J
THE
The Journal Board of Editors
October 2010 • Volume 79 • No. 9
OURNAL
of the Kansas Bar Association
Your Partner in the Profession • www.ksbar.org
Catherine A. Walter, Chair
Topeka
Terri Savely Bezek
Topeka
Hon. David E. Bruns
Focus
Topeka
Boyd A. Byers
Wichita
Toby J. Crouse
Overland Park
24
Professor J. Lyn Entrikin Goering Topeka Connie S. Hamilton
Topeka
Evan H. Ice
Lawrence
Katharine J. Jackson Michael T. Jilka
Introducing the Kansas False Claims Act: A Primer
Manhattan Overland Park
Lisa R. Jones Wichita Hon. Janice Miller Karlin Topeka Casey R. Law
McPherson
Julene L. Miller
Topeka
Nancy A. Ogle Richard D. Ralls
Wichita
Hon. Lawton R. Nuss Professor John C. Peck
By Daniel E. Lawrence and Stephen E. Robison
Topeka
Hon. Robert E. Nugent
Wichita Lake Quivira Kansas City, Mo.
Teresa M. Schreffler Lawrence Richard H. Seaton Sr.
Manhattan
Sarah B. Shattuck
Ashland
Richard D. Smith Topeka Marty M. Snyder
Topeka
Matthew A. Spurgin Topeka Issaku Yamaashi
Items of Interest
Overland Park
Rachael K. Pirner, BOG liaison Wichita
Catherine A. Walter, Chairperson cwalter@topeka.org Susan McKaskle, Communications Director smckaskle@ksbar.org
The Journal of the Kansas Bar Association 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 (ISSN 0022-8486) 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. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 666121806. 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.
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8
The State of Kansas Courts By Chief Justice Lawton R. Nuss
10 In Memoriam
Chief Justice Robert E. Davis
11 Access to Justice: "Inadequate to
Regular Features 06 President’s Message 07 Young Lawyers Section News 12 The Diversity Corner 13 Law Practice Management Tips & Tricks
Meet the Needs"
14 The Legacy Project: 2011 16 Thinking Ethics: Can We Be (Facebook) Friends?
19 Your Carefully Crafted HOA
Documents, Now Rewritten by the Kansas Legislature
22 Casemaker: Helpful Changes in Your Online Legal Research
15 18 37 42 48 50
Law Students’ Corner Members in the News Appellate Decisions Appellate Practice Reminder Classifieds CLE Docket
40 Notice of Amendment of the
Local Rules of Practice and Procedure of the U.S. Bankruptcy Court for the District of Kansas
41 U.S. Supreme Court Swearing In Ceremony Registration
47 Kansas Commission on Judicial
Performance Announces Judicial Performance Evaluations
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.
The Journal of the Kansas Bar Association | October 2010 3
TABLE OF CONTENTS CONTINUED
Article ... serving the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society.
Ethics for Good XI
17
By Meg Wickham
Kansas Law Center 1200 SW Harrison St. Topeka, Kansas 66612-1806 Telephone: (785) 234-5696 Fax: (785) 234-3813 Website: www.ksbar.org
Cover design by Ryan Purcell rpurcell@ksbar.org
OFFICERS James D. Oliver President joliver@foulston.com
Overland Park
Daniel H. Diepenbrock President-elect dhd@diepenbrockpa.com
Liberal
Joni J. Franklin Secretary-Treasurer joni@jfranklinlaw.com John D. Jurcyk Immediate Past President jjurcyk@mvplaw.com
Wichita
Roeland Park
Coming Soon: Your opportunity to continue access to all of the GREAT! Kansas Bar Association membership benefits. RENEW your membership! If you are not a member, become one for 2011 and get acquainted with benefits that will serve you in your practice.
BOARD OF TRUSTEES James C. Dodge Sublette Holly Dyer Wichita Kenneth J Eland Hoxie Gregory P. Goheen Kansas City, Kan. Terence E. Leibold Lawrence David K. Markham Parsons Amy E. Morgan Overland Park David H. Moses Wichita Edward J. Nazar Wichita Randall J. Pankratz Wellington H. Douglas Pfalzgraf Newton Hon. Ronnie L. Svaty Ellsworth J. Ronald Vignery Goodland Kenneth W. Wasserman Salina Hon. Evelyn Z. Wilson Topeka Jennifer M. Hill Wichita Young Lawyers Representative Katherine L. Kirk Lawrence Kansas Association for Justice Representative Susan G. Saidian Wichita Kansas Women Attorneys Association Representative William L. Townsley III Wichita Kansas Association of Defense Counsel Representative Laura L. Ice Wichita Kansas Bar Association Representative Bruce W. Kent Manhattan Kansas Bar Association Representative David J. Rebein Dodge City Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman jalderman@ksbar.org
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Bookstore
Learning Living Law
Topeka
MANAGER, PUBLIC SERVICES Meg Wickham Topeka mwickham@ksabar.org
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For more details on what your KBA member benefits include, go to www.ksbar.org/prospective The Journal of the Kansas Bar Association | October 2010 5
Author Special Guest
Jack Focht
It’s Hard to be Nasty to a Friend By Special Guest Author Jack Focht, Foulston Siefkin LLP, Wichita, KBA President 1989, jfocht@foulston.com
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hortly after receiving my 50-year certificate at this year’s annual meeting, President Glenn Braun called and asked me to write a message on what I had learned in 50 years of practice. Since one thing I’ve never learned was how to say no, I accepted. As I ruminated over the last 50 years, I concluded that the one constant I could rely on was change. I recalled the advent of the IBM Selectric typewriter with the carbon ribbon that began the change heading toward the word processor years later. I had fond memories of the first copier that made it possible to do away with carbon copies. Many of us still remember the secretary who could make 10 carbon copies of a document ‒ often typed without a mistake. We often still include a “cc recipient” on our letters. The technological advances in just 50 years make my head spin. A lawyer went from dictating to a secretary to dictating into a machine or keyboarding for himself. “Himself ” is used because the makeup of the practicing Bar 50 years ago was almost exclusively men. Not only has technology changed, but the law evolved rapidly as well. During my brief time as a lawyer, the civil, criminal, corporation, probate, and business codes all changed. My top paper in Bills and Notes at Washburn became worthless when the Uniform Commercial Code was established. While I used to go to the law library to look up law, I now turn to my computer and use Lexis or Westlaw (or sometimes a willing associate) to find answers. But of even greater significance to me as a former president of both the Wichita (WBA) and Kansas (KBA) bar associations is the change in relationships. When I returned to my hometown of Wichita in 1960 to practice law, there were 391 members of the WBA and 1,900 members of the KBA. We were a small group and we got to know each other. Before I could become a member of the WBA, I had to report to former Justice Hugo T. Wedell for a lecture on what was expected of a Wichita lawyer. I clearly remember him telling me, “Your word is your bond; we don’t have to write letters of confirmation,”etc. I was impressed and tried to follow that all my professional life. Most all the lawyers I met and knew during my early practice followed that same code. But as Pogo says, “We have met the enemy and it is us.” What do I mean by that? Look at the time spent in seminars and lectures from judges about the lack of civility among and between lawyers. It seems we’ve come to believe that the measure of a lawyer’s ability correlates to how mean and nasty he or she can speak to or write about his or her opponent. The
computer, while making communication faster, also makes it possible to insult a colleague in a very impersonal format. How did this change come about? How did this change come about. As I thought about this, I went back and checked the attendance at the first state bar convention I attended in 1961 in Wichita. My law firm expected all its lawyers to attend. Of the 1,900 KBA lawyers in 1961, 850 came to Wichita for the annual meeting ‒ almost 45 percent of the members. What happened at those meetings? We talked, we laughed, and we swapped stories. We got to know each other. To test my memory, I called Jeff Alderman before making the comparison to recent attendance. Our executive director confirmed that attendance at the last three bar conventions when totaled didn’t match the 850 of 1961. Not all change is bad but that statistic goes a long way to prove my theory that it is easier to be nasty or mean to a stranger than it is to a friend. When I was president of the KBA, I often quoted Shakespeare, who wrote: “Do as Adversaries do at law, strive mightily but eat and drink as friends.” I still cling to that premise. The profession of law is a great privilege that I have enjoyed for more than 50 years. But the greatest gift of those 50 years is not the advances in the law or in technology, but the friendships I have made. I have known and respected some great men and women who are devoted to making this world a better place through service. While we may disagree, we do not need to be disagreeable. God willing, I hope to shake your hand at next year’s annual meeting; to swap a few stories and plan how to improve our profession, state, nation, and world. n About the Author Jack Focht, Wichita, currently practices as special counsel to Foulston Siefkin’s health care and litigation practice groups in the areas of health care law, fraud and abuse, white collar crime, civil rights, employment law, professional responsibility, government investigations, and business litigation; he has more than 49 years of experience as an attorney. His practice has ranged from high-profile criminal cases to complex civil litigation. He served as president of both the Wichita and Kansas bar associations and his peer memberships include the National Association of Criminal Defense Attorneys, the Association of Professional Responsibility Lawyers, and he is a Fellow of the American College of Trial Lawyers.
Glenn Braun may be reached by e-mail at grbraun@haysamerica.com, by phone at (785) 625-6919, or post a note on our Facebook page at www.facebook.com/ksbar. 6 October 2010 | The Journal of the Kansas Bar Association
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Young Lawyers Section News
We, the Government Lawyers By Melissa R. Doeblin, Kansas Corporation Commission, Topeka, melissadoeblin@gmail.com
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hen I decided to go to law school, I had in my mind what a “lawyer” was. In my mind, a lawyer was the flashy individual on a television show waltzing around the courtroom and displaying quick humor. I’m sure several of you had the same notion! In law school I had the opportunity to work for the Kansas Legislature. There I learned that lawyers were not only private practice attorneys, but that there were also a multitude of government lawyers with equally specialized or generalized practice areas like those at firms. I learned of attorneys who worked for state agencies as legal and advisory counsel, as city prosecutors and public defenders, and for county attorneys’ offices, as well as in many other areas. After graduation from law school, I knew I wanted to continue to work for the Legislature and surround myself with interesting issues, people, and debates. I accepted a position in the Division of Post Audit, which was far from the traditional firm approach many of my peers took. At Post Audit, I utilized the analytical skills I developed in law school. A couple years later I migrated to the Office of Revisor of Statutes, another arm of the Legislature. The revisor’s office drafts bills and provides legal research for legislators and legislative committees. In fact, the need for continuous revision of the Kansas statutes was brought to light at the annual meeting of the Kansas Bar Association in 1924 and, hence, the Revisor’s Office was born. The attorneys in the revisor’s office help craft state laws through the bill drafting and floor amendments, and it certainly is a trying position that involves long hours during session, working for 165 “clients” (legislators). I am now employed in the Office of Advisory Counsel at the Kansas Corporation Commission (Commission). The Commission is the state agency that regulates public utilities across the state, setting rates that protect the public interest while allowing each utility to earn a profit for the company. Along with three other attorneys in my office, I provide direct advice to the commissioners on matters pending before the Commission and serve as a hearing officer in Commission dockets. Terri Pemberton is a colleague of mine in the Litigation Counsel Office at the Commission. When asked what it meant to be a government lawyer, she said, “Those who choose to pursue government employment after law school are not doing so for the financial benefits. I believe most attorneys electing to practice as part of a governmental body do so because on some level they benefit from the sense of community contribution associated with working on behalf of the public.” Pemberton is one of few who went to law school knowing she wanted to practice at the Commission. “What some people
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may not realize is the complexity of the matters we address, whether the matters relate to economic and accounting issues of public utilities, or geological issues associated with oil and gas production. Because decisions made by the Commission have economic and safety impacts on the citizens of Kansas, it is important that the attorneys are engaged and dedicated to obtaining the best possible result in any given matter.” I also spoke to Ron Shaver, a young lawyer who graduated from the University of Kansas law school in 2006. Shaver now works as deputy city attorney for the city of Olathe, and I asked him about the role government lawyers play. “I think there is an intrinsic value in improving the community and giving back, and I can make a tangible impact on people’s lives,” Shaver said. “We as government attorneys are relied on for any myriad of matters from the very minor, day to day departmental issues, to major, highly political issues, including drafting major development agreements, land acquisition, environmental, and employment law issues, along with many other issues that run the gamut of municipal law.” Ray Bergmeier is a third-year law student at Washburn University and works as a law clerk at the Commission. I spoke with Bergmeier about why he chose to clerk for a state agency over a private firm. “My interest in government work began before I was admitted to law school. Acting as an academic advisor and a true mentor, my aunt explained to me the benefits and rewards of working as a public servant,” replied Bergmeier. “Working for a Kansas agency has been one of the most rewarding experiences in my life. I am surrounded by professionals who truly believe in the work they do and have strong personal beliefs that their work does help others.” Attorneys are employed at all levels of government and perform extraordinary work by recommending and interpreting laws and legislation, arguing cases on behalf of their client, whether it be an agency or an indigent client, and investigating cases. The American Bar Association estimates that government and public lawyers make up one-eigth of the legal profession in their pursuit of careers in public service. A “practice” in government law, no matter what the area, is both rewarding and enjoyable. n About the Author Melissa R. Doeblin is a 2005 graduate of Washburn University School of Law and received a certificate in natural resources law. She currently serves as advisory counsel for the Kansas Corporation Commission in Topeka.
The Journal of the Kansas Bar Association | October 2010 7
The State of Kansas Courts By Chief Justice Lawton R. Nuss, Kansas Supreme Court, Topeka
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n August the Kansas Supreme Court ordered a weighted study the issues stated in the audit and (2) the Legislature caseload study to be performed in all Kansas district courts provide funding for a judicial district weighted caseload study. on all types of cases. Later this year, the Court will apWhat is a weighted caseload study? Sheer numbers of caspoint a Blue Ribbon Commission to consider the results of es do not tell the full story of judicial and staff workloads. the study, review the operations of the Kansas Judicial Branch Among other things, a proper study must examine the comand make recommendations for possible changes. It has been plexity of some cases and consider the driving time for certain said that the changes have the potential to be the most dra- judges to travel from court to court in their district. We know matic since court unification in 1977. that a judge with a workload of 5,000 uncontested traffic Now that I have your attention, I will explain how this tickets is not necessarily entitled to 10 times more resources happened and elaborate on what it may than a judge with 500 cases – when that mean for the state. volume includes two capital murder Recently we have been living in excases, five class actions, and 10 complex traordinary economic times. They have products liability cases spread over six called for extraordinary measures. For counties. The weighted caseload study example, last spring my colleagues and attempts to take these and other differI were forced to close all state courts and ences into account and compare apples send employees home without pay for to apples. four days. The reason: insufficient funds. Also during this past legislative sesThis was a first for Kansas in its 149-year sion, concurrent resolutions for the history. Because about 98 percent of the study of the Judicial Branch were inJudicial Branch budget is for salaries, troduced in both chambers. The resolumuch of our significant cost-cutting untions called for funding a caseload study fortunately comes at the expense of our and for the chief justice’s appointment personnel and, as a result, our ability to of a Blue Ribbon Commission with a serve the citizens of Kansas. report to the Legislature by January Another event important to the Judi2011. No final action was taken on the cial Branch also happened last spring. A Senate resolution. Additionally, legislalegislator asked, “Just how much money tion was again introduced to repeal, or will it take for the Supreme Court to amend, the statute requiring at least one Chief Justice Lawton R. Nuss keep state courts open during the fiscal judge of the district court to reside, and Kansas Supreme Court year” beginning July 1, 2010? We were have principal office, in each of Kansas’ asked to be realistic, given the hard economic times. We gave 105 counties. See K.S.A. 20-301b. This is the well-known each legislator this “realistic” figure and a majority agreed to “one judge per county” requirement. That bill also failed. fund it. But the realistic figure required us to maintain 75-80 In short, the Legislature adjourned last spring without the of our existing 135 job vacancies for the entire year. This rep- passage of many of these proposals. resents approximately 5 percent of our authorized nonjudicial After reviewing these events, the Supreme Court decided to work force. In other words, the hiring freeze we were forced be proactive. In the Kansas Constitution, the people created to begin in December 2008 would not be thawed completely. the judiciary as an independent, co-equal branch of our state Still another event important to the Judicial Branch hap- government, and we felt compelled to act under Section 1 of pened during the last legislative session. The Legislative Divi- Article 3, which grants the Supreme Court general adminission of Post Audit delivered its report to the five state senators trative authority over all courts in the state. We recognized and five representatives on the Legislative Post Audit Com- that the Legislature, however well-intentioned, cannot know mittee. Among other things, the audit report recommended the Judicial Branch as well as the Supreme Court does. that Kansas’ existing 31 judicial districts be consolidated into Accordingly, we first looked at the issue of a weighted case13 districts for a purported savings of $6.2 million, or be load study. Research revealed that a weighted caseload study consolidated into seven districts for a savings of $8.1 million. has been recommended in Kansas since at least 1944 and by These recommendations included resultant changes in num- almost all subsequent commissions formed to study the Kanbers, and geographic locations, of many judges and nonjudi- sas courts. Apparently the Legislature’s historical failure to cial personnel. The full report can be found at http://www. provide funding was among the reasons the Supreme Court kslegislature.org/postaudit/audits_perform/10pa04a.pdf. never conducted such a study. That has now changed. In AuThrough the Supreme Court’s Office of Judicial Adminis- gust the Court hired the National Center for State Courts to tration, we challenged much of the audit report. We did agree, perform the first-ever weighted caseload study in Kansas hishowever, with two of the fundamental recommendations: (1) tory. In hiring the experts from the National Center for State the chief justice appoint a judicial advisory committee to Courts, we join many other states. 8 October 2010 | The Journal of the Kansas Bar Association
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Because Kansas has some qualities unique to us, the Supreme Court has appointed two 14-member committees of Judicial Branch personnel to assist the National Center. One committee of district judges and district magistrate judges will study judges’ work. This “judicial needs assessment committee” is chaired by Judge David King, chief judge of the 1st Judicial District (Leavenworth and Atchison counties). The other committee of court administrators, court clerks, and other nonjudicial personnel will study staff work. That “staffing needs assessment committee” is chaired by Todd Heitschmidt, court administrator of the 28th Judicial District (Saline and Ottawa counties). The Supreme Court has taken care to make committee appointments representative of the wide diversity of Kansas communities and judicial districts. (Committee rosters are contained in the shaded box) The primary purpose of the study is to measure actual workloads as accurately as possible. The study’s findings may be substantial: There are approximately 266 judge positions and 1,590 nonjudicial positions authorized for the Kansas state courts. Moreover, during the fiscal year ending June 30, 2010, Kansas state courts handled 517,968 cases, which included 177,029 traffic cases. The Supreme Court estimates that the weighted caseload study, which will begin in early January 2011, will not be produced in final report form until more than a year from now. While that study is underway, a commission of talented people from across the state – also recommended in the House and Senate concurrent resolutions – will be reviewing the operations of the Judicial Branch. The Court anticipates appointing that commission later this year. In the early 1970s, such a Blue Ribbon Commission – the Kansas Judicial Study Advisory Committee – performed a study that led to the unification of state courts in 1977. Obviously, the new commission’s work will also take some time – more than a year. Based upon the commission’s recommendations, which in turn will somewhat rely upon the results of the weighted caseload study, the Supreme Court will look at possible improvements in the Kansas court system and for ways to make better use of taxpayer money. However, economics will not be our sole consideration. We will also consider Kansans’ access to justice. For example, while the most economical approach for the state might be to mirror the federal courts in Kansas – with courthouses only in Kansas City, Topeka, and Wichita – that plan obviously would prove a financial hardship to many Kansas lawyers and their clients participating in hearings and trials. State leaders have already been notified of our plans. I have spoken personally with the governor, the speaker of the House, and the president of the Senate. They have all appreciated our initiative and our desire to be efficient. The Supreme Court has no preconceived notions on what, if any, changes should be made. But if changes are made, it is essential that they be the right changes. That is one of the reasons that, again for perhaps the first time in Kansas history, all justices recently conducted meetings with judges and nonjudicial personnel in communities across the state.
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This is also where Kansas attorneys enter the arena. Because you are the heavy users of our court system, we need your input so any changes will be the right changes. We need your thoughts on possible nominees to the Blue Ribbon Commission. We also need your opinions expressed at the Commission’s meetings, which we intend to be held in communities around Kansas, or through other means. This is an important undertaking for all of us. By anyone’s measure, exciting times are ahead. n JNAC (Judicial Needs Assessment Committee) • David King, Chair, 1st Judicial District • Edward Bouker, 23rd Judicial District • Cheryl Rios Kingfisher, 3rd Judicial District • Kim Cudney, 12th Judicial District • Wayne Lampson, 29th Judicial District • Dan Creitz, 31st Judicial Judicial District • Thomas Foster, 10th Judicial District • Jeff Goering, 18th Judicial District • Merlin Wheeler, 5th Judicial District • Bob Frederick, 25th Judicial District • Ann Dixson, 16th Judicial District • Mary Thrower, 28th Judicial District • Jim Kepple, 24th Judicial District • Richard Smith, 6th Judicial District SNAC (Staffing Needs Assessment Committee) •Todd Heitschmidt, Chair, Court Administrator, 28th Judicial District • Lea Dawn Throckmorton, Chief Clerk, 12th Judicial District • Alice Adams, Clerk of District Court, 8th Judicial District • Angie Callahan, Clerk of the District Court, 3rd Judicial District • Kathleen Collins, Clerk of the District Court, 29th Judicial District • Vicki Mills, Clerk of the District Court, 4th Judicial District • Mary Kadel, Court Administrator, 14th Judicial District • Ellen House, Court Administrator, 18th Judicial District • John Isern, Court Administrator, 20th Judicial District • Christine Blake, Clerk of the District Court, 25th Judicial District • Pam Moses, Chief Clerk, 27th Judicial District • Kelley Grisier, Clerk of the District Court, 31st Judicial District • Donna Hoener-Queal, Chief Court Services Officer, 30th Judicial District • Lori Coleman, Court Reporter and Administrative Assistant, 21st Judicial District
The Journal of the Kansas Bar Association | October 2010 9
In Memoriam Chief Justice Robert E. Davis 1939 – 2010
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n August 4, the state of Kansas lost a longtime juColleagues said that Davis had a gentle, nurturing spirit rist, former Chief Justice Robert E. Davis. Af- that lent itself to his work. He always maintained his grace ter a prolonged illness, he died at his home in and civility when the Supreme Court discussed cases. Leavenworth. He retired from the Kansas Supreme Court on He began his legal career as a captain with the U.S. Army August 3. Judge Advocate General’s Corps, including foreign service as Chief Justice Lawton R. Nuss, who trial counsel in the Republic of Koreplaced Davis as chief justice after his rea and as a U.S. appellate counsel in retirement on August 3, recalls his colWashington, D.C., from 1964-1967. league with these remembrances: He graduated from Creighton Univer“After my appointment to the Susity with a Bachelor of Arts in political preme Court was announced in August science in 1961. He then went on to 2002, I received many calls at my law Georgetown University Law Center, firm from well-wishers. In the midst of where he was a member of the Georgethis commotion, my legal assistant intown Law Journal and earned his LL.B. formed me that Bob Davis was on the in 1964. telephone. The name did not ring a bell. After leaving the military, he reI concluded the caller was yet another turned to Leavenworth and was in prilong lost relative or a grade school acvate practice with his father, Homer, quaintance who now expected me to in the law firm of Davis & Davis from perform a marriage ceremony without (later to become Davis, Davis, Mccharge. Guire, and Thompson) 1967-1984. “When I answered the phone, a warm He also served a term as Leavenworth voice stated, ‘Lawton, this is Bob Davis, County attorney from 1981-1984. your colleague on the Kansas Supreme Davis had a distinguished career as Court.’ At the words Kansas Supreme an attorney and jurist, he found time Court, I found myself immediately and energy to work with various orgastanding at attention. [Marine Corps nizations. He had been a member of Chief Justice Robert E. Davis habits die hard.] Just plain ‘Bob’ conthe Kansas Bar Association since betinued by welcoming me to the Court ginning the practice of law. Davis had and by stating he looked forward to working with me. After also been a member of the governor’s Advisory Commission a few minutes more of pleasant conversation, we hung up. I on Alcoholism from 1971-1976 under Gov. Robert Dockthen relaxed into my at ease position. And I marveled at how ing, chairman of the board of trustees for St. John’s Hospital a busy person like Justice Davis would take the time to make in Leavenworth from 1980-1984, director and president of me feel that special. Leavenworth County Corrections Board from 1980-1984, “During the eight years it was my privilege to call Bob Da- a director of the Leavenworth National Bank and Trust Co. vis my colleague and friend, I came to admire many of his per- from 1972-1984, and a council member of St. Mary’s College sonal traits and legal skills. But Bob’s ability to make everyone in 1984. He also served on the Governor’s Adoption Reform he met feel special – that he or she was the most important Task Force under Gov. Kathleen Sebelius and was an officer of person on earth and worthy of Bob’s undivided attention – the American Inns of Court. is what truly set him apart. His Supreme Court colleagues He is survived by his children, Edward Davis and greatly miss him.” daughter-in-law, Tiffany Ghilglia, of Los Angeles; Rachel EvDavis had been a member of the Supreme Court since 1993. ans and son-in-law, Ben, of Seattle; Patrick Davis, of Seattle, Before his appointment to the Supreme Court, he served eight Carolyn Davis, of Seattle, and Brian Jones of the home, and years on the Kansas Court of Appeals and prior to that, he was one grandson, Sahale. Davis was preceded in death by his judge with the Leavenworth District Court. wife, Dr. Jana D. Jones. n While on the Supreme Court and the Court of Appeals, he took part in thousands of decisions. On the Supreme Court alone, he authored 351 majority opinions, 21 dissenting opinions, and six concurring opinions. 10 October 2010 | The Journal of the Kansas Bar Association
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Kansas Bar Foundation Access to Justice: “Inadequate to Meet the Needs” By James D. Oliver, Foulston Siefkin LLP, Overland Park, Kansas Bar Foundation president, joliver@foulston.com
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ou know someone is trying to get serious when they start rolling out the “WHEREAS” clauses. The Conference of Chief Justices and the Conference of State Court Administrators did so this past July, when they adopted a resolution stating: WHEREAS, equal justice is fundamental to the American system of government under law, and WHEREAS, the inability to afford legal counsel in effect denies access to justice to individuals in need of representation, and … WHEREAS, in every state and territory, current levels of civil legal assistance are inadequate to meet the civil legal needs of individuals who cannot afford counsel … Former Chief Justice Robert Davis had recognized the problem in Kansas and called attention to it more than three years ago. “In early 2007, [Justice Davis] met with members of the Judicial Council Family Law Committee to express his and the Court’s growing concern about the increased number of self-represented litigants appearing in the state’s courts. In particular, Chief Justice Davis noted that district court clerk’s offices and judges were encountering a high number of pro se litigants in many areas, including family law, landlord-tenant, and other civil matters. The Court wanted to resolve pro se litigant issues, for the benefit of the courts, the public, and the practicing bar.”1 Recalling Davis’ passion for access to justice for all led me to the subject for this column. The problem obviously has not been solved, but has become worse as a result of the economic downturn. People have lost jobs and income. With government deficits, federal and state funding for legal services will be difficult to maintain. With interest rates at all-time lows, funding from IOLTA income has crashed. With our state courts resorting to furloughs to meet their budgets; the clerks’ offices, court staffs, and judges obviously do not have the time to struggle with the extra burden of doing justice with the more numerous pro se cases that result when litigants cannot get legal counsel. Marilyn Harp, executive director of Kansas Legal Services Inc. (KLS), shared with me that KLS is presently able to accept representation of only two of every five qualified, lowincome applicants. In addition, she noted that a large number of people who make too much to qualify for taxpayersupported legal services cannot, as a practical matter, afford lawyers.
Although the numbers turned away are large, lawyers in the private bar are meeting many needs, often in ways unknown and unnoticed to the general public. Of the 27,000 persons served by KLS in 2009, more than 1,000 were served through volunteer lawyers. Pro bono panels have been organized with many city and county bar associations to extend free legal services to low-income Kansans who may not qualify for services from KLS or do qualify, but have to be turned down. Private lawyers provide many more hours of legal services free of charge on referrals from churches and other religious and charitable organizations. Kansas courts and Kansas lawyers have tried to assure that the people of Kansas are not left to self-help, fear, and hopelessness when faced with losing their home, losing custody of a child, or other serious legal matters. But there is still a large unmet need. And, if too many people must appear without an attorney or cannot get into court for lack of an attorney to advise them, we cannot expect the courts to fulfill their promise: “Within These Walls the Balance of Justice Weighs Equal.” The Resolution of the Conferences of Chief Justices and Court Administrators encourages their members, where ethically permitted under judicial conduct rules, to promote the expansion of funding for civil legal assistance and access to civil justice. Because of ethical limitations on courts and judges, lawyers and their organizations, like the Kansas Bar Association and Kansas Bar Foundation, often speak up for the public good. Access to justice for everyone, regardless of wealth or status, is a fundamental good that crosses party lines and political philosophies. We need to be aware of the facts and respond to the best of our ability. n About the Author James D. Oliver is a partner at the Overland Park office of Foulston Siefkin LLP. He serves as the firm’s lead partner for the appellate practice and the regulatory and administrative practice teams. Oliver received his Bachelor of Science from Northwest Missouri State University in 1971 and his juris doctor, cum laude, in 1975 from Washburn University School of Law, where he served as editor of the Washburn Law Journal. He is admitted to practice in Kansas, Missouri, the U.S. Courts for the District of Kansas and Western District of Missouri, U.S. Court of Appeals for the Tenth Circuit, and the U.S. Supreme Court.
Footnote 1. Suzanne Valdez, Addressing the Pro Se Litigant Challenge in Kansas State Courts, 78 J. Kan. Bar Ass’n 25 (April 2009).
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The Journal of the Kansas Bar Association | October 2010 11
The Diversity Corner
Committee Update By Karen Hester, Director of Career Services and Director of Diversity and Inclusion, University of Kansas School of Law, Lawrence, khester@ku.edu
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s chair of the Diversity Committee, I want to update you on the committee’s efforts. But as a refresher, let’s start with why the legal profession needs to be more diverse and more inclusive. Yours may vary, but there are several reasons on the need for diversity and inclusiveness. “Democracy Rationale: Lawyers and judges have a unique responsibility for sustaining a political system with broad participation by all its citizens. A diverse bar and bench create greater trust in the mechanisms of government and the rule of law.” “Business Rationale: Business entities are rapidly responding to the needs of global customers, suppliers, and competitors by creating workforces from many different backgrounds, perspectives, skill sets, and tastes. Ever more frequently, clients expect and sometimes demand lawyers who are culturally and linguistically proficient.” “Leadership Rationale: Individuals with law degrees often possess the communication and interpersonal skills and the social networks to rise into civic leadership positions, both in and out of politics. Justice Sandra Day O’Connor recognized this when she noted in Grutter v. Bollinger that law schools serve as the training ground for such leadership and therefore access to the profession must be broadly inclusive.” “Demographic Rationale: Our country is becoming diverse along many dimensions, and we expect that the profile of LGBT lawyers and lawyers with disabilities will increase more rapidly. With respect to the nation’s racial/ethnic populations, the Census Bureau projects that by 2042 the United States will be a ‘majority minority country.’”1 You’ll notice the moral and ethical rationales are not included here but some consider those as valid reasons as well. However, I think I may have jumped the gun a little – working definitions of diversity and inclusiveness are needed. “Diversity (or to be more specific ‘compositional diversity”): ‘the extent to which a legal organization has people from diverse backgrounds and communities working as attorneys and staff. Primary dimensions of diversity include race, ethnicity, gender, age, religion, disability, sexual orientation, and gender expression.’2 Most legal employers look at these dimensions when seeking to diversify the workplace but there are other dimensions which may be considered.”3
Inclusiveness: the “intentional, ongoing engagement of diversity within organizations and removal of hidden barriers. An important part of the process of moving from traditional diversity to inclusiveness efforts is embedding diversity and inclusiveness throughout the organization; weaving it into every aspect of the organization so that it is a part of everyday work for everyone.” So taking these definitions and rationales into account, there is work to be done in our state, but we should take pride in recent efforts to promote and support diversity and inclusiveness within the Kansas legal profession. Currently before the Kansas Supreme Court are proposed rule changes for continuing legal education, including one for “nonsubstantive diversity and elimination of bias programming in the ethics and professionalism category.”4 Additionally, professionalism may soon include “promotion of racial, gender, and ethnic diversity in the legal profession.”5 Bottom line, these changes could provide us with a better awareness and understanding of issues not only affecting fellow attorneys (and law students) but also our clients and service providers as well. As you may recall, the mission of the Kansas Bar Association (KBA) includes advancing “the professionalism … of lawyers.”6 The Diversity Committee was created in 2000 “[t] o assist the KBA with its goals of increasing diversity within the Kansas legal profession so that the demographics of the legal profession mirror the demographics of the population of Kansas in the year 2020.”7 To that end, this year’s Diversity Committee is working on three projects: Short-Term Publications; Mid-Term Presentation, and Long-Term Planning. Short-term publications are those monthly articles written for The Journal of the Kansas Bar Association. “The Diversity Corner” column is written by different members of the Committee. There are so many talented folks on the Committee with, well, diverse backgrounds, I hope that you find their offerings informative and helpful. Mid-term presentations are new and involve multiple areas. Non-CLE webinars will be uploaded to the KBA website. These presentations will focus on diversity issues, available to (Continued on Page 20)
Footnotes 1. ABA Presidential Initiative Commission on Diversity, Diversity in the Legal Profession: The Next Steps (Apr. 2010), available at http://new.abanet. org/centers/diversity/Pages/presidentialdiversityinitiative.aspx. 2. Dr. Arin Reeves et al., Beyond Diversity: Inclusiveness in the Legal Workplace (3rd ed., Mar. 2010), available at www.legalinclusiveness.org/. 3. “Secondary dimensions of diversity can include lifestyle, communication style, personality type, earning style, economic status, geographic origin, education status, generation, avocation, work experience, world travel experience, political views, philosophical views, parental status, appearance, veteran status and nationality.” Id. 4. Proposed Changes to the Rules Governing Continuing Legal Education, p. 1, Rev. 7/2011. 5. Guidelines for Ethics and Professionalism, p. 1, Rev. 7/2011. 6. Kansas Bar Association, About the Kansas Bar Association, available at www.ksbar.org/public/kba/about_us.shtml (last visited Aug. 31, 2010). 7. Kansas Bar Association, Committees, Task Forces and Panels, available at www.ksbar.org/prospective/committees.shtml (last visited Aug. 31, 2010).
12 October 2010 | The Journal of the Kansas Bar Association
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Law Practice Management Tips & Tricks Staking Out Personal Space in Our Computer Culture By Larry N. Zimmerman, Valentine, Zimmerman & Zimmerman P.A., Topeka, kslpm@larryzimmerman.com
Human Pawns in the Battle for Machines
The Painfully Human Weak Link
I am a cynical loner who does not like sharing. For example, my only advice to my daughter as she began tennis was to “avoid doubles – no obligation to a partner.” I suppose it is a character flaw in much of my life but not when it comes to computer security. You are not welcome on my computer network and no, you may not share my bandwidth. Staking out that personal space in our computer culture requires cynical awareness of human frailty more than technological savvy.
Considerable time, money, and effort are spent on preventing computer attacks. Certainly, any network needs the typical protections in place – firewalls, virus scanners, and anti-spyware/malware software – but those measures provide limited protection. The best technology and tools are inadequate when the human user is convinced to willingly bypass them. Teaching threat recognition should be more central in computer security to specifically combat social engineering attacks and form the first line of defense before technology can come to our aid.
Look a Gift Horse in the Mouth Computer attacks continue to sweep across the Internet with a noticeable spike in June 2010 when upwards of 100,000 websites carried infection to 2.6 million computers. Big name sites like Fox and the New York Times inadvertently served up poisonous banner ads. Infection was easy – just go to a benign site and the infected ad would trigger fake virus warnings. Users accepting the warnings at face value clicked “Clean System” and were rewarded with a shakedown to purchase software (by credit card) and a system that could eventually block their access as it stole sensitive data and bandwidth. Video demonstrations of this type of attack are available on YouTube at http://tinyurl.com/26yzc5a and http://tinyurl. com/2b5bakr.
The Tempting Two-Step These attacks manipulated people into voluntarily opening up their computer systems to attack instead of using technological skill. Called social engineering, it is just a good old con. In step one of the con, the villain uses a front company to place an infected ad with online distributors like the Fox Audience. The ad is then distributed to thousands of subscriber sites and shown to viewers as the banner ad at the top or side of a page. Worried that users may install ad-blocking software (e.g., Adblock Plus at adblockplus.org), Google has established a website (www.anti-malvertising.com), aimed at educating publishers in identifying and addressing banner ad villains. (Google is keenly aware that ad-blocking could quickly eat into its primary revenue stream.) Once a villain has a hostile ad in circulation, the attack spreads quickly across the Internet. Step two manipulates users, one-by-one, into voluntarily shutting down defenses and surrendering their computers by playing on virus fears. Perpetually warned to watch for viruses, the average user is eager to fix obnoxious VIRUS INFECTION warnings. Most users accept the warnings at face value and click the “Clean System” option. This reaction magnifies in an office where employees may panic about infecting a firm machine or worry that their diversion to an unauthorized site may be discovered. As soon as the button is clicked to start clean-up, the infection takes root. The computer’s defenses are neutralized by the voluntary participation of the user, and the machine is eventually overwhelmed. www.ksbar.org
A good beginning is to: 1. Educate – Review some of the videos on YouTube referenced earlier to see how attacks operate. Recognizing when something is not quite right is a key to preventing infection or, at least, halting it early before it has disabled a machine or threatens to overrun a network. 2. Prepare – Backup routines should be followed zealously. Online providers like Mozy or DropBox provide easy, secure, off-site storage of data. A good backup may take a few additional minutes each day but saves days when systems go awry. 3. Recover – Murphy eventually wins and infection is inevitable. Do not waste time disinfecting a computer but before problems strike, use a tool like DriveImage XML (www.runtime.org) to copy the hard drive. Software and settings are copied and it can be faster and easier to simply roll the machine back to a “brand new” state. If you can recognize that an exiled Nigerian prince is not your gravy train, then you have the skills required to improve the too-human weak link in computer security. n About the Author Larry N. Zimmerman, Topeka, is a partner at Valentine, Zimmerman & Zimmerman P.A. and an adjunct professor teaching law and technology at Washburn University School of Law. He has spoken on legal technology issues at national and state seminars and is a member of the Kansas Collection Attorneys Association, and the American, Kansas, and Topeka bar associations. He is one of the founding members of the KBA Law Practice Management Section, where he serves as president-elect and legislative liaison. To join the LPM Section or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696. The Journal of the Kansas Bar Association | October 2010 13
A Nostalgic Touch The Legacy Project: 2011 By Matthew Keenan, Shook, Hardy & Bacon LLP, Kansas City, Mo., mkeenan@shb.com
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awyer surveys are the rage these days, and one recurring • Why did you become a lawyer? theme that’s been getting the attention of the popular • Are you a veteran? press is this conclusion – morale in the legal profession, • What’s the best advice you ever received relating to the along with the medical profession, is dropping like a stone. profession? One article in the New York Times suggested that lawyers have a satisfaction level equal to dentists. • If you could change something about your practice, what And then the Yale Journal of Health Policy, Law and would it be? Ethics, published its own article. It began • What advice would you share with youngwith this paragraph: “In a country where the er attorneys about being successful in the depression rate is 10 times higher today than practice? it was in 1960, lawyers sit at the unenviable • What was the proudest day in your profeszenith of depressed professionals. Of all prosional career? fessionals in the United States, lawyers suffer from the highest rate of depression after ad• What was the saddest day of your profesjusting for socio-demographic factors, and sional career? they are 3.6 times more likely to suffer from major depressive disorder than the rest of the Four replies merit brief mention here: employed population. Lawyers are also at a John A. Bausch, from Topeka, now 85, greater risk for heart disease, alcoholism and served in World War II from December 23, drug use than the general population.” Todd 1940, through September 7, 1945, in the D. Peterson & Elizabeth Waters Peterson, 137th Infantry Regiment. He returned to Stemming the Tide of Law Student Depression: graduate from law school in 1950 and then What Law Schools Need to Learn from the join Goodell, Stratton, Edmonds & Palmer John Shaffer Power of Positive Psychology, Yale J. Health LLP. In response to my question of “what Policy & Ethics, No. 2, 2009. was the proudest day in your practice?” While these types of observations capture headlines and “I am not sure there was any particular moment. What I may influence doting mothers to steer their sons or daughters got most out of my insurance practice was handling cases in to what they perceive as more “happy” undertakings, it is my Northeast Kansas and as far south as Pittsburg and West to own experience, albeit anecdotal perhaps, that suggests our Salina, Junction City, and Manhattan. The lawyers I met and profession is just the opposite – lawyers love what they do and did business with on those occasions generally became lifestick with it. Indeed, the professionals I’ve met in my 25 years long friends and really were good people to deal with. Likeof practice don’t retire early. Their work is their life. And they wise, I met and became acquainted with many fine judges in love both. Many attorneys are still serving their clients and the those particular jurisdictions. I guess I can say I never met a profession well into their 80s. lawyer I didn’t like.” The reality has intrigued me. And so I thought – this genBob Talkington, from Iola, has practiced since 1954 and eration – men and often women who Tom Brokaw called the served in the U.S. Army Counter Intelligence Corps for two “Greatest Generation” deserve their own survey. A population years. His proudest day wasn’t limited to just one story, and of adults who defended freedom in foreign lands, returned to included both the defense and prosecution of murder cases. college on the GI bill, and began a practice often alone and He described a case of his defense of an accused who was adfrequently in the small communities that dot our fine state. ministered truth serum, aka sodium pentothal, with an exHanging out a shingle before all the conveniences we take pert by the prosecution, hired by the Menninger Clinic. The for granted today – word processors, paralegals, even in some expert “appeared in court and testified but he was unable to cases, the Rule of Civil Procedure. give an opinion of guilt or innocence of the defendant. I then For most, being a lawyer meant you took all comers – crimi- set forth to the jury 17 reasons why there should be doubt in nal, civil, probate. And with every case, every trial is a story their mind of the guilt of this defendant. The jury agreed.” that may be worth capturing and preserving. John Shaffer of the Martindale Swearer firm in Hutchinson, This inspired me to start what I’m calling the “Legacy Proj- now 83, also served in WWII. In response to the question of ect” – a modest attempt to capture the stories and advice of why he became a lawyer notes that “I come from a family this generation. Starting with every attorney still a member of of lawyers. My mother, father, and my dad’s younger brother the KBA who was born in 1930 or before, I prepared a list of were all lawyers, and as a result, I was exposed to the law dur13 questions and, with the help of the KBA’s staff, mailed it ing most of my formative years.” Yes, Mother! That would be out to 218 attorneys on that list. Mabel Jones Shaffer, one of two women who graduated in Restricted to two pages, some of the questions included the Bachelor of Laws program at Washburn in 1918. Two these: (Continued on Page 20 14 October 2010 | The Journal of the Kansas Bar Association
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Law Students’ Corner On Matters Pedagogic – Creating a “Practical” Law School Curriculum By Steven Craig Paschang, Washburn University School of Law, Topeka, craigpaschang@gmail.com
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hey’ll scare you to death, work you to death, then bore you to death.” That’s what we were told our three years of law school would be like, and as the fall semester gets into full swing, I have caught myself telling the same thing to the new 1L students. As a third-year student, the maxim seems to fall somewhere between sage wisdom and sanguine indifference. Although it may contain some pearl of advice along the lines of, “this too shall pass,” I take issue with the sense of complacency that the statement connotes – and I refuse to believe that the third year of law school serves no other purpose but to bore us to death. Last year I worked as a legal intern in the chambers of Magistrate Judge K. Gary Sebelius and Senior Judge Sam A. Crow as part of Washburn’s Federal Judicial Clerkship externship program. Writing a memo to one of Judge Sebelius’ clerks, I applied the holding in Iqbal just weeks after reading the case in Civil Procedure II. Sitting through suppression hearings put the Federal Rules of Evidence into context, and my classmates can attest to the fact that Professor Michael Kaye would often call on me for my practical perspective. During the spring, when helping Judge Crow draft an opinion in a case arising under the Administrative Procedure Act, I experienced a synergy between what I was learning in chambers and what I was learning in John Wine’s Administrative Law course. As we talked about cases like Matthews v. Eldridge and Chevron in class, I couldn’t wait to figure out how they would apply to the case I was working on. And as I sifted through recondite circuit opinions, looking for those perfect cases to help with novel points of law, I garnered a deeper appreciation for the delicate balance that courts often strike between applying the law as written and affording parties actual justice. The experience I gained in chambers complemented what I learned in school and rounded out my legal education. That experience has also convinced me that the law school curriculum should be reformed to be more like medical school, with a traditional first year curriculum followed by second year internships and third year clinic rotations in different practice areas. Certainly, Washburn offers a wide variety of courses in litigation techniques and strategies, but even the best course cannot replicate what it feels like to walk into an office every day and work on an actual case. There’s a joke: “What do you call the guy who graduates last in his class in medical school?” And the answer, not immediately obvious to a sleep-deprived, overly anxious 1L, is “a doctor.” Law students recognize the analogy and often share the joke as a way to diffuse the pressure that builds with the
compulsion to improve our class rank, or to grade on to the law journal, or to find ourselves in the top 25 percent of our class so we can get that on-campus interview with a big firm. The problem is, the joke doesn’t really translate – even the guy who graduates last in his class from medical school has still spent at least two years in rotations, learning how to be a doctor. Too many law students graduate from law school without ever having learned how to be a lawyer. This shortcoming, combined with the unparalleled experiences I had in chambers, led me to the conclusion that a more practical curriculum is the best way to produce better lawyers. In chambers, I learned how to build an appellate record by actually combing through one, I learned the Federal Rules of Evidence and Civil Procedure by actually applying them, and I learned the delicate nuance of administrative law by forging through rather dense federal regulations, several of which had never been litigated. If law students are really being bored to death during their 3L years, they are wasting their time – and their money – and law schools are doing them a disservice by not seriously considering how to overhaul the traditional third-year curriculum. In the meantime, law schools should expand their clinical programs, reduce restrictions on externship participation, and seek new ways to engage students in practical coursework. Although I was pleased to find some discussion in the legal community about such reform,1 as well as some small steps in the right direction,2 I am not convinced that students can afford to wait. The onus is ours to select courses that will actually prepare us to be lawyers, to apply for externships during the school year and clerkships over the summer, to take clinic as early and often as possible, and to work hard to apply what we learn in school to our jobs, and vice versa. Maybe soon that old legal maxim will change to “scare you to death, work you to death, and prepare you to death,” and I’ll be proud to know that they call the guy who graduates last in his class “a lawyer.” n About the Author Craig Paschang is a third-year law student at Washburn University. He currently works as a law clerk in the Office of Advisory Counsel at the Kansas Corporation Commission and serves as the vice president of the Moot Court Council. He may be reached at craigpaschang@gmail.com.
Footnotes 1. E.g., Katherine Mangan, Law Schools Could Take a Hint From Medical Schools on Curriculum Reform, Experts Advise, Chronical of Higher Education, April 27, 2010, available at chronicle.com/article/Law-Schools-Could-Take-a-Hint/65264/. 2. See Karen Sloan, Reality’s Knocking: The recession is forcing schools to bow to reality, 32 Natl. L.J. 1, Sept. 7, 2009 (detailing third-year curriculum changes at Washington & Lee and revamped curricula at Northwestern and at University of Dayton School of Law).
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The Journal of the Kansas Bar Association | October 2010 15
Thinking Ethics Can We Be (Facebook) Friends? By Hon. Steve Leben, Kansas Court of Appeals, Topeka, lebens@kscourts.org
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couple of months after I had presided over a complex civil jury trial, I had lunch with one of the attorneys who had been involved in the case. He and I had been associates at the same firm many years ago, and we thought it was a good time to catch up after the trial. Over lunch, the conversation turned to Facebook. He used it quite a bit, and he explained to me that he had actually developed quite a relationship with one very good client through Facebook, which turned out to be the only means of communication that particular client really used. He invited me to communicate with him through Facebook too, but I didn’t have an account and really didn’t want to. As a trial judge, being affirmed is a good thing, even when the appellate court invokes the “right for the wrong reason” rule to do so. My decision not to enter a Facebook friendship with an attorney may have been that type of decision. Four conflicting judicial ethics advisory opinions have been given in the past two years on whether attorneys and judges may be friends on Facebook or similar social networks. Lest you unwittingly create a problem for yourself or a judge, I think it’s worth taking a minute to consider the differing views on this. In Florida Advisory Opinion 2009-20, the Florida Judicial Ethics Committee concluded that a lawyer should not be a Facebook friend of a judge: The issue ... is not whether the lawyer actually is in a position to influence the judge, but instead whether ... the identification of the lawyer as a “friend” on the social networking site conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted. The Florida committee rejected follow-up suggestions that a judge could just accept as friends all attorneys who ask and that a judge could place a disclaimer on the judge’s Facebook page explaining that Facebook friends are only acquaintances, not traditional friends. Fla. Advisory Op. 2010-6. Other ethics advisory opinions have suggested that a judge may have attorneys or other court participants as Facebook friends but that such relationships may lead to recusals: • A New York advisory committee noted that a judge “generally may socialize in person with attorneys who appear in the judge’s court” so that using technology to do so shouldn’t create an ethics violation for the judge. But the committee also cautioned that the public nature of these online friendships might create the appearance of a particularly strong bond so as to require disclosure, recusal, or both. N.Y. Advisory Op. 08-176 (2009). • A Kentucky committee said a judge could be a Facebook friend with persons who appeared in court, including at16 October 2010 | The Journal of the Kansas Bar Association
torneys, social workers, and law enforcement personnel. But the committee said it had “struggled with this issue” of judicial ethics and noted that several judges who had initially joined social-networking sites had since limited or ended their participation. The Kentucky committee urged judges to be “extremely cautious.” Ky. Advisory Op. JE119 (2010). • A South Carolina advisory committee concluded that a judge could be a Facebook friend with law enforcement officers so long as they didn’t discuss anything related to the judge’s position in the online communications. S.C. Advisory Op. 17-2009. For the judge, there seems good reason for caution. One state advisory committee concluded that a judge wasn’t ethically permitted to have attorneys as Facebook friends; other states’ advisory committees have been concerned that such publicly proclaimed friendships may lead to recusals. There are judicial ethics rules that lend support to these concerns. Rule 1.3 provides that a judge shall neither lend the prestige of office to others or allow others to do so; if an attorney indicated to clients that he or she was a close friend of the judge — and mentioned the online connection to bolster the claim — that would seem to fit within Rule 1.3 if the judge had reason to know about it. Rule 2.11 provides that a judge shall recuse when the judge’s impartiality might reasonably be questioned. For the attorney, getting a friendly judge recused may be unwise and getting a judge into an ethically problematic situation might turn into conduct prejudicial to the administration of justice, which violates the Kansas rules for attorney discipline. A judge in North Carolina was publicly reprimanded for having ex parte Facebook communication with one attorney in a domestic dispute while the dispute was in progress. In re Terry, N.C. Inquiry No. 08-234 (April 1, 2009). The attorney in that case — confronted in the evening with an improper Facebook communication from the judge — may have felt afraid not to respond and was clearly in an awkward situation. But by responding, the attorney violated the lawyer disciplinary rules on ex parte communication too. Certainly the rules don’t prohibit friendships between lawyers and judges, and that probably carries over to Facebook. One can argue that transparency is actually furthered when the friendship is documented and partially carried out online. But caution may be appropriate for the reasons noted in the Florida advisory opinion, to avoid recusals, and to avoid communications that otherwise might become problematic. n About the Author Hon. Steve Leben has been a member of the Kansas Court of Appeals since June 2007.
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Ethics for Good XI By Meg Wickham, Kansas Bar Association Public Services Manager
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he evenings are getting longer, fun family vacations are in full plan mode, many wedding invitations are being received …WAIT, it’s June already! “Oh no! I said I wouldn’t do it again,” said a Kansas attorney in a panic. “June 30 is right around the bend and I still need two hours of ethics CLE.” The 11th annual Ethics for Good CLE seminar fills the two-hour ethics requirement, but that’s just the Ethics part of the title. There is still the “good.” This is where the story begins. An unplanned lunch between Judge Steve Leben, of the Kansas Court of Appeals, and Mark Hinderks, of Stinson Morrison Hecker LLP, started a conversation of how the two had done multiple ethics presentations and “found it remarkable how wellreceived presentations could be when they were made in an entertaining manner,” said Hinderks. They found injecting humor into ethics presentation engaged the audience and increased their level of attention to the program substance, rather than a diversion from the material. A connection was created between humor and substance. With the help of Stan Davis (Shook, Hardy & Bacon LLP),who immediately and enthusiastically stepped up, they refined the idea and made it a reality. The program has expanded from a few simple jokes and game show formats to more elaborate scripting, staging and blocking. Regular program segments have become expected from the “ethics for good melodrama” to the ending haikus. The ethics event has moved from the typical conference rooms of hotels to theatrical venues, the Polsky Theatre in the Carlsen Center (courtesy of the Johnson County Community College Foundation) and the Folly Theater in downtown Kansas City, Mo. Both locations lend themselves to complex lighting, sound, and costuming. Two years ago new “cast” members Todd LaSala (Stinson Morrison Hecker LLP), Lori Schultz (Shook, Hardy & Bacon LLP), and Jim Griffin (Husch Blackwell Sanders LLP) have also added to the new ideas and talent. The next goal was to not only entertain and educate, but Leben and Hinderks also wanted to accomplish a link to the ethical “good” with trying to serve. It was then the idea to channel the money raised by the program to charities was born. The designated charities for 2010 were:
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The cast (above picture, left to right) of Hon. Steve Leben, Lori Schultz, Mark Hinderks, Stan Davis, Jim Griffin, and Todd LaSala. The 11th Annual Ethics for Good CLE teamed up with the Kansas Bar Association and the Kansas Bar Foundation to raise more than $59,000 for Kansas charities.
• Court Appointed Special Advocates (CASA); • Safehome and Hope House (domestic violence programs); • Metropolitan Organization to Counter Sexual Assault (MOCSA); • Kansas Foster & Adoptive Children; • Kansas Bar Foundation (KBF); and in addition • $1,000 Ethics for Good Scholarships were issued to each of the KU, Washburn and UMKC Law Schools and the Johnson County Community College paralegal program. The The KBA and KBF became involved in this exciting end of CLE year program in 2010. KBA staff designed the promotional materials, teamed up with law firm personnel at each venue, and handled all of the financial administration. In 11 years, $314,193 has gone to charity through this program. Leben reported that the partnership with the KBF helped make the 2010 event the most successful fundraiser for Ethics for Good to date with $59,407 going to this year’s charities. Attendance for both locations at this year’s program was 754. Hinderks said, “Every year we get hundreds of the same lawyers returning to and actively participating in the program. We appreciate this support from our peers very much.” n
The Journal of the Kansas Bar Association | October 2010 17
Members in the News Changing Positions
Daniel B. Bailey has joined Via Christi Health, Wichita. Hillary J. Boye has been named partner with Miller, Cashman & Schmitt LLP, Hiawatha. Laci L. Boyle has joined Bever Dye L.C., Wichita. Kelli M. Broers has joined Manson and Broers, Overland Park. Daniel F. Church has joined Morrow Wilnauer, and Klosterman LLC, Kansas City, Mo., as a partner. Kerry C. Connealy has joined Brady & Associates, Overland Park. Caleb D. Crook has joined Godderz Law Firm, Burlingame. Lynn M. Curtis has joined Gepford Law Group, Kansas City, Mo. Amy B. DeGraeve has joined Lathrop & Gage LLP, Kansas City, Mo. Mojirayo S. Fanimokun has joined the Wichita Area Association of Realtors, Wichita. Kimberly D. Farha has joined Hite, Fanning & Honeyman LLP, Wichita, as an associate. Rebecca J. Faurot has joined Williams & Williams Law Office, Kingman, as an associate. Daniel D. Gilligan has joined the Reno County District Attorney’s Office, Hutchinson, as an assistant district attorney. Christine M. Graham has joined Marshall & Isley Trust Co. N.A., Leawood. Monika Groom has joined the Sedgwick County District Attorney’s Office, Wichita. M. Catherine Hartnett has joined Martin, Leigh, Laws & Fristzlen P.C., Kansas City, Mo. Reese H. Hays has become Offutt Air Force Base Defense Counsel, Offutt Air force Base, Neb. Salvatore D. Intagliata and Trevor D. Riddle have joined Monnat & Spurrier Chtd., Wichita, as associates. Lisa R. Jones has joined Washburn University, Topeka, as legal counsel. Kathleen M. Kennedy has joined the Law Offices of Tim J. Larson P.A., Wichita. John M. Leavitt has joined Hulnick, Stang & Rapp P.A., Wichita. Eric W. Lomas has been added as an associate at Klenda, Mitchell, Austerman & Zuercher LLC, Wichita, and James A. Thompson and Robert W. Kaplan have become of counsel. Darin L. McCollum has joined Hinkle Elkouri Law Firm LLC, Wichita.
Sue C. Mayhue has joined Intrust Financial Corp., Wichita. Ryan D. O’Dell and Kenton E. Snow have joined Douthit Frets Rouse Gentile & Rhodes LLC, Kansas City, Mo., as members. Katherine L. O’Connor has joined Martin, Pringle, Oliver, Wallace & Brown LLP, Overland Park. Ryan A. Prochaska has joined Prochaska Giroux & Howell, Wichita Kathryn A. Regier has become a shareholder at Schlee, Huber, McMullen & Kraus P.C., Kansas City, Mo. Garrett C. Relph has joined the Barton County Attorney’s Office, Great Bend. Brett D. Sweeney has joined Butler County Attorney’s Office, El Dorado. Bryan T. White has joined White Allinder Graham Buckley & Carr LLC Independence, Mo., as an associate. Matthew D. Wright has joined Koch Chemical Technology, Wichita.
Changing Locations
Stephen L. Brave has started the firm Brave Law Firm LLC, 3500 N. Rock Rd., Ste. 201, Bldg. 220, Wichita, KS 67226. Michael E. Cleary, Ann G. Soderberg, Stephen M. Turley, Jennifer A. Wagle, and Karen B. West have started a firm at 154 N. Emporia, Wichita, KS 67202. Jennifer L. Dahlstrom has moved to 613 Washington St., Concordia, KS 66901. Mark A. Hannah, Attorney at Law, has moved to 130 N. Cherry, Ste. 203, PO Box 564, Olathe, KS 66051. Ethan S. Kaplan has started his own firm, Kaplan Law Firm P.A., PO Box 2579, Hutchinson, KS 67504. Andrew B. Protzman has started Protzman Law Firm LLC, 1100 Main St., Ste. 2600, Kansas City, MO 64105. Mindy B. Reynolds, Attorney at Law, has moved to 1215 SW Gage Blvd., Ste. A, Topeka, KS 66604. John M. Simpson has moved to 6314 Brookside Plaza, Ste. LL2, Kansas City, MO 64113. Christopher J. Towle has started his own firm, 4031 E. Harry, Wichita, KS 67218. Lonny Lane Walters has started his own firm, The Walters Law Firm LLC, 23A East 3rd St., Kansas City, MO 64106. Claudia Jo Weaver has started her own practice, Law Offices of Claudia J. Weaver, 4800 Rainbow Blvd., Ste. 100, Westwood, KS 66205.
Hon. James R. Kepple, Ness City, received the Lee Nusser Outstanding Magistrate Judges’ Award at a recent meeting of the Kansas District Magistrate Judges Association. Joslyn M. Kuriak and Erik Rome served as summer law clerks with Martin, Pringle, Oliver, Wallace & Brown LLP, Wichita. Polsinelli Shughart PC will merge the firm’s two locations into one located in Country Club Plaza, Kansas City, Mo. Robert H. Royer Jr., Abilene, has received recognition by city commissioners for being the longest serving member of the Abilene Economic Development Council. Correction: Jennifer R. Johnson has moved to Hinkle Elkouri Law Firm LLC’s Overland Park office at 10801 Mastin Blvd. Ste. 420, Overland Park, KS 66210 Editor’s note: It is the policy of The Journal of the Kansas Bar Association to include only persons who are members of the Kansas Bar Association in its Members in the News section.
Miscellaneous
Danton C. Hejtmanek, Topeka, has become the president of the Kansas Association for Justice.
18 October 2010 | The Journal of the Kansas Bar Association
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Your Carefully Crafted HOA Documents, Now Rewritten by the Kansas Legislature By Vernon L. Jarboe, Sloan Law Firm, Topeka, vjarboe@sloanlawfirm.com,and Derek L. Brown, University of Kansas School of Law
T
he Kansas Legislature recently passed House Bill 2472, the “Kansas Uniform Common Interest Owners Bill of Rights” (the Act)1. According to the Community Associations Institute, which serves such associations, sometimes known as homeowner associations (HOA), nationwide there are approximately 305,400 association governed communities with 24.4 million housing units and 60.1 million residents.2 These numbers include “a significant and increasing number of Kansans.”3 Due to the growing prevalence of this type of living arrangement, the effective management of these communities has become increasingly important. Despite the fact that there was no blood in the street, mismanagement examples presented to the Kansas Legislature, the Act, set to become effective January 1, 2011,4 sets forth strict guidelines that establish uniform powers, duties, and limitations for all common interest communities.5 The scope of the Act is broad; it applies to all communities that contain 12 or more units used for residential purposes.6 The Act could apply to everything from comprehensive condo projects to communities where the only shared space is a patch of grass. The Act sets forth various powers and duties of owner associations.7 Not surprisingly, many of the powers and duties appear to be aimed at accounting for and saving money. For example, the Act requires associations to adopt, and allows them to amend, budgets.8 This particular provision was probably designed to help cut down on fiscally irresponsible behavior by associations. Unfortunately this provision will be burdensome for the vast majority of associations that have operated effectively using their own methods of accounting. Another provision aimed at saving money involves the option to settle disputes via alternative dispute resolution.9 In other words, associations may require that disputes between the association and the unit owners or between two or more unit owners be settled using alternative dispute resolution rather than in a court of law.10 This provision was, seemingly, included to prevent overbearing associations from constantly threatening unit owners with litigation. It is unclear, however, how often these threats actually occur. One of the more questionable provisions of the Act involves limitations on the power of associations to suspend any right or privilege of a unit owner who fails to pay an assessment.11 The Act provides that an association may not withhold services if doing so would endanger the health, safety, or property of any person.12 Footnotes 1. H.B. 2472 § 1(a). 2. http://www.caionline.org/info/research/Pages/default.aspx. 3. H.B. 2472 § 1(b)(1). 4. H.B. 2472 § 1(d). 5. H.B. 2472 § 1(c). 6. H.B. 2472 § 6(a). 7. H.B. 2472 § 8(a). 8. H.B. 2472 § 8(a)(2). 9. H.B. 2472 § 8(a)(3). 10. Id. 11. H.B. 2472 § 8(a)(6). 12. H.B. 2472 § 8(a)(6)(C).
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The Act also lays out the various powers and duties of the board of directors.13 It establishes a duty of care and loyalty to be exercised by each member of the board.14 In addition, directors are not allowed to amend the declaration15 or bylaws16 and they can’t terminate the common interest community.17 Furthermore, in an effort to keep board members from overextending their power, the act prevents them from electing members to the board18 and from determining the qualifications, powers, duties, or terms of office of board members.19 One of the more noteworthy sections of the Act sets forth an open meetings20 and open records21 requirement. Meetings of the board of directors and committees of the association must be open to the unit owners except during executive session.22 In addition, associations are required to provide notice of meetings (except for emergency meetings) at least 10 days in advance but not more than 60 days in advance.23 The notice must state the time, date, and place of the meeting.24 The open records portion provides that if any materials are distributed to the board of directors before the meeting, then the board must make copies of those materials reasonably available to all unit members.25 This section is, presumably, to help ensure that the board of directors doesn’t conduct business behind the backs of the unit owners. There are numerous problems with this section. For one, the Act doesn’t require the unit members to RSVP, so it will be difficult for the board to know how to accommodate everyone. The board might have to resort to renting a space somewhere, which is an added cost. Another problem involves the potential cost of making copies of board materials reasonably available to all unit members. Depending on the size of the board packet and the number of attendees, the cost could become significant. Even if the cost isn’t significant, however, the provision creates an expense formerly not present. The passage of the Kansas Uniform Common Interest Owners Bill of Rights undoubtedly pleased most who participated in the discussion; however, one overarching concern has to be that the Act might result in decreased volunteerism. Currently, many HOAs have difficulty finding members who are willing to volunteer their time to serve on committees and boards. Those who do are often relatively unsophisticated in terms of the law. By imposing numerous new requirements on these individuals, it will likely become even more difficult to (Continued on next page) 13. H.B. 2472 § 9(a). 14. Id. 15. H.B. 2472 § 9(c)(1). 16. H.B. 2472 § 9(c)(2). 17. H.B. 2472 § 9(c)(3). 18. H.B. 2472 § 9(c)(4). 19. H.B. 2472 § 9(c)(5). 20. H.B. 2472 § 12(a). 21. H.B. 2472 § 12(f ). 22. H.B. 2472 § 12(a). 23. H.B. 2472 § 11(c). 24. Id. 25. H.B. 2472 § 12(f ).
The Journal of the Kansas Bar Association | October 2010 19
HOA Documents (con’t. from Page 19) fill the necessary positions. Another general concern regarding passage of the Act involves the impairment of existing contractual relationships. An individual who buys a home in an association signs documentation that legally binds him or her to the rules and requirements of the association. Essentially, the new Act serves to rewrite contracts even if everyone involved is getting exactly what they bargained for. While each of the aforementioned concerns seemingly has merit, the Kansas Legislature apparently decided that the good outweighed the bad and decided to pass the Act. Whether it results in the more effective management of common interest communities remains to be seen as it hasn’t become effective as of yet. Certainly however, passage of the Act represents a sweeping reform that should grab the attention of associations all across Kansas. It could also be viewed as a full employment act for attorneys, since associations that operated quite well without us in the past, will now need us more than ever. n
Vernon L. Jarboe Sloan Law Firm’s current president, has practiced law in northeast Kansas for more than 30 years. He is a 1973 graduate of Washburn University, earning a Bachelor of Political Science degree. He received his juris doctorate at the Washburn University School of Law in 1977, and earned an L.L.M. in Taxation from the University of Missouri at Kansas City in 1980. Derek Brown is a third year student at the University of Kansas School of Law and is a member of the Kansas Journal of Law and Public Policy. He is currently a law clerk at the Sloan Law Firm where he has gained experience in various areas including property, employment, and estate planning.
About the Authors
The Legacy Project (con’t. from Page 14) years before women were given the right to vote! She married another Washburn student, Don Shaffer, moved to Hutchinson, where, needless to say, she was the first female attorney in the county. Glee Smith, originally from Larned, now 89, served in WWII as an Army Air Corps navigator and went on to serve the public and profession in countless ways, including president of the State Senate, and being appointed to the first board of the Legal Services Corp. Twenty-five years ago, Smith summarized his view of the world in an article for this very Journal when he said: “As we begin a New Year in 1985, we, as lawyers, should rededicate ourselves to the professionalism and service aspects inherent in our oath and profession.” Well said. Presently, we have 32 replies out of the 218, but the true success remains unrealized. If you know someone from the
greatest generation, lend a hand and prompt them to complete the survey. Susan McKaskle (smckaskle@ksbar.org) can inform you of both the list and those we are waiting to hear from. In the spring, these stories will hopefully serve as the springboard for the results of our own survey. I’m expecting it will inspire all of us to achieve the level of professionalism and service embraced by Glee Smith a quarter century ago. n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon since 1985. He may be reached at mkeenan@shb.com.
Embedding Diversity (con’t. from Page 12) you when you need them, all free of charge. A diversity CLE seminar at the KBA annual meeting will be provided again. Finally, members of the Committee offer to serve as resources to local bar associations and other organizations looking for diversity programming. I am so excited about the long-term planning. We are researching other bar associations on their diversity efforts and determining if those efforts may be effectively implemented here. A report on our findings will be presented to the Board. One project currently underway is the diversity survey.8 The survey has been a labor of love for many but has not produced the desired results. To date, only 1.3 percent of KBA members actually returned the survey.9 For the KBA to meet its 2020 goal, it’s necessary to know the makeup of licensed attorneys in Kansas, and not just diverse ones.
If you have any questions about our projects, or would like to get involved with the Diversity Committee, please contact me. Increasing diversity and being more inclusive will not be easy, but it is worthy of everyone’s efforts. n About the Author Karen Hester is the director of Career Services and director of Diversity and Inclusion at University of Kansas School of Law. Prior to joining KU in 2005, she practiced elder law, including estate planning and probate. Hester has a Bachelor of Science in Mathematics, a Master of Science in student personnel and counseling, a juris doctor and a Master of Law in taxation.
8. The survey is currently available at the KBA website: http://www.ksbar.org/. 9. Of 6,953 KBA members, only 93 paper and electronic surveys have been returned.
20 October 2010 | The Journal of the Kansas Bar Association
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The Journal of the Kansas Bar Association | October 2010 21
Casemaker: Helpful Changes in Your Online Legal Research
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asemaker has been upgraded as a part of Lawriter’s continuing quest to meet the needs and desires of KBA members in a legal research tool. Casemaker is not just any online legal research product; it is your online legal research assistant whose only desire is to help find what you need as quickly and efficiently as possible.
New Additions to the State Libraries There are two types of state and District of Colimbia libraries, those that belong to consortium members (such as Kansas) and those that belong to nonconsortium members. State libraries belonging to consortium members offer a wide variety of legal information pertinent to that state. Nonconsortium member state libraries only offer case law, statutes, and regulations. One of the wonderful new additions to consortium member libraries are the session laws. These are updated after each state’s legislature finishes its legislative session. They will appear as a book in the consortium member’s state library. When using the browse function, the House or Senate Bill number will appear along with a short description of the bill. By clicking on the hyperlink, you will then be taken to the full text of the bill, which shows the amendments to any statutes in the bill. Additionally, the SuperCode links will continue to appear in statutes that have been amended and will provide links to the bill in the Session Laws, which amended the statutes. The statutes also have an archive link at the end of each statute that will now allow you to view the prior legislative history of a statute. Casemaker has also expanded the case databases in the state libraries and has added additional features. The case database for Kansas now goes back to 1931. Also, when you use the link to read a case, you will find not only pagination for the main citation, but also pagination for parallel citations, and footnotes are also linked. These upgrades are also available in the federal case databases.
tion. Those materials provide hyperlinks to the Casemaker library of cases, codes, and statutes. Also you may purchase some publications in full or by individual chapters. Casemaker digest is another new tool added to the Casemaker library that allows you to follow recent court activity in Kansas. Casemaker Digest compiles appellate and federal circuit court cases on a daily basis and sends you a weekly report of the cases that are important to you and your area of practice. Each case is summarized, easy to review, and contains links to the Kansas library. Also, Casemaker has gone mobile! If you have an iPhone or a BlackBerry, you may perform legal research on your mobile device by going to http://mobile.lawriter.net. You will be able to set your preferred library to either federal or state, once you login, and you will have access to all the Casemaker content. In the future Casemaker will continue its quest to meet your needs for online legal research by decreasing the time it takes you to search and will introduce Casemaker Elite, which will allow you to customize your own homepage. Every time Casemaker adds a new feature, it increases your ability to do online legal research in a more efficient, time-saving manner, becoming an integral part of law practice. n
Other Additions to Casemaker Casemaker has upgraded Casecheck to Casecheck+. This is a low-cost, high-value, member-optional subscription; if you choose not to subscribe individually to it, Casecheck will continue to appear and work the same. However, should you choose to subscribe to Casecheck+, an alert banner will appear at the top of a case alerting you to a case’s treatment by showing a green thumbs up (for positive treatment of a case), a red thumbs down (for negative treatment of a case), or a neutral yellow thumb (when a case has both negative and positive treatment). Additionally, in Casecheck+ you will be able to tell if a case has been modified, overruled, overruled in part, reversed, superseded, questioned, vacated, or withdrawn. CasemakerLibra is an online electronic library of linked publications and continuing legal education materials, which may be purchased by you for an unlimited annual subscrip22 October 2010 | The Journal of the Kansas Bar Association
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The Journal of the Kansas Bar Association | October 2010 23
24 October 2010 | The Journal of the Kansas Bar Association
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F
raud upon the government has a long – if not venerable – history. An oft-quoted Senate investigatory committee convened in the wake of the Civil War famously observed: Through haste, carelessness, or criminal collusion, the [Government] accepted almost every offer and paid almost any price ... regardless of character, quality, or quantity. ... For sugar, it often got sand; for coffee, rye; for leather, something no better than brown paper; for sound horses and mules, spavined beasts and dying donkeys; and for serviceable muskets and pistols, the experimental failures of sanguine inventors ... .1 The government is the quintessential deep pocket, one that many apparently feel ambivalent about dipping into. Perhaps it’s because so many of us pay taxes – perhaps we feel as though we’re only getting back some of what we gave. Perhaps it’s because, when the government spends $900,000 to purchase a single patrol boat,2 $92 billion annually on “corporate welfare”,3 and more than $2.5 million on charitable boondoggles such as teaching Chinese prostitutes to use alcohol responsibly,4 it seems – perhaps justifiably – that there is cash to spare. The law that has emerged in response to this impulse is, thankfully, more easily fathomed than fraudsters’ varied justifications and rationales. For more than 130 years, the federal False Claims Act (FCA/Act) has been the chief weapon in the federal government’s arsenal to combat contractor and vendor fraud.5 The FCA is a dual deterrent and recovery tool. Under the Act, anyone who submits a “false claim” for payment or property to the United States is subject to civil penalties and multiplied actual damages. These remedies are typically brought to bear within the contractual relationship between the federal government and one of the many private contractors who provide it with goods and services. Since the passage of the 2005 Deficit Reduction Act (DRA),6 a growing number of states have created analogous state-level legislation. Twenty-four have adopted their own versions of the FCA, and Kansas joined them in April 2009 with the Kansas False Claims Act (KFCA).7 Kansas legislators were initially attracted to the false claims act altar by the DRA’s incentives.8 But the DRA imposes relatively stringent, non-negotiable qualification requirements on the content of state false claims act legislation.9 To qualify, state legislation must be “at least as effective in rewarding and facilitating qui tam actions for false and fraudulent claims” as the FCA.10 Given the explicit reference to the FCA and a lack of other guidance clarifying what makes a state’s act “at least as effective” as the FCA, many states opted to parrot the Act closely. Kansas is among them. This is fortunate for Kansas attorneys and courts, as it provides us with a ready-made and comprehensive body of authority to draw upon in construing the newly-minted KFCA.11 The KFCA is not, however, a carbon copy of the FCA. It differs in significant ways that bear comment and which this article will explore. Additionally, the KFCA provides the Kansas Attorney General’s (AG) office with new powers, and many attorneys who might not otherwise suspect may find their clients within the reach of its provisions.
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Legal Article: Kansas False Claims Act ...
I. Construction of the Kansas False Claims Act It seems appropriate to begin an examination of the KFCA with a note about how the Act should be construed. Courts construing the FCA have reached differing conclusions regarding the appropriate standard of construction, declining, in some instances, to apply a broad construction, but resisting, too, invitations to apply a strict construction across the board.12 The KFCA demonstrates an awareness of this division and attempts to provide some guidance: The KFCA, it instructs, is to be “broadly construed to promote the public interest.”13 Superficially, the KFCA’s construction clause may seem rather platitudinal. Would Kansas courts tend to construe the KFCA against the public interest? But the KFCA attempts to at least address inevitable questions concerning construction, and this broad appeal to public policy opens the door for Kansas lawyers and judges to refer to the state’s existing jurisprudence evaluating when the public interest is and is not served in other contexts.14 To the extent any of it illuminates and identifies the “public interest,” it is potential guidance and rhetorical fodder.
II. Qui Tam Relators and the Kansas False Claims Act A significant difference between the KFCA and the FCA is in the area of qui tam.15 While a private party, or “relator,” may sue on behalf of the federal government under the FCA, and that Act encourages such suits by allowing relators to share in the recovery from any suit they initiate, only the AG can sue under the KFCA.16 Although it is often the substrate for meritorious suits,17 qui tam litigation under the FCA may do more harm than good: relators’ suits are often meritless and are always an expensive burden upon defendants.18 It is thus unsurprising that Kansas opted not to copy the qui tam provisions of the FCA. Members of the Kansas Judicial Council’s False Claims Act advisory committee were divided on this issue, with the AG’s office favoring the inclusion of a qui tam provision.19 Other members noted, however, that the majority of relators’ suits under the FCA are rejected and only a small percentage actually recover anything, while the cost of defense to Kansas companies would be huge in any event.20 Ultimately, the KFCA was adopted without qui tam. It is therefore clear the KFCA does not comply with the DRA’s requirement that it be “at least as effective as [the FCA] in rewarding and facilitating qui tam actions,” and so Kansas will not receive the DRA’s incentives. But the AG’s office will still enjoy the power of a KFCA-based fraud deterrent and recovery strategy, and is relieved of the more demanding requirements (in terms of intent and burden of proof ) of the criminal statutes that were previously its chief remedy.
III. Investigation, Prosecution, and Anti-Retaliation There are no relators under the KFCA – the Act expressly provides that it does not give rise to a private cause of action.21 Whistleblowers, consequently, do not share in any recovery under the KFCA, and the Act does not otherwise provide any reward to them. Only the AG’s office can sue, and neiThe Journal of the Kansas Bar Association | October 2010 25
Legal Article: Kansas False Claims Act ... ther whistleblowers nor anyone else can do aught but report a violation of the KFCA and wait for the AG to investigate and prosecute.22 This is perhaps the most significant difference between the KFCA and the FCA. The absence of qui tam removes the chief incentive for whistleblowing and places the onus of enforcement upon the state – an arrangement which, in light of Kansas’ current budgetary problems, seems less than optimal. Although the KFCA does not encourage whistle-blowers, it does endeavor to protect them from liability for coming forward, by providing a private cause of action for any employee who is retaliated against in any manner for actions that he or she, in good faith, undertakes to support an action under the KFCA.23 The remedy for such a suit includes all relief required to make the employee whole,24 which would presumably include attorney fees. These anti-retaliation provisions were not included in the precursor to the enrolled KFCA, House Bill 2943, but were recommended by the Judicial Council Advisory Committee.25 Committee members were concerned that the KFCA, because it lacked a qui tam provision, not only failed to encourage whistleblowing, but also left whistleblowers vulnerable to retaliation.26 This concern, however, was tempered by the awareness that Kansas law already recognizes a claim for retaliatory discharge.27 Thus, this provision of the KFCA was derived from the corresponding provision of the FCA, 31 U.S.C. § 3729(h), but the Legislature refrained from prescribing specific remedies.28 The KFCA apparently incorporates the common law tort of wrongful discharge, and makes firing for reporting a KFCA violation an instance of “state public policy clearly declared by the Legislature” upon which a claim of wrongful discharge may be based.29 The anti-retaliation provisions of the KFCA do contain a puzzling limitation: the legislative history of the Act suggests that the drafters intended for an employee to be able to maintain an action for retaliatory discharge if fired for blowing the whistle on his or her employer,30 yet the KFCA expressly limits such a remedy to those instances where the whistle blowing actions were undertaken “in good faith.”31 The good faith limitation is consistent with common law in Kansas, as our courts have held that the tort of retaliatory discharge is available only to those employees who acted in “good faith based on a concern regarding the wrongful activity reported rather than for a corrupt motive like malice, spite, jealousy, or personal gain.”32 The question this provokes is simply, why? Suppose a violator’s disgruntled employee, motivated by a desire to harm his or her employer, reports a violation-in-fact of the KFCA to the AG’s office. If the report is accurate, the public fisc may be protected and the greater good served no matter the whistleblower’s subjective motivation. Indeed, it would hardly be a surprise to learn that many whistleblowers are motivated, at some level, by a desire to harm the entity against whom they are informing. However, although “good faith” is an amorphous concept, it is at least commonly understood to be a state of mind mutually exclusive of an intent to injure.33 Notwithstanding that the underlying goals of the KFCA would be served by granting the whistleblower protection, the good faith requirement could well preclude him or her 26 October 2010 | The Journal of the Kansas Bar Association
from maintaining a cause of action for wrongful retaliation. The Legislature missed the opportunity to shed the good faith requirement and to further encourage free reporting of KFCA violations.
IV. Damages and Remedies Under the Kansas False Claims Act The KFCA’s penalty provisions provide that a violator is liable for triple damages plus a civil penalty between $1,000 and $11,000 per violation.34 And, similar to the FCA’s fee-shifting provisions in favor of relators, a violator under the KFCA is liable for all attorney fees and costs the state incurs.35 The Act offers a relative safe harbor for violators who self-report within 30 days of learning of a violation, and then cooperate fully in the subsequent investigation.36 Under both the KFCA and FCA, penalties can quickly surpass actual damages, even when doubled or tripled. Especially in the health-care context, where a provider invoices the government far more frequently than, for instance, a seller of supplies, penalties accrue with startling rapidity.37 The KFCA aims to be at least partially self-funding, providing that 10 percent of any “recovery” is to be deposited in the “false claims litigation revolving funds.”38 That money can then be used to hire “necessary staff” and otherwise fund enforcement efforts, including the retainer of counsel outside the AG’s office.39 The AG is also authorized to hire other “necessary staff,” a phrase which is not defined by the Act or explicated by the legislative history, but which could include not only administrative personnel, but also lay investigators.40
V. Grounds for Liability Under the Kansas False Claims Act The business end of the KFCA closely mirrors that of the pre-Federal Enforcement and Recovery Act (FERA) FCA.41 The following table (p. 27) provides a side-by-side comparison of the relevant provisions. All elements must be proven by a preponderance of the evidence.42 (In the accompanying chart on p. 27, which contains endnote referents 43 and 44, the areas in which the KFCA deviates from the FCA are bolded. A. Common Elements: No Proof of Damage The plain language of the FCA and the KFCA do not seem to require a showing of actual damage. Federal courts differ on the question – some have held the FCA requires damage,45 while others have reasoned that because the FCA is intended to serve not just as a means of recouping damage caused by fraud, but as deterrent against further fraud, that purpose is best served “by [not] waiting until the public fisc is actually damaged. By attaching liability to the claim or demand for payment, the statute encourages contractors to ‘turn square corners when they deal with the government.’”46 Obviously, without damages, the state’s recovery under the KFCA will be limited to penalties. The purpose of the KFCA is similar to that of the FCA.47 However, given the extremely broad scope of the KFCA, which extends to false claims presented not just to the state and its political subdivisions, but also to anyone who receives “funds” from the state, a threshold requirement of damage www.ksbar.org
Legal Article: Kansas False Claims Act ... Federal FCA
Kansas FCA
(a)(1)43 knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;
(a)(1)44 knowingly presents, or causes to be presented, to any employee, officer, or agent of the state or political subdivision thereof or to any contractor, grantee or other recipient of state funds or funds of any political subdivision thereof, a false or fraudulent claim for payment or approval;
(a)(2)
knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;
(a)(2)
knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved;
(a)(7)
knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government;
(a)(3)
defrauds the state or any political subdivision thereof by getting a false claim allowed or paid or by knowingly making, using, or causing to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or to any political subdivision thereof.
(a)(4)
has possession, custody, or control of property or money used, (a)(4) or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt;
has possession, custody, or control of public money or property used, or to be used, by the state or any political subdivision thereof and knowingly delivers or causes to be delivered less property or money than the amount for which the person receives a certificate or receipt;
(a)(5)
authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;
(a)(5)
is authorized to make or deliver a document certifying receipt of property used or to be used by the state or any political subdivision thereof and knowingly makes or delivers a receipt that falsely represents the property received.
(a)(6)
knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or
(a)(6)
knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property; or
(a)(7)
is a beneficiary of an inadvertent submission of a false claim to any employee, officer, or agent of the state or political subdivision thereof, or to any contractor, grantee, or other recipient of state funds or funds of any political subdivision thereof, who subsequently discovers the falsity of the claim and fails to disclose the false claim and make satisfactory arrangements for repayment to the state or affected political subdivision thereof within a reasonable time after discovery of the false claim.
(a)(8)
conspires to commit any violation set forth in paragraphs 1 through 7, above.
(a)(3)
conspires to defraud the Government by getting a false or fraudulent claim allowed or paid.
would be appropriate.48 Furthermore, as a practical matter, damage is still likely to be key in many KFCA suits. The state’s recovery is still limited to a multiple of actual damages, and the penalty provisions that might otherwise make a KFCA suit worth pursuing can be abrogated by the defendant’s conduct.49 B. Common Elements: Knowledge There is no liability under the KFCA or the FCA unless an act is done “knowingly,” which requirement is met when a defendant (1) has actual knowledge, (2) is deliberately ignorant of it, or (3) acts in reckless disregard of truth or falsity.50 Specific intent – purpose – to defraud is not required (except perhaps under (a)(3), see section VI, infra, discussing Allison Engine).51 The KFCA thus addresses a broad spectrum of intent. The “actual knowledge” standard addresses deliberate falsehoods; however, because specific intent to defraud is not required (but see section VI, infra), a defendant need not actually intend to induce the government’s reliance upon the falsehood.52 All that is necessary is that the defendant actually know that he submitted a false claim.53 The purpose of the deliberate ignorance and reckless disregard standards is to reach conduct that is more than merely www.ksbar.org
negligent, but which does not quite rise to the level of a knowing falsehood: “ostrich-like” behavior or the “refusal to learn of information which an individual, in the exercise of prudent judgment, had reason to know.”54 The standard imposes an affirmative duty of care upon government contractors.55 Courts construing the FCA have agreed that mere negligence, or even gross negligence, is not sufficient to satisfy the requirement that an act be done “knowingly.”56 Rather, “[t]he severity of conduct required to constitute ‘reckless disregard’ underscores that innocent mistakes, mere negligence, or even gross negligence (without more) are not actionable under the False Claims Act.”57 Said another way, deliberate ignorance and reckless disregard is “an aggravated form of gross negligence, or ‘gross negligence-plus.’”58 The KFCA contains an oddity, however, that did not come from the FCA. It provides that “an innocent mistake” is a defense.59 This is odd because this proposition goes without saying – it is clear from the plain language of the KFCA that liability flows only from “knowing” acts, and even without the benefit of FCA jurisprudence, it is equally clear that an “innocent mistake” falls far short of “deliberate ignorance” or “reckless disregard.” And this gratuity may present a problem: the presumption in Kansas, as in most – if not all – other The Journal of the Kansas Bar Association | October 2010 27
Legal Article: Kansas False Claims Act ... jurisdictions, is that the Legislature does not intend to include meaningless surplusage in a statute.60 Kansas courts may be pressed to reconcile the “innocent mistake” defense with the statutory definition of “knowing,” a labor the Legislature could have avoided by simply omitting the former. Hopefully, courts will recognize that this is surplusage, and does not loosen the intent requirement of the KFCA so that negligence, or even gross negligence, will suffice. 61 C. Common Elements: A Claim With the exception of subsection (a)(3),62 the “reverse false claims” provision, the KFCA applies only to “claims.”63 A “claim” is [A]ny request or demand ... for money, property or services made to any employee, officer or agent of the state or any political subdivision thereof or made to any contractor, grantee or other recipient if the state or any political subdivision thereof provides any portion of the money, property or services which is requested or demanded, or if the state will reimburse such contractor, grantee or other recipient for any portion of the money or property which is requested or demanded.64 This broad definition focuses on the source of funds: so long as the state or some political subdivision thereof provides the money, property, or services at issue, there is a claim.65 The KFCA’s definition of a “claim” is substantially similar to that of the FCA.66
28 October 2010 | The Journal of the Kansas Bar Association
D. Common Elements: False or Fraudulent, and Does it Make a Difference? Neither the KFCA nor the FCA define “false” or “fraudulent.” Federal courts have variously defined “false,” as will be discussed, infra, but the Ninth Circuit may have done so most simply when it said that “false . . . means ‘a lie.’”67 This may not be entirely accurate, however, as it implies a level of intent beyond what the KFCA actually requires: a lie is generally interpreted as an intentional misrepresentation, while the KFCA imposes liability upon reckless misrepresentations, too.68 But it is pithy, easy to remember, and comes close. Federal courts generally treat false and fraudulent as synonymous.69 However, “fraudulent” reaches defendants who have defrauded the Government, but not necessarily made a false statement.70 Such cases involve schemes where the heart of the fraud is a deceptive omission, rather than an affirmative misrepresentation.71 If the sweeping and highly criticized implied certification doctrine gains acceptance, see infra, “fraudulent” may become superfluous.72 It is clear that the knowledge requirement – “knowingly” – applies to the element of falsity.73 Thus, a defendant is not liable unless it actually knew a claim was false, acted with reckless disregard of that fact, or was deliberately ignorant of whether a claim was false. Math errors or other technical mistakes do not make a false claim.74 As noted previously, it is an oversimplification to say that a false claim is simply a “lie.” Courts construing the FCA have identified subcategories of false claims: every false claim is either “legally false” or “factually false.”75 Factual falsehood is
www.ksbar.org
Legal Article: Kansas False Claims Act ... straightforward: the defendant submits an “incorrect description of goods or services provided or a request for reimbursement for goods or services never provided.”76 Legal falsehood is easily explained, as well, but is somewhat more difficult to identify in practice. A defendant makes a legally false claim when it expressly or impliedly “certifies compliance with a statute[,] regulation,” or a contractual provision “as a condition to government payment, yet knowingly fail[s] to comply” with it.77 “An expressly false claim is, as the term suggests, a claim that falsely certifies compliance with a particular statute, regulation, or contractual term, where compliance is a prerequisite to payment.”78 The government’s Standard Form 1443, which is sometimes used by a contractor of the United States to request payment, contains an express certification: “I certify that the above statement ... has been prepared from the books and records of the above-named contractor in accordance with the contract ... .”79 A defendant submits an impliedly false claim, conversely, when it requests payment pursuant to a contract or statute, but has not satisfied its terms.80 It is not necessary to expressly certify compliance – the act of requesting payment constitutes an “implied certification” of compliance. When government procurement contracts are hundreds of pages long, incorporating supporting process documentation of equal or greater length, instances of such noncompliance are not uncommon. The sweep of the implied certification doctrine is broad, to put it mildly.81 Two additional requirements mitigate the scope of the FCA and, presumably, the KFCA. First, courts have held that a false statement must be “material” to the government’s decision to pay.82 Second, particularly where regulatory noncompliance is an issue, compliance must be a precondition of payment, rather than merely a condition of participation in a particular government program.83 These requirements apply to any “false certification” claim – either express or implied; however, their effects are a critical limitation upon the implied false certification doctrine.84 The materiality and precondition to payment requirements prevent every breach of contract or instance of regulatory noncompliance from becoming a predicate for a suit.85 As courts have noted, the FCA is not for policing contractual compliance.86 Mere breach of contract, without more, should not activate the punitive remedies of the FCA or the KFCA.87 Courts have construed “material” to mean different things, and the circuits were split on what test to use. Some adopted a plaintiff-friendly, “natural tendency” test, under which a false statement was “material” if it had “a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed.”88 Other courts utilized an “outcome” test, which seemed to apply straightforward principles of “but-for” causation: Would the government have paid the claim had it known of the noncompliance?89 Recent revisions to the FCA90 have codified the materiality requirement and expressly adopted the natural tendencies test; however, the KFCA does not reflect these amendments, and Kansas courts remain free to adopt the version that best suits this state’s public policy. Given the comparatively broad scope of the KFCA (see section VI, infra), the more restrictive “outcome” test seems to be the only reasonable choice. www.ksbar.org
VI. Specific Bases of Liability A. K.S.A. 75-7503(a)(1)/31 U.S.C. 3729(a)(1) – Knowingly presents, or causes to be presented, to any employee, officer, or agent of the state or political subdivision thereof or to any contractor, grantee or other recipient of state funds or funds of any political subdivision thereof, a false or fraudulent claim for payment or approval. Subsection (a)(1) of the FCA, which the KFCA closely copies, gets more mileage in the federal courts than any other. The scenario it addresses – “anyone who ... presents, or causes to be presented ... a false or fraudulent claim for payment or approval” – is the archetype of government procurement fraud, that of an unscrupulous contractor blithely requesting payment for goods or services that it never provided.91 “[C]auses to be presented” has been construed to reach subcontractors who submit false claims indirectly because their connection to the government is attenuated by one or more intermediaries.92 Thus, to establish liability under subsection (a)(1) of the FCA, the federal government must show that a defendant, with “knowledge” of every element, presented or caused a false claim to be presented to a member of the armed forces or an officer or employee of the federal government.93 The KFCA differs from the corresponding FCA provision in that it extends not only to false claims submitted to the state, but to (1) any “political subdivision thereof ” or (2) to any contractor, grantee, or other recipient of state funds or the funds of any political subdivision thereof.94 A defendant may therefore be liable not only for submitting a false claim to the state of Kansas, but to also, for instance, the city of Wichita. The FCA contains no analog – if it did, the KFCA would be unnecessary, because Kansas and other “political subdivisions” would be within the FCA’s umbrella of protection. This provision, however, seems consistent with the KFCA’s purpose of deterring fraud against the government, by extending its deterrent effect to all instances where a defendant attempts to obtain taxpayer money through deceit. Another area where the KFCA differs significantly is the provision regarding claims “to any contractor, grantee, or other recipient of state funds or the funds of any political subdivision thereof.” This thought-provoking provision seems to extend liability to instances where a false claim has been directly or indirectly presented not to the state or any identifiable subdivision thereof, but to anyone to whom the state or a political subdivision thereof has given “funds,” be he or she a “contractor” (someone who, presumably, has received “funds” in return for services or materials) a “grantee” (someone to whom funds have simply been given), or “any other recipient.” How many businesses in Kansas receive such “funds”? Each of them, according to this provision, is poisonous fruit to anyone who recklessly or intentionally presents it with a false claim. The “parade of horribles” practically writes itself. Prosecutorial discretion, presumably, will prevent an $11,000 penalty from being levied against the waiter who overcharges a table of construction workers building a municipal roadway, or other absurd scenarios. But the potential scope of liability gives one pause, to say the least. The Journal of the Kansas Bar Association | October 2010 29
Legal Article: Kansas False Claims Act ... B. K.S.A. 75-7503(a)(2)/31 U.S.C. 3729(a)(2) – Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved. Subsection (a)(2) of the KFCA and the FCA are identical. The chief difference between this subsection and (a)(1) is the requirement of a false record or statement, which may be satisfied by a document that contains false assertions or misleading omissions.95 The false statement must be submitted “to get” a false statement paid or approved, as in the case, for instance, of an invoice that falsely represents that work was performed when it was not.96 The Supreme Court has held that because that is: because “‘[t]o get’ denotes purpose,” the false record or statement must be made for the purpose of obtaining payment or approval, which appears to be a more exacting intent requirement than “knowingly.”97 C. K.S.A. 75-7503(a)(3)/31 U.S.C. 3729(a)(3) – Defrauds the state or any political subdivision thereof by getting a false claim allowed or paid or by knowingly making, using, or causing to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or any political subdivision thereof. Subsection (a)(3) addresses “reverse false claims”: situations where, rather than fraudulently inducing the government to pay a liability that it does not actually owe, the defendant deceives the government regarding a liability or obligation that the defendant owes to the government.98 This provision typically comes into play in situations where a defendant uses a false statement or record to underpay some obligation, such as rent, postage, or oil royalties.99 Courts are divided whether this section of the FCA also applies when a defendant uses a false record or statement to evade some other provision of the law.100 In one case, a defendant whose incomplete records would have revealed a penaltyincurring violation of the Clean Water Act was liable not only for that violation, but also for a “reverse false claim.”101 Nothing in the legislative history of the KFCA reveals whether the Legislature intended the statute to cover such “reverse false claims.” If applied without restriction, this interpretation of the reverse false claims provision seems to create an additional penalty overlaid upon any crime or regulatory violation for which a defendant incurs a liability in the form of a fine, penalty, or forfeiture that he or she then tries to avoid through the use of a false statement.102 That such an application might have a powerful deterrent and punitive effect seems undeniable, but it is equally undeniable that it could cause the KFCA’s triple damages and substantial penalty provisions to be brought to bear in unexpected ways against undeserving defendants whose transgressions are perhaps already sufficiently addressed by the same fines and penalties they sought to avoid. It may be, as one district judge observed (and as the Court of Appeals for the Sixth Circuit eventually agreed), that “[s]o drastic an expansion in the scope of the False Claims Act ... could not reasonably have been intended ... .”103 Kansas courts may find the line of reasoning employed by the Eighth Circuit persuasive, which held that a noncontractual liability was not the sort of “obligation” that the reverse false claims provision was intended to reach: 30 October 2010 | The Journal of the Kansas Bar Association
To recover under the False Claims Act. ... the United States must demonstrate that it was owed a specific, legal obligation at the time that the alleged false record or statement was made, used, or caused to be made or used. The obligation cannot be merely a potential liability: instead ... a defendant must have had a present duty to pay money or property that was created by a statute, regulation, contract, judgment, or acknowledgment of indebtedness. The duty, in other words, must have been an obligation in the nature of those that gave rise to actions of debt at common law for money or things owed. This interpretation of the term “obligation” is supported by the legislative history of the reverse false claims provision, which refers twice to “money owed,” ... as the kind of duty that the reverse claims provision is designed to address. The deliberate use of the certain, indicative, past tense suggests that Congress intended the reverse false claims provision to apply only to existing legal duties to pay or deliver property. Had Congress wished to cover attempts to avoid potential fines or sanctions it would have used language appropriate to that end.104 The KFCA’s reverse false claims provision also contains an addendum not present in the FCA – it prohibits “defraud[ing] the state ... by getting a false claim allowed or paid.”105 The preFERA106 FCA contained similar language in subsection (a)(3), which imposed liability upon defendants who “conspire to defraud the government by getting a false or fraudulent claim allowed or paid.”107 Courts construing that language have held that to establish liability under this subsection, the government must show the existence of a conspiracy with the purpose of getting a false or fraudulent claim allowed or paid.108 Thus, this provision may require a more specific intent than “knowingly.” The Supreme Court’s recent holding in Allison Engine that “to get” and “getting” denotes something akin to specific intent further supports this conclusion,109 as does the fact that the standard intent requirement of the KFCA – that the act be done “knowingly” – is omitted from the first clause of subsection (a)(3). It therefore appears that (a)(3) both addresses both “reverse false claims” and serves as a generic catchall applying to any situation in which a defendant has purposefully deceived the government into paying or allowing a false claim. D. K.S.A. 75-7503(a)(4)/31 U.S.C. § 3729(a)(4) – Has possession, custody, or control of public money or property used or to be used by the state or any political subdivision thereof and knowingly delivers or causes to be delivered less property or money than the amount for which the person receives a certificate or receipt. This subsection of the KFCA also closely mimics the corresponding subsection of the FCA, which was designed to address instances where a defendant has temporary custody of government property and refuses to return it.110 Courts construing the FCA provision have determined that the elements of liability include a showing that the defendant (1) intending to defraud the government or to willfully conceal the property; (2) had possession, custody, or control of government money or property; and (3) delivered less of the property than www.ksbar.org
Legal Article: Kansas False Claims Act ... the amount for which he or she received a certificate or receipt from the government, created by the government.111 The KFCA’s language is identical to that of the FCA’s (a)(4), except in its description of the intent requirement. The KFCA improved upon its inspiration here. Where the pre-FERA112 FCA contained a confusing and mixed scienter requirement – both “willful” and “intending to defraud” – the KFCA simply requires the acts be done “knowingly.” The government must therefore show that a defendant – recklessly, intentionally, or with willful ignorance – failed to deliver all of the government property for which he or she received a certificate or receipt.113 E. K.S.A. 75-7503(a)(5)/31 U.S.C. § 3729(a)(5) – Is authorized to make or deliver a document certifying receipt of property used or to be used by the state or any political subdivision thereof and knowingly makes or delivers a receipt that falsely represents the property received. Subsection (a)(5) of the KFCA substantially mirrors the corresponding section of the FCA. As with (a)(3) of the KFCA, however, the Kansas Legislature loosened the scienter requirement so that while the FCA requires the government to show intent to defraud, liability attaches under the KFCA so long as the defendant acted “knowingly.”114 There appears to be little or no law usefully construing the federal counterpart, but it was a part of the original version of the FCA written in 1863, and appears to have been included to address Civil War-era concerns with government agents who falsely certified receipt of goods that were either never delivered or that did not meet the description certified.115 Subsection (a)(5) of the KFCA, therefore, requires the state to show that a defendant, authorized to certify receipt of property on behalf of the state or some political subdivision thereof, makes or delivers such a document that incorrectly describes the property received – either as the result of reckless disregard, deliberate ignorance, or actual knowledge of the falsity thereof.116
Subsection (a)(7) has no counterpart in the FCA, and the available legislative history is uninstructive. It appears to reach defendants who have benefited from an overpayment of government funds as the result of unintentional submission of a false claim. Elements of liability include that a defendant be a (1) beneficiary of an inadvertent submission of a false claim; (2) that such a false claim be inadvertently submitted to the state, some political subdivision thereof, or to any recipient of the funds of either; (3) said beneficiary discovers the claim to be false; (4) fails to disclose such knowledge; (5) fails to make satisfactory arrangement for repayment of the funds to their originator (unless the originator is the recipient of the funds, in which case the funds are apparently to be repaid to the state or political subdivision that first paid them); and (6) the beneficiary’s repayment arrangement must be made within a “reasonable time” after discovery of the false claim. This section raises a number of questions. First, when does one become a beneficiary of a false claim? Second, when is the submission of a claim “inadvertent?” Third, what level of disclosure is required? Fourth, when is a repayment arrangement satisfactory, and by whose satisfaction is such repayment arrangement evaluated – that of the court, the AG, the originator of the funds, or a “reasonable person?” Fifth, and finally, what is a reasonable time? The legislative history of the KFCA is silent on these matters.119 Some answers can be inferred. “Beneficiaries” to whom this subsection extends liability may include more than simply those who receive funds paid upon a false claim; otherwise, the legislature could merely have referred to “payees.” Because (Continued on next page)
F. K.S.A. 75-7503(a)(6)/31 U.S.C. § 3729(a)(6) – Knowingly buys or receives as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property. Subsections (a)(6) of the pre-FERA FCA and the KFCA are identical, with one exception. Whereas the FCA imposes liability only when a defendant receives public property from a government employee or member of the armed forces, the KFCA applies when a defendant receives public property from anyone who is not authorized to pledge or sell it, regardless of affiliation.117 This subsection of the FCA was added to address concerns about soldiers selling government property.118 G. K.S.A. 75-7503(a)(7) is a beneficiary of an inadvertent submission of a false claim to any employee, officer or agent of the state or political subdivision thereof, or to any contractor, grantee or other recipient of state funds or funds of any political subdivision thereof, who subsequently discovers the falsity of the claim and fails to disclose the false claim and make satisfactory arrangements for repayment to the state or affected political subdivision thereof within a reasonable time after discovery of the false claim. www.ksbar.org
The Journal of the Kansas Bar Association | October 2010 31
Legal Article: Kansas False Claims Act ... liability under (a)(7) does not depend upon the submission of the false claim, but rather on the knowing acceptance and detention of the wrongful benefits, construing “inadvertence” to comprehend all unintentional conduct does not seem out of the question. Answers to the other questions, however, are not so readily apparent. H. K.S.A. 75-7503(a)(8) – Conspires to commit any violation set forth in paragraphs (1) through (7) above. Subsection (a)(8) of the KFCA attaches liability to any conspiracy to commit any of the seven categories of actions that the KFCA prohibits.120 This provision is fairly straightforward, but raises at least two questions. First, what constitutes a conspiracy? Courts construing the anti-conspiracy provisions of the FCA have held that “general civil conspiracy principles apply.”121 Assuming Kansas courts apply the same principles to the KFCA, the state must show an unlawful objective to be accomplished, a “meeting of the minds” among the co-conspirators with respect to their unlawful objective, and an unlawful overt act in furtherance of that conspiracy.122 Second, while the pre-FERA123 FCA addressed only conspiracies formed “to get” false claims allowed or paid, the broader anti-conspiracy provisions of the KFCA apply to subsections with a less exacting intent requirement – “knowingly” – that includes not just actual knowledge, but also unintended consequences, such as those acts achieved through deliberate ignorance and reckless disregard. The KFCA consequently contains the potential to present courts with a difficult-to-answer question: how does one prove a conspiracy – an agreement – to produce an unintended result?124 Kansas courts and the courts of other jurisdictions have rejected, in other contexts, conspiracy-based liability for negligent wrongdoing.125 Because the “reckless disregard” component of the KFCA’s requirement of knowledge presumably incorporates the “gross negligence-plus” standard developed by federal courts (a breed of carelessness even more bereft of anything resembling intent than regular negligence), it stands to reason that a subsection (a)(8) conspiracy action will only lie for violations of the KFCA that are committed with actual knowledge.126
VII. Procedure Procedurally, the KFCA and the pre-FERA FCA are materially identical in most respects. A. Prospective Defendants Any “person” can be a defendant under the KFCA, and “person” is defined as any natural person, corporation, firm, association, organization, partnership, business, or trust.127 Although the FCA exempts certain classes of defendants,128 the KFCA contains no such exceptions. Eleventh Amendment immunity for states, agency principles (e.g., to what extent is a corporate principal liable for the actions of its employee), and other independent doctrines, however, may mitigate and curtail the ostensible scope of the KFCA. 129 Neither the FCA nor the KFCA extends to violations of the tax code.130 The purpose of this “tax bar,” as it has been called by federal courts, is to “reserve[] discretion to prosecute tax violations to the IRS and bar[] FCA actions based on tax violations.”131 32 October 2010 | The Journal of the Kansas Bar Association
B. Statute of Limitations Under both the FCA and the KFCA, the statute of limitations may be as much as 10 years, provided the 10 years does not run before the later of (1) six years from the date on which a violation of the KFCA occurred or (2) three years after the date when the material facts of the violation are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.132 C. Pleading Requirements Every circuit that has considered the question has held that FCA claims must be plead with the same sort of particularity required for allegations of civil fraud.133 The same rule will likely apply under the KFCA, as the same policy considerations that are served by requiring fraud to be plead with particularity also apply in the context of a KFCA suit: ensuring that defendants have adequate notice of the claim, protecting against the economic and reputational harm that often attends a charge of fraud, and “prohibit[ing] plaintiff[s] from unilaterally imposing upon the court, the parties[,] and society enormous social and economic costs absent some factual basis.”134 Generally speaking, the allegations must include the “who, what, when, where, and how” of the alleged false claim to satisfy the particularity requirement.135 D. Venue The venue provisions of the KFCA and the FCA are identical: A suit may be brought in any jurisdiction in which any single defendant can be found, resides, transacts business, or in the jurisdiction where any violation occurred.136 E. Procedure: Discovery and the Joint Prosecution Privilege Under the FCA, the defendant’s ability to obtain discovery from the government and/or a relator may be circumscribed by the “joint prosecution” or “joint investigative” privilege.137 Communications between a relator and the government or between two relators made in the prosecution of an FCA suit, designed to further that effort, and not subject to a waiver, are privileged.138 Generally, this means the defendant cannot obtain work product of the investigation, including notes from the government’s interviews with relators. Since the KFCA lacks a qui tam provision, the joint prosecution privilege is unlikely to find a home in Kansas. One of the key elements of the joint prosecution privilege is, of course, the existence of a joint prosecution or something like it, such as two parties acting in concert and sharing a commonality of interests in their mutual success.139 At most, a whistleblower under the KFCA will be a plaintiff in his or her own wrongful discharge suit, not a joint plaintiff whose interests are aligned with those of the state in such a way as to support the assertion of this privilege.140 After all, it appears a whistleblower can sue for retaliatory discharge under the KFCA regardless whether his or her report results in a prosecution under the KFCA.141 The FCA contains some discovery-related provisions that address issues raised by qui tam relators, and so were not incorporated in the KFCA.142 This is not the case with the federal government’s power to issue civil investigative demands,143 but the Kansas AG’s ability to issue inquisition subpoenas may be a suitable substitute.144 www.ksbar.org
Legal Article: Kansas False Claims Act ... F. Estoppel Effect of a Prior Criminal Conviction Both the FCA and the KFCA explicitly provide that a defendant who has been convicted of fraud or making false statements – either after trial or upon a guilty or no contest plea – is estopped from denying the essential elements of the offense in any FCA action involving the same transaction as the criminal proceeding.145 G. Settlement and Corporate Integrity Agreements The FCA contains settlement-specific provisions; however, their presence is at least partially necessary because of the involvement of qui tam relators.146 Because the KFCA does not allow qui tam actions, similar settlement-related language is unnecessary. But at least one practice that has developed in the federal arena may find a home in Kansas. As part of the terms of a settlement, the federal government may require a defendant to execute a “corporate integrity agreement” (CIA), which is a contract designed to ensure that future violations of the FCA do not occur.147 A violation of a CIA may give rise to a suit for breach of contract, and, if the defendant falsely certifies compliance with the CIA, a separate suit under the FCA pursuant to the express and implied false certification doctrines, discussed supra.148
VIII. Conclusion Fraudsters raid this state’s treasuries, just as they do those of every other jurisdiction. The KFCA will be at least a partial remedy for this problem. Further, by deriving it from the FCA, the Kansas Legislature has constructed the KFCA upon a solid foundation, and Kansas jurists may turn to more than a century of federal jurisprudence construing the FCA for guidance. Kansas attorneys should be proactive, however: the KFCA contains some twists that federal courts construing ENDNOTES 1. Claire Sylvia, The False Claims Act: Fraud Against the Government, § 2.6, at 42 (West 2004) [hereinafter C. Sylvia]. 2. New Border Patrol Boat On Display, http://www.myfoxdc.com/ dpp/news/national/092209_new_border_patrol_boat_displayed (last visited May 16, 2010). 3. Stephen Slivinski, The Corporate Welfare State: How the Federal Government Subsidizes U.S. Businesses, Cato Institute, May 14, 2007, at http://www.cato.org/pub_display.php?pub_id=8230 (last visited May 16, 2010). 4. U.S. Will Pay $2.6 Million to Train Chinese Prostitutes to Drink Responsibly on the Job, http://www.cnsnews.com/public/content/article. aspx?RsrcID=47976 (last visited May 16, 2010). 5. C. Sylvia, supra note 1, § 1.1. 6. The 2005 Deficit Reduction Act (DRA) of 2005, Pub. L. No. 109171 (2006) (codified in various sections of 42 U.S.C), was intended to improve state-level deterrence of Medicaid fraud and abuse. As a means of achieving that goal, DRA mandated that states implement employee education programs regarding false claims, and, optionally, provided that states enacting local laws that materially mirror the federal False Claims Act will share in 10 percent of any recovery obtained in Medicaid enforcement actions brought under such law that would have otherwise gone to the federal government. 42 U.S.C. § 1396(b). 7. K.S.A. 75-7501 – 7511. 8. See supra note 6; Report of the Kansas Judicial Council False Claims Act Advisory Committee on 2008 HB 2943, at 3 (Nov. 19, 2008) [hereinafter Report].
the FCA have never previously encountered. In particular, the extension of the KFCA’s protection to any individual or entity who receives public funds may create unexpected liability. However, the omission of qui tam relators from the equation, with prosecutorial discretion vested solely in the office of the AG, will hopefully prevent undeserving offenders from becoming the focus of the KFCA’s punitive multiple damages and heavy fines. n About the Authors Dan Lawrence is an associate with Fleeson, Gooing, Coulson, & Kitch LLC, Wichita, and practices in the areas of civil litigation and business. He attended the University of Kansas and graduated with a Bachelor of Arts in 2003, and received his juris doctor, summa cum laude, from Washburn University School of Law in 2008. Steve Robison is a member of Fleeson, Gooing, Coulson, & Kitch LLC, Wichita, and practices in the areas of commercial civil litigation, antitrust defense, intellectual property, eminent domain (condemnation), and white collar criminal defense. He graduated from Emporia State University in 1969 and received his juris doctor degree from the University of Kansas in 1975. He has defended numerous federal False Claims Act suits.
9. State legislation must establish liability to the state for false and fraudulent claims with respect to Medicaid funds; must allow filing under seal for 60 days, to allow review by the state AG; and must impose a civil penalty at least equal to that of the federal False Claims Act ($5,000 to $10,000 per offense, plus triple actual damages). 42 U.S.C. § 1396(h) (b)(1), (3)-(4). 10. 42 U.S.C. § 1396h(b)(2). 11. After the passage of the Kansas False Claims Act, 31 U.S.C. § 3729 has been extensively revised as a part of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, May 20, 2009, 123 Stat. 1617 (FERA). The KFCA, however, was drafted with reference to the pre-FERA FCA. References to the FCA herein, therefore, are to the pre-FERA version. 12. See, e.g., Pettis ex rel. United States v. Morrison-Knudsen Co. Inc., 577 F.2d 668, 673 (9th Cir. 1978) (rejecting plaintiff’s invitation to construe the FCA broadly); but see, e.g., United States v. Neifert-White, 390 U.S. 228, 232, 88 S. Ct. 959, 19 L. Ed. 2d 1061 (1968) (“In the various contexts in which questions of the proper construction of the [False Claims Act] have been presented, the Court has consistently refused to accept a rigid, restrictive reading, even at the time when the statute imposed criminal sanctions as well as civil.”). 13. K.S.A. 75-7507(b). 14. The “public interest” plays a role in 4th amendment case law, see, e.g., City of Salina v. Ragnoni, 42 Kan. App. 2d 405, 213 P.3d 441, (2009), makes an appearance in cases construing the Kansas Uniform Trade Secrets Act, Progressive Products Inc. v. Swartz, 41 Kan. App. 2d 745, 205 P.3d 766 (2009), is a feature of Kansas case law regarding in
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Legal Article: Kansas False Claims Act ... junctive relief, see, e.g., Winkel v. Miller, 288 Kan. 455, 205 P.3d 688 (2009), and is a factor in other analyses. 15. Qui tam is an abbreviation for “qui tam pro domino rege quam pro se ipso hac parte sequitur,” meaning “who as well for the king as for himself sues in this matter.” Black’s Law Dictionary, 1282 (8th Ed. 2004). Qui tam legislation, like the FCA, allows private parties to bring suit on behalf of the government. 16. Compare 31 U.S.C. § 3730(b) (allowing a private person to sue on behalf of the government); with K.S.A. 75-7504(a)-(b) (providing that the office of the AG shall investigate and prosecute actions under the KFCA, and nothing in the KFCA, with the exception of the antiretaliation provisions discussed infra, shall be construed to create a private cause of action). 17. Qui tam relators have recovered more than $13,677,467,064 in 6,199 lawsuits for the federal government since 1986 – an average of $2,206,398 per suit. Civil Div., U.S. Dep’t of Justice, Fraud Statistics – Overview, http://justice.gov/opa/pr/2008/November/fraud-statistics 1986-2008.htm (last visited May 17, 2010). 18. William E. Kovacic, Whistleblower Bounty Lawsuits as Monitoring Devices in Government Contracting, 29 Loy. L.A. L. Rev. 1799, 1855 (1996). 19. Minutes of the Kansas Judicial Council Advisory Committee on 2008 HB 2943, at 2 (Sept. 5, 2008). 20. Id. 21. See K.S.A. 75-7504. 22. Id. 23. K.S.A. 75-7506. 24. Id. 25. Report, supra note 8, at 9-10. 26. Id. at 10. 27. Id. 28. Id. 29. See Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 555, 108 P.3d 437 (2004). 30. Minutes of the Kansas Judicial Council Advisory Committee on 2008 HB 2943, at 2 (Sept. 5, 2008). 31. See K.S.A. 75-7506. 32. Goodman v. Wesley Med. Ctr. LLC, 276 Kan. 586, 591, 78 P.3d 817 (2003). 33. See, e.g., Dobbyn v. Nelson, 2 Kan. App. 2d 358, 363, 579 P.2d 721 (1978). 34. See K.S.A. 75-7503(a). 35. Id. 36. See K.S.A. 75-7503(b)(1)-(3). 37. See United States v. S. Md. Home Health Services Inc., 95 F. Supp. 2d 465 (D. Md. 2000) (government sought penalty of $1,710,000 for approximately 171 allegedly false claims submitted for $60,000 in Medicare reimbursement – 32 times the government’s actual damages – over approximately a 10-month period). 38. K.S.A. 75-7508(c). It is unclear whether “recovery” refers not just to damages, but penalties. 39. Id. 40. Id. 41. See supra note 11. 42. 31 U.S.C. § 3731(c); K.S.A. 75-7505(c). 43. 31 U.S.C. § 3729 (2008) (pre-FERA – see supra note 11). 44. K.S.A. 75-7503. 45. Blusal Meats Inc. v. United States, 637 F. Supp. 824, 828 (S.D.N.Y. 1986). 46. United States v. Rivera, 55 F.3d 703, 709-710 (1st Cir. 1995). 47. Report, supra note 8, at 9. 48. See K.S.A. 75-7503(a)(1) (extending liability to any defendant who presents or causes a false claim to be presented to the state, any political subdivision thereof, or any “other recipient of state funds or funds of any political subdivision thereof.”). 49. K.S.A. 75-7503(a), (b). 50. 31 U.S.C. § 3729(b)(1) – (3); K.S.A. 75-7502(e). 51. 31 U.S.C. § 3729(b); K.S.A. 75-7503(b). 52. United States ex rel. Hagood v. Sonoma County Water Agency, 929
34 October 2010 | The Journal of the Kansas Bar Association
F.2d 1416, 1421 (9th Cir. 1991) (“But what constitutes the offense is not intent to deceive but knowing presentation of a claim that is either ‘fraudulent’ or simply ‘false.’ The requisite intent is the knowing presentation of what is known to be false.”). 53. United States v. Krietemeyer, 506 F. Supp. 289, 292 (S.D. Ill. 1980) (defendant’s submission of false information entitled government to summary judgment on claims that he violated the FCA; intent to defraud was not required; rather, “it is enough that the defendant knowingly defrauded the government.” 54. C. Sylvia, supra note 1, § 4:47, at 189 (quoting S. Rep. No. 99345, at 15). 55. See, e.g., 1323 Cong. Rec. S11244 (daily ed. Aug. 11, 1986) (“Federal contractors, persons and entities doing business with the government must be made to understand that they have an affirmative obligation to ascertain the truthfulness of the claims they submit. No longer will federal contractors be able to bury their heads in the sand to insulate themselves from the knowledge a prudent person should have before submitting a claim to the government. Contractors who ignore or fail to inquire about red flags that should alert them to the fact that false claims are being submitted will be liable for those false claims.”). 56. United States v. Krizek, 111 F.3d 934 (D.C. Dir. 1997) (psychiatrist’s submission of more than 1,100 false claims to the government, consisting of bills claiming he had treated patients more than nine hours – and more than 24 hours, in many cases – in a single day satisfied the scienter requirement of the false claims act when submission of those claims was reckless, or “gross negligence-plus”). 57. United States ex rel. Ervin & Assoc. Inc. v. Hamilton Sec. Group, 298 F. Supp. 2d 91, 101 (D.D.C. 2004) (defendant’s error in arranging auction of government assets, even if defectively designed and executed, was not the result of gross negligence or aggravated negligence, and so could not satisfy the requirements for liability under the FCA). 58. United States ex rel. Aakhus v. Dyncorp Inc., 136 F.3d 676, 682 (10th Cir. 1998). 59. K.S.A. 75-7503(c) (“An innocent mistake shall be a defense to an action under this act.”). 60. See State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004). 61. See also Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005). 62. K.S.A. 75-7503(a)(3) (imposing liability upon anyone who uses a false claim to decrease or avoid an obligation to the government). 63. A “reverse false claim” occurs when a defendant, rather than use falsehood to obtain money, property, or some other thing of value from the government, uses deception to reduce or evade a liability it owes. See generally Seena Foster, Annot., Construction and Application of the Reverse False Claim Provision of the False Claims Act, 162 A.L.R. Fed. 147 (2000). 64. K.S.A. 75-7502(b). 65. C. Sylvia, supra note 1, § 4.14, at 137. 66. 31 U.S.C. § 3729(c). 67. Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir. 1992). 68. C. Sylvia, supra note 1, § 4.36, at 172. 69. Id. at 171. 70. Id. 71. See, e.g., United States v. Incorporated Village of Island Park, 888 F. Supp. 419, 439 (E.D. N.Y. 1995) (defendants obtained government housing funds without complying with prerequisite that housing be made available on a first-come, first-serve basis, and instead conspired to use an illegal, noncompliant pre-selection scheme to preferentially bestow benefits: “The ... scheme ... clearly constitutes the type of fraudulent conduct which the False Claims Act was intended to reach. [Defendants] intentionally failed to follow the prescribed scheme for awarding Section 235 housing ... knowing that it was improper and illegal. ... The [beneficiaries of government aid] were chosen in violation of the conditions on which the program was approved. ...”). 72. Some federal courts have adopted an “implied certification” doctrine, which applies when a government contractor submits a claim to the U.S. government and thereby “impliedly certifies” that it has complied with all material terms of its contract. For example, in Shaw v. AAA Eng’g & Drafting Inc., 213 F.3d 519 (10th Cir. 2000), a government contrac-
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Legal Article: Kansas False Claims Act ... tor provided photography services to the United States under a contract requiring the contractor to recover silver from photographic development chemicals. Id. at 527. The contractor, however, failed to honor that provision but sought payment under the contract notwithstanding. Id. at 52930. The Tenth Circuit held that the contractor submitted false claims by requesting payment from the federal government without having satisfied its contractual obligations, because each request for payment impliedly certified contractual compliance. Id. at 530-31. Implied certification has the potential to render the “fraudulent” proscriptions of the FCA superfluous because most government contracts are sufficiently comprehensive that the “fraudulent” omission cases will necessarily involve claims that are impliedly false due to corresponding contractual noncompliance. In Shaw, for instance, the contractor’s failure to reveal its contractual noncompliance might have supported a claim that its conduct was fraudulent, rather than false, but the availability of the implied certification doctrine made it unnecessary for the court to take the less well-traveled “fraudulent” claim path in its analysis. Implied certification is extremely broad, and so courts that have adopted this approach have had to rein the doctrine in with additional judge-made requirements of materiality and pre-condition to payment. See notes 85 – 86, infra. 73. See United States v. Bourseau, 531 F.3d 1159, 1167 (9th Cir. 2008) (holding that, with regard to the element of falsity, “[t]he requisite intent is the knowing presentation of what is known to be false, as opposed to innocent mistake or mere negligence.”). 74. See, e.g., United States ex rel. Anderson v. N. Telecom Inc., 52 F.3d 810 (9th Cir. 1995). In that case, the defendant sold the United States military telecommunications equipment called “switches,” costing about $2 million each. Id. at 812. The plaintiff claimed that the defendant knowingly sold defective switches to the military. Id. The district court held – and the Ninth Circuit affirmed – that the defendant was entitled to summary judgment in its favor because its claims were not knowingly false. Id. at 816. Though the court’s holding acknowledged that the switches in question had problems, those problems were in the nature of glitches, bugs, and other good-faith engineering defects. Id. at 816-817. The Ninth Circuit also explored and explained this difference between good faith mistakes and false claims in Wang v. FMC Corp., 975 F.2d 1412 (9th Cir. 1992). There, the plaintiff sued his former employer under the FCA, alleging that the defendant presented false claims to the United States military by billing for defective or substandard goods and services in a variety of projects. Id. at 1420-21. The plaintiff’s allegations, however, focused primarily on technical deficiencies and engineering faults: an engineer’s calculations were off; the design of a howitzer was faulty; the engineering work of another project demonstrated a “lack of engineering insight” by the defendant. Id. The court was unimpressed, noting that “[b]ad math is no fraud. ... [T]he common failings of engineers and other scientists are not culpable under the [False Claims Act]. ... What is false as a matter of science is not ... wrong as a matter of morals. The Act would not put either Ptolemy or Copernicus on trial.” Id. (internal citations omitted). 75. United States ex rel. Conner v. Salina Reg’l Health Center Inc., 543 F.3d 1211, 1217 (10th Cir. 2008). 76. Id. 77. Id. at 1218. 78. Mikes v. Straus, 274 F.3d 687, 698 (2d Cir. 2001). 79. Standard Form 1443 – Contractor’s Request for Progress Payment, available at www.ornl.gov/adm/contracts/library/articles_forms/sf1443. pdf (last visited Oct. 17, 2009) (emphasis supplied). 80. Shaw v. AAA Eng’g & Drafting, 213 F.3d 519, 531 (10th Cir. 2000). In Shaw, a government contractor providing photographic services to the government under a contract requiring it to recover silver used in photographic development. Id. at 527. By requesting payment under the contract without having actually complied with the silver recovery provisions, the contractor impliedly certified compliance with those contractual provisions and submitted a false claim. Id. at 529-530. 81. Defending False Claims Act/Qui Tam Actions: Failure to Comply with Administrative Regulations and Statutes Standing Alone Cannot Constitute a Valid Cause of Action Against a Health Care Provider Under the Act, www. arentfox.com/publications/index.cfm?fa=legalUpdateDisp&content_ id=872 (last visited Oct. 17, 2009) (criticizing the implied false certifica-
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tion doctrine and noting a split among the circuits regarding adoption of the doctrine). Per Shaw, however (see supra note 80), the Tenth Circuit appears to have accepted the implied certification doctrine in at least some contexts. 82. United States ex rel. Longhi v. United States, 575 F.3d 458 467(5th Cir. 2009). 83. Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 304 (3d Cir. 2008); see also Conner, 543 F.3d at 1219 (“Where a contractor participates in a certain government program in order to perform the services for which payments are eventually made ... courts are careful to distinguish between conditions of ... participation and ... payment.”). 84. Conner, 543 F.3d at 1219 – 20; see also, e.g., United States ex rel. Marcy v. Rowan Cos., No. 03-3395, 2006 WL 2414349, at *1 (E.D. La. Aug. 17, 2006) (finding that relator failed to state a claim under an implied certification theory where her complaint did not allege that the contractual terms breached were material); United States ex rel. Coppock v. Northrop Grumman Corp., No. 3:98-CV-2143-D, 2003 WL 21730668, at *11–12 (N.D. Tex. July 22, 2003) (finding that relator did not state a cognizable claim under the federal FCA where his complaint failed to allege that the contractual terms the defendant breached were material). 85. See United States ex rel. Norbeck v. Basin Elec. Power Coop., 248 F.3d 781, 795 (8th Cir. 2001) (“[S]imple contract breaches ... cannot provide evidence of a knowing violation of the [False Claims] Act.”). 86. United States v. Southland Mgmt. Corp., 326 F.3d 669, 580 (5th Cir. 2003) (emphasizing the “crucial distinction between ‘punitive’ federal FCA liability and ordinary breaches of contract ...”). 87. See id. 88. Split Circuits: Ninth Cir. Adopts Natural Tendency Test in Deciding Materiality in Context of False Claims Act, http://splitcircuits.blogspot. com/2008/07/ninth-cir-adopts-natural-tendency-test.html (last visited Sept. 20, 2010) (citing United States v. Bourseau, 531 F.3d 1159, 1171 (9th Cir. 2008)). 89. See Conner, 543 F.3d at 1219-20 (“A false certification is ... actionable under the FCA only if it leads the government to make a payment which it would not otherwise have made.”); see also supra note 90. 90. See supra note 11. 91. C. Sylvia, supra note 1, § 4.2, at 111. 92. Id.; United States v. Bornstein, 423 U.S. 303, 309, 96 S. Ct. 523, 46 L. Ed. 2d 514 (1976) (it is “settled that the [federal FCA] ... gives the United States a cause of action against a subcontractor who causes a prime contractor to submit a false claim to the Government.”). 93. C. Sylvia, supra note 1, § 4.3, at 116; Shaw v. AAA Eng’g & Drafting, 213 F.3d 519, 531 (10th Cir. 2000). 94. Though the KFCA does not define “political subdivision,” Kansas case law suggests that such term includes not only cities and towns, for instance, but also school districts and other subdivisions of the state. Wichita Pub. School Employees Union v. Smith, 194 Kan. 2, 4-5, 397 P.2d 357 (1964) (describing characteristics of political subdivisions as distinguished from private entities). 95. C. Sylvia, supra note 1, § 4.3, at 114. 96. Shaw, 213 F.3d at 530-531. 97. Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 128 S. Ct. 2123, 2128, 170 L. Ed. 2d 1030 (2008). 98. See, e.g., United States v. Bourseau, 531 F.3d 1159, 1164-71 (9th Cir. 2008) (applying the reverse false claims provision of the FCA). 99. C. Sylvia, supra note 1, § 4.12 at 141 (collecting cases). 100. Id. at 142. 101. Id. (citing Pickens v. Kanawha River Towing, 916 F. Supp. 702 (S.D. Ohio 1996)). 102. American Textile Mfrs. Inst. Inc. v. The Limited Inc., 190 F.3d 729 (6th Cir. 1999). In American Textile, the defendant allegedly mislabeled the country of origin for textiles, an illegal act already specifically addressed and penalized by eight or more statutes, other than the FCA. Id. at 731-32. The defendant already faced liability for various fines, duties, and damages under these statutes. Id. at 732. See also supra note 99. 103. Id.
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Legal Article: Kansas False Claims Act ... 104. United States v. Q International Courier Inc., 131 F.3d 770, 773 (8th Cir. 1997). In this case, the defendant engaged in a mail re-routing scheme to reduce its postage costs. The federal government brought suit under the FCA, claiming that Q had used false statements and records to evade its obligation to pay proper postage. See also supra note 99. 105. K.S.A. 75-7503(a)(3). 106. See supra note 11. 107. 31 U.S.C. § 3729(a)(7). 108. C. Sylvia, supra note 1, § 4.4, at 115-116. 109. Allison Engine, 128 S. Ct. at 2130. 110. C. Sylvia, supra note 1, § 4.5, at 121. 111. Id. at 121-22. Though few courts have applied this section – it receives far less use than, for instance, (a)(1) or (a)(3) – those that have, have held that the requisite receipt or certificate must be created by the government – the defendant’s own internal records are not sufficient. Id. (citing United States ex rel. Aakhus v. Dyncorp Inc., 136 F.3d 676 (10th Cir. 1998). 112. See supra note 11. 113. K.S.A. 75-7503(a)(4). 114. K.S.A. 75-7503(a)(5). 115. C. Sylvia, supra note 1, § 4.6, at 123. 116. See id. 117. Compare 31 U.S.C. § 3729(a)(6) with K.S.A. 75-7503(a)(6). 118. C. Sylvia, supra note 1, § 4.7, at 124. 119. See Letter from Mark Desetti, Kansas National Education Association to Senate Judiciary Committee (Jan. 23, 2009) (expressing concerns regarding the breadth and meaning of terms in 75-7501(a)(7)). 120. K.S.A. 75-7503(a)(8). 121. United States ex rel. Durcholz v. FKW Inc., 189 F.3d 542, 545 n.3 (7th Cir. 1999). 122. Gillespie v. Seymour, 19 Kan. App. 2d 754, 767, 876 P.2d 193 (1994). 123. See supra note 11. 124. Triplex Communications Inc. v. Riley, 900 S.W.2d 716, 720 (Tex. 1995) (“One cannot agree, either expressly or tacitly, to the commission of a wrong which he knows not of.”); cf. State v. Wilson, 30 Kan. App. 2d 498, 501, 43 P.3d 851 (2002) (“One cannot intentionally conspire to commit a crime which only requires a mens rea of negligence or no mens rea at all.”). 125. Gillespie, 19 Kan. App. 2d at 767 (“Based on the [standard] definition of conspiracy, [defendants] cannot be liable for [negligent] breach of trust. If it is accepted that [the defendants’] breach of trust was negligence, it would be illogical to find a ’meeting of the minds’ (conspiracy) to act negligently.”). 126. Federal courts often do not distinguish between “reckless disregard” or “deliberate ignorance,” analytically lumping both together. Both terms were apparently included out of a desire to address the same sort of careless conduct: “ostrich like” behavior and “refusal to learn of information which an individual, in the exercise of prudent judgment, had reason to know.” C. Sylvia, supra note 1, § 4.47, at 188 (quoting S. Rep. No. 99-345, at 15 (1986)) (emphasis supplied). 127. K.S.A. 75-7502(d).
128. A relator may not sue a member of the military arising out of the relator’s own armed forces service, if the relator is a current or former member of the military, 29 U.S.C. § 3730(e)(1); or members of Congress, the judiciary, or senior executive branch officials defined by 5 U.S.C. app. 101(f )(1)-(8), but only if based on information already known to the Government when the action was brought. 29 U.S.C. § 3730(e)(2)(A). These proscriptions apply only to qui tam relators; the government itself is not precluded from bringing suit against these persons. 129. See C. Sylvia, supra, §§ 4:66-79; see also, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000). 130. K.S.A. 75-7503(d); 31 U.S.C. § 3729(e). 131. United States ex rel. Lissack v. Sakura Global Capital Markets Inc., 377 F.3d 145, 152 (2d Cir. 2004). 132. K.S.A. 75-7505(a); 31 U.S.C. 3731(b). 133. United States ex rel; Bledsoe v. Cmty Health Systems Inc., 342 F.3d 634, 641, 642 n.7 (6th Cir. 2003); Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). 134. Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). 135. United States ex rel.; Told v. Interwest Const. Co. Inc., 267 Fed. Appx. 807, 810 (10th Cir. 2008). 136. 31 U.S.C. § 3732(a); K.S.A. 75-7510. 137. See United States ex rel. Purcell v. MWI Corp., 209 F.R.D. 21, 25 (D.D.C. 2002). 138. Id. 139. United States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 686 (S.D. Cal. 1996) (“For all practical purposes, plaintiff and the government are essentially the same party. All of plaintiff’s claims, litigation strategies, and ultimate goals, are all asserted on behalf of the government. Consequently, the court concludes that plaintiff and the government have sufficient commonality of interests such that they can successfully assert the joint prosecution privilege.”). 140. See id.; see also Purcell, 209 F.R.D. at 27 (holding that a joint prosecutorial privilege exists because, in part, of the “unique relationship of the government and the relator in qui tam cases ...”) 141. See K.S.A. 75-7506. 142. See, e.g., 31 U.S.C. § 3730(c)(4) (authorizing the federal government to restrict the participation of a relator in discovery). 143. 33 U.S.C. § 3733(a)(1). 144. K.S.A. 22-3101. 145. 31 U.S.C. § 3731(d); K.S.A. 75-7505(d). 146. The government can move to settle a federal FCA suit notwithstanding the objections of the relator, if a hearing establishes that the proposed settlement is fair, adequate, and reasonable under all the circumstances. 31 U.S.C. § 3730(c)(2)(B). For good cause shown, the hearing may be held in camera. Id. The government’s release of claims is binding upon the relator. C. Sylvia, supra note 1, § 10:109, at 584. 147. C. Sylvia, supra note 1, § 10:110, at 585; see also United States ex rel. McCarthy v. Straub Clinic & Hosp. Inc., 140 F. Supp. 2d 1062, 1065 (D. Haw. 2001). 148. See, e.g., Mitchell v. Beverly Enter. Inc., 248 Fed. Appx. 73 (11th Cir. 2007).
Watch for your KBA Membership Renewal Information. Coming to your Mailbox soon! 36 October 2010 | The Journal of the Kansas Bar Association
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Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your e-mail address or other contact information has changed, please contact member services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions.
Supreme Court Attorney Discipline IN RE CHAUNCEY M. DEPEW ORIGINAL PROCEEDING IN DISCIPLINE NO. 103,061 – AUGUST 6, 2010 FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Chauncey M. Depew, of Kansas City, Mo., an attorney admitted to the practice of law in Kansas in 1993. Depew’s conduct involved sexual harassment and inappropriate comments/actions with administrative assistants at the Johnson County courthouse. DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be suspended from the practice of law for a period of six months. HEARING PANEL: The hearing panel determined that respondent violated KRPC 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). A majority of the hearing panel recommended that the respondent be suspended from the practice of law for a period of two years and granted probation from the suspension, subject to terms and conditions involving psychological treatment, limitation of practice as a pro tem judge, letters of apology, no contact orders, practice supervision, audits, and cooperation with disciplinary administrator’s office. A concurring and dissenting minority of the hearing panel recommended suspension of the respondent’s license to practice law. HELD: Court held that respondent intentionally and knowingly engaged in misconduct toward court personnel. On multiple occasions, he subjected five administrative assistants to sexual harassment. While respondent admitted his actions in his answer to the complaint, throughout his testimony, he attempted to minimize the seriousness of his misconduct. Further, respondent testified that it was not until after the complaint process was initiated that he realized his behavior constituted an ethical violation. In addition, given the particularly serious diagnosis by Dr. Cappo that respondent is in the top 2 percent of those diagnosed with major depression, we are particularly concerned that respondent should focus on treatment of this diagnosis so that the misconduct that occurred as a result does not repeat itself in the future. While we believe respondent feels true remorse for his actions, this does not vitiate the seriousness of his misconduct. At respondent’s reinstatement hearing, Court ordered the panel to consider whether the respondent has obtained adequate medical and psychological treatment for his depression, followed all treatment recommendations during the period of suspension, and has written letters of apology to the administrative assistants and the five respective division judges. www.ksbar.org
IN RE CHRISTOPHER R. MILLER ORIGINAL PROCEEDING IN DISCIPLINE NO. 103,492 – AUGUST 13, 2010 FACTS: Miller was admitted to the practice of law in the state of Kansas on April 19, 1984. In 1991, he and another attorney formed a professional association, styled Little and Miller Chtd. The Supreme Court suspended Miller’s license to practice law for 2 years beginning Dec. 8, 2006, for misconduct related to improper billing. In re Miller, 282 Kan. 689, 699, 147 P.3d 150 (2006). Miller then entered into a verbal arrangement with Chris Cowger, an attorney and long-time friend, to handle the legal practice of the professional association. Under the arrangement, Cowger was paid by the corporation on an hourly basis and his compensation was reported to the Internal Revenue Service as being that of an independent contractor. During the suspension period, on Jan. 17, 2007, a letter on firm stationery that identified Miller as an attorney of the firm was sent to opposing counsel in a case that had begun before Miller’s suspension. Miller’s name was typed in the signature portion of the letter, and the body of the letter declared: “As you will recall, I represent [the presuspension client].” The attorney to whom the letter was sent filed a report with the disciplinary administrator’s office. The disciplinary administrator’s office appointed an attorney to investigate the report. The investigator requested the file on the case addressed in the letter, but Miller never provided the file. The disciplinary administrator filed a formal complaint against Miller on March 11, 2009. Miller answered the complaint, challenging most of the allegations relating to the arrangement with Cowger. DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Miller be disbarred. HEARING PANEL: After an evidentiary hearing on June 23, 2009, at which the respondent was personally present and was represented by counsel, the appointed hearing panel found that Miller had violated Kansas Rules of Professional Conduct (KRPC) 5.5 (2009 Kan. Ct. R. Annot. 580) (unauthorized practice of law), KRPC 8.1(b) (2009 Kan. Ct. R. Annot. 594) (failure to respond to lawful demand for information from disciplinary authority), KRPC 8.4(a) (2009 Kan. Ct. R. Annot. 602) (misconduct), and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). The panel recommended that Miller be disbarred. HELD: Court stated Miller claimed that he did exactly what a suspended attorney is supposed to do: he sent letters to his clients, filed pleadings to withdraw from his pending court cases, transferred ownership of his professional corporation to a licensed attorney, and thereafter functioned solely in the capacity of a law clerk or legal assistant. In contrast, the disciplinary administrator essentially characterized Miller’s actions as purchasing the use of Cowger’s law license to continue Miller’s law practice during his suspension period. Cowger testified that his arrangement with Miller was for The Journal of the Kansas Bar Association | October 2010 37
Appellate Decisions him to receive $70 per hour for the time he actually spent working on the firm’s cases. The corporate records are consistent with that testimony. For calendar year 2007, the corporation issued Cowger an IRS Form 1099-MISC, reflecting that the corporation had paid Cowger $19,637 during the year. The corporation did not deduct withholding taxes or social security taxes from Cowger’s pay. In 2007, the corporation collected net attorney fees of over $100,000, after payment of expenses. The bulk of the money was paid to Miller, ostensibly as salary, rental payments on the building and vehicles, and repayment of loans Miller made to the corporation. Miller controlled all of the financial affairs of the corporation. Cowger testified that his only concern was getting paid his hourly fee and that he did not consciously or knowingly have any interest in the corporate operations. HELD: Supreme Court held that Miller’s conduct was not an inadvertent violation, but rather a carefully planned scheme to circumvent the suspension order in order to continue his law practice. The Court disbarred Miller for the unauthorized practice of law, engaging in conduct adversely reflecting on lawyers fitness to practice law, and failing to cooperate with the investigation of the disciplinary administrator’s office. IN RE JAMES F. STANLEY ORIGINAL PROCEEDING IN DISCIPLINE NO. 13,143 – AUGUST 23, 2010 FACTS: In a letter signed Aug. 18, 2010, James F. Stanley voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. R. Annot. 353). At the time the respondent surrendered his license, a panel hearing was pending on two complaints in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaints alleged that Stanley violated Kansas Rules of Professional Conduct 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426 (diligence); 1.4 (2009 Kan. Ct. R. Annot. 443) (communication); 1.5(d) and (e) (2009 Kan. Ct. R. Annot. 460) (fees); 1.8(a) and (j) (2009 Kan. Ct. R. Annot. 483) (conflict of interest, acquiring interest in cause of action); 8.4 (2009 Kan. Ct. R. Annot. 602) (misconduct); and Supreme Court Rule 207 (2009 Kan. Ct. R. Annot. 303 (failure to cooperate with disciplinary administrator). HELD: Court, after examining the files of the office of the Disciplinary Administrator, found the surrender of the Stanley’s license should be accepted and that Stanley should be disbarred. James F. Stanley is disbarred from the practice of law in Kansas, and his license and privilege to practice law was revoked.
Civil DRIVER’S LICENSE SUSPENSION MCINTOSH V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT – AFFIRMED NO. 101,878 – AUGUST 20, 2010 FACTS: Kansas Department of Revenue (KDOR) administratively suspended McIntosh’s driving privileges based upon a refusal to submit to a breath test following his arrest for DUI. McIntosh petitioned the district court to review the suspension, claiming that he had effectively rescinded his refusal and consented to take the breath test. The district court found that McIntosh had appropriately rescinded his test refusal; that he should have been permitted to take the breath test; and that the administrative driver’s license suspension should be dismissed. KDOR appealed. ISSUE: Driver’s license suspension HELD: Court stated that KDOR argued the time elapse of approximately 30 minutes between McIntosh’s test refusal and subsequent request to take the test was outside the “very short” time re38 October 2010 | The Journal of the Kansas Bar Association
quirement. Court held that although it was not known exactly when the officer may have checked the refusal box on the consent form, McIntosh’s consent came immediately upon being served with that form, upon being notified that the refusal box had been checked and his rescission was timely. Court concluded that the district court did not err in finding that McIntosh’s rescission of his refusal of a breath test timely, that the consent to testing was valid, that the arresting officer should not have refused to allow the testing, and that KDOR’s suspension of McIntosh’s driver’s license was invalid and must be reversed. STATUTES: K.S.A. 8-1001, -1002; and K.S.A. 20-3018(c) FALSE ARREST, TORT CLAIMS ACT, AND DISCRETIONARY FUNCTION EXCEPTION SOTO V. CITY OF BONNER SPRINGS ET AL. WYANDOTTE DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 96,011 – SEPTEMBER 3, 2010 FACTS: In November 2003, Soto was stopped because his license plate was loose and hanging. Dispatch told the officer that the license plate did not match the make and model of the registered vehicle. Soto provided a driver’s license for Jose M. Soto. An arrest warrant in Johnson County had been issued for Jose L. Soto. Investigation revealed that the driver’s license given to the officers by Soto had the same number as the driver’s license provided by dispatch. Officers arrested Soto, and he was held in the Wyandotte jail. After two days in the county jail, Soto was transported to Johnson County, and he pointed out that he did not look like the person pictured on the warrant. Soto was released. In January 2004, Soto filed a lawsuit for false arrest. The trial court granted summary judgment in favor of Bonner Springs and Johnson County finding Soto’s petition was barred by the one-year statute of limitation, there was probable cause to believe there was a valid warrant for Soto’s arrests, and the discretionary function exception under the Kansas Tort Claims Act provided immunity from liability against Johnson County. Court of Appeals held it was undisputed that Soto’s driver’s license number was the same as the one listed on the warrant. The birth dates, heights, and weights were quite similar. The warrant was still valid. Wyandotte County properly held Soto until Johnson County could retrieve him. Court stated there is a large amount of discretion when determining whether an individual is actually the person identified in a warrant. Court held the facts fell squarely within the discretionary function exception of the Kansas Tort Claims Act. ISSUES: (1) False arrest, (2) Tort Claims Act, and (3) discretionary function exception HELD: Court stated that a detention officer’s decision on how to investigate Soto’s claims of mistaken identity was of the nature and quality which the Legislature intended to put beyond judicial review. Court affirmed the Court of Appeals and held that under the facts of this case, the manner in which the governmental employee proceeded after notice of plaintiff’s claim of mistaken identity was discretionary and entitled to immunity from liability by the discretionary function exception of the Kansas Tort Claims Act. STATUTES: K.S.A. 21-3424(C); K.S.A. 22-2304; K.S.A. 602101(b); and K.S.A. 2006 Supp. 75-6104
Criminal STATE V. ERNESTI DOUGLAS DISTRICT COURT REVERSED AND REMANDED NO. 101,925 – AUGUST 27, 2010 FACTS: In DUI action, Ernesti filed motion to suppress July 2008 breath test results. District court granted the motion, finding www.ksbar.org
Appellate Decisions the testing device was not properly certified because January 2008 certification through December 2008 was effectively revoked in March 2008 when Kansas Department of Health and Environment (KDHE) substantially changed certification requirements and revoked regulations that governed the January 2008 certification. District court further found the testing device had not been recertified prior to Ernesti’s July 2008 testing, and agency’s prior application for certification did not comply with the new regulations. State’s interlocutory appeal transferred to Supreme Court. ISSUE: Certification of breath testing device – change in regulations HELD: January 2008 certification remained valid because savings statute K.S.A. 77-425 preserved rights and remedies, which had vested under the revoked rule or regulation, and new regulations did not have retroactive application. District court erred in applying the new administrative regulations to this case, and in failing to recognize the continued validity of the January 2008 certification. State’s challenge to Ernesti’s standing and district court’s jurisdiction under the Kansas Judicial Review Act to review KDHE’s certification of the testing device fails. STATUTES: K.S.A. 2009 Supp. 8-1002, -1002(a)(3); K.S.A. 651,107(b), -1,109; K.S.A. 77-603(a), -201 First, -425, -601 et seq., -602(a), -602(b), -607, -610; and K.S.A. 20-3018(c), -3603 STATE V. HORN JOHNSON DISTRICT COURT – REVERSED, SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 97,872 – AUGUST 20, 2010 FACTS: Horn pled guilty to seven sex crimes with 10-year-old. Departure hearing jury found aggravating factor of a fiduciary relationship on counts of aggravated sodomy and aggravated indecent liberties. Horn challenged his sentence, sentencing hearing, admission of evidence, and jury instructions. The Court of Appeals affirmed the district court’s procedure and the resulting departure sentence. State v. Horn, 40 Kan. App. 2d 687, 709, 196 P.3d 379 (2008). The panel did find that the district court should have given a limiting instruction on the sexual acts evidence, informing the jury that such evidence should be considered solely for the purpose of determining whether a fiduciary relationship existed. However, the Court of Appeals opined that the omission of such an instruction, which was not requested by the defense, was not clearly erroneous in light of its determination that there was other, overwhelming, evidence of a fiduciary relationship. ISSUES: (1) Jury trial for departure sentencing hearing and (2) guilty plea HELD: Court held that the district court erred by impaneling a jury for Horn’s upward duration departure sentence proceeding, following its acceptance of Horn’s plea and trial jury waiver. However, Horn specifically declined to waive his right to a jury for the upward durational departure sentence proceeding, and, therefore, the district court was constitutionally precluded from following the statutory mandate for a court-conducted proceeding. Court vacated Horn’s sentence and remanded for resentencing without an upward durational departure. STATUTE: K.S.A. 21-4716(a), (c), -4718(b), -4720(c)(2) and (c)(3) STATE V. JACKSON DOUGLAS DISTRICT COURT – SENTENCE VACATED IN PART AND CASE REMANDED WITH DIRECTIONS NO. 100,807 – AUGUST 20, 2010 FACTS: Jackson appeals the order directing him to register under the Kansas Offender Registration Act following his plea of guilty to www.ksbar.org
three counts of aggravated battery after he had previously been convicted of first degree murder and attempted aggravated robbery and sentenced as an extended jurisdiction juvenile offender. ISSUE: Kansas offender registration HELD: Court held that because the defendant has constructive notice of the registration requirement, it is implicit in every sentence that falls within the scope of K.S.A. 22-4906. The journal entry did not modify the sentence but simply carried out a statutory imperative. The sentencing court had jurisdiction to include the registration requirement in the journal entry without making it part of the sentence imposed from the bench. Court held that because the Legislature maintains a distinction between adult prosecutions and extended juvenile jurisdiction prosecutions and did not expressly extend the registration requirement to prosecutions carried out under the extended jurisdiction scheme, the Court construed the registration statute to apply only to convictions arising from adult prosecutions. The lifetime registration requirement is vacated, with directions to impose a 10-year registration period. STATUTES: K.S.A. 21-3414(a)(2)(A); K.S.A. 22-4901, -4902(a), -4906; and K.S.A. 38-2347(a), (f ), -2364(a), (b), -2366 STATE V. JOHNSON SEDGWICK DISTRICT COURT – AFFIRMED NO. 100,544 – AUGUST 6, 2010 FACTS: Johnson shot and killed his common-law wife, Whiteman, after he found out she was having an affair with another man. Johnson claimed heat of passion voluntary manslaughter. A jury convicted Johnson of first-degree murder and the trial court sentence him to life in prison with the possibility of parole after 25 years. ISSUE: Jury instructions – Heat of passion and sudden quarrel HELD: Court rejected Johnson’s argument that even though the trial court instructed on heat of passion voluntary manslaughter, the two forms of manslaughter [sudden quarrel and heat of passion] are not separate, and there was sufficient evidence of a ’sudden quarrel’ to require an instruction on that theory. Court stated the evidence was that Johnson and Whiteman had been discussing their situation and relationship all day. Based on review of the briefs and the record, there was not any evidence regarding a sudden argument or quarrel immediately preceding the victim’s death. STATUTES: K.S.A. 21-3403 and K.S.A. 22-3601(b)(1) STATE V. KEMBLE SEDGWICK DISTRICT COURT REVERSED AND REMANDED NO. 100,824 – SEPTEMBER 3, 2010 FACTS: Kemble convicted of aggravated indecent liberties with a child under 14. Hard 25 sentence imposed. On appeal, Kemble claimed judicial misconduct by essentially commenting on child victim’s credibility; claimed prosecutorial misconduct by commenting during closing argument on Kemble’s post-Miranda silence; and claimed cumulative trial error denied him a fair trial. Kemble also claimed retrial on off-grid aggravated indecent liberties offense was precluded because state failed to charge the age element of the aggravated offense, and district court failed to instruct jury to find the defendant’s age. ISSUES: (1) Judicial misconduct, (2) prosecutorial misconduct, (3) cumulative error, and (4) element of defendant’s age HELD: A judge’s role in a jury trial is reviewed. Judge’s participation in examination of child witness in this case is detailed, finding judge refused to address child witness problems with counsel outside the jury’s presence, and judge failed to exercise appropriate caution in questioning a witness and making comments in front of jury. Prosecutor’s power point presentation violated Doyle v. Ohio, 426 U.S. 610 (1976), and was clear error that was not harmless under facts of case. The Journal of the Kansas Bar Association | October 2010 39
Appellate Decisions Cumulative effect of these two errors denied Kemble a fair trial. Conviction is reversed and case is remanded for a new trial. Per State v. Reyna, 290 Kan. 666 (2010), and State v. Gracey, 288 Kan. 252 (2009), Kemble’s conviction was for off-grid version of aggravated indecent liberties with a child. Retrial on that higher degree offense is not precluded by K.S.A. 21-3108(5). STATUTES: K.S.A. 21-3108(5), -3504(a)(3)(A), -3504(c); K.S.A. 22-3601(b)(1); and K.S.A. 60-261 STATE V. LEAPER WYANDOTTE DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 98,403 – SEPTEMBER 3, 2010 FACTS: Leaper convicted of second degree murder; 620-month sentence imposed. Conflicting testimony at trial as to who fired fatal shot. Pretrial interview tape of main exculpatory witness disappeared after being placed on witness stand, and juror reported seeing that defense witness take it. Defense filed motion for mistrial, claiming juror’s observation prejudiced Leaper, and no instruction could cure the problem. Trial court denied the motion. Leaper appealed. Court of Appeals affirmed, 40 Kan. App. 2d 902 (2008), finding no juror misconduct, and defense witness’s conduct was demeanor evidence appropriate for jury to consider. Concurring opinion disagreed with demeanor analysis, but agreed evidence of guilt was overwhelming. Leaper’s petition for review granted. ISSUE: Resolution of motion for mistrial HELD: Issue is not jury misconduct, but whether Leaper was denied a fair trial by witness’ conduct, and by trial court’s response or lack of response. Cases illustrating witness conduct before and after testifying are discussed. Trial judge abused his discretion by failing to investigate the alleged tape taking and by failing to admonish jury to disregard. Agreement with Court of Appeals’ assessment that error was harmless under circumstances where the defense witness’ credibility was independently weak before tape was taken, and evidence supporting Leaper’s conviction was strong. Challenge to district court allowing jury to use transcripts during deliberations was not preserved for appellate review. No merit to Leaper’s claim of cumulative error or Apprendi violation in sentencing. CONCURRENCE (Johnson, J., joined by Beier and Rosen, JJ.): Concurs with result but departs from majority’s reasoning in assess-
ing witness credibility to rationalize harmless error. Judicial assessment of whether jury would have believed a defense witness’ exculpatory trial testimony is outside purview of appellate review. STATUTES: K.S.A. 20-3018(b); K.S.A. 22-3423(1); and K.S.A. 60420 STATE V. STONE SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 100,076 – AUGUST 20, 2010 FACTS: Stone was convicted of aggravated indecent liberties with a child involving a 9-year-old victim. Stone complains that statements made by the prosecutor during closing argument entailed improper comment on the credibility of witnesses and shifted the burden of proof in the case to him, denying him a fair trial. He argues the state improperly commented on the credibility of the complaining witness by asking the jury to speculate on matters not in evidence when it argued that her version was credible because if she had made up a story, she would have made up a better one than the one she gave. He also argues that a tape recording of his interrogation should not have been admitted into evidence. ISSUES: (1) Prosecutorial misconduct and (2) admission of tape recorded interrogation HELD: Court held the prosecutor’s comments on the victim’s credibility were “inartful” but within the wide latitude allowed the state when discussing the evidence in closing argument. Court reversed for a new trial based on admission of Stone’s interrogation. Court stated while any one of the circumstances surrounding this interrogation, standing alone-Stone’s condition, Detective Mar’s misleading statements about the semen on the pajama top, her statements that the length of his sentence could only be affected by his telling the “truth,” the implications he would be viewed as a sexual predator unless he confessed, might not have led the Court to conclude Stone’s statements were coerced, a review of the audio recording taking into account all of these circumstances led the Court to conclude as a matter of law that Stone’s statements were not the product of his free and independent will and that it was error to admit them at trial. STATUTES: K.S.A. 21-4643; K.S.A. 22-3601(b)(1); and K.S.A. 60-261, -460(f )
NOTICE OF AMENDMENT OF THE LOCAL RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF KANSAS The U.S. Bankruptcy Court for the District of Kansas gives notice of Proposed Local Rules of Practice and Procedure. The Proposed Local Rules amend the present Local Rules as recommended by the Bench and Bar Committee of the U.S. Bankruptcy Court for the District of Kansas with the approval of the Court. Interested persons, whether members of the bar, may submit comments on the Proposed Local Rules addressed to the Clerk of the U.S. Bankruptcy Court for the District of Kansas at 401 N. Market, Room 167, Wichita, KS 67202. All comments must be in writing and must be received by the clerk no later than December 16, 2010, to receive consideration by the Court. Copies of the Proposed Local Rules will be available for review by the bar and the public from November 15, 2010, through December 15, 2010, at: Wichita Clerk’s Office 167 U.S. Courthouse 401 N. Market Wichita, KS 67202
Topeka Clerk’s Office 240 U.S. Courthouse 444 SE Quincy Topeka, KS 66683
Kansas City Clerk’s Office 161 U.S. Courthouse 500 State Ave. Kansas City, KS 66101
Copies of the Bench and Bar Committee Minutes, at which most of the proposed changes were discussed, are also available at www.ksb.uscourts.gov. 40 October 2010 | The Journal of the Kansas Bar Association
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Supreme Court of the United States Swearing-In Ceremony for Kansas Bar Association Members The Kansas Bar Association is offering a threeday excursion to Washington, D.C., for members who desire to be sworn in before the Supreme Court of the United States. Members may enjoy the excitement of our nation’s capital March 6-8, 2011, with the swearing in scheduled for March 7 and a tentative tour of the White House, depending on the availability of the tickets, to be set for March 8. If you would like be a part of the group, complete the request form below and return it to the KBA with your payment. For questions, please contact Lisa Montgomery, director of member services, at (785) 234-5696 or at lmontgomery@ksbar.org. The swearing-in ceremony will be conducted before the justices of the U.S. Supreme Court in the Supreme Court Building at 10 a.m., Monday, March 7. Seating capacity in the courtroom is strictly limited to one guest per admittee. Others may have the opportunity to view the ceremony from the public viewing area. Total price of $250 includes application fee, group photo, swearing-in reception, and tour of the White House. Hotel and travel accommodations are not included.*
Features of the trip include: • A block of discounted sleeping rooms reserved at the luxury boutique Hotel Monaco, a historic allmarble building that is a Registered National Landmark. • Group photos taken in front of the Supreme Court Building. • Swearing-in reception for all attendees and their guests, with invitations extended to the justices of the U.S. Supreme Court. • Tentative Tour of the White House and/or Capitol.
Hotel and travel accommodations: *Attendees will be responsible for making their own hotel, airfare, and transportation arrangements. Please contact the Hotel Monaco Washington D.C. at (877) 202-5411 and indicate you are registering under the group “Kansas Bar Association” in order to receive the discounted room rate of $329. In order to receive the discounted room rate and ensure room availability, the deadline for making your hotel reservations is February 2, 2011. A limited number of rooms have also been reserved for March 4 and 5.
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Application Request Form U.S. Supreme Court Swearing-In Ceremony March 7, 2011 Name: Firm Name: Address: City: State:
Zip:
Phone: KBA#: Please send _____ application(s) for the U.S. Supreme Court swearing-in ceremony and reception, sponsored by the Kansas Bar Association. Please mail or fax this form with payment to: Kansas Bar Association Attn: Lisa Montgomery, Director of Member Services 1200 SW Harrison St. Topeka, KS 66612-1806 Deadline to return application request form to the KBA office is November 12, 2010. The Journal of the Kansas Bar Association | October 2010 41
Appellate Practice Reminders . . . Collate Pleadings Before Submitting for Filing
From the Appellate Court Clerk’s Office
If multiple copies of a motion or response are required to be filed and there are attachments, the attachments must be collated and submitted along with the pleading as one document. The clerk’s office cannot collate and assemble documents. They must be filed ready for distribution to the court.. Withdrawal from a Case on Appeal Supreme Court Rule 1.09 (2009 Kan. Ct. R. Annot. 7) provides that an attorney who has appeared of record in an appeal may withdraw by (1) serving a motion for withdrawal on the client and on opposing counsel and (2) filing a copy of the motion and proof of service with the clerk of the appellate courts. A justice or judge must enter an order approving the withdrawal. If the client will be left without counsel, more compelling reasons for withdrawal need to be stated than if other counsel is appearing. If other counsel of record in the case will continue to represent the client, state in the motion the name of the attorney who will continue representation. If new counsel will be entering an appearance on behalf of the client, state that fact in the motion. It is desirable to have new counsel file a simultaneous entry of appearance with the withdrawing attorney’s motion. Because the case is now pending on appeal, the motion for withdrawal is filed in the appellate court even though the appointment of counsel may have originally been made by the district court. For questions about these or other appellate procedures and practices, call the Clerk’s Office at (785) 296-3229 and ask to speak with Carol G. Green, Clerk of the Appellate Courts.
42 October 2010 | The Journal of the Kansas Bar Association
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Appellate Decisions
Court of Appeals
Civil
BREACH OF CONTRACT, CONCESSIONAIRE’S AGREEMENT, TORTIOUS INTERFERENCE, AND NUISANCE BYERS ET AL. V. SNYDER ET AL. SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 101,382 – AUGUST 20, 2010 FACTS: Jim and Sue Byers contend that they are entitled to a boat slip for their houseboat under Snyder’s concessionaire’s agreement with the Kansas Department of Wildlife and Parks (Department). The concessionaire’s agreement vested Snyder with the obligation to furnish boat slips to park patrons of the Cheney State Park Marina and Concession. On the Byers’ contract law claim, the threshold question is whether the Byers have standing to enforce the contract that was entered into by Snyder and the Department. The Byers, not being a party to the contract, contend that they have standing as third-party beneficiaries. The district court granted summary judgment in favor of Dennis Snyder and Snyders’ Marina Corporation (Snyder) in their breach of contract claim. The Byers contend that the trial court wrongly concluded that it lacked authority to order reinstatement of the boat slip agreement between the Byers and Snyder. Snyder cross-appeals from a summary judgment granted in favor of the Byers in Snyder’s counterclaims for tortious interference with existing contractual relations and intentional private nuisance. ISSUES: (1) Breach of contract, (2) concessionaire’s agreement, (3) tortious interference, and (4) nuisance HELD: Court determined that because the Byers have previously paid mooring fees for the right to moor their houseboat at the marina, they ceased to be a member of the general public. Moreover, the Concession Agreement imposed an obligation on Snyder, arising from his possession, control, and ownership of the boat slips, to furnish sufficient boat slips to satisfy the demands of park patrons. Court determined that the Concession Agreement conferred a benefit on park patrons who intended to moor their boats at the marina. As a result, the Byers can be classified as third-party beneficiaries of the Concession Agreement between Snyder and the Department. Court further determined that the Byers have standing on their contract claim. Accordingly, court reversed and remanded for trial. Court held that the trial court did not err in dismissing Snyder’s counterclaim for invasion of privacy. However, court agreed that the trial court erred in dismissing Snyder’s counterclaim for defamation. STATUTE: K.S.A. 77-601 DRIVER’S LICENSE SUSPENSION AND CERTIFICATION OF INTOXILYZER 5000 BARNETT V. KANSAS DEPARTMENT OF REVENUE RAWLINS DISTRICT COURT – AFFIRMED NO. 102,474 – SEPTEMBER 3, 2010 FACTS: Barnett was stopped for having a loud stereo. Barnett smelled like alcohol, and had slurred speech, bloodshot eyes, poor balance or coordination, and difficulty communicating. Barnett failed the field sobriety tests and had open containers. Barnett blew a 0.161 on the Intoxilyzer 5000. Kansas Department of Revenue suspended Barnett’s license. Barnett appealed the suspension of his license by challenging the certification of the Intoxilyzer. The district court held the certification of the Intoxilzyer did not fall within the scope of issues that could be considered in an administrative challenge to the suspension of a driver’s license. ISSUES: (1) Driver’s license suspension and (2) certification of Intoxilyzer 5000 www.ksbar.org
HELD: Court held it was not improper of the Kansas Department of Health and Environment to have certified the testing equipment at issue. Court stated the testing language is not mandatory, but discretionary, in the event that instrument testing does not comply with certification directives. Court also stated the instrument at issue was tested without fault in each of the 14 calendar weeks immediately preceding Barnett’s test and each of the six weeks after the test. STATUTE: K.S.A. 8-1020(h)(2) EXPERT TESTIMONY, MOTION IN LIMINE, AND SUBSTANTIAL COMPETENT EVIDENCE IN RE ESTATE OF MILLS FINNEY DISTRICT COURT – AFFIRMED NO. 101,457 – AUGUST 20, 2010 FACTS: Jeff Mills died during his treatment for Hantavirus. A jury entered a defense verdict for all the doctors involved in Jeff’s treatment. Mills’ estate and heirs argued that the trial court erred in allowing a defense expert to testify about how he had treated Hantavirus patients in his personal practice, which was in violation of the order in limine. The estate also contends the trial court abused its discretion in not ordering a new trial based on the testimony concerning Carrie’s, Jeff’s wife, medical treatment for Hantavirus, which was in violation of the order in limine. The estate last maintains the defense verdict rendered by the jury was contrary to the evidence presented at trial. ISSUES: (1) Expert testimony, (2) motion in limine, and (3) substantial competent evidence HELD: Court held because the appellants failed to contemporaneously object to the majority of the expert’s testimony concerning his personal treatment of Hantavirus patients, they failed to preserve for appeal the issue concerning that testimony. Moreover, in the instances when the appellants did object to the expert’s testimony and the trial court overruled the objections, the testimony was similar to that given by other experts in the case and did not violate the order in limine. Court also held that because the appellants did not contemporaneously object to most of the testimony concerning Carrie’s treatment for Hantavirus, they failed to preserve for appellate review any issue concerning that testimony. Moreover, the testimony was in line with the trial court’s ruling concerning evidence pertaining to Carrie’s Hantavirus illness, especially in light of the fact that the appellants had previously made statements and introduced evidence concerning Carrie’s hospitalization for Hantavirus. Last, court stated that in considering the evidence introduced at trial in the light most favorable to the appellees, the evidence supported the verdict. STATUTE: K.S.A. 60-259(a), -404, -441, -444 HABEAS CORPUS HARAWAY V. LARNED CORRECTIONAL FACILITY PAWNEE DISTRICT COURT – AFFIRMED NO. 103,609 – SEPTEMBER 3, 2010 FACTS: In 1501 petition, Hardaway alleged denial of due process in prison disciplinary action in which sanction included 15-day segregation and loss of earned good time. Disciplinary sanction, suspended for 120 days, was never imposed due to clear conduct for that period. District court dismissed the petition, finding no due process violation. Hardaway appealed. ISSUE: Due process in prison discipline HELD: District court’s judgment is affirmed. An inmate has not yet suffered a deprivation of any constitutionally protected interest when prison officials suspend the imposition of a disciplinary The Journal of the Kansas Bar Association | October 2010 43
Appellate Decisions sanction against that inmate that would otherwise have taken away something in which that inmate does have a constitutionally protected interest. STATUTE: K.S.A. 60-1501 HABEAS CORPUS SAULS V. MCKUNE LEAVENWORTH DISTRICT COURT REVERSED AND REMANDED NO. 103,262 – AUGUST 27, 2010 FACTS: Sauls filed habeas action to challenge $20 fine and loss of good time credits in prison disciplinary action in which prison officials denied his request to call witnesses. District court issued writ, directing answer to be filed. State filed motion to dismiss, arguing Sauls did not bring his action until secretary of corrections was served, which was outside 30-day limit in K.S.A. 60-1501(b). District court granted the motion. Sauls appealed. ISSUES: (1) Timeliness of filing 60-1501 petition and (2) due process in prison disciplinary hearing HELD: District court erred in dismissing Sauls’ petition. Sauls timely filed his petition within 30 days of receiving secretary’s decision to affirm the disciplinary sanctions. K.S.A. 60-203(a) rule regarding “commencement” of an action does not factor into the determination of whether an inmate’s petition has been timely filed under K.S.A. 60-1501(b). Because prison disciplinary sanction affected Sauls’ liberty and property interests, he was entitled to minimal due process guarantees. The hearing process violated Sauls’ due process right to call witnesses, and secretary did not provide any persuasive basis for denial of this right. Error was not harmless under facts of case. Judgment of district court is reversed. Case is remanded with directions to enter judgment in favor of Sauls directing secretary to set aside the disciplinary sanction. STATUTES: K.S.A. 21-3810; and K.S.A. 60-203(a), -513, -1501, -1501(b), -1503(a), -1503(c), -1504, -1504(a) HABEAS CORPUS, INTERPRETERS, AND INEFFECTIVE ASSISTANCE OF COUNSEL SHAHA V. STATE SEDGWICK DISTRICT COURT – AFFIRMED NO. 100,902 – AUGUST 6, 2010 FACTS: Shaha was convicted of aggravated indecent liberties with a child. The district court sentenced him to serve 77 months in prison. His conviction was affirmed in State v. Shaha, No. 89,964. Shaha filed a motion under K.S.A. 60-1507, alleging several instances of ineffective assistance of trial counsel, including counsel’s alleged failure to conduct adequate pretrial preparation with Shaha. Further, in his 60-1507 motion, Shaha directly challenged the trial court’s failure to insure that his interpreter was properly qualified under K.S.A. 75-4353. Following a nonevidentiary hearing with appointed counsel, the district court denied Shaha’s request for relief. In Shaha v. State, No. 95,676, unpublished Court of Appeals opinion filed May 25, 2007, this court affirmed the denial of the motion. However, in the order granting Shaha’s petition for review, the Kansas Supreme Court reversed and remanded the case for a full evidentiary hearing, with directions to address the issues raised in the motion as required by Supreme Court Rule 183(j) (2009 Kan. Ct. R. Annot. 251). The court again denied Shaha’s request for relief. ISSUES: (1) Habeas corpus, (2) interpreters, and (3) ineffective assistance of counsel HELD: Court found the issue of the interpreter was not properly before the court for the first time on appeal. However, court stated that even considering the issue, Shaha failed to carry his burden of establishing that any deficiencies in the interpretation affected his ability to present evidence in support of his claims for 44 October 2010 | The Journal of the Kansas Bar Association
relief. Shaha’s primary complaint about his interpreter during the evidentiary hearing is that the interpreter failed to provide a literal, word-for-word interpretation of Shaha’s comments but, instead, often summarized Shaha’s responses and spoke in the third person. Court held the record reflected very few indications that the interpreter’s qualifications as an interpreter might be substandard. Next, court concluded that although the district court erred in finding that trial counsel was accompanied by an interpreter at each visit with Shaha, substantial competent evidence supported the district court’s determination that trial counsel engaged in adequate pretrial preparation with Shaha. STATUTES: K.S.A. 60-261, -455, -1507; and K.S.A. 75-4351, -4353 KANSAS SEXUALLY VIOLENT PREDATOR ACT, APPOINTMENT OF COUNSEL, AND INEFFECTIVE ASSISTANCE OF COUNSEL IN RE CARE AND TREATMENT OF ONTIBEROS SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 100,362 – AUGUST 27, 2010 FACTS: In the jury trial of Ontiberos’ sexually violent predator case, the parties agreed to have many records available so the two experts could refer to them. The documents were not meant for jury consideration, and the court did not admit them into evidence but did preserve them for the appellate record. Contrary to this agreement, the state’s attorney used the documents 12 times during the cross-examination of Ontiberos. By doing so, he made the content of some of the records available to the jury. Further, the state’s attorney used a nonexistent prison disciplinary report involving a weapon to discredit the respondent. Respondent’s court-appointed lawyer never objected to any of the state’s actions. Our Supreme Court has ruled that for impeachment, it is highly improper for counsel to read or refer to the contents of written matters not in evidence. The district court denied Ontiberos’ claim of ineffective assistance of counsel. ISSUES: (1) Kansas Sexually Violent Predator Act, (2) appointment of counsel, and (3) ineffective assistance of counsel HELD: Court held that sexual predators resisting commitment do not have a constitutional right to counsel, but have a statutory right. Court held the courts have recognized that when there is a statutory right to counsel, there is, by necessity, a right to effective counsel. Court stated that even those accused of being sexually violent predators are entitled to a fair trial. Court held that on account of the state’s improper use of evidence not admitted and the use of a nonexistent disciplinary report, ostensibly portraying Ontiberos as violent, coupled with the passivity of defense counsel and his apparent lack of preparation, Ontiberos did not receive a fair trial. STATUTES: K.S.A. 22-4506; K.S.A. 59-29a01, -29a06; and K.S.A. 60-407(f ), -420, -1501, -1507 NEGLIGENT ENTRUSTMENT AND SUMMARY JUDGMENT TRAN V. NGUYEN ET AL. LEAVENWORTH DISTRICT COURT – AFFIRMED NO. 102,019 – AUGUST 27, 2010 FACTS: Tran and Xuan Hohensee were passengers in a minivan driven by Nguyen and owned by the Hohensees when Nguyen drove his vehicle into the path of a vehicle driven by Sarah Shockey. Nguyen was an experienced driver who had previously driven the Hohensees’ van on multiple occasions, and he had not been involved in any prior vehicle accidents. Before the accident, the Hohensees had removed the minivan’s middle seat and, in the space created, had placed the spare tire, a rug, and other loose items. At the time of the accident, Tran was seated in the back seat of the van. www.ksbar.org
Appellate Decisions Tran was wearing his seat belt and had not noticed any problems with the seat belt. After the accident, the seat belt appeared frayed. Tran subsequently brought a negligence action against Nguyen, the Hohensees, Sarah Shockey, Dale Shockey (Shockey’s father), and the Board of County Commissioners of Leavenworth County (Board). Tran alleged Nguyen was negligent in that he was inattentive, failed to yield the right of way, failed to maintain proper control of the vehicle, and failed to maintain a proper lookout. According to the petition, Shockey was negligent in failing to maintain proper control of her vehicle, failing to maintain a proper lookout, driving at an excessive speed for the conditions, and being inattentive. Tran also brought a negligent entrustment action against Dale Shockey, alleging he knew or had reason to know that his minor daughter was an incompetent and careless driver. Tran asserted the Board was negligent in the design, construction, and maintenance of the intersection where the accident occurred. The district court granted the Hohensees’ motion for summary judgment, finding there were no genuine issues of material fact and the facts alleged by Tran were legally insufficient to support his negligent entrustment claim. Further, although the district court had not resolved Tran’s claims against the remaining defendants, the court expressly entered final judgment under K.S.A. 60-254(b) against Tran and in favor of the Hohensees, thus permitting this appeal. ISSUES: (1) Negligent entrustment and (2) summary judgment HELD: Court stated that the tort of negligent entrustment occurs when the owner of an automobile allows a third party to drive it, knowing that the driver is incompetent or habitually careless. Negligent entrustment also requires that the owner of the vehicle be aware of the past activities or characteristics of the driver that render it unsafe for the owner to entrust the driver with the vehicle. Court held that Tran did not allege that Nguyen was an unsafe driver by reason of his age, experience, physical or mental condition, or known habits of recklessness. Nor did Tran present any evidence to show that the Hohensees knew or should have known that Nguyen was an unsafe driver based upon any personal characteristics. Rather, Tran relied entirely upon evidence, which suggested the minivan was unsafe. Court held summary judgment was proper. Court also stated that it refused to apply an alternative theory of negligent entrustment under Restatement (Second) of Torts § 389 (based on supplying an unsafe chattel to a third person) because that theory was never pled or asserted by the plaintiff despite multiple opportunities to do so. Court stated that even if it applied that alternative theory, the facts of the case did not fit within it. DISSENT (J. Green): Dissented stating there was no denying that if the trial court’s controlling facts are to be ignored and the common-law negligent entrustment theory under Restatement § 389 is to be repudiated, the plaintiff has no valid negligent entrustment claim against the defendants as the majority opines. But such an opinion can be predicated only on the majority ignoring the trial court’s controlling facts. Judge Green would hold the trial court to its controlling facts, which brought the plaintiff’s claim within the negligent entrustment theory under Restatement § 389. At this stage in the case, when the discovery deadline had not yet run and a pretrial conference had not been held, Judge Green would hold that the defendants’ motion for summary judgment was prematurely granted. STATUTE: K.S.A. 60-254(b) TAX EXEMPTION AND EXCLUSIVE USE IN RE TAX EXEMPTION OF KOURI PLACE LLC COURT OF TAX APPEALS REVERSED AND REMANDED WITH DIRECTIONS NO. 101,648 – SEPTEMBER 3, 2010 FACTS: Kouri Place sought an exemption for its property, one that has 14 of its 15 units used to house people with special needs and one unit devoted to housing on-site managers. The Kansas Legwww.ksbar.org
islature has provided a real estate tax exemption when the property is “used exclusively” as a group home for low-income people with special needs. The Kansas Court of Tax Appeals held that the exclusive physical use of the property qualified for the tax exemption. But the court nonetheless denied the exemption because Kouri Place financed most of the project’s construction through a federal tax credit program; that court held that this constituted a separate intangible use of the real estate, thus eliminating exclusive use as a group home. ISSUES: (1) Tax exemption and (2) exclusive use HELD: Court stated that K.S.A. 79-201b Sixth provides a real estate tax exemption when property is used exclusively as a group home for low-income people with special needs and other statutory requirements are met. A federal statute, 29 U.S.C. § 42 (2006), provides tax credits that can be used to help provide funding for low-income housing projects. Court held that under the facts of this case, the use of those tax credits to build a group home otherwise exempt from taxation under K.S.A. 79-201b Sixth does not constitute a separate use of the property so as to negate the required exclusive use as a group home. Kouri Place is entitled to the tax exemption. STATUTES: K.S.A. 17-76,111; K.S.A. 74-8904(v); K.S.A. 79201 Second, Ninth; and K.S.A. 79-201b Fourth, Sixth TRUSTS COMMERCE BANK V. BOLANDER ET AL. MONTGOMERY DISTRICT COURT – AFFIRMED NO. 94,569 – MOTION TO PUBLISH, OPINION ORIGINALLY FILED ON APRIL 6, 2007 FACTS: Whittet was appointed trustee of the Wanda J. BennetRodgers Trust (Trust) set up to provide for the educational expenses of her lineal descendents. The initial trust documents indicated that the Trust property consisted of an IRA account and real estate. Before her death Wanda executed a promissory note to Commerce for $93,314.48, secured by real estate and personal property. Wanda died in Texas. Commerce filed a chapter 60 petition for its unpaid balance and also claiming the Trust was revocable at Wanda’s death so the property was subject to its claim. Whittet was served in Kansas. Whittet claimed Kansas lacked personal jurisdiction over the Trust because the situs of the Trust and all property was in Oklahoma. The district court granted summary judgment in favor of Commerce. The court found that under the terms of the Trust instrument and the laws of Kansas, the Trust was governed by the laws of Kansas, including the Kansas Uniform Trust Code. The court held that pursuant to K.S.A. 58a-505, the assets of the Trust were available to satisfy Commerce’s judgment claim. The court entered judgment against the Trust, reduced by the amount of proceeds from the sale of Commerce’s secured collateral. The court also froze the assets of the Trust with a value not less than the unpaid balance of the judgment entered in favor of Commerce. The court also found the Trust assets exceeded $200,000 and Commerce’s claim as of that day was $76,199.82. The court held there were substantial assets in the Trust over and above the value of Commerce’s claim, which were unaffected by the freeze order. The court held the Trust had failed to offer any evidence to show that the Trust, trustee, or the beneficiaries of the Trust were in any way harmed by the freeze order. Commerce garnished the Trust. ISSUE: Trusts HELD: Court held that contrary to Texas and Oklahoma, there were several facts showing the significant relationships and connections of this case to the state of Kansas: (1) clear intent by Wanda in providing unambiguous language in the Trust document for administration pursuant to laws of Kansas; (2) the Trust originated in Kansas, was revocable by Wanda, and Wanda was the trustee while living in Kansas for nearly four years; (3) the Trust document gave the Trustee powers pursuant to the Kansas Uniform Trustees Powers Act; (4) the Trust documents indicated the Trust assets included Kansas The Journal of the Kansas Bar Association | October 2010 45
Appellate Decisions real estate; (5) the Trust was the residual beneficiary under Wanda’s will probated in Montgomery County, Kansas; (6) Wanda’s spouse at the time of her death was a Kansas resident; and (7) Whittet was still a Kansas resident when the petition for probate was filed and when he was personally served with process. Whittet, as trustee, also submitted to the jurisdiction of the court by filing an answer and also a counterclaim. Court held that the district court did not err in concluding that the Trust was subject to the judgment obtained by Commerce. Court stated that when there is no dispute by any of the parties that a trust is clearly a revocable trust, K.S.A. 58a-505(a)(1) provides that during the lifetime of a settlor, the property of a revocable trust is subject to the claims of the settlor’s creditors. Court also agreed with Commerce that the exemptions that surround an IRA or its benefits to the settlor are personal to the settlor. The exemption is not transferable and disappears upon the death of the settlor, except for certain statutory exceptions such as the homestead rights and various real and personal property. STATUTES: K.S.A. 58-1201; K.S.A. 58a-101, -107, -108, -505(a)(1), (3); K.S.A. 59-401, -403, -1303, -2238(2); and K.S.A. 60-2308(b)
Criminal STATE V. ATTEBERRY SHAWNEE DISTRICT COURT – AFFIRMED NO. 102,060 – SEPTEMBER 3, 2010 FACTS: Atteberry entered no contest plea to 34 counts of violations of Kansas Securities Act (Act) and two counts of theft by deception, all regarding investment opportunities involving exportation of cattle embryos to Europe. In sentencing, district court denied Atteberry’s request for dispositional and durational departure sentence, and for probation. Atteberry then filed motion to withdraw his plea, alleging ineffective assistance of trial counsel in failing to raise affirmative defense that promissory notes involved in the transactions at issue were commercial papers exempt from Act. District court denied the motion. On appeal, Atteberry also claimed counsel was ineffective in not challenging commercial paper exemption as unconstitutionally vague, in failing to argue crimes were specific intent crimes, and in advising entry of plea to all charges without a plea agreement. Atteberry’s appeal transferred to Supreme Court. ISSUES: (1) Plea withdrawal - K.S.A. 2009 Supp. 22-3210(d), (2) affirmative defense based on commercial paper exemption, (3) vagueness challenge to commercial paper exemption, (4) specific intent crimes, and (5) no plea agreement HELD: Factors for evaluating pre- and post-sentencing motions to withdraw pleas are stated. Commercial papers exemption discussed in State v Hodge, 204 Kan 98 (1969) is distinguished and narrowed to definition in K.A.R. 81-5-11 in effect at all times pertinent to this appeal. Promissory notes issued by Atteberry were not commercial paper under that narrow definition. Trial court correctly concluded the exemption did not apply. Void for vagueness challenge to commercial paper exemption, raised for first time on appeal, is considered and rejected. Under facts, Atteberry had sufficient notice his conduct was criminal. Assuming exception satisfied for considering issue for first time on appeal, Kansas courts have held crimes under Act are general intent crimes, and nothing indicates any departure from that holding. Under facts, and viewing representation of Atteberry’s counsel as a whole, Atteberry failed to overcome presumption that trial counsel’s performance was effective. STATUTES: K.S.A. 2009 Supp. 22-3210(d); K.S.A. 84-1103(b); K.S.A. 17-1252 et seq., -1253, -1254, -1254(a), -1255, -1267; K.S.A. 21-3701, -4718(b), -4720(b)(7), -4720(c)(2); K.S.A. 22-3210(d), -4506(b); K.S.A. 60-1507; K.S.A. 2002 Supp. 121252 et seq., -1252(j), -1261, -1261(i), -1262, -1270(e), -1272; and 46 October 2010 | The Journal of the Kansas Bar Association
K.S.A. 17-1261(i) and -1266(a) (Furse 1995) STATE V. BROWN WYANDOTTE DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS NO. 101,819 – AUGUST 6, 2010 FACTS: Kenneth Brown appeals his convictions of aggravated burglary, burglary, and theft of property of a value of more than $1,000. The trial court imposed a total presumptive sentence of 142 months’ imprisonment. Brown claims the district court violated K.S.A. 60-455 and committed reversible error by admitting evidence at trial of his prior conviction of attempted burglary and by giving an erroneous limiting instruction to the jury. ISSUES: (1) Prior crimes evidence and (2) jury instructions HELD: Court held there was substantial competent evidence to support the district court’s finding that the victim identified Brown as the intruder. Court also stated that although Brown’s intent to commit a theft inside the residence was a material fact that the state was required to prove beyond a reasonable doubt, Brown did not dispute this particular material fact by asserting an innocent explanation for his actions. However, court stated that intent becomes a disputed issue only when the defendant asserts an innocent explanation for his or her actions. Because Brown did not offer an innocent explanation for his actions, court concluded the district court erred by admitting evidence of his prior attempted burglary conviction in order to prove intent. Court held the evidence against Brown for aggravated burglary was far from overwhelming and the court was unable to conclude the trial court’s error was harmless. However, court did not find reversible error concerning Brown’s conviction for burglary and theft. Court reversed for new trial on the aggravated burglary conviction. STATUTES: K.S.A. 21-3716; K.S.A. 22-3414; and K.S.A. 60261, -401(b), -445, -455 STATE V. GAMBLE ANDERSON DISTRICT COURT – AFFIRMED NO. 101,880 – AUGUST 6, 2010 FACTS: Gamble appeals from his jury trial convictions of five counts of rape in violation of K.S.A. 21-3502(a)(2) and five counts of aggravated criminal sodomy in violation of K.S.A. 21-3506(a) (1) involving sex crimes committed against his daughter’s friend. Gamble argues that the trial court erred in admitting his videotaped confession because his statements were obtained in violation of his rights under the Fifth and Sixth Amendments to the U.S. Constitution. Gamble argues that the trial court erred in not granting his request for a preliminary hearing or a bill of particulars. ISSUES: (1) Confession and (2) bill of particulars HELD: Court held Gamble was in custody for a different offense and because no adversarial proceedings had been initiated against Gamble with regard to the offenses that are the subject of this case, the admission of Gamble’s videotaped confession did not violate his Sixth Amendment right to counsel. Also, where the appellate record established that Gamble initiated the contact with law enforcement in order to give his confession to the offenses under investigation and that Gamble voluntarily waived his Miranda rights before giving his confession, there was no violation of Gamble’s Fifth Amendment right to counsel. Court also held that Gamble had voluntarily waived his right to a preliminary hearing on the record five months before trial and that his retained counsel chose not to examine the prosecutor’s file concerning the allegations against Gamble. There was no abuse of discretion in the trial court’s decision to deny Gamble’s request for a preliminary hearing or a bill of particulars, filed two days before the scheduled trial. STATUTES: K.S.A. 21-3502(a)(2), -3506(a)(1); and K.S.A. 222902(4), -3201(f ) www.ksbar.org
Appellate Decisions STATE V. HALL SHAWNEE DISTRICT COURT AFFIRMED IN PART, RESTITUTION ORDER VACATED, AND REMANDED WITH DIRECTIONS NO. 102,117 – AUGUST 20, 2010 FACTS: Michael Hall appeals his sentence for aggravated robbery and attempted second-degree murder. Hall claims the district court erred by holding the restitution hearing without his presence. He also argues the court lacked jurisdiction to award restitution after judgment was already pronounced at sentencing. Finally, Hall contends the court erred in sentencing him to an aggravated sentence without putting it before the jury and in sentencing him to an increased sentence based on prior criminal history without putting it before the jury. ISSUES: (1) Restitution hearing and (2) sentencing HELD: Court held that an attorney may waive the client’s right to be present at a restitution hearing if the client previously consented to that waiver. Court stated that was not the case here. Court vacated the district court’s restitution order and required another restitution hearing. Court also held the district court could retain jurisdiction to set the specific amount of restitution at a date after the rest of sentencing. Court rejected Hall’s Apprendi claim. STATUTE: K.S.A. 22-3405 STATE V. HINES SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 102,233 – AUGUST 6, 2010 FACTS: Hines pled guilty to attempted second-degree murder and aggravated battery of his wife, Charmaine. The two convictions presumptively required a minimum prison term of 61-71 months or a maximum prison term of 99-114 months. The trial court de-
termined that Charmaine’s request for leniency was a substantial and compelling reason for departing from the statutory prison term and imposed a prison term of 24 months for each conviction and ordered that the two sentences be served concurrently. ISSUES: (1) Sentencing and (2) departure factors HELD: Court held the sentencing court’s sole reliance on the victim’s request for leniency was not a substantial and compelling reason in granting the defendant’s departure sentences below the statutory minimum for attempted second-degree murder and aggravated battery when the defendant pled guilty to two violent, serious, and intentional felony offenses and when there was no showing that society will be protected by the concurrent departure sentences of 24 months or that the concurrent departure sentences of 24 months will deter others from committing like crimes. STATUTE: K.S.A. 21-3402(a), -4716(a), (c) STATE V. MILLER RILEY DISTRICT COURT – REVERSED AND REMANDED NO. 102,677 – AUGUST 20, 2010 FACTS: Brian Miller appeals the district court’s revocation of his probation. The only issue is whether the district court committed reversible error when it failed to properly advise Miller of his right to an attorney at his probation violation hearing. ISSUES: (1) Probation revocation and (2) right to counsel HELD: Court held that because the district court violated K.S.A. 22-3716(b) by failing to inform Miller that he had the right to be represented by counsel at the probation violation hearing and that an attorney would be appointed to represent him if he was financially unable to obtain counsel, structural error required reversal and remand for a new hearing. STATUTE: K.S.A. 22-3716(b)
Kansas Commission on Judicial Performance Announces Judicial Performance Evaluations The Kansas Commission on Judicial Performance announces the posting of Judicial Performance Evaluations for ALL Supreme Court Justices, Court of Appeals Judges, District Court Judges, and District Magistrate Judges who will stand for Retention Election on November 2, 2010. The address of the website is:
www.kansasjudicialperformance.org Please review the evaluations and encourage your clients, friends, and Family to do the same before voting on November 2.
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The Journal of the Kansas Bar Association | October 2010 47
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ASSOCIATE POSITION: AV-rated Topeka law firm seeks attorney with 2-4 years civil litigation experience and excellent research and writing skills. Equal opportunity employer. Apply and send writing samples and salary requirements to Managing Partner, PO Box 3555, Topeka, KS 66601-3555.
EXPERIENCED LITIGATOR available to help with your cases. 20+ years of experience. Will work by the hour or the job. Can help lighten your heavy case load. Call (816) 518-6093.
Office Space Available LAW OFFICES located in downtown Overland Park, in remodeled historic building, free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voice mail, and high-speed Internet access. The offices are in walking distance of coffee shops, restaurants and retail stores. Seventeen highly respected attorneys in an office-sharing/networking arrangement. Contact Jim Shetlar at (913) 648-3220. OFFICE SPACE: Large windowed office with another attorney. Prime location in Johnson County. Perfect for solo practitioner or larger firm desiring to establish a Johnson County presence. Includes reception, conference room, file/admin room and use of phone system. Fax and high-speed Internet available. Flexible terms. (913) 7069336.
YALE LAW-EDUCATED ATTORNEY with 10 years’ experience available for part-time/contract legal work. Experience mainly on secured lending and other financial transactions but willing to do work of almost any kind. Fees and other arrangements flexible. Located in Johnson County but comfortable working remotely. Licensed to practice in Kansas and New York; license in Missouri pending. Please contact James Holt at (917) 328-0498 or holtj@aya.yale.edu.
For Rent KANSAS LAWYER has southwest Florida beach house and brand new 3BR/2BA luxury beach condos for rent. See englewoodbeachhouse.com. Attorney discount. Contact Lee Hollis (913) 3855400 or leehollis@hollislawfirm.com.
OFFICE SPACE in College Boulevard/ Metcalf Corridor. Includes furnished office, support staff, parking, 9th floor of Commerce Plaza I, immediately west of Overland Park Marriott. Contact Stephanie at (913) 498-1911 for more information.
Attorney Services CONTRACT BRIEF WRITING Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 20 cases in the Kansas Courts of Appeals and 10 briefs to the 10th Circuit. Both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or e-mail to learn more. Jennifer Hill, (316) 263-5851 or e-mail jhill@mtsqh.com.
For display advertising information contact Bill Spillman at (877) 878-3260 or e-mail bill@innovativemediasoltions.com. For classified ads contact Susan McKaskle at (785) 2345696 or e-mail smckaskle@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.
48 October 2010 | The Journal of the Kansas Bar Association
www.ksbar.org
www.ksbar.org
The Journal of the Kansas Bar Association | October 2010 49
50 October 2010 | The Journal of the Kansas Bar Association
www.ksbar.org
Let your VOICE be Heard!
2010-11
KBA Officers and Board of Governors President Glenn R. Braun (785) 625-6919 grbraun@haysamerica.com President-elect Rachael K. Pirner (316) 630-8100 rkpirner@twgfirm.com Vice President Lee M. Smithyman (913) 661-9800 lee@smizak-law.com Secretary-Treasurer Dennis D. Depew (620) 325-2626 dennis@depewlaw.biz
Hays
Wichita
Overland Park
Neodesha
Immediate Past President Timothy M. O’Brien (913) 735-2222 Kansas City, Kan. tim_o’brien@ksd.uscourts.gov Young L awyers Section President Melissa R. Doeblin (785) 271-3186 Topeka melissadoeblin@gmail.com District 1 Eric G. Kraft (913) 498-3536 Overland Park ekraft@kc-dsdlaw.com Kip A. Kubin (816) 531-8188 Kansas City, Mo. kak@kc-lawyers.com Vacant Vacant
District 2 Charles E. Branson (785) 841-0211 Lawrence cbranson@douglas-county.com
District 2 (Con’t.) Rep. Paul T. Davis (785) 843-7674 pauldavis@sunflower.com
Lawrence
District 10 Jeffery A. Mason (785) 890-6588 jamason@st-tel.net
Goodland
District 3 Vacant
District 11 Nancy Morales Gonzalez (816) 936-5788 Kansas City, Mo. nancy.gonzalez@ssa.gov
District 4 William E. Muret (620) 221-7200 Winfield muret@winfieldattorneys.com
District 12 William E. Quick (816) 360-4335 Kansas City, Mo. wquick@polsinelli.com
District 5 Natalie G. Haag (785) 438-3121 Topeka natalie.haag@securitybenefit.com
At-L arge Governor Gwynne Harris Birzer (316) 265-7741 birzer@hitefanning.com
Teresa L. Watson (785) 232-7761 Topeka twatson@fisherpatterson.com
KDJA R epresentative Hon. Warren M. Wilbert (316) 660-5625 wwilbert@dc18.org
District 6 Bruce W. Kent (785) 556-2019 bruce.w.kent@gmail.com
Manhattan
District 7 Matthew C. Hesse (316) 858-4924 Wichita matthew_hesse@via-christi.org J. Michael Kennalley (316) 263-3200 Wichita mkennall@martinchurchill.com Calvin D. Rider (316) 267-7361 x 157 Wichita crider@fleeson.com District 8 Gerald L. Green (620) 662-0537 jgreen@gh-hutch.com
Hutchinson
District 9 David J. Rebein (620) 227-8126 Dodge City drebein@rbdodgecity.com
KBA Delegate to ABA Sara S. Beezley (620) 724-4111 beezleylaw@ckt.net KBA Delegate to ABA Linda S. Parks (316) 265-7741 parks@hitefanning.com ABA State Delegate Hon. Christel E. Marquardt (785) 296-6146 marquardtc@kscourts.org
Wichita
Wichita
Girard
Wichita
Topeka
ABA State Delegate Thomas A. Hamill (913) 491-5500 Overland Park tahamill@martinpringle-kc.com Executive Director Jeffrey J. Alderman (785) 234-5696 jalderman@ksbar.org
Topeka