received her undergraduate degree from Washburn University.

Eloy Gallegos was unanimously approved by the Kearny County Republican Party to fill the interim position as Kearny County Attorney. Gallegos established Gallegos Law, LLC in his hometown of Garden City. His bilingual English/Spanish practice consists of immigration law, criminal defense, personal injury and worker’s comp. He graduated from Dodge City Community College, and the University of Kansas before earning his J.D. from Washburn University School of Law. LeTiffany Obozele has been hired by the City of Topeka as its chief of prosecution. Obozele has 8 years of experience practicing law in Kansas, serving as both a prosecutor and civil litigator. Most recently, Obozele served as an assistant district attorney for Douglas County. She earned her undergraduate degree from Emory University and her J.D. from Washburn University School of Law.

members in the news

Kyler Wineinger was sworn in as an attorney in September and has joined the Topeka firm of Coffman, DeFries and Nothern PA, practicing estate and tax law, primarily. Wineinger graduated from Kansas State University and earned his J.D. from Washburn University School of Law.

NOTABLES Thomas H. Davis was recognized as a Missouri Bar Association Pro Bono Publico Award winner for his efforts on a series of cases and an appellate decision that helped families in need and forged a new path whereby Missouri attorneys can better assist Legal Aid clients. Davis credited the empathy and determination of Legal Aid attorney Jesi Stanley with whom he partnered in pursuing the cases. Under the resulting appellate decision, even pro bono and Legal Aid attorneys can recover fees. Davis and Stanley expressed hope that more attorneys would be motivated to take on pro bono cases and to support Legal Aid clients.

Kurt P. Kerns of Wichita and Van Z. Hampton of Dodge City were elected early this fall to leadership positions in the International Court Bar Association. Kerns was elected to serve on the Membership Committee while Hampton was elected to serve as chair on the Professional Standards Advi-

sory Committee. As members of Warrior Lawyers International, a Dodge City-based law firm, the two specialize in defending persons accused of crimes and representing people whose civil rights have been violated. It is affiliated with attorney Dragan Ivetic of The Hague, Netherlands.

Joslyn Kusiak recently celebrated the 45 years her Independence law firm—Kelly & Kusiak Law Office LLC has served the community. It opened as Kelly Law Office in 1975 with William J. Kelly. Kusiak joined in 2015. Both Kelly and Kusiak are graduates of Independence High School and of Washburn University School of Law. Kelly retired in 2018.

Mike Manning, a partner with Kansas City-based Stinson LLP, was honored by Washburn University School of Law with the Michael C. Manning Advocacy Suite and Trial Courtroom in Washburn’s newest law school building.

Manning has long been a supporter of the law school and its fundraising efforts. (See the congratulations from Stinson LLP on page 39 of this issue of The Journal of the KBA.) Monnat & Spurrier, Chartered, earned five “Best Law Firms 2021” rankings in the U.S. News & World Report and Best Lawyers survey. Monnat & Spurrier was recognized in the areas of General Practice Criminal Defense, White-Collar Criminal Defense, Appellate Practice, DUI/DWI Defense

2020 KANSAS CHAPTER MEMBERS

Jerry Bales

Henry Cox

Richard Merker

Jerry Palmer

Vance Preman

William Sanders

Leland Shurin

Roger Warren

Bruce Waugh

Larry Rute

The State’s Top-Rated Mediators now posting Available Dates Calendars free at

www.KansasMediators.org For more information on the National Academy of Distinguished Neutrals, please visit www.NADN.org/about

www.ksbar.org | November/December 2020 61

members in the news/obituaries

and Bet-the-Company Litigation. The Best Law Firms rankings are compiled using evaluations by clients who rank firms on criteria including responsiveness, cost-effectiveness, civility and whether the client would refer others to the firm. Best Lawyers also conducts an independent analysis of each firm and surveys attorneys in similar practice areas.

Governor Laura Kelly has until December 5 to choose one of three finalists for a vacancy on the Kansas Supreme Court—the first all-female group of finalists in state history.

Those finalists are: state Court of Appeals Judge Melissa Taylor Standridge, Washington County District Judge Kim Cudney and Wichita attorney Kristen Wheeler who serves as clerk for a federal judge. This will be the Governor’s third appointment to Kansas’s top court. Cudney and Wheeler are both graduates of Washburn University School of Law; Standridge earned her J.D. from the University of Missouri-Kansas City School of Law.

Stinson LLP was recognized for the third year in a row by the Leadership Council on Legal Diversity as a 2020 Top Performer and as a 2020 Compass Award winner. Stinson is one of only 19 firms to receive both recognitions this year, and one of only six to receive both three years in a row. The Top Performer Award is given to the organizations that are most active with LCLD throughout the year. The Compass Award is given based on involvement in certain programs facilitated by LCLD, including the Fellows, Pathfinder and Pipeline programs. The firm achieved Mansfield Certification Plus status for 2020 and is recognized by the Women in Law Empowerment Forum as a 2020 Gold Standard Firm. Stinson was also named as one of the best law firms for women

by Working Mother, and received top marks in the Human Rights Campaign’s 2020 Corporate Equality Index.

Michelle Wade, an aviation attorney with Jetstream Aviation Law, and a 1988 graduate of Northwestern University School of Law, wrote the article How Much Does it Cost to Buy a Private Plane which was published on Forbes.com

Obituaries Sheldon M. Crossette (10/2/1932 – 9/4/2020) Sheldon M. Crossette, 87, of Overland Park, Kansas, passed away at home on September 4, 2020. Sheldon was born on October 2, 1932 to Cyril B. Crossette and Abbie Marie Bright Crossette in Wichita, Kansas. He graduated from Springfield High School, Springfield, Illinois in 1950 and earned a B.A. from Westminster College in 1955. Sheldon married Cleone Marilyn Bost of Kansas City, Missouri in 1956. He served two years in the U.S. Army, and graduated from UMKC School of Law in 1961. His career in public service began in 1965 when he became prosecutor for the City of Overland Park. In 1976, he was appointed as one of three part-time judges in the city. He became both the administrative judge and the first full-time judge for Overland Park in 1990, leading what at the time was the second largest municipal court in Kansas. He retired in 1996 but resumed full-time judicial status in 2002 as the interim municipal judge for the City of Olathe for 13 months and continued to be a judge pro tem for both Overland Park and Olathe, Kansas. In addition to his roles in city government, Sheldon practiced law from 19621990. He was a member of the Johnson County Bar Association, Kansas Bar Association, Kansas Municipal Judges Association, Kansas Municipal Court Clerks (honorary), Delta 62

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Tau Delta Fraternity, Rolling Hills Presbyterian Church and Sons of the American Revolution. He was honored by Westminster College in Fulton, Mo with the 2005 Alumni Achievement Award. Sheldon and Cleone enjoyed entertaining and traveling. He was an avid reader and patriotic citizen.

Sheldon especially loved playing with his grandchildren and will be remembered as a true gentleman. He is preceded in death by his parents Cyril and Abbie Crossette, his brother Gene R. Crossette, and his sister Ann Crossette Schaffer. He is survived by his wife Cleone Crossette, son Steven Crossette (Susan) of Sun Lakes, AZ; daughter Sharon Gentry (Nick) of Kansas City, MO; and son Scott Crossette (Lynne) of Overland Park, KS; grandchildren David Gentry, Sarah Gentry Schulze (Shane), Tom Gentry (Bekah), Charlie Crossette, and Katie Crossette. There was to be a private family graveside service. In lieu of flowers, the family suggested donations to Kansas City Hospice, 1500 Meadowlake Parkway, Kansas City, MO 64114 or Westminster College, 501 Westminster Blvd, Fulton, MO 65251.

obituaries

Frederick K. Cross (9/11/1929 – 10/26/2020) Overland Park, Kansas - Frederick K. Cross of Overland Park, KS passed away peacefully October 26, 2020. He was born September 11, 1929, in Kansas City, to Fred Kelley Cross and Zelma (Brown) Cross, the first of 6 children. Fred grew up in Kansas City, KS. He had a magnificent life and was a role model and father figure to many people during his 91 years. A long-time Kansas attorney, Fred had broad interests, including literature, foreign travel, humanities, music, printing and art.

Fred was educated in the Kansas City Kansas Public School system, graduating Wyandotte High School in 1947. He was a member of the Kansas State Championship Varsity Debate Team for 2 years and was top-speaker in the Kansas State Debate Finals. He was editor of its yearbook, The Quivirian, and received two national awards for that publication; the Columbia Scholastic Press Association Top Honors Award for Excellence in Journalism, and the National Quill and Scroll Top Award. Other high school honors included National Honor Society, National Forensics, National Thespian, and achieved top scores in the Senior Scholarship Studies, the forerunners of SAT and ACT. Fred was the Class Valedictorian. At the time of graduation, he was informed by several national academia societies that no other high school graduate had ever won the cumulative collection of these national awards.

Fred studied at University of Kansas on scholarship as a Battenfeld Scholar and was on the KU Varsity Debate Team for both his freshman and sophomore years. In 1949 he won the National Holloway Scholarship and was accepted at Columbia University (New York), Harvard and Yale. Fred selected Columbia where he studied while Gen. Dwight Eisenhower was the University’s President. He arrived in New York City with only ten dollars in his pocket. The subways were closed for the night and he had to take a cab, using two of those dollars. He sheltered that first night with homeless and ate free popcorn from the YMCA. He rose from that rough start to win a National Championship as a member of Columbia’s Varsity Debate Team, debate at all the Ivy League tournaments and was selected to debate visiting teams from England and Scotland.

While at Columbia, Fred was a member of Phi Gamma Delta fraternity. He attended Church at Columbia’s Chapel where he was baptized as Episcopalian. He continued in that faith the rest of his life and was a member of St. Michael’s and All Angels in Mission, KS for decades before finishing his years of worship at St. Thomas the Apostle Church in Overland Park.

Upon graduation at Columbia, Fred continued his postgraduate studies in the Columbia Law School for 3 semesters before being called into Naval Service as a Commissioned U.S. Naval Officer. He served as a Lieutenant in Destroy

ers, Atlantic Fleet for 3 years of active sea duty in the Caribbean, North Atlantic, Mediterranean, Panama, Cuba, Haiti and Puerto Rico. Fred was an Officer aboard the USS Missouri when the Korean War began. He was a qualified Officer of the Deck, and was the Ship’s Communication and Cryptographic Officer, holding Top-Secret Cryptographic and Atomic Clearances.

In his last Active Duty station, Fred was assigned to the US Navy Base in Philadelphia. It was there he met his brideto-be, Marguerite Haley, a 4th-generation Philadelphian, at the Philadelphia USO where she was a Senior USO Hostess. They were married in 1955 at the U.S. Navy Base Chapel, Philadelphia. Upon detachment from active duty, Fred brought his new bride to Lawrence, KS where he resumed his law studies at the KU Law School. He graduated in 1957 with a J.D. Degree.

Fred began his law career in Kansas City, KS. He was admitted to practice before the Kansas Supreme Ct. in 1957 and other Courts, including the U.S. Supreme Court and the U.S. Court of Appeals in Colorado, Missouri and Texas. As an active trial lawyer for more than 50 years, he tried jury cases in the Kansas City Area, the Circuit Courts in Kansas and Missouri, and U.S. District Courts in Wyandotte and Johnson County, among numerous other Counties in Kansas. He also tried cases in Texas, in its State Courts and the U.S. District Court, Houston. He was an expert in Trusts and Estates and proficient in drafting trusts for lawful tax avoidance and minimization. While in the practice of law in 1960, Fred’s passion for education found its way onto the faculty at Rockhurst University where he taught Business Law for 18 years.

While Fred practiced in Kansas City, he, on behalf of the Kansas Bar Association and lawyers all over the nation, wrote the amicus curiae brief in the landmark case of U.S.A. v. EMPEY which permitted lawyers, physicians and other professionals to be allowed to utilize tax-deferred pension plans for their families, just as corporations had done since the 1940s.

He was publicly commended by the American Bar Association for this work and the thanks of other professional associations of doctors, engineers, accountants and other professionals all over the nation whose families would benefit of tax-deferred pensions when they reached retirement age.

Throughout his legal career, Fred maintained some of his professional continuing education studying at Harvard and Oxford University, England.

To accompany his passion for literature, Fred learned handbookbinding, which preoccupied his leisure hours for years.

He studied first-hand directly from the master bookbinders of some of the world’s most foremost entities that are the guardians of many of the most important printed and hand-written works in history including the master curators of archival preservation at the United States Library of Congress, the www.ksbar.org | November/December 2020 63

obituaries Church of England and the Catholic Church, Vatican City.

He collected rare books, Bibles and serigraph prints in his personal library, which was often his refuge from the day’s demands in the practice of trial law. Fred was a member in MENSA. Throughout their lives together, Fred and Meg enjoyed numerous Trans-Atlantic cruises to Europe visiting Great Britain, England, Wales, Ireland, France, and Italy, often with side-trips to North Africa, Yugoslavia and Turkey.

While Fred’s professional initiatives and accomplishments were many and varied, it was his casual outlook, focused intellect, good heart and desire to help others that will be missed and remembered. He had a strong commitment to help others, many of whom were persons and families of little material wealth that were legally done wrong by others, He was much loved and hoped to be reflected upon as a kind man, warm friend, mentor and a loving, caring Husband, Brother, Father and Grandfather.

He was proceeded in death by his beloved soul-mate, Meg, his wife of 58 years, a sister, Charlotte, and a brother, Frank.

He is survived by his children, daughter Dr. Gwendolyn (Rev. Robert) Lehleitner, Overland Park, and sons David “Red” Cross, Overland Park, Brian (Staci) Cross, Lake Quivira; his grandchildren Marguerite Lehleitner, Robert “Trey” Lehleitner III, Keaton Cross and Kellen Cross; He is also survived by three sisters, Bette Cline, Dallas, Naomi Dempsey, Houston and Zelma (Louis) Greenstein, Boston.

No in-person visitation or services are planned. A private grave side service and burial next to Meg will be held at Johnson County Memorial Gardens. That service will be recorded and virtual service will be posted following the event.

Fred’s family expresses our deepest heartfelt thank you to Margaret “Mitsy” Donnelly; to Dr. Sergey Loboda, his highly skilled home health professional; to Britney Coody, Sheril Herman, and Always There Health Care team, whose care and oversight of Fred allowed him to live his final years in his home.

We also extend special thanks to Dr. Kevin Fitzmaurice and staff of Encompass Medical Group, Lenexa; and to the staff of Colonial Village Assisted Living, Overland Park and KC Hospice for their professional and compassionate care.

In lieu of flowers, the family suggested contributions be made to the following non-profit organizations: SM Meals on Wheels, 7810 W. 79th Street, Overland Park, KS 66204, who faithfully delivered meals for 6 years; The Patrons’Gallery, a privately supported gallery featuring student works at SM North High School, c/o 7401 Johnson Drive, OP KS 66202 or St. Thomas the Apostle, 12251 Antioch, OP KS 66213, his faith community or other charity of choice.

Friends and family may offer condolences to the family or write in Fred’s Memorial page on the Cremation Center of Kansas City website, cremationcenterkc.com. Wishing Lt. Fred Cross “fair winds and following seas.”

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Arthur Lee Dirks (12/30/1943 – 8/10/2020) Arthur Lee Dirks, age 76 of Taunton Massachusetts, passed away peacefully on August 10, 2020. He was the beloved husband of 52 years to Diane (Keegan) Dirks, father to daughter, Kristin Dirks of Monroe, OR., beloved older brother to Dana (Dirks) Metcalfe of Tallahassee FL, and Renee (Dirks) Rowcliffe of Colorado Springs CO; and uncle to Mathew Metcalf, Manda (Metcalfe) Payne, and Heather (Rowcliffe) Wagner.

Arthur was born in Newton Kansas to Arthur Wilbur Dirks and Martha Adeline (Woods) Dirks. He served in the army from 1962 to 1965, as a Polish interpreter in Germany during the cold war. From1966-1973, he was a TV weather man at KAYS, a news director at KLWN and a newsman at KWBB where he won the Kansas Bar Association Award for his editorials.

Arthur earned a BA from Fort Hays State in Speech / Communications (1971), a MA in Theatre at University of Kansas (1974), a MFA in Theatre at Illinois State University (1980), an EdD Higher Education Admin. at University of Massachusetts Boston (2001). Starting in 1973, Arthur taught for 41 years in Theatre, Dance, and Speech Communications, and designed sets for over 135 theatrical productions. He served 2 years as acting Dean of School of Arts & Sciences and about 10 years as department chairperson at Bridgewater State University. Arthur was active with professional organizations: New England Theatre Conference (NETC), US Institute for Theatre Technology (USITT), and American College of Theatre Festival (ACTF). He also was active in community theatre, West Hartford Summer Arts Festival, Mac-Haydn Theatre in Chatham NY, and the Illinois Shakespeare Festival.

Arthur loved music from many genres. He and his wife Diane maintained a large music library, creating eclectic collections. After retiring in 2014, Arthur focused on genealogical research and published books about the Dirks-Woods and the Keegan-Morford sides of the family.

Due to Covid-19 restrictions, in lieau of traditional funeral services, a private celebration of life will be held later in the year. Arthur was under the care of the Reindeau-Mulvey Funeral Home in Taunton Massachusetts. For online condolences, please visit HYPERLINK “http://funeralinnovations.com/obituary/494021/Arthur-Dirks/“http://funeralinnovations.com/obituary/494021/Arthur-Dirks/ and/or HYPERLINK “https://www.r-mfh.com/obituary/494021/ arthur-lee-dirks/“https://www.r-mfh.com/obituary/494021/ arthur-lee-dirks/

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appellate decisions

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 INDEFINITE SUSPENSION IN RE JAMES W. FULLER NO. 122,638—OCTOBER 30, 2020

FACTS: A hearing panel determined that Fuller violated Kansas Supreme Court Rules 208 (registration), 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7 (conflict of interest), 1.16 (terminating representation), 5.5 (unauthorized practice of law), and 8.4 (professional misconduct). After law school, Fuller illegally purchased Adderall, a stimulant medication, from C.M. After C.M. was charged with a crime, Fuller agreed to represent him. Instead of fee payment, Fuller agreed to accept methamphetamine and Adderall as payment for his services. Fuller missed a court date for another client, resulting in the client’s arrest. When Fuller’s senior partner investigated the matter, he found logs for court dates that did not happen and software on Fuller’s computer that proved he was trading legal services for drugs. The partner filed a disciplinary complaint and Fuller self-reported his conduct. Fuller also failed to pay his annual registration fee or complete CLE, and his license was suspended. Despite that fact, Fuller continued to practice law during his suspension.

HEARING PANEL: Fuller stipulated to all charged violations. The panel noted there were multiple offenses involving illegal conduct. The Disciplinary Administrator recommended that Fuller be indefinitely suspended. Fuller acknowledged that a suspension was appropriate but asked that the term be limited to six months. The hearing panel agreed with the Disciplinary Administrator and recommended an indefinite suspension.

HELD: Fuller did not file exceptions to the hearing panel’s report, and it is deemed admitted. While sympathetic to Fuller’s drug dependence, the court could not overlook the serious nature of Fuller’s misconduct. The court accepted the recommendation of an indefinite suspension.

TWO-YEAR SUSPENSION IN RE MARK D. MURPHY NO. 122,036—OCTOBER 16, 2020

FACTS: A hearing panel determined that Murphy violated KRPC 1.1 (competence); 1.2(c) (scope of representation); 1.7 (conflict of interest); 2.1 (independent judgment); and 8.4(d) (conduct prejudicial to the administration of justice). The issues arose after Murphy represented both sides in a business transaction without informing his clients of the potential conflicts of interest and without learning that one party to the transaction had already filed for bankruptcy.

HEARING PANEL: The disciplinary administrator asked that Murphy be disbarred. This incident was part of a pattern of misconduct which resulted in minor discipline. Murphy was dishonest about his role in the proceedings and did so in an attempt to minimize his culpability. Based on the balance of the aggravating and mitigating circumstances, the hearing panel recommended that Murphy’s license be suspended for one year.

HELD: Murphy filed several exceptions to the hearing panel report. But the evidence presented supports the hearing panel’s findings by clear and convincing evidence, and some of Murphy’s arguments mischaracterized the evidence. Murphy argued that the recommended discipline was excessive and that reprimand would be the appropriate discipline or, in the alternative, that he be allowed to serve a term of probation. Both the Disicplinary Administrator and the court found that Murphy failed to comply with the rules regarding probation and denied his request. After considering the evidence, the court concluded that a two-year suspension was the appropriate discipline. The second year of the suspension may be stayed if Murphy follows a probation plan which is approved by the Disciplinary Administrator’s office.

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Civil PARENTAGE IN RE PARENTAGE OF M.F. BUTLER DISTRICT COURT—COURT IS APPEALS IS REVERSED, DISTRICT COURT IS REVERSED, CASE REMANDED NO. 117,301—NOVEMBER 6, 2020

FACTS: K.L. and T.F., who are both women, began a romantic relationship in 2007. They eventually moved in together and had a joint checking account and T.F.’s name was added to the mortgage and deed. T.F. strongly wanted children; there was disputed evidence about whether K.L. wanted children. T.F. conceived via artificial insemination and M.F. was born in 2013. The couple did not create a written co-parenting agreement. Their romantic relationship ended in 2014 when T.F. moved out of the shared home, taking M.F. with her. K.L. petitioned to establish parentage. The district court heard conflicting evidence about the state of the couple’s relationship, how much input K.L. had in parenting M.F., and how much she was allowed to see the baby after the couple separated. After hearing that evidence, the district court concluded that the couple never made a joint decision to have children and that T.F. was the sole legal parent. K.L. appealed and a panel of the Court of Appeals affirmed the district court, finding that K.L. failed to meet her burden of proof.

The Supreme Court granted K.L.’s petition for review on the issue of whether unmarried parties who conceive through assisted reproductive technology are required to show the existence of a parentage contract.

ISSUE: (1) Appropriate standard to use when reviewing claims of parentage HELD: The Kansas Parentage Act extends to every child and every parent, regardless of the parents’ marital status. It also creates parentage even if reproductive technology is used to assist in conception and even when one parent is not biologically related to the child. The KPA is not limited to establishing paternity, and under federal legislation same-sex couples gain protected constitutional rights, including parentage for a non-biological parent. The first step for a woman seeking legal recognition of a parent-child relationship is satisfying one of the presumptions of maternity found at K.S.A. 2019 Supp.

23-2208(a). Under the framework of K.S.A. 2019 Supp. 232208(a)(4), K.L. can meet this presumption if she can show that she either openly recognized M.F. as her child or because she has a written instrument showing the same thing. That would shift the burden to rebut the presumption to T.F. If T.F. can rebut the presumption, K.L. bears the burden of going forward with evidence that she was a parent to M.F. Both the district court and the Court of Appeals required more proof than is mandated by the KPA. On remand, the district court must answer the correct question— whether K.L. can 68

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demonstrate that she notoriously recognized her maternity.

If that question is answered in the affirmative, additional proceedings can evaluate how much involvement she should have in M.F.’s life. On remand, the district court should establish whether T.F. consented to share parenting with K.L. when M.F. was born. The timing is important; the intent of the parties at the time of the child’s birth is what must be examined.

DISSENT: (Stegall, J.) There is no way the legislature meant for the KPA to allow a nonbiological parent to become a biological parent. The majority’s holding is too vague to give guidance to district courts.

STATUTE: K.S.A. 2019 Supp. 23-2201(b), -2205, -2206, -2208, -2208(a), -2208(b), -2220, -2308(f), -2209, -2302, -2303 CONSTITUTIONAL ISSUES—DUI JARVIS V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 119,116—OCTOBER 9, 2020

FACTS: A law enforcement officer initiated a traffic stop after watching Jarvis drive. The officer noticed that Jarvis smelled of alcohol and had bloodshot eyes. After he performed poorly on field sobriety tests, Jarvis was arrested for driving under the influence. After receiving the DC-70 advisory, Jarvis refused to supply a blood or breath sample and his driver’s license was suspended. Jarvis appealed and a hearing officer affirmed the suspension, so Jarvis petitioned for judicial review. The district court conducted an evidentiary hearing and relied on K.S.A. 2019 Supp. 8-1020(p) when concluding that the officer’s testimony was not credible and that the officer lacked reasonable suspicion to justify the traffic stop. KDR appealed, and the Court of Appeals affirmed the district court. KDR’s petition for review was granted.

ISSUES: (1) Application of K.S.A. 2019 Supp. 8-1020 to administrative suspension; (2) existence of reasonable suspicion HELD: The 2016 amendments to K.S.A. 8-1020(p) allow a court to consider and determine constitutional issues, including the lawfulness of a law enforcement encounter. This is not just advisory language meant to guide law enforcement officers; the Kansas Judicial Review Act does not allow courts to issue advisory opinions. Instead, K.S.A. 2019 Supp. 8-1020(p) directs courts to consider and determine any constitutional issues. And setting aside the license suspension order is an appropriate remedy if the court determines that the law enforcement encounter was unlawful. A review of the record on appeal shows the district court correctly determined that law enforcement’s stop of Jarvis lacked reasonable suspicion.

STATUTES: K.S.A. 2019 Supp. 8-259, -1020, -1020(h), -1020(o), -1020(p), -1020(q); K.S.A. 8-259, 77-617, -621, -622, -622(b)

appellate decisions

DUI—INFORMED CONSENT WHIGHAM V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED NO. 117,043—OCTOBER 9, 2020

FACTS: After receiving a tip, law enforcement found Whigham in his open garage, hunched over the steering wheel of his vehicle and smelling of alcohol. After he performed poorly on field sobriety tests, Whigham was arrested for driving under the influence. Officers gave the DC-70 implied consent form and Whigham refused to provide a breath sample. Whigham’s driver’s license was suspended and he petitioned for judicial review, challenging both the sufficiency of the implied consent advisory and the constitutionality of his encounter with law enforcement. Whigham did not believe officers had reasonable suspicion to believe that he operated a vehicle while under the influence, and he questioned whether officers could enter his garage without a warrant.

The district court refused to consider the constitutional issues and found that officers had reasonable grounds to believe that Whigham operated a vehicle while under the influence. The Court of Appeals affirmed the district court, holding that the 2016 amendments to K.S.A. 8-1020(p) did not overrule the holding in Martin that the exclusionary rule cannot be used in driver’s license suspension proceedings. Whigham’s petition for review was granted.

ISSUES: (1) Effect of 2016 amendments on use of exclusionary rule; (2) sufficiency of implied consent advisory HELD: On judicial review, K.S.A. 2019 Supp. 8-1020(p) allows a court to consider any constitutional issue, including the lawfulness of a law enforcement encounter. A court may set aside a driver’s license suspension if a driver meets the burden of showing that the encounter was unlawful. The district court erred by not considering Whigham’s constitutional arguments, and the case must be remanded for further proceedings. The implied consent advisory given to Whigham was sufficient.

STATUTES: K.S.A. 2019 Supp. 8-1020, -1020(p); K.S.A. 2015 Supp. 8-1001(k) PARENTAGE IN RE PARENTAGE OF W.L. CRAWFORD DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED, CASE REMANDED NO. 119,536—NOVEMBER 6, 2020

FACTS: E.L. and M.S., who are both women, began a romantic relationship in 2012. Both women expressed a desire to have children. E.L. became pregnant through artificial insemination in 2014. During the pregnancy, both women acted as expectant mothers via social media and baby show

er invitations. Twin boys were born in 2014. E.L. is listed as mother on their birth certificates. M.S. was not listed as a parent but the boys’ last names were hyphenated at their birth. There was never a written co-parenting agreement. The couple separated in 2016 but remained geographically close, and M.S. was allowed to see the boys every weekend and on one night during the week. When M.S. wanted to relocate she asked E.L. about obtaining legal status for the boys, but E.L. refused. M.S. responded by filing a petition seeking determination of parentage. A guardian ad litem reported that it was not in the children’s best interests to have M.S. acknowledged as a parent. After hearing testimony at an evidentiary hearing, the district court denied M.S.’s motion, relying on case law rather than on the Kansas Parentage Act. On appeal, the Court of Appeals affirmed the district court and M.S.’s petition for review was granted.

ISSUES: (1) Whether the district court applied the correct standard when evaluating the presumption of maternity under the KPA HELD: A same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the KPA presumption of maternity under K.S.A. 2019 Supp. 23-2208(a)(4). She bears the burden to demonstrate the initial presumption. If she succeeds, the burden shifts to the party opposed to parentage to rebut that presumption by clear and convincing evidence. If she succeeds, the burden shifts back to the person seeking parentage, who must go forward with proof by a preponderance of the evidence. There need not be a written co-parenting agreement. Rather, the movant must show that she notoriously recognized maternity at the time of the child’s birth.

In this case, the district court used the correct framework but used the wrong levels of proof and gave too much weight to the absence of an official co-parenting agreement. The case must be remanded for further proceedings.

DISSENT: (Stegall, J.) He dissents for the same reasons outlined in In re M.F., this day decided.

STATUTE: K.S.A. 2019 Supp. 23-2208(a), -2208(a)(4), -2208(b), -2208(c), -2220 HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL KHALIL-ALSALAAMI V. STATE RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED—CASE REMANDED NO. 115,184—SEPTEMBER 11, 2020

FACTS: Khalil-Alsalaami was convicted of two counts of aggravated criminal sodomy. At trial, a primary issue was the voluntariness of custodial statements made by Khalil-Alsalaami to law enforcement. Issues included the accuracy of the Miranda warning, the fact that Khalil-Alsalaami’s primary www.ksbar.org | November/December 2020 69

appellate decisions

language is Arabic, and a question about whether KhalilAlsalaami knew he was confessing to an actual crime. Trial counsel stipulated that Khalil-Alsalaami’s partial confession was knowing and voluntary and did not object when that stipulation was introduced at trial. After an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion challenging the effectiveness of his trial counsel. The district court denied the motion, finding that the stipulation and the failure to object to introduction of the agreement was a strategic decision. Khalil-Alsalaami appealed, and the Court of Appeals unanimously reversed and remanded, finding that trial counsel was constitutionally ineffective. The ruling gave particular mention to the failure of law enforcement to provide an interpreter for Khalil-Alsalaami. The State’s petition for review was granted.

ISSUES: (1) Deficient performance of trial counsel; (2) prejudice resulting from deficient performance HELD: The Court does not believe it is necessary to decide whether the lack of an interpreter renders Khalil-Alsalaami’s confession involuntary. Instead, given the plain testimony from trial counsel, it is easy to see that counsel’s performance was ineffective. The admissibility of Khalil-Alsalaami’s confession was the paramount issue in the case, and counsel’s failure to even attempt to keep it from the jury cannot be attributed to trial strategy. It is easy to see that prejudice occurred. This case must be returned to district court for a new trial.

CONCURRENCE: (Beier, J., joined by McAnany, S.J.) The majority reached the right decision. But it should also have found that Khalil-Alsalaami’s confession was per se involuntary due to the lack of an interpreter, which was required by the plain language of K.S.A. 75-4351.

DISSENT: (Biles, J., joined by Stegall, J.) Counsel’s motion to suppress would not have succeeded at trial, so a failure to file it could not have amounted to prejudicial ineffective assistance of counsel.

STATUTES: K.S.A. 60-1507, 75-4351 MORTGAGES FAIRFAX PORTFOLIO LLC V. CAROJOTO LLC WYANDOTTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED DISTRICT COURT IS REVERSED—CASE REMANDED NO. 118,712—SEPTEMBER 11, 2020

FACTS: Fairfax owned commercial real estate which was secured by a promissory note and mortgage held by Carojoto. Fairfax was in default on the note at the time Carojoto acquired the debt. Without warning, Carojoto took possession of the property and filed a mortgage foreclosure action.

Carojoto eventually purchased the property at a sheriff’s sale.

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possession of the property prior to the foreclosure action, causing damages. Carojoto sought dismissal, claiming it was allowed to take possession of the property under the terms of the mortgage. The district court agreed. The Court of Appeals reversed, holding that Carojoto was not allowed to rely on provisions of executory agreements. A petition for review was granted.

ISSUE: (1) Ability to take property HELD: It has long been established that in the absence of stipulations to the contrary, a mortgagor of real property may retain possession of that property. The mortgage instrument alone cannot provide a sufficient stipulation for possession.

Even if Carojoto included such language in its mortgage instrument, it cannot be enforced.

CONCURRENCE: (Stegall, J.) Justice Stegall concurs in the judgment solely on the grounds of stare decisis, which should be followed especially closely in instances where there is economic reliance.

DISSENT: (Biles, J.) The mortgage provision allowing possession is a “stipulation to the contrary” which overrides the general rule that a mortgagor is allowed to hold property.

STATUTES: K.S.A. 2019 Supp. 60-212(d); K.S.A. 582301

Criminal CRIMINAL PROCEDURE—EVIDENCE—JUDGES— JURIES—PROSECUTORS STATE V. BOWSER WYANDOTTE DISTRICT COURT—AFFIRMED NO. 120,350—OCTOBER 23, 2020

FACTS: Bowser, Meggerson, and King arrested following a string of violent robberies in Kansas and Missouri. Meggerson and King severed their trial from Bowser’s. Substantially same evidence presented in both trials. See State v. King, 308 Kan. 16 (2018). Jury convicted Bowser of ten crimes including attempted capital murder of a deputy. Hard 25 sentence imposed plus additional 455 months which followed State’s recommendation. On appeal Bowser claimed: (1) district court impermissibly participated in plea negotiations and imposed consecutive sentences as “product of judicial vindictiveness” for Bowser’s decision to proceed to trial; (2) prosecutor’s closing argument stated facts not in evidence; (3) district court erred in response to a jury question about jury instruction that listed elements of Attempt to Commit Capital Murder; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Judicial misconduct—plea negotiations; (2) prosecutorial misconduct; (3) ambiguous jury question; (4) cumulative error

appellate decisions

HELD: Bowser’s allegation that judge abandoned neutrality and advocated for the plea agreement is a traditional judicial misconduct claim. District court’s repeated emphasis on benefits of the plea offer may have come close to advocacy on behalf on one party or the other but it did not cross the advocacy line. No support offered for claim that Bowser’s sentence may have been product of judicial vindictiveness.

Bowser’s objections to prosecutor’s statements are reviewed individually. Prosecutor did not err in stating Bowser’s jeans were in “multiple surveillance videos,” and prosecutor’s statements properly summarized DNA evidence and explained Bowser contributed to glove’s major DNA profile. Prosecutor should have said Bowser’s car was seen in robbery of one liquor store rather than in all robberies but this error was harmless.

Bowser waived claim of an “imaginary script” prosecutorial error by failing to adequately brief this claim.

No abuse of discretion in district court’s response to jury’s question about an ambiguous instruction. The question’s vague phrasing lended two reasonable interpretations, one of which the district court adopted. District court’s response did not exceed deference provided judges when answering jury questions.

One harmless error in this case does not constitute cumulative error.

STATUTE: K.S.A. 2019 Supp. 22-3420(d) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— MOTIONS—SENTENCING—STATUTES STATE V. COLEMAN WYANDOTTE DISTRICT COURT—AFFIRMED NO. 120,246—SEPTEMBER 11, 2020

FACTS: Coleman’s 1999 conviction for first-degree premeditated murder and aggravated assault convictions were affirmed but case was remanded for resentencing because district court considered two aggravating factors not found in the statute to impose a hard-40 life prison term. 271 Kan. 733 (2001). Coleman again sentenced in 2001 to a hard-40 life term which was then affirmed in 2003 (unpublished).

Coleman filed 2018 motion to modify his sentence to require no mandatory prison term, citing Alleyne v. United States, 570 U.S. 99 (2013), and State v. Soto, 299 Kan. 102 (2014). District judge summarily denied the motion, noting in part Coleman’s earlier K.S.A. 60-1507 motion. Coleman appealed.

ISSUE: (1) Motion to modify sentence HELD: Appeal involves constitutional issues and questions of statutory interpretation. Developing caselaw regarding sentence enhancement based on judicial fact finding is summarized. Coleman’s motion is not proper under K.S.A. 22-3504 (to correct an illegal sentence) or under K.S.A. 601507 (a collateral attack on an unconstitutional sentence), and Alleyene and Soto do not operate retroactively to provide

a remedy in this case. Coleman cites K.S.A. 2019 Supp. 216628(c), but under analysis in State v. Thurber, 308 Kan. 140 (2018), that statute does not apply. District court judgment is affirmed.

STATUTES: K.S.A. 2019 Supp. 21-6628(b), -6628(c), 60-1507(f)(1), -1507(f)(2); K.S.A. 2016 Supp. 21-6622(h); K.S.A. 21-4635, -4629, 60-1507, 22-3504 APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— STATUTES STATE V. DALE JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART COURT OF APPEALS—AFFIRMED NO. 117,162—OCTOBER 16, 2020

FACTS: Jury convicted Dale of two counts of aggravated robbery and one count of theft. Dale appealed. Rejecting all grounds but for a jury instruction claim on aggravated robbery, Court of Appeals in unpublished opinion reversed the aggravated robbery conviction and remanded for a new trial on those two counts. On remand, Dale argued his conviction on lesser included crime of theft barred retrial on aggravated robbery counts. Alternatively on issue not raised in his appeal he argued the aggravated robbery counts were multiplicitous.

District court convicted Dale on both aggravated robbery counts. Dale appealed. In unpublished opinion, Court of Appeals held Dale’s two aggravated robbery convictions were not multiplicitous, but reversed the theft conviction as multiplicitous with the aggravated robbery convictions. Dale’s petition for review granted. State did not cross-petition for review of panel’s determination that theft was a lesser included offense of aggravated robbery.

ISSUES: (1) Double jeopardy; (2) multiplicity HELD: Neither the Double Jeopardy Clause nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant’s post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense.

Here, Court of Appeals did not err in holding that Dale’s convictions for aggravated robbery would not result in a subsequent prosecution in violation of either a constitutional or statutory right to be free from double jeopardy.

Under facts of case, Dale’s convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with BB gun, took property in the possession or control of two individuals by force directed at both. www.ksbar.org | November/December 2020 71

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STATUTES: K.S.A. 2019 Supp. 21-5109; K.S.A. 21-3107, -3107(2), -3107(2)(a), -3108(4)(c), -3426, -3427 APPEALS—CRIMINAL LAW—EVIDENCE—SENTENCING—STATUTES STATE V. DAVIS SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,871—OCTOBER 23, 2020

FACTS: Jury convicted Davis of offenses including first-degree felony murder, and felony fleeing or attempting to elude a police officer. On appeal Davis claimed: (1) felony-murder conviction is not supported by sufficient evidence for one of the alternative means of committing the underlying felony of fleeing or attempting to elude police; (2) error to admit incriminating statements obtained after Davis invoked right to remain silent by saying “huh-uh” when detectives completed Miranda warnings and asked Davis if he wanted to talk to them, and to admit inadmissible and unduly prejudicial statement during jail transport that “it was either going to go down like this or I was going to shoot someone;” (3) district court’s disallowance of evidence that victim delayed medical treatment violated evidence statutes and deprived Davis his constitutional right to present a defense; (4) prosecutor shifted burden of proof in voir dire by asking prospective jurors not to hold absence of evidence on any factual point against the State; (5) cumulative error denied him a fair trial; and (6) sentencing journal entry did not credit jail time awarded during oral pronouncement of sentence.

ISSUES: (1) Alternative means; (2) evidence—incriminating statements; (3) evidence—victim’s medical treatment decisions; (4) prosecutorial error; (5) cumulative error;(5) jail time HELD: State charged Davis with an alternative means crime. K.S.A. 2019 Supp. 8-1568(b)(1) and (b)(2) is interpreted as setting out material, distinct elements for the crime of felony fleeing or eluding a police officer. Obstruction statute uses passive language to make defendant’s obstruction of officer’s duty a felony or misdemeanor depending on whether the obstruction occurred “in a case of” a felony or misdemeanor.

Under eluding statute, crime occurs when driver subjectively intends to avoid capture for a felony. Under facts in this case, sufficient evidence supports both alternative means of the felony-murder conviction.

Defense counsel’s objections to admission of incriminating statements sufficiently preserved this issue for appeal. Under facts in case, Davis did not unambiguously invoke his right to remain silent before talking to detective conducting interview. District court did not abuse its discretion in concluding statement Davis made during jail transport was relevant, and Davis failed burden of showing admission of this statement was unduly prejudicial.

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Record on appeal is inadequate for appellate review of claim regarding victim’s medical treatment decisions.

Prosecutor’s phrasing may have been inartful, but statements did not amount to burden shifting when voir dire record viewed in its entirety.

No error supports cumulative error claim.

Nothing in record demonstrates the journal entry is inconsistent with court’s oral pronouncement or Kansas law. While district court’s oral pronouncement of sentence, qualifying jail-credit order to time spent “in custody in this case,” arguably was ambiguous, under rule in State v. Lofton, 272 Kan. 216 (2001), the jail credit already had been “used up” by being awarded in a prior consecutive case.

STATUTES: K.S.A. 2019 Supp. 8-1568(b)(1), -1568(b) (2), 21-5202(j), -5403(a)(2), -5420(b)(1). -6820(i); K.S.A. 8-1568(b)(1), 21-4614, 60-401(b), -404, -405 APPEALS—ATTORNEY-CLIENT—CRIMINAL LAW— CRIMINAL PROCEDURE—MOTIONS STATE V. HERRING SEDGWICK DISTRICT COURT—REVERSED; COURT OF APPEALS—REVERSED NO. 118,648—OCTOBER 16, 2020

FACTS: Herring pleaded no contest to robbery and aggravated assault. Prior to sentencing he filed motion to withdraw his plea, asserting claims of ineffective assistance of counsel.

District court denied the motion applying the Strickland test to find Herring failed to satisfy the first factor in State v. Edgar, 281 Kan. 30 (2006). Herring appealed. In unpublished opinion, Court of Appeals found district court erred by using the Strickland test instead of the “lackluster advocacy” standard specified under State v. Aguilar, 290 Kan. 506 (2010), but affirmed the district court’s ruling because the error was harmless. Herring petitioned for review of panel’s application of harmless error.

ISSUE: (1) Motion to withdraw plea—Ineffective assistance of counsel HELD: District court’s improper use of the more stringent, constitutional Strickland standard when considering the first Edgar factor is not amenable to harmless error analysis. Panel’s decision is reversed and case is remanded to district court with directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).

STATUTE: K.S.A. 2019 Supp. 22-3210(a), -3210(d), -3210(d)(1), -3210(d)(2)

appellate decisions

CONSTITUTIONAL LAW—CRIMINAL LAW— JURY INSTRUCTIONS STATE V. KEYES GRANT DISTRICT COURT—REVERSED AND REMANDED NO. 118,894—SEPTEMBER 11, 2020

FACTS: Jury convicted Keyes of first-degree premeditated murder for fatally shooting victim in the chest and head.

District court denied Keyes’ request to instruct jury on selfdefense and involuntary manslaughter finding the evidence failed to support either instruction. Keyes appealed, claiming in part reversible error by the district court’s refusal to give the requested instructions. State argued a self-defense instruction was not justified where Keyes provoked the victim by taking a gun to the victim’s trailer and threatening the victim, and any error was harmless because Keyes’ testimony was implausible.

ISSUE: (1) Jury instruction HELD: Based on evidence introduced at trial, a self-defense instruction was both legally and factually appropriate. State’s theory ignores Keyes’ testimony, if believed, that it was necessary to kill the victim in order to defend himself. Viewing the evidence in light most favorable to Keyes, district court erred in not instructing jury on self-defense and the court is not convinced there is no reasonable probability this error affected the outcome of the trial. Keyes’ additional claims in the appeal are not reached. Reversed and remanded.

CONCURRENCE (Leben, J.): Joins the court’s opinion in full but also comments on the standard of review. Because Keyes’ constitutional right to present a defense is at issue, the constitutional harmless-error test should apply. No need to decide which standard should apply here because State has not shown the district court’s error was harmless under either standard. This standard-of-review question can be addressed in a future case with briefing.

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5222, -5226 CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—FOURTH AMENDMENT—MOTIONS STATE V. LUTZ SHAWNEE DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 117,496—NOVEMBER 6, 2020

FACTS: Lutz was front seat passenger in car stopped for traffic infraction. While trainee officer was writing warning citation, officers began removing occupants to facilitate drug dog sniff. When officers observed drug paraphernalia, dog sniff called off. Subsequent search of car disclosed controlled substances. Lutz charged with drug offenses. In motion to suppress, Lutz challenged the legal justification for the stop, and argued the officers detained the car’s occupants longer than lawfully permitted to accommodate the planned drug sniff. District court denied the motion. Court of Appeals af

firmed in unpublished opinion. Review granted on sole issue of whether officers unlawfully extended the duration of the vehicle stop in violation of Rodriguez v. United States, 575 U.S. 348 (2015).

ISSUE: (1) Fourth amendment—duration of traffic stop HELD: District court’s denial of motion to suppress is affirmed. The time involved in calling and waiting for backup officers to help with drug dog sniff was “negligibly burdensome” under circumstances in this case. From initiation of traffic stop until observation of drug paraphernalia in plain view, officers’ actions did not measurably extend the duration of the traffic stop beyond the time necessary to achieve stop’s basic objective of processing the observed traffic violation.

STATUTE: K.S.A. 22-2402(1), -3216(2) APPEALS—CRIMINAL PROCEDURE—EVIDENCE STATE V. MEGGERSON WYANDOTTE DISTRICT COURT—AFFIRMED NO. 117,131—OCTOBER 23, 2020

FACTS: Meggerson, King, and Bowser arrested following a string of violent robberies in Kansas and Missouri. Meggerson and King jointly tried. Facts and key events described in State v. King, 308 Kan. 16 (2018). Jury convicted Meggerson of attempted capital murder of a deputy and other crimes.

On appeal Meggerson claimed: (1) insufficient evidence supported his felony convictions; (2) error to admit highly prejudicial contents of his cellphone, arguing the probable cause affidavit provided to a Missouri judge contained defective information; (3) error to admit Meggerson’s jail phone call to his girlfriend, and to allow detective testimony about the call which avoided the appropriate process for admission of audio file evidence; (4) error to admit prior bad acts evidence about other uncharged robberies; (5) error to allow two detectives to present repetitive and cumulative demonstrative timelines; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) cell phone warrant; (3) evidence—jail phone calls; (4) evidence—prior bad acts; (5) evidence—repetitive and cumulative; (6) cumulative error HELD: Meggerson waived sufficiency-of-the-evidence claims for all felonies but for claim related to his attempted capital murder conviction. Sufficient evidence in the substantial body of evidence presented at trial to support that conviction.

Meggerson failed to designate a sufficient record to support claim of error concerning his cell phone. Record on appeal does not contain the allegedly defective warrant, its underlying affidavits or probable cause statements, or any relevant materials.

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girlfriend to the jail phone call. Court of Appeals cases cited for permitting police detectives, captains, or other police personnel to provide foundation for their jail phone system.

Under facts in this case, detectives properly laid foundation for Meggerson’s jail phone call and for the Pay-Tel jail phone server record.

District court did not abuse its discretion when it determined the uncharged robbery evidence was relevant to prove Meggerson’s identity. State v. Wilson, 295 Kan. (2012), is directly analogous and highly instructive. No merit to Meggerson’s bright-line claim that the uncharged robbery evidence was highly prejudicial because K.S.A. 2019 Supp. 60-455 evidence exceeded 50 percent of State’s case.

No abuse of discretion in district court’s admission of the two timelines which were not cumulative. One timeline focused on all the physical evidence. The other timeline depicted metadata and reconstructed the recovered cell phones’ locations during crucial events.

Cumulative error doctrine does not apply where no errors found in Meggerson’s trial.

STATUTES: K.S.A. 2019 Supp. 60-455, -455(a), -455(b); K.S.A. 60-407(f) APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL LAW—EVIDENCE—JURY INSTRUCTIONS— SENTENCING—STATUTES STATE V. WILLIS JOHNSON DISTRICT COURT—AFFIRMED NO. 117,436—SEPTEMBER 25, 2020

FACTS: Willis sucker-punched the victim, and then was present when Willis’ brother (James) killed the victim with a barrage of gun shots. Jury convicted Willis of first-degree murder and battery. Hard-50 sentence was imposed. During trial, district court instructed jury on aiding and abetting and self-defense as requested by Willis. Agent Lester testified about Willis’ rap L.L.C. (Duced Out Records [DOR]), and his conclusion that James Willis provided security services for DOR. Agent Lester also testified about finding gun and ammunition searches on James Willis’ smart phone. Willis appealed on claims consolidated by the court as claims of (1) jury instruction errors, (2) prosecutorial errors, (3) evidentiary claims, and (4) sentencing issues.

ISSUES: (1) Jury instruction errors; (2) prosecutorial errors; (3) evidentiary claims; and (4) sentencing HELD: Invited error doctrine bars review of Willis’ attack on the jury instructions themselves. District court did not err by ruling these instructions as written prevented Willis from arguing that James Willis fired in self-defense.

Challenged statements by prosecutor are examined finding no error. Prosecutor’s joke about how lawyers “add things and confuse things” was not outside the wide latitude afforded 74

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attorneys to explain their case to the jury. Prosecutor’s insistence that the only self-defense theory the jury was permitted to consider was Willis’ self-defense—not James Willis’ selfdefense—was not error. And no error found in Willis’ claims that prosecutor misstated the evidence or argued facts not in evidence.

District court did not abuse its discretion when it permitted Agent Lester to testify as to James Willis’ role within DOR. As in State v. Sasser, 305 Kan. 1231, 1243 (2017), the agent’s testimony was professional but not so scientific, technical, or specialized that it needed greater court control. And district court did not err in permitting the smartphone-related evidence which was relevant because there was a sufficient similarity between the guns and ammunition depicted in the internet searches and the ammunition recovered at trial, see State v. Scott-Herring, 284 Kan. 172 (2007).

District court did not impermissibly weigh aggravating and mitigating circumstances in this case because it did not find any mitigating factors. Willis waived or abandoned his inadequately briefed claim that district court’s reference to Willis accepting responsibility violated Fifth Amendment.

STATUTES: K.S.A. 2019 Supp. 21-6620(c)(1)(A), 223414(3), 60-456(a), -456(b); K.S.A. 2018 Supp. 21-6620(c)(1) (A), -6815(c)(1)(A)-(F); K.S.A. 60-401(b), -407(f), -445

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appellate decisions

Kansas Court of Appeals Civil FORECLOSURE—REAL ESTATE BUCKLIN NATIONAL BANK V. HAYSE RANCH KIOWA DISTRICT COURT—REVERSED AND REMANDED NO 121,690—SEPTEMBER 11, 2020

FACTS: In 2002, L.P.P. Mortgage Ltd. obtained a default judgment of foreclosure against Helen Hayse and her son, Paul. The district court confirmed the sheriff’s sale and ordered a statutory redemption period of three months. The day before the redemption period ended, Helen assigned her rights of redemption to Celia Pruitt for $100. Pruitt then filed notice of her exercise of the right of redemption and deposited the total amount of Helen’s debt to redeem the property.

Pruitt followed up by filing an affidavit with the Register of Deeds in which she declared herself to be the owner of the property by virtue of her acquisition and subsequent exercise of redemption rights. Helen and Paul had previously used the property to secure a series of loans from Bucklin National Bank. Helen died intestate in January 2017, and after these loans went unpaid the Bank initiated foreclosure proceedings. Pruitt intervened in the action seeking a declaratory judgment that she was the rightful owner of the property.

The Bank moved for summary judgment and the district court granted it, finding that exercising an assigned right of redemption was ineffective to pass title absent a document of conveyance. After her motion for new trial was denied, Pruitt appeals.

ISSUES: (1) Action to quiet title; (2) whether a deed is necessary to convey title HELD: A statutory right of redemption is different than the common law equitable right of redemption, the latter of which arises before the foreclosure sale. Under the statutory scheme in Kansas, an assignee of a property owner’s redemption rights obtains all property rights of the owner upon exercise of those redemption rights. Pruitt obtained equitable title to the property when she exercised the redemption rights that she purchased from Helen. It is not necessary to have a deed of conveyance to prove ownership of property. Pruitt took many official steps to register her equitable title, and that was enough to secure her primary right to the property. But the case must be remanded to determine whether Pruitt has a colorable claim of adverse possession.

STATUTE: K.S.A. 2019 Supp. 60-2414, -2414(h), -2414(i)

CONTRACTS—MUNICIPALITIES—TORTS FARMERS BANK & TRUST V. HOMESTEAD COMMUNITY DEVELOPMENT GEARY DISTRICT COURT—AFFIRMED NO. 120,671—OCTOBER 2, 2020

FACTS: In 2007, Farmers lent money to Homestead Community Development to remodel a property in Junction City.

The mayor of Junction City signed a letter of guaranty to Farmers, backed by a letter from the city attorney stating that the City had the authority to make the guaranty and that the mayor’s signature was a binding legal obligation. Homestead failed to pay the loan and Farmers sued Homestead on its note and foreclosed its mortgage. Farmers then sought to enforce the City’s guaranty. The City responded that the guaranty was void and unenforceable, in part because Farmers never filed the notice required by K.S.A. 12-105b(d) prior to filing suit. Farmers sued the City, among others, for breach of the guaranty. It lost when the district court granted summary judgment to all defendants. Farmers appealed.

ISSUES: (1) Application of the cash-basis law and budget Law; (2) grant of summary judgment; (3) compliance with statutory notice provisions HELD: The purpose of the Cash-Basis and Budget Laws is to prevent a budgetary deficit for a municipality at the end of a fiscal year. The Cash-Basis Law bars cities from creating debt in excess of the amount of money on hand for that purpose. To comply with the Cash-Basis Law, the City would have had to possess enough money in the treasury for the purpose of paying its guaranty. And the Budget Law requires expenditures to be itemized and classified in advance. Transactions in violation of these laws are void, and because the guaranty agreement complied with neither law it must necessarily be void. It is irrelevant that the City had enough money in reserve to pay the guaranty because the funds were not designated for this purpose, and it is irrelevant that the debt was only contingent on Homestead failing to pay. And the fact that the City voluntarily made some payments under the guaranty does not require payment of the entire amount due.

K.S.A. 12-105b(d) requires notice to a municipality prior to filing suit. Farmers’ actions did not constitute substantial compliance and notice was legally required before any suit could be filed.

STATUTES: K.S.A. 2019 Supp. 12-105b(d); K.S.A. 101112, -1117, -1119, 79-2934, -2935

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INSURANCE—REAL ESTATE KRAUSE V. KERNS JOHNSON DISTRICT COURT— AFFIRMED NO. 121,842—OCTOBER 16, 2020

FACTS: The Kernses contracted to sell their house to Krause. The purchase contract contained several disclosures but did not mention any issues with water intrusion or the fireplace. After closing on the property, Krause discovered many issues with the property that were not included in the disclosure. Krause sued the Kernses for the misrepresentations or omissions included in the disclosure. The parties ended up settling; the Kernses stipulated to a final judgment of $79,482 in favor of Krause. As part of the agreement the Kernses agreed to assign their rights under their insurance policy to Krause. In return, Krause promised to only pursue collection of the judgment with the insurance company, not with the Kernses personally. Krause filed a garnishment action against the insurance company to recover the judgment amount. The insurance company filed a motion for summary judgment, arguing that the Kernses’ insurance policy did not cover misrepresentation and so the company was not liable.

The district court granted that motion, finding that policy coverage was triggered by an “occurrence” and that the failure to disclose was not an occurrence. Krause appeals.

ISSUES: (1) Whether coverage exists under the insurance policy HELD: A threshold requirement of coverage under the insurance policy is the existence of an occurrence. The insurance policy clearly defines “occurrence” as an accident which results in bodily injury or property damage. The facts of this case do not show an occurrence. And even if Krause could prove an occurrence, the policy language which excludes coverage for a claim arising out of any written or oral statement clearly bars Krause’s claim.

STATUTES: None cited

Sonya’s testamentary trust gave Brad “uncontrolled” discretion over the trust while also stating that he was “only” to act in a fiduciary capacity. Over the years, the record shows that Brad used trust property to enrich himself and his wife with no thought of the other beneficiaries. Brad testified that he needed the trust property to pay down debt on the farmland, which he wanted to keep intact according to his mother’s wishes. By 2014, Brad transferred all trust property into his own name, emptying the trust of assets. The other beneficiaries sued Brad in 2015 for breach of fiduciary duty.

The district court ruled in Brad’s favor, finding that the trust language which gave the trustee absolute discretion allowed him to use the principal however he wished. The beneficiaries appealed.

ISSUES: (1) Nature of the trust; (2) limits on discretionary action; (3) remedies; (4) failure to make an annual accounting HELD: Sonya’s trust is clearly a discretionary trust, which means that a court may intervene only in cases of an abuse of discretion by the trustee or if a trustee acts in bad faith.

But there are principles which apply to all trusts, including the fiduciary duties of loyalty, impartiality and prudence. The terms of a trust cannot supersede a trustee’s statutory duty to act in good faith and administer the trust for the beneficiaries’ benefit. Brad’s decision to take all the trust property for himself violated his duties of loyalty and impartiality. Brad’s actions stripped the trust and erased any benefit to the other beneficiaries. The district court erred by concluding that the other beneficiaries were not entitled to relief. But because the district court did not consider any remedy for the beneficiaries this case must be remanded for further proceedings. Brad had a fiduciary duty to provide an annual accounting of trust activity to the other beneficiaries, but there is no evidence that any beneficiary ever requested an accounting.

STATUTES: K.S.A. 2019 Supp. 58a-802, -802(a), -813(a), -813(b); K.S.A. 58-24a01, 58a-105, -803, -804, -814

FIDUCIARY DUTY—TRUSTS ROENNE V. MILLER ROOKS DISTRICT COURT—REVERSED AND REMANDED WITH DIRECTION NO. 120,054—OCTOBER 2, 2020

DIVORCE—PRENUPTIAL AGREEMENTS IN RE MARRIAGE OF NELSON MARION DISTRICT COURT—REVERSED AND REMANDED NO. 122,190—OCTOBER 2, 2020

FACTS: Sonya Miller died in 1995, survived by five children. At the time of her death, Sonya owned royalty interests in oil leases as well as real estate and farm implements. In her will, Sonya left her farm property and real estate to her sons Brad and Mark, with specific directions that none of the other children were to own her farm property. The remainder of the estate, which consisted solely of oil lease royalties, was placed in trust to be managed by Brad as trustee for the benefit of all of Sonya’s children, with any remainder interest to be split equally among Sonya’s grandchildren. The terms of 76

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FACTS: Terry and Sherry Nelson married in 2001. Prior to the wedding, they created a prenuptial agreement explaining how certain property and responsibilities would be divided in the event of a divorce. Property was categorized as marital, separate or jointly titled and was divided according to ownership. During the marriage, Terry sold some of his solely owned real estate and purchased land which included the 160 acres where the Nelsons lived during their marriage. All this land was jointly owned and titled accordingly. Sherry filed for divorce in 2017. The process of separating the couple’s real property was difficult, as Terry argued that all the jointly

titled property at issue should be considered his sole property because it was purchased with the proceeds of the sale of his solely owned land. After an evidentiary hearing, the district court ruled that the prenuptial agreement was ambiguous as to how the property should be categorized. The district court considered Terry’s intentions when purchasing the land and concluded that Terry never intended to place the property in joint tenancy with Sherry and that it should have been titled as solely owned. The district court found that the 160 acres at issue were solely owned by Terry, and Sherry appealed.

ISSUES: (1) Whether prenuptial agreement is ambiguous; (2) use of parol evidence; (3) request for attorney fees HELD: The district court must focus on what the parties intended for the prenuptial agreement to encompass. The agreement never anticipated that each spouse’s separate property would always remain separate property. Under the agreement, Terry could use proceeds from his separately owned property to purchase jointly titled property. And the agreement clearly required jointly titled property to be divided in the event of divorce. The district court erred by finding that the property at issue should all be given to Terry. Oral testimony cannot be used to vary the terms of a written instrument. Terry never claimed that the joint deeds were fraudulent or the result of a mutual mistake. The district court erred by considering extrinsic evidence of Terry’s intent and knowledge about the real property at issue. The property at issue must be evenly divided by the district court on remand. The plain language of the prenuptial agreement barred any claim for attorney fees, so the district court properly denied Sherry’s request for such fees.

STATUTE: K.S.A. 2019 Supp. 23-2404(a)(3), -2405, -2715 ESTOPPEL—MANDATE RULE—OIL AND GAS FAWCETT TRUST V. OIL PRODUCERS, INC. OF KANSAS SEWARD DISTRICT COURT—AFFIRMED AND CROSSAPPEAL DENIED NO. 120,611—OCTOBER 2, 2020

FACTS: This class action proceeding seeks underpaid gas royalties from the Oil Producers, Inc. of Kansas (OPIK). This on-going case involves the price difference between the cost of gas as it enters the interstate market versus the price of gas at the wellhead. In a prior appeal, the Kansas Supreme Court held that gas production was merchantable once the operator puts the gas into a condition acceptable to the purchaser in a good-faith transaction. The meant that OPIK was not liable for all the postproduction, post-sale expenses incurred in getting the gas marketable. The Court did hold that OPIK wrongly deducted conservation fees from royalties paid to the class. The case was remanded to district court. Once back in district court, the class tried to amend its claim. The district court denied the motion, claiming it had no discretion to consider the motion under the Supreme Court’s mandate.

The district court also ruled that OPIK could not assert a statute of limitations defense on the conservation fee issue.

Both parties appealed.

ISSUES: (1) Application of the mandate rule; (2) failure to award prejudgment interest; (3) barring a statute of limitations claim through equitable estoppel HELD: The mandate rule must bind a lower court on remand to avoid endless litigation. When an appellate court decides an issue, the district court is foreclosed from reconsidering the issue. The Kansas Supreme Court clearly rejected the class’ claim about when OPIK was required to pay royalties.

The argument the class is attempting to make now is barred by the mandate, and the district court correctly refused to allow the class to amend its claim. The district court applied the correct prejudgment interest statute and correctly ruled that OPIK did not owe the class prejudgment interest. The district court also correctly ruled that equitable estoppel barred OPIK’s statute of limitations defense on the conservation fee issue.

STATUTE: K.S.A. 16-201, 55-1614(b), -1614(h), -1615 INFORMED CONSENT—MEDICAL MALPRACTICE—PUNITIVE DAMAGES ACORD V. PORTER SEDGWICK DISTRICT COURT—AFFIRMED 119,537—SEPTEMBER 25, 2020

FACTS: Reiford Acord had an outpatient ventral hernia surgical repair. Dr. Porter, a board-certified surgeon, and Dr. Resch, the chief surgical resident, were present. Acord was initially fine but deteriorated after a few days. An exploratory surgery revealed a perforation in Acord’s bowel. Acord survived but spent two months in intensive care and continues to suffer ill effects from the perforation. The record shows that Acord was informed that a resident could participate in his procedure, but Acord does not remember this. Neither surgeon noticed the perforation when it happened. Dr. Resch thinks he performed most of the surgery, but no one knows for sure. Acord filed this medical malpractice action against the providers who were involved in his care. At some point, Acord sought to amend his petition to include a claim for punitive damages, but that request was denied. Prior to trial, the district court granted Dr. Porter’s motion for summary judgment on Acord’s informed consent and failure to supervise claims. The district court also granted Dr. Resch summary judgment on Acord’s informed consent claim. The case proceeded to a jury trial. At the close of Acord’s case in chief, the district court granted Dr. Resch’s motion for summary judgment on a claim that he had not adequately prepared for surgery. The jury returned a defense verdict on the remaining counts and Acord appealed.

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ISSUES: (1) Summary judgment on informed consent claims; (2) summary judgment on failure to supervise claim; (3) exclusion of evidence at trial; (4) error in instructing the jury on appropriate standard of care; (5) denial of motion to amend to add claim for punitive damages HELD: Acord’s responses to the defendants’ statements of uncontroverted fact did not comply with Supreme Court Rule 141, as citations to generic medical records were insufficient. In addition, Acord failed to establish a genuine issue of material fact that would preclude summary judgment. Particularly, there is no evidence that having Dr. Resch perform the surgery was riskier than having Dr. Porter do the procedure. And Acord knew or should have known that the hospital was a teaching facility where medical residents routinely participate in patient care. In order to prevail on a failure to supervise claim, Acord needed to provide expert testimony establishing a breach of Dr. Porter’s duty. He failed to do that here, and the district court properly dismissed this claim via summary judgment. The district court properly excluded testimony related to the claims which were dismissed on summary judgment. Because all the physicians involved in Acord’s care and treatment held themselves to the standard of care as medical specialists, the jury was properly informed. The jury was instructed on the highest standard of care. Acord failed to provide a record adequate to determine whether the district court properly denied his motion to amend the petition to include a claim for punitive damages. And even if he had, Acord was unable to prove that either physician acted willfully, wantonly, or maliciously.

STATUTES: K.S.A. 2019 Supp. 60-209, -226(b)(6)(B), -256; K.S.A. 60-3703 EIGHTH AMENDMENT—HABEAS CORPUS WILLIAMS V. STATE WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED NO. 121,815—OCTOBER 9, 2020

FACTS: When he was 14-years old, Ronnell Williams was convicted of two counts of premeditated first-degree murder.

The district court imposed two hard-50 sentences, to be served concurrently. His conviction and sentence were affirmed on direct appeal. In 2005, Williams’ first K.S.A. 60-1507 motion, which raised claims of ineffective assistance of counsel, was denied. In 2012, the United States Supreme Court concluded that the Eighth Amendment precludes a life sentence for a juvenile offender if the sentencing court does not have discretion to consider the offender’s youth and personal characteristics. It was later clarified that this holding is retroactive. Williams filed a second K.S.A. 60-1507 motion arguing that the structure under which he was sentenced violated the Eighth Amendment, rendering his sentence unconstitutional.

The district court rejected Williams’ motion as untimely and successive and he appealed.

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ISSUES: (1) Summary dismissal; (2) constitutionality of hard 50 sentence; (3) remedy; (4) lifetime post-release HELD: The United States Supreme Court decisions in Miller and Montgomery are intervening changes in the law which constitute exceptional circumstances and justify a second 60-1507 motion. These decisions create the rare case of manifest injustice which justifies a second motion. Miller applies whether a sentence is mandatory or discretionary, so it makes no difference whether the district court used discretion when determining that the hard 50 sentence was justified by the aggravating circumstances present. Although Williams is not technically serving a life sentence, the hard-50 is a functional equivalent; in both cases, Williams lacks the possibility for release at a meaningful point in his life. Williams was denied the Eighth Amendment’s protections when the district court failed to consider his youth, diminished culpability, and heightened capacity for change before imposing the hard50 sentence. A sentencing court may impose a life sentence or a hard-50 sentence on a juvenile, but only after making individualized considerations about the offender. The remedy here is to remand the case to the district court to allow for a hearing on whether a hard-50 sentence is a constitutionally disproportionate punishment for Williams. The district court lacked authority to impose lifetime post-release and that portion of Williams’ sentence must be vacated.

STATUTES: K.S.A. 2019 Supp. 21-6620; 22-3504(a), 60-1507, -1507(a), -1507(b), -1507(c), -1507(f); K.S.A. 1999 Supp. 21-4635(b), -4635(c), -4636; K.S.A. 60-1507 DIVORCE—MAINTENANCE IN RE MARRIAGE OF WELTER MIAMI DISTRICT COURT—REVERSED AND REMANDED NO. 121,605—SEPTEMBER 11, 2020

FACTS: Steven and Keira Welter divorced in 2016. The decree ordered Steven to pay monthly maintenance of $781 for 73 months. One of the conditions on maintenance is that payments would stop if Keira remarried or was cohabitating, which was defined as living with a non-relative adult for substantially consecutive periods of time in excess of 30 days, even if the relationship was not marriage-like. Steven’s maintenance payments were often suspended in the years after the divorce, primarily because Keira refused to comply with certain requirements of the divorce decree. In December 2018, Steven moved to terminate maintenance on grounds that Keira was cohabitating with her boyfriend. Keira objected, claiming she lived with her boyfriend only because she could not afford to live independently due to the lack of maintenance payments. After hearing arguments, the district court denied Steven’s motion to terminate and instead modified the maintenance agreement to shorten Steven’s obligation by nine months – the length of time Keira was cohabitating. Steven appealed.

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ISSUE: (1) District court’s authority to modify maintenance HELD: It is undisputed that Keira violated the cohabitation termination condition of the divorce decree. The automatic termination clause of the decree means that Steven’s maintenance obligation automatically terminated after June 2018. It does not matter that, at the time Keira was cohabitating, Steven’s maintenance obligation has been temporarily suspended by the district court. Once the terminating event of cohabitation occurred, the district court lost the authority to modify Steven’s maintenance obligation and equity does not require a different result.

DISSENT: (Atcheson, J.) All of the decisions made by the district court were within its discretion and authority, and the majority opinion places too many restrictions on district court action.

STATUTE: K.S.A. 2019 Supp. 23-2711(a)(3), -2902, -2903, -2904

Criminal CRIMINAL PROCEDURE—MOTIONS—SENTENCING— STATUTES STATE V. ADAMS WYANDOTTE DISTRICT COURT—AFFIRMED NO. 122,255—OCTOBER 2, 2020

FACTS: Adams convicted of attempted second-degree murder. Conviction and sentence affirmed 2013 on direct appeal.

Adams filed pro se motions in 2014 and 2019 to correct an illegal sentence, arguing district court improperly classified Adams’ 1988 Missouri robbery conviction as a person offense.

District court summarily denied the motions finding State v.

Murdock, 299 Kan. 312 (2014)(Murdock I) was inapplicable when Adams’ sentence was pronounced and sentence was legal when imposed based on existing law. Adams appealed, arguing he was entitled to benefit of Murdock I change in law because State v. Williams, 291 Kan. 554 (2010), was decided while Adams’ direct appeal was pending and Murdock I was premised on Williams.

ISSUE: (1) Motion to correct illegal sentence—classification of out-of-state conviction HELD: District court is affirmed. Adams committed the crime of conviction in October 2008 and was sentenced in 2010. Based on controlling law in effect at the time, State v. Vandervort, 276 Kan. 164 (2003), overruled in part by State v. Dickey, 301 Kan. 1018, (2015), Adams’ Missouri robbery conviction was scoreable as a person offense based on 2008 codification of Kansas robbery statute. Murdock I was a change in the law occurring after Adams’ sentence was imposed, but Adams not entitled to benefit of that change

because it was decided after conclusion of Adams’ direct appeal. Adams’ sentence was lawfully imposed under Vandervort and how Kansas appellate courts applied Williams would not have established Adams’ sentence was illegal at that time.

STATUTES: K.S.A. 2019 Supp. 21-6801 et seq., 223504, -3504(c), -3504(c)(1), -3504(c)(2), -3504(d); K.S.A. 2018 Supp. 22-3504; K.S.A. 21-3426, -4710,-4711, -4711(e), -6810, -6811, 22-3504, -3504(c)(2), -3504(d) CRIMINAL PROCEDURE—SENTENCING—STATUTES STATE V. BAKER WYANDOTTE DISTRICT COURT—AFFIRMED NO. 122,169—SEPTEMBER 18, 2020

FACTS: Baker convicted of aggravated domestic battery, an offense committed two days prior to the effective date of the 2019 amendment to K.S.A. 6811(e)(3). Applying the new statutory framework, district court scored Baker’s 2015 Missouri conviction for resisting arrest as a person felony because the circumstances enumerated in K.S.A. 2019 Supp.

21-6811(e)(3)(B)(i)(b) and (c) were present in the elements of the Missouri offense. Baker appealed arguing his prior Missouri offense should have been scored as a nonperson felony pursuant to State v. Wetrich, 307 Kan. 552 (2018), and the plain language of K.S.A. 2019 Supp. 21-6811(e)(3)(B).

ISSUE: (1) Criminal history scoring of prior out-of-state conviction HELD: Brief historical analysis of 2019 amendment of K.S.A. 21-6811(e)(3) is provided. The new statutory framework, which requires a sentencing judge to compare the enumerated circumstances listed in K.S.A. 2019 Supp. 21-6811(e) (3)(B)(i) or (ii) to the elements of the prior out-of-state conviction, legislatively overrules the comparable offense analysis previously required by Wetrich. In Baker’s case, district court erred in finding the 2015 Missouri offense of resisting arrest (by fleeing from police) met the conditions in K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(b) and (c), but reached the right result because the prior offense matched the conditions in K.S.A. 2109 Supp. 21-6811(e)(3)(B)(i)(d).

STATUTES: K.S.A. 2019 Supp. 21-6801 et seq., -6811(e), -6811(e)(2), -6811(e)(2)(A), -6811(e)(3), -6811(e)(3)(B), -6811(e)(3)(B)(i), -6811(e)(3)(B)(i)(b), -6811(e)(3)(B)(i)(c), -6811(e)(3)(B)(i)(d), -6811(e)(3)(B)(ii), -6811(e)(3)(B)(iii); K.S.A. 2017 Supp. 21- 6811(e)(3) APPEALS—APPELLATE PROCEDURE—EVIDENCE— MOTIONS—SENTENCING STATE V. CASTLE JACKSON DISTRICT COURT—APPEAL DISMISSED NO. 121,380—NOVEMBER 6, 2020

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classification of prior California convictions as person felonies which resulted in a criminal history score for presumptive imprisonment instead of presumptive probation. Castle ordered to show cause why the appeal should not be dismissed as moot after Kansas Department of Corrections (KDOC) filed notice of change of custodial status with a written Certification of Time Served that Castle had been released and was on postrelease supervision.

ISSUE: (1) Mootness of the appeal HELD: Castle’s appeal is dismissed as moot. State v. Yazell, 311 Kan. 625 (2020), and State v. Roat, 311 Kan. 581 (2020), are addressed in detail. A written certification from KDOC records custodian is reliable evidence that may support appellate fact-finding for limited purpose of deciding whether an appeal is moot. Here, where Castle offers no evidence challenging the accuracy of the information in the KDOC certification, the State provided reliable evidence to show Castle is no longer in prison and is on postrelease supervision. Castle makes no claim that his challenge to his criminal history score impacts his current or future rights, and no meaningful relief can be granted in the appeal.

STATUTE: K.S.A. 2019 Supp. Supp. 21-6805(a), 223717(d) APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING STATE V. LOUIS SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,572—OCTOBER 23, 2020

FACTS: Pursuant to plea deal Louis pled guilty to seconddegree murder, aggravated burglary, and aggravated robbery.

Presumptive sentence imposed in 2013 based on criminal history that included a 2009 conviction for criminal threat.

Louis filed pro se motion to withdraw plea, claiming in part that Haldol impaired his mental faculties and rendered him incompetent to knowingly and voluntarily enter his plea. District court denied the motion, and on claim argued for first time, found Louis did not establish plea counsel had been ineffective. In March 2019 Louis filed second pro se motion to withdraw plea, again asserting his plea was not knowingly made due to mental disorder and influence of psychotropic drugs. He further claimed plea counsel was ineffective for not developing a mental defect defense, not investigating the mental disorder, and not calling an expert witness vital to Louis’ defense. District court summarily denied the motion finding it failed to present a substantial question of law or fact, was time barred, and was an abuse of remedy. Louis appealed claiming the district court erred by denying the second plea withdrawal motion. Based on State v. Boettger, 310 Kan. 800 (2019), cert. denied 140 S.Ct. 1956 (2020), Louis also claimed for first time on appeal that his sentence was illegal and should be vacated and case remanded for district court’s 80

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determination of whether Louis was convicted in 2009 of intentional or reckless criminal threat.

ISSUES: (1) Second motion to withdraw plea; (2) legality of sentence HELD: Louis fails to establish the requisite excusable neglect necessary to justify the untimely filing of his second motion to withdraw plea. Alternatively, no merit to claim that his plea was not knowingly and understandably made. Even if Louis had established excusable neglect to allow consideration of his untimely motion, his ineffective assistance of counsel claim lacks merit and the necessary details to show manifest injustice. He does not explain his mental defect or allege his mental health history or psychotic problems. His mental defect allegation contradicts the record. He does not explain his disability that plea counsel failed to investigate.

And he does not explain who the expert witness is or how the witness was vital.

Reckless criminal threat was declared unconstitutional in 2019. Louis is not entitled to benefit of that change in the law because when he was sentenced in 2013 both the intentional and reckless disregard versions of criminal threat were constitutional. His sentence is not illegal, and his prior conviction for criminal threat was properly included in his criminal history.

STATUTES: K.S.A. 2019 Supp. 21-6810(d)(9), -6814(b), 22-3210(d)(2), -3210(e)(1), -3210(e)(2), -3504(a), -3504(c)(1); K.S.A. 2018 Supp. 21-5202(h) , -5202(j), -5415(a)(1); K.S.A. 2009 Supp. 21- 3419(a)(1) APPEALS—APPELLATE JURISDICTION—CONSTITUTIONAL LAW—SENTENCING—STATUTES STATE V. MYERS JOHNSON DISTRICT COURT—AFFIRMED NO. 122,046—OCTOBER 2, 2020

FACTS: Myers charged with felony DUI, third offense.

Myers pled not guilty and filed motion to strike her two prior Missouri DWI convictions, arguing the Missouri DWI statute failed the comparability analysis in K.S.A. 2019 Supp.

8-1567(i)(3) and (j). District court granted the motion relying on identical-to-or-narrower rule in State v. Wetrich, 307 Kan. 552 (2018), and categorical approach in State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), but did not dismiss the felony DUI charge. State filed interlocutory appeal under K.S.A. 2019 Supp. 22-3603, K.S.A. 2019 Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820.

ISSUES: (1) Appellate jurisdiction; (2) sentencing—classification of out-of-state convictions HELD: Jurisdiction for State’s appeal exists under K.S.A. 2019 Supp. 22-3603 which is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case. Appellate decisions interpreting

appellate decisions

”suppression evidence” under K.S.A. 2019 Supp. 22-3603 are reviewed. Here, district court’s order substantially impaired State’s ability to prosecute the DUI as a felony charge. State should have asked district court to clarify its ruling and dismiss the felony DUI charge, which would have enabled State to invoke its right to appeal from order dismissing a complaint under K.S.A. 2019 Supp. 22-3602(b)(1).

District court’s ruling is affirmed. Myers’ Missouri DWI convictions are not comparable to DUI under K.S.A. 2019 Supp. 8-1567(j)(2)-(3), and cannot be used to elevate her current Kansas DUI charge to a felony. K.S.A. 2019 Supp.

8-1567(j)(3) invites impermissible judicial fact-finding in violation of Apprendi by giving courts broad discretion to determine whether a defendant committed the out-of-jurisdiction offense in a manner similar enough to K.S.A. 2019 Supp.

8-1567. Apprendi, relevant even though Myers has not yet been sentenced, requires application of criteria in K.S.A. 2019 Supp. 8-1567(j) using Wetrich’s identical-to-or-narrower-than rule. Different conclusion on the same legal question reached in State v. Mejia, 58 Kan. App. 2d 229 (2020), [and in State v.

Patton, 58 Kan. App. 2d __ (September 11, 2020)] relying on State v. Reese, 300 Kan. 650 (2014), is not followed. Instead, State v. Gensler, 308 Kan. 674 (2018), better reflects Kansas Supreme Court’s intent to apply identical-to-or-narrowerthan rule in the DUI context to avoid impermissible judicial factfinding.

CONCURRENCE and DISSENT (Hill, J.): Concurs there is jurisdiction to consider State’s appeal under K.S.A. 2019 Supp. 22-3603. Dissents from majority’s holding affirming the district court’s ruling. Believes the legal analysis and conclusions in Patton and Mejia correctly address the critical issue of whether Myers’ DWI convictions may be considered to elevate her current DUI to a felony offense. Would reverse and remand with directions to include the Missouri DWI convictions in her criminal history.

STATUTES: K.S.A. 2019 Supp. 8-1567, -1567(a), -1567(b), -1567(b)(1), -1567(b)(1)(D), -1567(i)(3), -1567(i)(3)(B) -1567(j), -1567(j)(1), -1567(j)(2), -1567(j)(3), 21-5110, -6801 et seq., -6820, 22-3602, -3602(b)(1), -3603; K.S.A. 2018 Supp.

8-1567(b)(1)(D); K.S.A. 2017 Supp. 21-6811(e); K.S.A. 223215, -3216, 60-401 et seq.

CRIMINAL PROCEDURE—SENTENCING—STATUTES STATE V. PATTON RENO DISTRICT COURT—AFFIRMED NO. 120,434—SEPTEMBER 11, 2020

FACTS: State charged Patton in November 2016 with DUI. In 2018, jury convicted him on that charge and district court imposed a 12 month sentence upon finding this was Patton’s fourth or subsequent DUI conviction. On appeal Patton claimed the prosecutor erred in closing argument by misstating the evidence. He also claimed district court erred

under rule outlined in State v. Wetrich, 307 Kan. 552 (2018), by using Patton’s 2003 Oklahoma and 2007 Missouri DUI convictions to enhance the sentence.

ISSUES: (1) Prosecutorial error; (2) classification of prior out-of-state convictions to enhance sentence HELD: Given the entire context of prosecutor’s closing arguments, prosecutor’s statements that Patton had been drinking on New Year’s Day 2016, and that the standard field sobriety tests showed Patton was under the influence, were not inconsistent with evidence presented at trial.

Patton and the State agreed the rule Weitrich controls because K.S.A. 2015 Supp. 8-1567(i) was the rule in effect at the time Patton committed the DUI offense. But under State v.

Reese, 300 Kan. 650 (2014), when a court enhances a current DUI sentence under K.S.A. 8-1567(i) it must apply the sentencing rule in effect at the time of sentencing. Applying the 2018 amendment to K.S.A. 8-1567(i) and (j), district court did not err in sentencing Patton as a fourth or subsequent DUI offender.

STATUTES: K.S.A. 2019 Supp. 8-1567(a), 22-3504(a); K.S.A. 2018 Supp. 8-1567, -1567(i), -1567(i)(1); K.S.A. 2017 Supp. 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 2015 Supp.

8-1567, -1567(a), -1567(a)(3), -1567(b)(1)(D), -1567(i), -1567(j) CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—SEARCH AND SEIZURE STATE V. SMITH RENO DISTRICT COURT—AFFIRMED NO. 121,619—OCTOBER 23, 2020

FACTS: Officers found Smith unresponsive in running car parked in someone else’s driveway. They removed her from the car but she remained largely unresponsive and appeared to be suffering an overdose. When emergency medical personnel arrived, officer search Smith’s purse looking for identification and any information regarding substances possibly ingested. State charged Smith with possession of methamphetamine, possession of paraphernalia, and driving under influence. District court denied Smith’s motion to suppress evidence discovered in the warrantless search of her purse.

Smith convicted in bench trial. On appeal she claimed officer’s search of her purse after emergency medical personnel arrived at the scene was unlawful.

ISSUE: (1) Warrantless search—emergency aid exception HELD: District court correctly denied Smith’s motion to suppress. Emergency-aid exception recognized in State v.

Neighbors, 299 Kan. 234 (2014), is discussed and applied.

Under facts and circumstances of case, officer’s warrantless search was reasonable and confined to assist in addressing Smith’s medical emergency. Emergency-aid exception is limited in time and scope. There is no bright-line demarcation that defines when an officer’s limited authority to conduct a www.ksbar.org | November/December 2020 81

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warrantless search under that exception ends. Instead, touchstone of a court’s analysis is reasonableness: whether the officers reasonably believe the search is necessary to provide emergency assistance and whether the search itself is reasonable in manner and scope. Here, officer’s belief that Smith’s life or safety was in immediate danger due to a potential overdose was objectively reasonable, and scope of the search was tailored to helping aid paramedics and firefighters to treat Smith more effectively.

STATUTE: K.S.A. 22-3216(2) FREE SPEECH—ORDINANCES CITY OF WICHITA V. TROTTER SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,125—SEPTEMBER 25, 2020

FACTS: A Wichita municipal ordinance requires anyone who wishes to operate an “entertainment establishment” to obtain a license from the City. City Code defines “entertainment” and lists examples of businesses or activities which would require licensure. But once the license is obtained, the City does not regulate or restrict the type or content of entertainment provided so long as licensees follow requirements regarding capacity, security, controlled substances, alcohol, noise, and other considerations.

In 2017, Wichita police suspected that a building was being used as an unlicensed entertainment establishment. Trotter was contacted as the club’s owner. He said that he ran a private membership organization and would not let police inspect the premises. After obtaining a search warrant, police entered the building and saw— among other things—a DJ booth and a dance floor. There was also alcohol in the building even though Trotter did not have a liquor license. The City charged Trotter with operating a club without a liquor license or an entertainment-establishment license. A municipal court convicted him of operating a club without an entertainment license. He appealed to district court and, for the first time, argued that the entertainment license ordinance was unconstitutionally vague and overbroad. He also claimed the ordinance was an invalid limitation on his speech under the First Amendment to the United States Constitution. The district court denied the motion, a jury convicted Trotter as charged, and he appealed.

ISSUES: (1) Whether ordinance violates the First Amendment; (2) whether ordinance is vague or overbroad; (3) standing to challenge licensure requirements; (4) sufficiency of the evidence; (5) misstatements during closing argument; (6) answering a jury question HELD: The licensing framework created by the ordinance does implicate Trotter’s freedom of expression and cannot be evaluated solely as a function of the City’s police powers.

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neutral, meaning it does not violate First Amendment protections on freedom of expression. The licensing framework satisfies City concerns relating to public nuisances and safety.

Wichita’s licensing framework is neither vague nor overbroad.

The definitions used in the ordinance put the public on notice as to what conduct triggers licensure requirements. Trotter never applied for an entertainment-establishment license so he lacks standing to challenge any of the requirements. There was sufficient evidence to prove that Trotter’s business provided “entertainment” within the meaning of the ordinance. The prosecutor properly informed the jury about the difference between a truly private business and a club which is open to the public. The district court properly answered a jury question about the scope of the licensure requirements.

STATUTES: No statutes cited.

appellate practice reminders

Appellate Practice Reminders From the Appellate Court Clerk’s Office

’Tis the Season to be Thankful...for technology

T

echnology is tricky. You can’t live without it – and the second you’re late to the party – it will pass you by like a supersonic jet. As with most areas of law and practice, COVID-19 has forever changed the functioning of the Kansas Appellate Courts. In less than a 30-day time period, we were forced into technological advancements that I would not have predicted to be in our playbook for five, maybe even 10 years.

One of the most noticeable changes in the appellate courts has been the utilization of the Zoom meeting platform for oral arguments in both the Court of Appeals and the Supreme Court. Almost everyone involved in the process would probably stipulate that in-person oral arguments are ideal. The verbal tussling between counsel and the appellate bench cannot really be recreated by videoconference. However, the Zoom meeting platform has been a surprisingly adequate replacement.

From an administrative standpoint, the videoconferencing of appellant arguments has nearly doubled the combined preparation and performance time for a successful week of oral arguments in the Supreme Court.

The process of herding counsel, staff, closed captioners, and justices into a Zoom meeting at a designated time is stressful to say the least. Being prepared to broadcast the Court’s arguments Live on YouTube has caused me more than one sleepless night, and even one instance of waking up in the middle of the night in a cold sweat because I thought I was in the bathroom when I needed to be at my computer gaveling the Court into session.

An unexpected benefit of videoconferencing oral arguments is the ability to appear for argument in the comfort of one’s dining room, home office or the firm’s newly-created videoconferencing room. Many people have joked for a long time about what judges actually wear under their robes. However, the robe question has been replaced with the question of whether counsel are wearing a full suit or are trying to get by in a jacket and cargo shorts or even sporting pajama pants for the argument. We may never know the answer to either question!

Not only does videoconferencing take windshield time out of the equation, it also eliminates the uncertainty of the unpredictable Kansas weather. Absent a large power outage, the Zoom oral arguments will go on as planned. Just this last month, on the first day of arguments for the Supreme Court, we saw mother nature’s early October pre-winter trick of ice and snow from Oklahoma all the way to Nebraska. Normally, I’d be quite worried as to whether the justices and attorneys would be able to travel to the Kansas Judicial Center in Topeka for arguments that Monday morning. This time around, it was the least of my worries. Everyone showed up on Zoom like clockwork.

So, this season, I’m thankful for technology. I’m thankful for the flexibility exhibited by appellate counsel in keeping our dockets moving in a positive direction. I’m thankful for the understanding of both of the appellate courts in what has sometimes been a difficult videoconferencing world. And last, I’m thankful for pajama pants.

For questions about these or other appellate procedures and practices, the appellate clerk’s office is only a phone call (785) 296-3229) or an email (appellateclerk@kscourts.org) away.

Douglas T. Shima, Clerk of the Appellate Courts.

www.ksbar.org | November/December 2020 83

ADVERTISING DIRECTORY VENDORS & MEMBERS

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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).

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Sumner County Attorney Vacancy.

County Democratic Central Committee is accepting applications for appointment as county attorney to hold office until 2022 general election. Must be licensed to practice Kansas. Nominee should have a strong interest in public service; ten years as a fulltime attorney with criminal, civil and appellate experience; legal experience in Sumner County; five years as a local, state or federal prosecutor; jury trial and oral appellate experience. For more details and to submit letter of application and resume, contact:

Chairperson Rick Roitman,

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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.

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www.ksbar.org | November/December 2020 87