Your Partner in the Profession | May 2016 • Vol. 85 • No. 5

Trends in the Paralegal Profession P7

A Special Presentation of Law Wise P47

Two Opinions: Separation of Powers and Strength of the Judiciary

28 & 36 | Opinions: Separation of Powers and the Judiciary By Nick Badgerow and Lumen Mulligan

Cover design by Ryan Purcell

7 | Trends in the Paralegal Profession 28 | Opinion: Don't Tread on Me By Cheryl Clark The Separation of Powers and the Need for a Strong Judiciary 16 | Celebrating 60 years of the KBF By Nick Badgerow 24 | Attorneys Join KLS for a 'Second Season of 36 | Opinion: Testimony Concerning the Separation Service' of Powers and the Judiciary By Marilyn Harp By Lumen Mulligan 26 | Be the Best There Is—No More, No Less 47 | A Special Presentation of Law Wise By Betsy Six Regular Features 6 | KBA President 46 | Upcoming CLE Schedule By Natalie G. Haag 42 | Appellate Decisions 8 | YLS President By Justin Ferrell 44 | Appellate Practice Reminders 18 | The Diversity Corner 59 | Classified Advertisements By Merideth J. Hogan 20 | Data is a Toxic Asset By Larry N. Zimmerman 23 | Members in the News

www.ksbar.org | May 2016 3 E Let your VOICE TH 2015-16 be Heard! KBA Officers & Board of Governors JOURNAL President OF THE KANSAS BAR ASSOCIATION Natalie Haag, [email protected] President-Elect 2015-16 Stephen N. Six, [email protected] Journal Board of Editors Vice President Gregory P. Goheen, [email protected] Secretary-Treasurer Richard D. Ralls, chair, [email protected] Bruce W. Kent, [email protected] Terri Savely, BOG liaison, [email protected] Immediate Past President Hon. David E. Bruns, [email protected] Gerald L. Green, [email protected] Boyd A. Byers, [email protected] Young Lawyers Section President Emily Grant, [email protected] Justin L. Ferrell, [email protected] Connie S. Hamilton, [email protected] District 1 Katharine J. Jackson, [email protected] Christi L. Bright, [email protected] Toby J. Crouse, [email protected] Michael T. Jilka, [email protected] Mark A. Dupree, [email protected] Lisa R. Jones, [email protected] Mira Mdivani, [email protected] Hon. Janice Miller Karlin, [email protected] District 2 Casey R. Law, [email protected] Hon. Sally D. Pokorny, [email protected] Julene L. Miller, [email protected] Sarah E. Warner, [email protected] Hon. Robert E. Nugent, [email protected] District 3 Professor John C. Peck, [email protected] Eric L. Rosenblad, [email protected] Rachael K. Pirner, [email protected] District 4 Karen Renwick, [email protected] Brian L. Williams, [email protected] Jennifer Salva, Journal Editor, [email protected] District 5 Teresa M. Schreffler, [email protected] Terri S. Savely, [email protected] Dennis D. Depew, [email protected] Richard H. Seaton Sr., [email protected] Cheryl L. Whelan, [email protected] Sarah B. Shattuck, [email protected] District 6 Richard D. Smith, [email protected] Tish S. Morrical, [email protected] Marty M. Snyder, [email protected] District 7 Matthew A. Spurgin, [email protected] Gary Ayers, [email protected] Catherine A. Walter, [email protected] Hon. Jeffrey E. Goering, [email protected] Meg Wickham, staff liaison, [email protected] J. Michael Kennalley, [email protected] Issaku Yamaashi, [email protected] District 8 Natalie Yoza, [email protected] John B. Swearer, [email protected] District 9 The Journal Board of Editors is responsible for the selection and editing of David J. Rebein, [email protected] all substantive legal articles that appear in The Journal of the Kansas Bar District 10 Association. The board reviews all article submissions during its quarterly Jeffery A. Mason, [email protected] meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Jennifer District 11 Salva, Journal Editor at [email protected]. Nancy Morales Gonzalez, [email protected] District 12 William E. Quick, [email protected] The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December At-Large Governor for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., Bruce A. Ney, [email protected] and at additional mailing offices. The Journal of the Kansas Bar Association KDJA Representative is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, Hon. Michael F. Powers, [email protected] KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member KBA Delegate to ABA subscription is $25 a year, which is included in annual dues. Nonmember Linda S. Parks, [email protected] subscription rate is $45 a year. Rachael K. Pirner, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Hon. Christel E. Marquardt, [email protected] legal articles published in The Journal of the Kansas Bar Association. Copyright © 2016 Kansas Bar Association, Topeka, Kan. ABA YLD Delegate Vincent Cox, [email protected] For display advertising information contact Jennifer Salva or Meg Wickham Executive Director at (785) 234-5696 or email [email protected] or [email protected]. Jordan E. Yochim, [email protected] For classified advertising information contact Jennifer Salva at (785) 234- 5696 or email [email protected]. Our Mission Publication of advertisements is not to be deemed an endorsement of any The Kansas Bar Association is dedicated to advancing the professionalism product or service advertised unless otherwise indicated. and legal skills of lawyers, providing services to its members, serving the POSTMASTER: Send address changes to The Journal of the Kansas Bar community through advocacy of public policy issues, encouraging public Association, 1200 SW Harrison St., Topeka, KS 66612-1806. understanding of the law, and promoting the effective administration of our system of justice.

4 The Journal of the Kansas Bar Association Notification of Policy Change

From time to time the Board of Editors of your KBA Journal has received letters and opinion pieces submitted for publication consideration. The Board has steadfastly remained focused on a mission of publishing researched, footnoted, substantive legal articles on the state of the law. Our goal has been to provide information useful to our KBA membership in everyday practices. With this edition of the Journal, we announce the trial of a more expansive policy just adopted by the Board. We will now consider opinion pieces and letters to the editor for publication. Our first foray into this area follows. In coming editions we may publish submissions that fall within our new guidelines, which are separately published herein. These include opinion pieces that are well reasoned, with legal au- thority, which would be of broad interest to our readership. This policy has been adopted on a trial basis and will be reviewed within the next two years. Although we will publish a broader range of articles, we remain primarily focused on the publica- tion of practical legal articles. We do invite substantive legal article ideas, submitted by proposed authors, which further our primary mission. Please review additions to our policy on page 56 of the Journal. — Richard D. Ralls, Chairman, Board of Editors

www.ksbar.org | May 2016 5 kba president

Nothing can Trump an Election Year!

othing can trump an election year for crazy news and While I plan to join many of you in my efforts to avoid political antics. You should be excited that the KBA the proliferation of phone calls and television advertisements just completed the Board of Governor elections with- that mark the election season, I don’t want any of us to avoid outN any smear campaigns or ugly commercials. Of course, the the entire election. As lawyers, we are well educated, well re- KBA does have at least one issue in common with political spected, and prominent members of our community. Please elections: low voter turn-out. All KBA members are eligible encourage your friends, family and neighbors to vote. If every to vote, yet the historical data shows that only an average 23 one of us votes and convinces one prior non-voter to exercise percent of the eligible voters actually cast a ballot in the KBA this right, imagine the impact this could have on Kansas in elections in the past three elections. This is your opportunity 2016. Just vote! to select future bar leaders from a number of extremely quali- Sorry, No Photos fied candidates. If you don’t know the candidates, check out My KBA business this month has been limited to confer- the published bios or ask a colleague. The elections are profes- ence calls and email which do take time, but they don't create sional and low key. I’d encourage you to look closely at the any fun or interesting photo opportunities. Instead, I spent ballot next year. four weekends in a row attending and officiating swim meets. In contrast to the low key KBA election, judicial retention In fact, I’ve visited with several of you during these events. elections are already trumping up a number of soundbites and Since I took a breather from KBA and work road trips, I feel political cartoons. Based upon the number of legislative bills comfortable encouraging you to take a break and just relax. introduced to expand the impeachment process for judges So plan some fun for 2016 and consider attending the KBA and limit the authority of the courts, special interest groups Annual meeting as one of your enjoyable breaks from work urging members to vote against retention, and the other po- this June! I’d love to see you all there.n litical commentary issued about the courts during 2016, we can expect a lively judicial retention process. This is my way of reminding you that 2016 is not the year to “sit out” the elec- tion because it could have a significant impact on our judicial About the KBA President system. Since soundbites and vote “no” postcards are not good ways Natalie G. Haag currently serves as executive vice president/general counsel for Capitol Federal to assess the qualifications of a judge, I encourage KBA mem- Savings Bank. She has been a member of the Kansas bers to help educate their neighbors, friends and colleagues Bar since 1985, and received her bachelor’s degree about the important role that judges play in our legal system. from Kansas State Univeristy in 1982 and her law Watch for the 2016 Judicial Review Survey and share it with degree from Washburn University School of Law in other voters (http://www.kansasjudgereview.org/). Don’t for- 1985. get that many of the justices and judges on the ballot have [email protected] committees working for their retention and, in some com- munities, their election. I’m sure they will welcome your help in this effort. 6 The Journal of the Kansas Bar Association paralegal professional

Trends in the Paralegal Profession s technology innovations continue to permeate the le- that are needed in the legal profession. Educators are aware gal profession, paralegals have realized tremendous op- of and concerned with the lack of such basic skills for those portunities to develop the skills needed to apply these entering their programs. As a result, programs are starting to Atools to benefit the lawyers they work with. In response to place more emphasis on writing skills. Many paralegal educa- market demands, paralegal educators are adapting their pro- tors believe employers should be asking for a writing sample grams to keep up with industry demands. Paralegal programs from prospective paralegals. are becoming more popular. The availability of continuing Distance Learning legal education courses related to technology is increasing. Distance learning, also known as e-learning, is one of the Office managers are changing their training policies to better fastest-growing segments of higher education. Media and in- prepare today’s paralegals for success in the workforce. teractive technologies have increased the e-learning possibili- Paralegal roles are expanding, and law firms are looking for ties in both academic and workplace settings. The flexibility multiple skills and a wide variety of experience when they hire of taking classes at any time from any location is the norm in paralegals. Paralegal educators agree that a combination of education today. Distance learning appeals to all students, and strong technology skills, writing and communication skills, is especially popular among students with families who work and hands-on experience help paralegals find a job when they full time jobs and have other obligations in their busy lives. get ready to enter the workforce. Other hot trends in paralegal Online continuing education classes are an excellent way for education and CLE include e-learning and a greater demand paralegals to make themselves more marketable, not only if for certain paralegal specialties. they are looking to change jobs, but also if they are seeking to Technology Training advance in their current place of employment. As legal employers look for paralegals with advanced tech- As the paralegal profession evolves, legal specialties grow. nology skills to increase their productivity, these skills are now Paralegal specialties popular in today’s legal market include essential for paralegals entering the workforce. Tech-savvy bankruptcy, immigration, litigation, collections/foreclosure paralegals will always have the advantage in the legal job mar- and intellectual property. Electronically stored information is ket. Technology skills can be developed by firms that take the causing the growth of e-discovery and litigation as support time to train their paralegals through continuing education specialties. classes and allowing them to attend legal seminars. Some larg- Education is key in the paralegal profession today. Over the er firms hold monthly training sessions for their paralegals, last few years, the KBA Paralegal Committee has lost some covering a variety of topics related to technology. valuable attorney and educator members to retirement. We In many law offices, attorneys rely on paralegals to select, would like to recognize those members at this time: Anita manage and operate law-related software. They assist in e-dis- Tebbe, who retired from Johnson County Community Col- covery, understand and manage databases, facilitate case man- lege last year; John Conlee, who first served as the director of agement software, create searchable electronic documents, the paralegal program at Wichita State University and then and orchestrate the technology aspects of trial presentations. joined Newman University as the director of their paralegal As a result, paralegal programs are expanding their technology program, and Kaye Rute, who retired from Washburn Uni- offerings and are training students on a diverse array of word versity. These members provided knowledge and direction to processing, spreadsheet, timekeeping, trial presentation, legal our committee, and are greatly missed. n research and case management software. It is impossible for About the Author paralegal programs to teach every form of legal software avail- able, but it is necessary for paralegal programs to introduce Cheryl L. Clark, has a combined 40 years of experi- their students to new concepts and provide education in these ence in the legal field and has worked for the law areas. The more paralegals know about technology and legal firm of Fleeson, Gooing, Coulson & Kitch, L.L.C software programs, the more job security they will have when for the last 19 years. She obtained her associate's they enter the workforce. degree in legal assistant studies from Hutchinson Community College in 1990, her Certified Legal As- The growth of litigation support and the world of e-discov- sistant (CLA) designation in 1993 and her Advanced ery have also prompted the increase of technology training in Certified Paralegal (ACP) designation in 2006 from both paralegal programs and within law firms. The need for the National Association of Legal Assistants. She formal training is critical to the continued growth and ad- is a past chair and current member of the KBA vancement of the paralegal profession and those working in Paralegal Committee, past president of the Kansas Association of Legal Assistants, and a past member the area of litigation. Paralegals should strive to become the of the Certifying Board for the National Association go-to person for technology applications and uses. of Legal Assistants. She currently serves as chairper- Enhanced Communication Skills son of the KBA Task Force for state certification for Kansas Paralegals, and is coordinator of the parale- Another major trend in paralegal training and education is gal program at Hutchinson Community College. a focus on fundamental skills such as legal writing, communi- cation and marketing. Many paralegal educators believe that cclarkfleeson.com students today lack oral and written communication skills www.ksbar.org | May 2016 7 yls president

Searching for Balance as a Young Lawyer

hen I first walked through the doors of Washburn It’s certainly not easy. Not being at home every night to see Law School as 1L, I had no clue what I wanted to my two daughters has been the toughest part of my entire do with the law degree that I would be working career. But I knew that Concordia was the type of place I Wso hard to obtain. All I knew was that I had wanted to go to wanted my children to grow up in. And, I still love my job. law school for a long time, I had worked for the opportunity It’s all about balance. When I am home and working, I make and now I was ready to embrace the challenges that lay ahead. as much time as I can for my daughters (weekends are filled Those challenges, while in a different form, still exist today. with all types of adventures). It works well for my family, and we have a routine that works well for us. That is the challenge that I, along with everyone else in any career, must try to mas- ter: balance. Such a simple word, but so very complicated to implement. When I first started law school, I was convinced that I would be working 80 hour weeks, knocking out huge cases and spending very little time at home. Likely a family would be put on hold, or never happen. My, how such things change! My view of my career now, compared to my view of what I thought it would be as a 22-year-old 1L couldn’t be more dif- ferent. I strive to be successful in my job as it’s very important to me, but what is even more important is my family. My two daughters need a dad more than they need a successful, high-powered attorney. But, if I take a step back and look, I am a successful attorney, I have a job I love that allows me to help people everyday, two little girls who look up to me, and for the most part, a healthy mind and body. Many times we mistakenly believe that in order to be suc- cessful in one aspect of our lives, then another aspect must suffer, or not be tended to with the time and care it needs. I disagree. Life is, and has always been, about balance; find- ing the balance between work and family life is imperative. I believe if you spend too much time on one aspect of life, you will fail in others. In order to balance my life, I spend as much of my free time with my daughters, I exercise over lunch when I am at home working, I exercise in the evenings, and then go back into the office to work at night when I am in Tope- ka. Weekends for the most part are dedicated to spending as much time as possible with my girls. This routine has, for the most part, allowed me to keep my work, family, and health in Law school challenged all of us, from class, to outline draft- good balance. It’s not perfect, and sometimes it seems to favor ing, to finals, and bar prep. It has to get easier after all of one aspect over another—but I strive everyday to maintain that, right? Well, the challenges and rigors of law school were the best balance I can. n replaced by “real life” challenges such as finding a good job, starting a family, balancing that work and family, and still try- ing to find time to keep myself healthy as well. My biggest About the YLS President challenge as a young lawyer was that a few years after graduat- ing from law school and taking a job as an in-house attorney Justin Ferrell serves as in-house counsel/risk manager for the Kansas County Association Multiline Pool, the deci- for the Kansas County Association Multiline Pool in Topeka. He currently serves on both the TBA Young sion was made to move from Topeka to Concordia, Kan., a Lawyers and KBA Young Lawyers in many capacities. two hour drive from the job I was going to keep in Topeka. Thus started the odyssey of commuting to Topeka every week [email protected] to work a few days in our office here! “I won’t do this for long,” I thought to myself, but my love of my job in Topeka, and starting a family in Concordia has, to this day, kept me driving back every week.

8 The Journal of the Kansas Bar Association Need Last Minute CLE? Programming available • Webinars • On-Demands • Replays • Live

Check the KBA CLE calendar at http://www.ksbar.org/CLE

www.ksbar.org | May 2016 9 attorney ethics Privilege for Hire Does the Attorney-Client Privilege Extend to Independent Contractors?

Question Communications with Every With a flagging economy, corporate employers are more Employee are Not Protected frequently engaging independent contractors. Often, these The attorney-client privilege extends to communications contract employees perform important functions within the between a corporation’s attorney and many (though not all) organization, and many times their jobs bring them into con- of the corporation’s employees. tact with the company’s lawyers. But does the independence of these contractors mean that communications with compa- [I]n the corporate context, however, it will frequently ny’s lawyers are not protected by the attorney-client privilege? be employees beyond the control group as defined by As with the answer to most legal questions, the answer is, “It the court below—“officers and agents . . . responsible depends.” for directing [the company’s] actions in response to le- gal advice” –who will possess the information needed The Attorney-Client Privilege by the corporation's lawyers. Middle-level—and indeed The attorney-client privilege is denominated a narrow one, lower-level— employees can, by actions within the and it will often be narrowly construed. scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these It is a “venerable legal axiom that privileges are to be employees would have the relevant information needed narrowly, not expansively, construed.” Hill v. Sandhu, by corporate counsel if he is adequately to advise the cli- 129 F.R.D. 548, 550 (D. Kan. 1990) (citing United ent with respect to such actual or potential difficulties. States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, [Upjohn Co. v. United States,] 449 U.S. [383,] at 391, 3108, 41 L. Ed. 2d 1039 (1974)).1 101 S. Ct. [677], at 683 [(1981)].3 On the other hand, because of the precedence of the privi- lege in American law, most courts will narrowly construe ex- Not Every Communication is Privileged ceptions to the privilege. The privilege does not extend to every communication, even between a lawyer and his client’s employees in the con- The importance of the attorney-client privilege in trol group. The courts essentially apply a five-part test. American jurisprudence is well-established. See Cincin- nati Ins. Co. v. M.S. ex rel. Serrano, No. 11-2075-JAR/ The factors to be considered are these: (1) the com- KGG, 2011 WL 6304086 (D. Kan. Dec. 16, 2011) munication was made for the purpose of securing legal (citing Milavetz, Gallop & Milavetz, P.A. v. U.S., 130 advice; (2) the person making the communication did S. Ct. 1324, at n. 5 (2010) (holding that the attorney- so at the direction of his superior; (3) the superior re- client privilege is an important “means of protecting quested that the communication be made so that the that relationship and fostering robust discussion” be- client could secure legal advice; (4) the subject matter tween a party and its counsel)). As such, waivers of the of the communication was within the scope of the rep- privilege are to be narrowly construed. Id.2 resentative's duties; and (5) the communication was not disseminated beyond those persons, who because of the structure of the client's operations, needed to know its contents.4

10 The Journal of the Kansas Bar Association attorney ethics

The Privilege Extends to Contractors was subject to similar levels of direction and supervision by 8 Many cases apply the attorney-client privilege to corporate the employer. counsel’s communications with independent contractors.5 To determine whether a consultant should be consid- But The Privilege for Contractors Has Limits ered the functional equivalent of an employee, courts However, the privilege will not be extended to communica- look to whether the consultant had primary responsi- tions with any independent contractor, but only to one who bility for a key corporate job, In re Bieter, 16 F.3d at is considered the “functional equivalent” of an employee in a 933-34; Ross [v. UKI Ltd.], 2004 WL 67221, at *4 key role. [(S.D.N.Y. Jan. 15, 2004)], whether there was a contin- uous and close working relationship between the con- Courts considering the issue of privilege as to com- sultant and the company's principals on matters critical munications with independent contractors and outside to the company’s position in litigation, In re Bieter, 16 agencies have closely examined the relevant facts of each F.3d at 938; In re Copper Market [Antitrust Litigation], respective case in an effort to determine whether pro- 200 F.R.D. [213] at 219 [(S.D.N.Y. 2001)]; Ross, 2004 tecting the communication furthers the purpose and WL 67221, at *4, and whether the consultant is likely policy behind the attorney-client privilege. . . . “The to possess information possessed by no one else at the purpose of the privilege is ‘to encourage clients to make company, In re Bieter, 16 F.3d at 938.9 full disclosure to their attorneys.’ To that end, the privi- lege protects communications between a client and an The appellate courts that have considered this issue have attorney, not communications that prove important to also applied a functional equivalent test.10 an attorney’s legal advice to a client.” Id.[6](citing Fisher Of course, when the independent contractor does not meet v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 these tests, a lawyer’s communications with that contractor L. Ed. 2d 39 (1976)). “[A] communication between an will not be deemed privileged.11 attorney and a third party does not become shielded So, depending upon the job duties assigned to an indepen- by the attorney-client privilege solely because the com- dent contractor and the nature of the communications by the munication proves important to the attorney's ability to employer’s attorney with that contractor, such communica- represent the client.” Id. . . . tions may well be considered protected by the attorney-client privilege. More recently, another case in the Southern District of About the Author New York, Export-Import Bank v. Asia Pulp & Paper Co., Ltd., [232 F.R.D. 103, 113 (S.D. N.Y. 2005)] distilled J. Nick Badgerow is a partner with Spencer the “functional equivalent” test down to three basic ele- Fane Britt & Browne LLP in Overland Park, and ments: (1) “whether the consultant had primary respon- is a trial lawyer practicing mainly in the areas sibility for a key corporate job,” (2) “whether there was of construction, employment, and professional responsibility. He is a member of the Kansas Judicial a continuous and close working relationship between Council, and Chair of the Judicial Council’s Civil the consultant and the company's principals on matters Code Committee; member of the Kansas State critical to the company's position in litigation,” and (3) Board of Discipline for Attorneys; Chair of the KBA “whether the consultant is likely to possess information Ethics Advisory Opinion Committee; and Chair of possessed by no one else at the company.”7 the Johnson County (Kansas) Ethics & Grievance Committee. Nick was Chairman of the Kansas Ethics 2000 Commission and the Kansas Ethics 20/20 Thus, the court will consider favorably that the indepen- Commission, and he was the editor and a co-author dent consultant regularly worked with employees on the proj- of the KBA’s Ethics Handbook (Third Edition). ect at issue, that the nature of his/her work was identical to the type of work performed by actual employees, and he/she [email protected]

Endnotes 961, 963 (N.D. Ill. 2009). 1 Mason v. Stock, 869 F. Supp. 828, 833 (D. Kan. 1994). See also, Nat’l 8 See McAdam v. State National Insurance Co., 15 F. Supp. 3d 1009, Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1020 (S.D. Cal. 2014). 1994)(The attorney-client privilege and work-product immunity doctrines 9 Export-Import Bank of United States v. Asia Pulp & Paper Co., Ltd., 232 are narrowly construed.). F.R.D. 103, 113 (S.D. N.Y. 2005). See also, Alliance Const. Solutions, Inc. v. 2 Heglet v. City of Hays, 2014 WL 1308893, at *3 (D. Kan. Mar. 31, Department of Corrections, 54 P.3d 861 (Colo. 2002)(independent contrac- 2014). tor was “functional equivalent” of employee, and above factors were met, 3 Chancellor v. Boeing Co., 678 F. Supp. 250, 251 (D. Kan. 1988). so communications were privileged). 4 In re Bieter Co., 16 F.3d 929, 938-39 (8th Cir. 1994). 10 See United States v. Graf, 610 F.3d 1148, 1158-59 (9th Cir. 2010); 5 In re Flonase Antitrust Litigation, 879 F. Supp. 2d 454 (E.D. Pa. Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C. Cir. 2012); In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D. 2002); In re Bieter Co., 16 F.3d 929, 936-38 (8th Cir. 1994); see also Energy N.Y. 2001); Beneficial Franchise Co., Inc. v. Bank One, N.A., 205 F.R.D. Capital Corp. v. United States, 45 Fed. Cl. 481, 491-92 (2000). 212, 215 (N.D.Ill. 2001); In re Air Crash Disaster at Sioux City, Iowa, 133 11 Neighborhood Development Collaborative v. Murphy, 233 F.R.D. 436 F.R.D. 515, 518 (N.D. Ill.1990). (D. Md. 2005); Export-Import Bank of United States v. Asia Pulp & Paper 6 United States v. Graf, 610 F. 3d 1148, 1158-92 (2000). Co., Ltd., 232 F.R.D. 103 (S.D. N.Y. 2005). 7 LG Electronics U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp. 2d 958,

www.ksbar.org | May 2016 11 law students' corner

Life at an Indian Law Firm

Ben poses in front of the Lotus Temple, a Baha'i House of Worship in New Delhi, India, while working as an intern with J. Sagar and Associates in 2015.

This summer I had the opportunity to work as an intern law, but after learning how to navigate Indian research tools, I with the firm J. Sagar and Associates in Gurgaon, India, a was able to find answers. The project gave me the feeling that suburb of New Delhi. I got the job by talking to a former KU if I can figure out something like this, which I had absolutely Law student, Aqmar Rahman, who had done the same pro- no clue about before I started, I can probably figure out most gram. I went with the hope of working in international trade things. law and experiencing a new culture. Although I didn’t get the In addition to work, I was thankful for the opportunity to chance to work on any international trade law projects, I’m travel and experience the Indian culture. In just this small area very grateful for the chance I had to see what life is like at an of the country, there was an incredible amount of religious, Indian law firm and in India in general. linguistic and culinary diversity. The fact that India can func- At J. Sagar, I worked alongside 10 other interns, all from tion as a democracy with this kind of diversity never ceased various parts of India. This turned out to be quite the stroke to amaze me. I was able to see the Taj Mahal, the Sikh’s Gold- of luck. In terms of work, the other interns helped me navi- en Temple, and went on a memorable three-day hiking and gate the Indian legal landscape, introducing me to Westlaw camping adventure in the Himalayas. I also went ice skating India and explaining how to find government agency orders, in a mall with my fellow interns, something I certainly hadn’t a common work project. Thankfully, India is a common law expected to do in India. Lastly, I greatly enjoyed the food and country, and in some areas of the law, such as antitrust, even drink of India, especially the ever-present cups of tea. looks to U.S. courts as persuasive authority. Outside of work, Although I didn’t have the chance to work on an interna- the other interns did everything from teach me Hindi phrases tional trade law project, regardless of the specific project, since to help me catch buses. We ate lunch together in our build- J. Sagar is a “big law” firm in India, practically all the work in- ing’s top-floor café with a nice view of the city. volved an international component or some nationwide mat- The work itself, like most legal work in my experience so ter. I enjoyed being exposed to these big-picture issues, and far, ranged from the exciting to the technical. In the former the experience helped me realize that I may enjoy working in category were advising the head competition law partner on a large firm someday here. Many thanks to J. Sagar for making a question of U.S. antitrust law and researching state require- this experience possible for me. n ments for setting up an alcohol manufacturing plant, while the latter included a tedious calculation of the average time About the Author the EU Competition Commission has taken to review merg- ers over the past three years. I did a variety of legal research Ben Baumgartner is a third year law student at the University of Kansas School of Law. He received his projects–looking up government orders, exploring antitrust Bachelor’s degree in Religious Studies from Goshen issues, and examining factors influencing and inhibiting the College in Goshen, IN. Next year he will be clerk- growth of the Indian logistics sector. ing for the U.S. Court of International Trade in New My most enriching project was researching the tax laws on York, NY. setting up an alcohol manufacturing facility in different In- [email protected] dian states. I didn’t have any background in tax law or Indian

12 The Journal of the Kansas Bar Association www.ksbar.org | May 2016 13 kansas bar foundation Meet your new Kansas Bar Foundation IOLTA Coordinator! A Kansas native, Janelle Hill has a passion for law and commu- nity service that developed in her formative years. She remembers attending Neighborhood Improvement Association meetings as a young child, and assisting her mother with community events. Growing up, Hill looked up to her mother who was a union stew- ard for a number of years. “Watching my mom fight every day on behalf of her coworkers and be the voice of employees for a nationwide organization encouraged me to want to make a differ- ence by advocating for individuals as well.” Hill has been an employee of the Kansas Bar Association since September 2014. Before she became the IOLTA Coordinator, she was the Public Outreach and Education Coordinator for the Law- yer Referral Service. She received her bachelor's degree in business administration from Washburn University with an emphasis in management and marketing. Hill plans on ending her employ- ment with the KBA Lawyer Referral Service and focusing solely on your IOLTA needs by the fall of 2016, at which time she will also begin classes at Washburn University’s School of Law. Her volunteer experience is extensive, and involves organiza- tions such as the United Way Christmas Bureau, Helping Hands Humane Society, Junior Achievement, Big Brothers Big Sisters, and Fast Forward, among others. In her free time, Hill enjoys reading, attending church, cooking, and spending time with her family. She looks forward to partnering with the Kansas bankers to assist banks and attorneys with IOLTA accounts and inquiries. She welcomes you to contact her with any questions or sugges- tions you might have at [email protected]. n

Interested in Being an Author of a KBA Public Service Pamphlet?

We will soon be planning the next revision for the following pamphlets: • Child Custody, Support & Visitation • Aging and the Law • Marriage & Divorce • A Death in the Family…What Should I do? • Introducing Your Lawyer

In 2015, over 18,000 pamphlets were distributed to KBA members and the public. You can view a list of KBA pamphlets at http://www.ksbar.org/pamphlets.

14 The Journal of the Kansas Bar Association Contact Anne Woods for additional information (785) 861-8838 or [email protected] kansas bar foundation

Need a Trust Account? Consider IOLTA

The Interest on Lawyers Trust Accounts (IOLTA) program is an idea that originated in British, Canadian and Australian jurisdictions in the 1960s. In the U.S., IOLTA was pioneered in Florida ... serving the citizens of Kansas and the legal profession through funding chari- and now exists in every state in the country. The Kansas IOLTA program was established in 1984. table and educational projects that foster Through IOLTA, attorneys and law firms place IOLTA–eligible client funds in a pooled interest the welfare, honor, and integrity of the legal system by improving its accessibility, bearing trust account. IOLTA funds support the following: equality, and uniformity, and by enhanc- ing public opinion of the role of lawyers • Legal services to the disadvantaged in our society. • Public education about the law • Administration of justice programs and other programs as approved by the court OFFICERS Laura L. Ice Wichita President Without IOLTA, nominal or short term client funds held in non-interest bearing, pooled check- [email protected] ing accounts benefit neither the client nor the lawyer. Under IOLTA, these same nominal or short- Todd N. Thompson Lawrence term funds are still pooled into one account. However, Kansas banks may remit interest on these President-elect pooled accounts to the Kansas Bar Foundation. Each year, the IOLTA Committee selects organi- [email protected] Hon. Evelyn Z. Wilson Topeka zations to receive IOTLA grants. In the past few years, approximately $80,000 per year has been Secretary-Treasurer distributed to organizations in Kansas that provide civil legal services to low-income Kansans. [email protected] Edward J. Nazar Wichita Immediate Past President [email protected] It is easy to join almost 4,000 Kansas attorneys who are part of the IOLTA program BOARD OF TRUSTEES Susan A. Berson Overland Park John C. Brown Hays • Complete the IOLTA Application. Visit www.ksbar.org/iolta to print an Terrence J. Campbell Lawrence application. Amy Fellows Cline Wichita Bradley D. Dillon Hutchinson Gregory P. Goheen Kansas City, Kan. • Take the completed and signed application to an interest bearing James L. Hargrove El Dorado approved financial institution. There is a list of approved institutions on Richard F. Hayse Topeka Scott M. Hill Wichita www.ksbar.org/iolta. Randee Koger McPherson Aaron L. Kite Dodge City • Mail, fax or email a scanned copy of the completed and signed KBF IOLTA Amy E. Morgan Overland Park David H. Moses Wichita application to C. David Newbery Topeka Eric L. Rosenblad Pittsburg Kansas Bar Foundation Susan G. Saidian Wichita 1200 SW Harrison St. Sarah E. Warner Lawrence Topeka, KS 66612-1806 Young Lawyers Representative Fax: (785) 234-3813 Jeffrey L. Carmichael Wichita Kansas Association for Justice Email: [email protected] (please put IOLTA Application in the subject line) Representative Patrice Petersen-Klein Topeka Kansas Women Attorneys Association Representative Nathan D. Leadstrom Topeka Kansas Association of Defense IOLTA would not be possible without the commitment of 245 Kansas banks that have agreed to Counsel Representative provide IOLTA to their customers. The support of these banks and the staff that provide monthly Sara S. Beezley Girard or quarterly reports to the Kansas Bar Foundation is invaluable! Thank you Kansas banks! You can Kansas Bar Association Representative view a list of IOLTA banks at http://www.ksbar.org/iolta. Charles E. Branson Lawrence Kansas Bar Association Representative Dennis D. Depew Topeka Kansas Bar Association Representative

EXECUTIVE DIRECTOR Jordan E. Yochim Topeka [email protected]

DIRECTOR, PUBLIC SERVICES Anne Woods Topeka [email protected]

www.ksbar.org | May 2016 15 Lawyers Serving the Citizens of Kansas and Strengthening our Community

The Kansas Bar Foundation (KBF) is approaching its 60th an- How do I make this commitment? niversary. In 1957 a special committee of the Kansas Bar As- It is easy. You can complete your pledge form in this article sociation recommended the establishment of the Kansas Bar and send it to the KBF. We will process your initial gift and Foundation to the KBA Board of Governors. track your progress toward becoming a Fellow. In addition, What is the mission of the KBF? you will be invited to attend the annual Foundation Dinner. The mission of the Kansas Bar Foundation is “…to serve the This year, the dinner will be on June 16 at the Hyatt-Wichita. citizens of Kansas and the legal profession through funding Although the dinner is designed to recognize new Fellows and charitable and educational projects that foster the welfare, Fellows reaching new levels, any KBA member is welcome to honor and integrity of the legal system by improving its acces- attend. This is also the time the KBF presents the Robert K. sibility, equality and uniformity, by enhancing public opinion Weary Award to an attorney who exemplifies the mission of of the role of lawyers in our society.” the Foundation. What does the KBF do? IOLTA The Foundation provides funding for legal services to the dis- In addition to Fellows contributing to the KBF, remittances advantaged and law related educational resources to the pub- from IOLTA are deposited to the foundation. The KBF IOL- lic. A primary objective is to secure access to justice by fund- TA Committee meets each fall to review IOLTA grant pro- ing numerous pro bono programs. For example, grants have posals. Approximately $80,000 is dispersed among the grant provided legal advice and representation for senior citizens, recipients. Establishing an IOLTA account is easy. Just visit survivors of domestic violence, children in the court system, http://www.ksbar.org/iolta. and others. In addition, KBF dollars have supported educa- Cy Pres and other court ordered settlements tional projects such as the KBA YLS Mock Trial program and At times, the Foundation will receive funds from a Cy Pres KBA educational booklets for middle school and high school settlement or other court ordered settlement. When this hap- students pens, the KBF IOLTA Committee is responsible for making How does the KBF do this? funding recommendations to the KBF Board of Trustees. The Foundation is supported by donations from attorneys, Scholarships the IOLTA program, and various grants provided by Cy Pres Several KBF members have established scholarships that are settlements and other court ordered settlements. administered by the Foundation. Currently, there are eight Fellows named scholarships. The KBF Scholarship Committee re- Members of the KBF are called Fellows. A Fellow is a per- views applications in the fall and scholarships are awarded at son admitted to practice law under the Rules of the Kansas the KBA Court Appreciation Dinner in February. Supreme Court who has contributed an aggregate total of Endowments & planned giving $1,000 or has pledged in writing to contribute at least $1,000 The KBF manages several endowments and can assist with in 10 or fewer consecutive annual installments. Contribu- your planned giving arrangements. Funding for law school tions after $1,000 are categorized in levels. repayment loan funds, creating a memorial or honorary gift fund, building maintenance and improvement funds, and Fellow Giving Levels funding for other areas are unique ways to customize your gift. Fellow: $1,000 – $2,499 Your commitment is appreciated Fellow Silver: $2,500 - $4,999 Fellow Gold: $5,000 - $7,499 Since its inception in 1957, the KBF has provided over four Fellow Platinum: $7,500 - $9,999 million dollars in grants and scholarships. We welcome you to Fellow Diamond: $10,000 - $14,999 join over 600 attorneys who have already committed to fel- Pillar of Foundation: $15,000 - $49,999 lowship in the KBF. Come be part of the organization that will Pillar of Profession: $50,000 or more soon celebrate sixty years of giving to Kansas communities!

16 The Journal of the Kansas Bar Association KBF Pledge Form Complete and return to: Kansas Bar Foundation 1200 SW Harrison St. Topeka, KS 66612-1806 Fax: 785-234-3813 or scan and send to Anne Woods [email protected] Today I join over 600 Fellows who have pledged $1,000 or more to the Kansas Bar Foundation. Name______Address ______City______State ______Postal Code ______Phone ______Email ______Enclosed is my tax-deductible gift or credit card number for: ___ Full payment of $1,000 or ___ The first of 10 annual contributions of $100 each, to be paid annually. Please make check payable to Kansas Bar Foundation

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Thank you for your commitment to the Kansas Bar Foundation!

If you prefer to pledge online, visit www.ksbar.org/kbf

www.ksbar.org | May 2016 17 the diversity corner Just Ask Ginsburg: The Best 48 Cents I Ever Spent hildren look up to superheroes, larger-than-life char- She would pick up her silver pen, don her lace collar, and take acters born from the imaginative hand of a writer who action—and so would I, sans the lace collar. After struggling imbues them with assorted super-humanity: strength, to identify a solution, the other two female editors and I de- Cspeed, or an inexhaustible supply of snappy one-liners. These cided to host a Women of Journal Night. We would use the characters excite the imagination, spur emulation, and sell event to celebrate all the creative, intelligent, and dedicated millions of dollars in merchandise, but not solely based on the women currently on Journal as well as our alumni. abilities that make them unique. Each character must also be Professor Myrl Duncan, our fearless leader and incredible relatable, with failures and weaknesses, lest we place them on ally, gathered the names of women who had been on Journal a lofty pedestal, unattainable and unreal. and still lived in the area. The outpouring of support we got Adults are not immune. The idols and role models we view from our alumni was unbelievable. Although most of them through one-way screens suffer under the collective weight of could not attend, we received numerous messages of support our expectations. When we hero-worship to the extent that with words of encouragement and advice. As the event drew we filter away all but the extraordinary, the person risks be- near, I decided to take this concept one step further. What coming a character. I think that Justice Ruth Bader Ginsburg would RBG do? I would ask her and find out. After hours is one such individual. She was born in Brooklyn, N.Y., in laboring over just the right words, phrases, and tone, I placed 1933. She played the cello, my 48 cent stamp on the chipped her tooth twirling envelope and dropped it in the baton, was a rabbi at the mail. summer camp, and was a The morning before member of the Go-Getters Women of Journal Night, club.1Despite her ordi- I opened my mailbox to nary origins, the world has see a small cream-colored come to realize that she is envelope with a golden em- anything but ordinary. She bossed seal in the upper left shattered glass ceilings by corner. As I reminded my- becoming the second ten- self to breathe, I read the ured female professor at return address—Supreme Rutgers School of Law and Court of the United States. pioneering women’s rights Inside was a 3 by 5 notecard through influential cases, with the inscription: “May before taking her place as you aspire and achieve, the second female justice on recognizing that no insur- the Supreme Court of the mountable impediments United States. will keep you from succeed- She has inspired scores of lawyers across the nation with ing. Strive for what you know is right, but do so in a way that nothing more than the reasoned words that flow from her will persuade others to join you! –Ruth Bader Ginsburg” pen. While her small build is undisguised by her flowing black I had written to the character, with few expectations, but crusader’s cape, it is forgotten in the shadow of her tower- it was the woman behind the bench who had responded. She ing opinions. Every dissent packs a punch with unapologetic had picked up her silver pen not to strike a blow to regres- boldness. Beyond the legal sphere, her image has taken on a sive policies, but to write an inspiring message to a group of life of its own. Women don judge’s robes with ruffled collars women in a land far away. With this one small gesture, she at Halloween and tattoo her effigy on their bodies. She has invited us to join her for a moment on the pedestal we had become a character, the Notorious RBG—protector of civil built for her. For that, we are forever grateful. n rights and author of fire-breathing opinions. She has become an infallible illusion. About the Author Like so many other women, I too want to be like the Noto- rious RBG—intelligent, tenacious, and quick witted. I want Merideth J. Hogan is a third year Washburn Law student. She is currently Comments Editor for the to stand up for what I think is right, support others in their Washburn Law Journal and a Law Clerk at Cavanaugh, endeavors, and use my legal education to make a difference. Biggs & Lemon, P.A. After graduation, she will work My form of admiration, rather than manifesting as a tattoo as a Research Attorney for Judge Atcheson at the or costume, has been to ask myself: “What would RBG do?” Kansas Court of Appeals beginning in August 2016. I had the opportunity to ask myself this question in Decem- ber 2015 when I heard that many of the 11 women of our 40 member Washburn Law Journal felt excluded because of their Endnotes gender. As an editor for the Journal, I felt it was my responsi- 1. For a great chronicle of Justice Ginsburg’s achievements, read Irin bility to empower them. “What would RBG do?” I wondered. Carmon & Shana Knizhnik, Notorious RBG (2015).

18 The Journal of the Kansas Bar Association Fastest smartest malpractice insurance. Period.

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“Data is a toxic asset. We need to start thinking about it as to destroy is probably the most significant change. Under such, and treat it as we would any other source of toxicity. To do current law, “personal information” relates back to K.S.A. anything else is to risk our security and privacy.” 50-7a01(g) and means a customer’s first name or initial and last name linked to a social security number, a driver’s license Bruce Schneier, a renowned security expert and blogger at or state ID number, or a financial account number. The attor- Schneier on Security, wrote that in his March 6 post entitled ney general argued in testimony that there were at least three Data is a Toxic Asset. The central theme of Schneier’s article is specific “document dump” cases where sensitive personal in- that careless collection and unnecessary retention of data pos- formation was exposed by abandonment in an alley but the es a credible threat to individual, business, and government data did not meet the “personal information” definition. For security. Financial and reputational danger from data breaches example, a medical file where I am identified by L.Z. and my is real, so Schneier proposes a serious discussion about just address could include my full medical and payment history what data can or should be retained and for how long. while skirting the definition of “personal information.” Schneier’s article coincides with a hearing in the Kansas The new definition attempts to expand that by adding “per- Senate Judiciary Committee on SB424 held on March 8 of sonal information” to “…any other information which iden- this year regarding the proper disposal of data as a toxic as- tifies an individual for which an information security obliga- set. Like any other toxic asset—pesticides, solvents, and anti- tion is imposed by federal or state statute or regulation.” This freeze, for example—some precautions are in order when it is definition would expand the duty to destroy to cover records time to dispose of data. protected by other federal or state law but not covered by The Duty to Destroy K.S.A. 50-7a01(g). Failure to take reasonable steps to destroy such records would open violators to suit by the attorney gen- Current law under K.S.A. 50-7a03 already requires that any eral under the Kansas Consumer Protection Act. person or business must take reasonable steps to destroy a cus- tomer’s records that it no longer intends to retain. There is an Tune in and Stay Tuned affirmative duty to destroy the records “…by shredding, eras- As I write this, SB424 has been passed out of the Senate ing or otherwise modifying the personal information in the Judiciary Committee but it is not scheduled elsewhere. It is records to make it unreadable or undecipherable through any late in a session with other looming issues promising to con- means.” (There are similar requirements under federal statutes sume attention so I cannot predict that the bill’s changes will and regulations as well.) be enacted. Regardless, attorneys must familiarize themselves The thought behind the duty is simple. Just because a per- and their clients with the existing duty to destroy in K.S.A. son or business no longer has use for personal information of 50-7a03 because proper disposal of “toxic assets” is an issue its customers does not mean bad guys do not have some ideas of profound importance to the public. As the tally of harm about how to misuse it. Data obtained from dumpster diving, from data breaches and data dumps rises alarmingly, the pub- searching the drives of give-away or resold computers, and lic is rightfully restless for more care in how we dispose of our even lease-exchanged photocopiers are valuable to financial “toxic assets.” n scammers hoping to access accounts or create false identities. Senate Bill 424 The attorney general’s concerns targeted in SB424 were that current law burdens the customer with most of the risk of About the Author improper disposal. General Schmidt would like to clarify the Larry N. Zimmerman is a partner at Zimmerman duty to dispose so as to make sure the consumer is not the & Zimmerman P.A. in Topeka and former adjunct only one with skin in the game. SB424 proposes to do that professor teaching law and technology at Washburn by: University School of Law. He is one of the founding • Expressly authorizing the attorney general to members of the KBA Law Practice Management directly assist potential victims of identity theft; Committee. [email protected] • Broadening the types of information which a person or business is obligated to destroy; and • Leveraging the penalties of the Kansas Consumer Protection Act to enforce the duty to destroy. Broadening the type of information covered by the duty

20 The Journal of the Kansas Bar Association 30 YEAR ANNIVERSARY

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www.ksbar.org | May 2016 21 22 The Journal of the Kansas Bar Association Members in the News Changing Positions Miscellaneous Hon. Glenn R. Braun will become Chief Judge of the 23rd Judicial Rouse Hendricks German May PC has changed to German May District for a two-year term, Hays. PC, Kansas City, Mo. John B. Gariglietti has joined McDowell Rice Smith & Buchanan Ron Smith, a partner in Smith & Burnett, LLC of Larned, Kansas, PC as shareholder, Kansas City, Mo. has released his first novel, The Wastage. David R. Green has joined Foulston Siefkin, LLP as an associate, Vance C. Preman has been selected and admitted as a member of Overland Park. the National Academy of Distinguished Neutrals. Joshua T. Hill has been promoted to partner at Foulston Siefkin, LLP, Overland Park. Changing Locations Cheryl Whelan, assistant attorney general, will serve as director of Nicholas B. Bunnell is managing partner for Foley & Mansfield open government training and compliance. for new additional office location; 5251 W. 116th Place, Ste. 200, Leawood, KS 66211. Wesley A. Weathers, Patricia E. Riley and Cynthia J. Sheppeard of Goodell, Stratton, Edmonds & Palmer, LLP have moved to 515 South Kansas Ave. Topeka, KS 66603. Obituaries Hayden B. St. John Hayden B. St. John, 75, Topeka, Kan., passed away Thurs- University Foundation Board of Trustees in 2004 and has day, March 17, 2016, at Midland Hospice House. Mr. St. served on the Audit Committee since he joined. He has also John founded Lawyers Title of Topeka, Inc. in 1975, together served on the Board of Directors of the Washburn Alumni with his father, Harry H. St. John, Jr. and Robert T. Craig, Association. He was awarded the Outstanding Alumnus of III. At the time of his death, he was Chairman of the Board, the year for 2001 of the Alpha Delta Fraternity and was its and his sons, Christopher St. John and David St. John, serve president while in school. He was awarded the Distinguished presently as President and Executive Vice President respective- Service Award from Washburn University on April 22, 2006, ly. Mr. St. John was born Dec. 19, 1940, in Topeka, Kansas, and was also awarded a Distinguished Service Award in Au- the son of Harry H. St. John, Jr. and Helen J. (Bowman) St. gust 2012 from the Kansas Land Title Association. Mr. St. John. A lifelong Topekan, he graduated from Topeka High John married Susan Stratton on June 19, 1964 in Topeka. She School in 1958, served three years in the U. S. Air Force as a survives. Other survivors include sons, Christopher St. John Lieutenant which was followed up by his law school educa- (Trudy), David St. John (Catherine); sister, Susie St. John- tion from Washburn University School of Law. He received Edds (Greg); and grandchildren, Bailey, Noah and Anah St. his juris doctorate from Washburn University School of Law John, all of Topeka; niece, Lisa Whitney; and nephew, Jim in 1970. Mr. St. John has been a member and past chairman Stansbury. He was preceded in death by his parents and sister, of the Title Standards Committee of the Kansas Bar Associa- Sharrie Stansbury. He enjoyed golf, vacations and cruises with tion and past president of the Kansas Land Title Association. family and friends, Washburn University football and basket- He served on the board of directors for the Better Business ball, and trips to Estes Park, Colo. Bureau of Northeast Kansas and on the Board of Directors of the St. Francis Health Foundation. He joined the Washburn

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www.ksbar.org | May 2016 23 kansas legal services Attorneys Join KLS for a ‘Second Season of Service’ “I have a wealth of experience helping people. I help people here from a legal standpoint. Some of their issues may seem ridiculous to others but to them they are serious.” — Thomas "Tim" C. Owens, KLS

s I get closer to retirement, I watch with interest what volunteer opportunities, including helping endangered wild- other lawyers do when they reach retirement age. life and expanding affordable housing. She wasn’t done being Some retire and take up new interests. Some continue an attorney, either. She began coming regularly to the Kan- Aworking, whether out of financial necessity or to honor the re- sas Legal Services Topeka office, where she is now assigned lationships they have built with their clients over many years. clients to advise or represent in court. She is learning new A few have found a way to continue to practice law in a new areas of law and appreciates having colleagues to learn from. manner. I’d like to introduce you to some of these people. Nancy appreciates the helpfulness of all the KLS staff. When Tim Owens practiced law in Johnson County, while also she needs clerical support, it is provided by KLS. serving 32 years in elected office. He served in the Kansas One thing that motivates Nancy is that she feels the scales House, then the Senate. In 2014, he left the legislature after are tipped against those who are temporarily struggling to an election defeat. He then had to decide what to do next. make ends meet in Kansas. “I think it is better for us as a pro- He says, “helping people has always been the goal of my work. fession and for the state, if I do a little But often I had parallel priorities bit to even up that balance. Making related to my career development things better is the way I want to put and earning a living. I was in a po- my skills to use,” she said. sition where I could focus only on Nancy has represented several helping people.” Tim had retired mothers of small children in family his law license when he left the leg- law matters. She finds each of them islature. In 2015, he applied and wanting to create better circumstanc- was approved as the first Kansan es for their children. She has built to practice law under the modified enjoyable professional relationships Rule 208. Tim works through with her clients, who are all respon- Kansas Legal Services (KLS) at the sive to her and appreciative of her Johnson County Help Center. In ability to help them. She knows that that role, he spends two mornings she has been a part of creating stabili- each week at the Johnson County ty for these clients and their children. Courthouse. He provides direc- We appreciate the efforts of these tion to people who come to the and other volunteers who have in- Help Center, acting as self repre- cluded KLS in their “second season sented litigants. of service.” We stand ready to work Tim sees a lot of people with Tim began work at Kansas Legal Services in 2015, following retirement from his practice and the Kansas Legislature. with other attorneys at whatever family law issues. He spoke about point in their career they find them- a woman he worked with at the center—she wanted to leave selves. If you are interested in finding out more about the an abusive relationship, but had been given a lot of misinfor- Kansas Emeritus Attorney Program, please contact me or the mation, mostly by her spouse. As Tim talked with her about KLS office in your area. her options to take legal action, protect her children and seek In a few years, when you find me retired and volunteering support from a domestic violence program, he saw her relax to work with self represented litigants at my local courthouse, and know that there was hope for her future. Another memo- you will know where I got the idea.n rable client was concerned about supporting a child with spe- cial needs when her husband abruptly moved out of state. Tim gave her reassuring options, also. About the Author Tim gets support from KLS in this work. KLS staff screen Marilyn Harp has been the Executive Director clients and set appointments. He is able to refer some of these of Kansas Legal Services since September, 2006. clients for full representation from KLS attorneys. His legal Prior to becoming Executive Director, she worked work, as a KLS volunteer, is covered under malpractice insur- in a variety of attorney and management roles with ance maintained by KLS. Tim’s work has doubled the num- Kansas Legal Services since September, 1979. She ber of hours that an attorney is available at the Help Center is a graduate of the University of Kansas School of Law (May, 1979) and has a BSW from the University to 14 hours a week. Tim reports that several other Johnson of Kansas School of Social Welfare. She has been County attorneys have expressed interest in following his lead continuously licensed to practice law in Kansas and working at the Help Center when they retire. since 1979. Nancy Ulrich retired as a staff attorney with the state of [email protected] Kansas in December 2014. She was interested in a variety of 24 The Journal of the Kansas Bar Association a nostalgic touch of humor A look back at the Journal: June 2008 A NostAlgic touch of humor Mario Chalmers v. “Rope” Engleman: No Contest By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo. ario’s Miracle” is now forever a part of KU 1, 2003, his jersey was officially retired and raised to the raf- basketball lore. But Mario Chalmer’s trey was ters in Allen Fieldhouse. His speech, delivered at center court, hardly the first time KU needed divine inter- remains a classic: www.kusports.com/multimedia/video/ vention“M in the Final Four. In 1940, KU was in its first NCAA basketball/02-03/highlights/osu. Final Four, and in the semifinal game, KU played Southern And then, upon graduation, he settled in Salina, joined Cal, which came into the game as a prohibitive favorite. KU Hampton Royce & Engleman, and did something that nei- won on a buzzer beater; the person who took and made that ther Mario nor Wilt ever attempted, trying cases. His former shot was named to the NCAA All-Tournament Team. He was law partner, Stan Sexton, offered this observation to his trial also a consensus All-American. His skills, “He’s the most intense, singularly senior year, in addition to everything resolute, and prepared trial lawyer I’ve else he was doing, he was student body ever known. His background enabled president. He is also a Kansas lawyer. him to almost ‘will’ a result. But noth- You see, before Mario, there was Dan- ing he did was more amazing than the ny Manning, and before him there Chester case.” That would beMills vs. was Wilt, and then Clyde Lovellette. Smith, 9 Kan. App. 2d 80 (1983). But before all of these giants, there Chester, you see, was a 100-pound was a player who poured the concrete male lion who roughed up a 2-year-old foundation to KU’s basketball legacy. girl. Shockingly, litigation followed, His name is Howard Engleman. And and Engleman defended Chester’s if his name is not familiar to you, all owner. that is about to change. Judge Parks of the Kansas Court of If Howard Engleman ever wrote his Appeals described the case this way: memoirs, book publishers would de- “The male lion, named Chester, was clare it fiction. If Hollywood made it a approximately three-and-one-half feet movie, Blockbuster Video would have long and weighed 90 to 100 pounds. to sell it in four sections of their store: Gary Clarke, the director of the Topeka “Adventure/Sports/Drama/Military.” zoo, testified at the trial that 9-month- The story begins with Engleman play- old cubs are very strong and dangerous ing point guard at Ark City, leading Howard Engleman addressed the crowd at animals.” Allen Fieldhouse during ceremonies retir- his team to the state finals. Phog Allen ing his jersey on March 1, 2003. The mother, Althea Mills, “stayed wanted him, and Engleman obliged. with her two daughters 30 to 50 feet At KU — where his nickname was “Rope,” after his blond, from the lion while the grandparents took pictures.” When curly locks — he drained the shot to beat USC 43-42. It older sister Traci distracted the mom, Darci, the second child, was considered — at the time — one of the biggest upsets in “ran off toward her grandparents [the Buckbees], approach- college basketball history. ing from behind the lion, while Merle Buckbee was taking a The Kansas City Star, on March 24, 1940, blared this head- photograph of his wife petting Chester.” And this is where it line: “Howard Engleman’s Shot from the Corner Decides gets interesting. The court’s opinion noted, “Chester reared Contest for the Jayhawks.” The news story described that up on his hind legs, knocked Darci to the ground, grabbed Bobby Allen, son of Phog, “stole the ball and passed to Engle- her head in his mouth” and, as Judge Parks described, Chester man alone in the corner. Unhurried and calm, the blond for- “began working his jaws.” [Legal speak for a toddler getting up ward took his stance and flipped the ball through the hoop close and personal with Chester’s molars.] The toddler needed with ridiculous ease.” stitches but amazingly sustained no major physical injuries. Engleman was the bright star on a team with some true So add to Engleman’s CV, “defending a lion who tried to zeniths. One teammate, Ralph Miller, for instance, went on swallow a toddler.” O.J. Simpson’s case would be easier. At the to coach at Wichita State, Iowa, and Oregon, winning 657 end of trial, the jury basically canonized Chester – sticking the games. Another, Dick Harp, coached KU for seven years. toddler’s parents with 50 percent fault and damages awarded After graduation, Engleman enlisted in the Navy and during of $99. Moral of the story: both on the court, and in it, How- World War II a Japanese kamikaze plane hit his ship in the Pa- ard Engleman, now retired at age 88, has no peer. n cific. He sustained severe burns and recovered in a hospital at About the Author Saipan. He then returned stateside to attend KU law school. While in law school, he held a part-time job. Coaching the Matthew Keenan has practiced with Shook, Hardy & Bacon since KU freshman team! When Phog sustained a concussion and 1985. He may be reached at [email protected]. missed several games, Engleman coached the varsity in 1947, adding “Head Coach, KU” to his lengthy CV. And on March

8 – JUNE 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION www.ksbar.org | May 2016 25 legal writing

Be The Best There Is—No More, No Less Don’t overburden your readers. Tell them everything they On the other hand, you don’t want to overburden your need to know and no more. That may seem simple and obvi- readers with detail, either in your facts or in your discussion ous, but it is very difficult to do. Why? First, it is difficult of the law. I find writers often include detail because it is fa- because you know your case so well. Like any good lawyer, miliar to them and because they believe it could be important. you are intimately familiar with the facts. You have likely The detail may be important for some part of the case, but if met some or all of the parties involved. You have read all it is not material to the part of the case being discussed in the the authority, perhaps numerous times, looking for arguments document, you should omit it. Just because the information and responses to your opponents’ arguments. Second, it is could be used to make an argument, don’t include it unless difficult to put yourself in the position of the readers, who you actually make that argument. Otherwise, you are leaving are often significantly less familiar with the material than you it to your reader to do your work for you. are. The result: You tell your readers both less and more than If someone is a major character in the story of your case, they need. such as your client, you can require the reader to learn his or Whether your reader is a client, another lawyer in your of- her name. Think carefully, however, before burdening your fice, opposing counsel, or a judge, he or she does not want reader with the name of a minor personality. If you are only to do any more work than necessary. It is your job to do the going to refer to this person or entity once or twice, think difficult work of parsing through the material to discern what about whether you can simply use the character’s role instead: is important and what is not. Your goal is for your writing to landlord, employer, father, or neighbor. While it might be be effortless to read. worth your while to learn that the Fieldhouse court was To the extent the analysis is difficult or complicated, you named after the inventor of basketball and KU’s first men’s want to communicate all the steps in the logic. While this basketball coach, James Naismith, you probably don’t need to may be obvious when writing to your client, it is also true be burdened by the name of the building’s architect, Charles when your audience is a seasoned lawyer or judge. Although Marshall.2 your readers are usually quite capable of understanding so- Dates are probably the most commonly overused factual phisticated analysis, they are busy and, with a judge or oppos- detail. Dates are often important only in their relative sense: ing counsel, skeptical of what you have to say. If, to under- The contract was signed before the boiler broke. The landlord stand what you are trying to say, they have to jump back to told the tenant about the leak three days later. The plaintiff your fact section or go read the case you have cited, you run and defendant agreed ten years earlier. Avoid making your the risk that they just won’t bother. reader do math: If I tell you the first basketball game was Take, for example, this conclusion: The Fieldhouse is, quite played in Allen Fieldhouse on March 1, 1955,3 you may think simply, the best there is. For some readers of the Kansas Bar it is important to remember it was the 1st of the month and so Journal, this conclusion may make perfect sense. For others, will focus on that detail. Perhaps I included the date to high- however, it is entirely lacking in context. Let me try again light that part of the appeal of the Fieldhouse is its long and with a bit more context: Allen Fieldhouse, home to the Uni- storied history. If that is the case, only the year is important. versity of Kansas basketball team, is the best college basketball Better yet, I could do the math and tell you that 61 seasons of arena. basketball have been played in Allen Fieldhouse. Again, for some readers, perhaps those who are graduates When it comes to the law, legal writers can overburden read- of KU, this is all you need to hear. Others, perhaps those ers by too much “cutting and pasting.” This happens when who graduated from K-State or are fans of a different col- you take law from cases or other legal authority that “sounds lege basketball team, might be more skeptical readers. Others good” and quote it exactly. While there are instances, statu- might be less knowledgeable about the topic: perhaps you are tory interpretation is one, where you should quote your legal a football fan or are passionate about knitting. Like the skep- authority exactly, most of the time you should do the difficult tic, you need a bit more information to be convinced of my work of taking what you find in your sources and adapting to conclusion. Even for those of you who share my passion for your reader’s needs. Often you are pulling the law from dif- Allen Fieldhouse, you would not mind reading the support ferent sources, and you need to explain to your reader how the for my conclusion. Here’s one: Since February 4, 2007, the information from each of these sources relate to the others. KU men’s basketball team has lost only three games in Allen In support of my argument that Allen Fieldhouse is the Fieldhouse, winning more than 98 percent of time.1 greatest arena, I could provide you with the following quotes: This fact, however, is just that. Without more information, “In the past decade Kansas basketball has—by far—the big- I haven’t explained how this fact supports my conclusion. I’ve gest home-venue advantage compared to every other team left out steps, sometimes called inferences, in the logic. For throughout all major American sports.” “Allen Fieldhouse is example, I’d want to make the argument that such a high win- so distinctive and intimidating because of the beloved vehe- ning percentage shows that the Fieldhouse provides the KU mence and unrelenting passion of the fan base.”4 “During the men’s basketball team with an exceptional home court advan- game, exuberant fans learned that they could literally make tage and that this advantage is part of what makes the arena the new field house shake by stomping their feet.”5 “Allen great. Fieldhouse was rocking at a decibel level of almost 122.”6 The

26 The Journal of the Kansas Bar Association legal writing last two quotes in particular seem obviously lacking in con- About the Author text, but all should be paraphrased, at least in part, and better connected together to support my argument: Betsy Brand Six is a native of Lawrence, Kan., Allen Fieldhouse has provided Kansas basketball the “big- and a life-long Jayhawk basketball fan. She is a gest home-venue advantage compared to every other team Clinical Associate Professor and the Director of Academic Resources at the University of Kansas throughout all major American sports.” This advantage stems School of Law, which means that her office looks from the “vehemence and unrelenting passion of the fan base.” out over Allen Fieldhouse. A graduate of Indiana By stomping their feet, fans can literally make the Fieldhouse University (go Hoosiers) and Stanford Law School shake, and the crowd noise has reached decibel levels of al- (go Cardinals), she practiced environmental law in most 122.7 Kansas City for 13 years. By telling your readers all that they need and no more, you [email protected] can become, like Allen Fieldhouse, the best there is. n

Endnotes 2. That, of course, is not intended as a slight to Mr. Marshall or his 1. Matt Norlander, “Experiencing Allen Fieldhouse: A First Time Jour- accomplishments in creating a building that supports the echoing Rock ney to an All-Time Arena,” CBS SPORTS (February 3, 2016), http://www. Chalk Chant and yet was able to serve as an ROTC armory during the cbssports.com/collegebasketball/eye-on-college-basketball/25472006/ Korean War. Mark D. Hersey, “Field House of Dreams,” KU History, experiencing-allen-fieldhouse-a-first-time-journey-to-an-all-time-arena http://kuhistory.com/articles/field-house-of-dreams/ (last visited March (noting the team had a 154-3 record). The KU men’s basketball team has 25, 2016). not lost a game in the Fieldhouse since February 3, 2016. I know because 3. Norlander, supra note 1. I attended all of them.

Kansas Criminal Law Handbook 5th Edition $150 member price Topics

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The Kansas Criminal Law Handbook is produced through the CLE department of the Kansas Bar Association. All Chapters have been revised since the 4th edition, and a new chapter on computer-based evidence has been added. Visit www.ksbar.org/bookstore or call (785) 861-8815 to order.

www.ksbar.org | May 2016 27 kba bookstore Excerpt from the Kansas Criminal Law handbook 5th Edition, Chapter 26, page 1

The 5th edition was just released. For more information regarding the book or to order visit www.ksbar.org/bookstore.

CHAPTER TWENTY-SIX THE LAW OF DUI §26.1 Scope of Chapter can be admitted at trial. It plays a significant role in both ad- This chapter provides an overview of the administrative pro- ministrative hearings and criminal prosecutions. As in many cess and the criminal prosecution for Driving Under the In- areas of the law, the general rule is simple enough to under- fluence of Alcohol and/or Drugs (DUI) and Criminal Refusal stand and apply; the exceptions, however, provide continuing of Testing (Criminal Refusal). Wherever possible, notes con- challenges and creative opportunities for practitioners. taining practice tips and areas of legal concern are included. Under Kansas law, any person who operates or attempts to At the end of the chapter is a glossary of abbreviations and operate a vehicle within the State is deemed to have given con- terms commonly used by law enforcement and practitioners sent, subject to the provisions of the act, to submit to one or in the area of DUI and an outline of time deadlines for coun- more tests (including preliminary screening tests, see K.S.A. sel handling these cases. It should be noted that, on December 8-1012) of the person’s blood, breath, urine, or other bodi- 11, 2015, the United States Supreme Court agreed to address ly substance to determine the presence of alcohol or drugs. whether a breath or blood test for drunk driving can be made K.S.A. 8-1001(a). All such testing is subject to the provisions without a warrant and whether, in the case of no warrant, a contained in the statutes, which provide fertile ground for is- driver can be charged with a crime of refusing to submit to sues dealing with implied consent. testing. These issues are contained in three cases, two from §26.3 Conditions Precedent to Tests North Dakota and one from Minnesota. Clearly, the opinions Before a law enforcement officer may lawfully request that in those cases could have a significant impact on the criminal a person submit to a test, he or she must have reasonable aspects of this chapter. grounds to believe that the person (1) was operating or at- tempting to operate a vehicle while under the influence of A. LAW OF IMPLIED CONSENT drugs and/or alcohol, (2) was driving a commercial motor vehicle while having alcohol or drugs in his or her system, §26.2 Implied Consent or (3) was under 21 years of age while having alcohol and/ Generally, a good portion of the law, both administrative or drugs in his or her system — and one of the following two and criminal, involving charges of DUI and Criminal Refusal circumstances must exist: the person was arrested or was oth- revolves around the law of implied consent. This statutory erwise taken into custody for any violation of any state stat- creation has a tremendous impact on issues ranging from the ute, county resolution, or city ordinance, or the person was manner in which evidence can be collected, to what evidence involved in a motor vehicle accident or collision resulting in

28 The Journal of the Kansas Bar Association kba bookstore

property damage, personal injury, or death. K.S.A. 8-1001(b). cause.” 12 Kan.App.2d at 767. “Reasonable grounds,” howev- In order for these requirements to be fulfilled, however, no er, need not be concomitant with the knowledge necessary to actual arrest needs to have occurred. Rather, probable cause to make a lawful arrest. State v. Counseller, 22 Kan.App.2d 155, arrest will suffice. State v. Murry, 271 Kan. 223, 233, 21 P.3d Syl. ¶2, 912 P.2d 757 (1996). Reasonable grounds “demands 528 (2001). consideration of the behavior of the driver before, during, and To establish reasonable grounds to believe that the person after he or she is behind the wheel.” Martin v. Kansas Depart- was driving, or attempting to drive, while under the influence, ment of Revenue, 285 Kan. 625, 176 P.3d 938, 944 (2008). an officer may act upon personal information or collective in- Reasonable grounds is the same as probable cause: “Probable formation available from other officers. K.S.A. 8-1001(b). For cause exists where the facts and circumstances within the ar- example, an officer at the police station may properly act on resting officer’s knowledge and of which they had reasonably the reasonable grounds observed by the arresting officer and trustworthy information are sufficient in themselves to war- thus may properly administer tests based upon the informa- rant a [person] of reasonable caution in the belief that an of- tion learned by the arresting officer. Angle v. Kansas Dept. of fense has been or is being committed. Sloop v. Kansas Depart- Revenue, 12 Kan.App.2d 756, 758 P.2d 226 (1988). The term ment of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). n “reasonable grounds” is synonymous with the term “probable

2016 Midwest Intellectual Property Institute Friday, May 6, 2016 Esteemed Presenter Lineup: Sprint Corporation, • Michelle Galloway, Cooley LLP, Palo Alto, Cal. • Thomas L. Irving, Finnegan, Henderson, Farabow, Garrett & Dunner, Overland Park LLP, Wash. D.C. • Courtenay C. Brinckerhoff, Foley & Lardner LLP, Wash. D.C. • Christopher V. Carani, McAndrews, Held & Malloy, Ltd., Chicago, Ill. • John P. Mulgrew, Shook, Hardy & Bacon LLP, Seattle, Wa. • Mark H. Wittow, K&L Gates LLP, Seattle, Wa. • Jasmine Abdel-khalik, UMKC School of Law, KCMO Other items of note: Lunch is included in registration fee Section members receive a $30 discount

If you are interested in sponsoring this CLE, please contact Dawn Phoenix: [email protected] • (785) 861-8811

www.ksbar.org | May 2016 29 Opinion: Don't Tread on Me The Separation of Powers Doctrine and the Need for a Strong Judiciary

By Nick Badgerow

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication. Overview In that connection, and in making the The United States Constitution, the unprecedented step of declaring inde- blueprint for the new Government of pendence from the British government, the United States of America, was a reasons were cited in a public Declara- bold experiment, one never attempted tion of Independence, as a justification before: to form a union of states with not only to the King and Parliament, disparate interests, and unite them for but also to the World, to explain the the common good; identifying and re- reasons for the step by which the child serving to the federal government cer- declared its independence from the par- tain national powers, while allotting to ent. And the World watched. the states those powers not necessary And then, after its shocking military to the common, national welfare. The success against the World’s greatest Constitution is an inspired document, army, this fledgling nation had to create drawing on the best of the past, while a governmental structure out of whole looking forward and drawing the map cloth. And the World watched. to a bright future. A New Government And the Constitution has remained And so, under the scrutiny of both vital because it is a living document, the parent so recently and violently one whose interpretation evolves with discarded, as well as the rest of the the society it governs, and this evolu- concerned monarchies of the World, tion is its strength. It bends instead of America’s founders set about to form breaking. a federal government, a combination The most important aspect of the of states. The founders were concerned Constitution is the separation of pow- about federal power eclipsing the rights ers, the establishment of three separate and powers of the individual constitu- but equal branches, each with checks ent states (which after all had to ratify upon the other two, and balanced by the thing). powers vested in the other two. Keep- And one thing they knew for sure, ing the branches separate in identity, they did not want to copy Britain, with but equal in power, is a necessary ele- a powerful monarch, with its Parliament ment of the stability of the government that served at the pleasure of the King, which rests upon those branches. And and a Judiciary which was appointed by, when one branch is made subservient to and answerable to the King. This new the other two, the imbalance threatens government would demonstrate its in- the very survival of the society which dependence by being different. depends on them. As citizens, each person plays an im- Men of Faith portant role in recognizing the impor- The authors of the Constitution were tance of this balance, and in preserving men of faith, familiar with Scripture it. Thus, challenges to the indepen- and asking a Supreme Being for guid- dence of the judicial branch should be ance. They were therefore likely familiar foreseen and addressed, to preserve that with this declaration from the Book of independence and the equality of the Isaiah: judicial branch with the executive and For the Lord is our Judge, the Lord is legislative. our Lawgiver, the Lord is our King; it is He who will save us.1 A Bold Experiment In this simple recognition can be Every American school student knows found the roots of three separate, dif- the basic history of our Nation’s birth, as ferent, but powerful attributes of man’s well as the aims and goals which drove Maker: the Founding Fathers to the Revolu- God as Judge – exercising judicial tion: they sought independence from temperance and mercy while interpret- the monarchy, along with the right of ing the law; self-government, a representative (and God as Lawgiver – exercising the not a remote) government, and a clear right and omnipotent power to make relationship between taxation of the the law; and governed and benefits derived from the God as King – exercising executive proceeds of that taxation. control to apply and enforce the law.

www.ksbar.org | May 2016 31 opinion

Men of Learning Further, the power of these three branches must be of rela- The Founding Fathers also were well learned. Of course, tive equality, and separate from each other. Thomas Jefferson they were familiar with the writings of John Locke and Baron later echoed Montesquieu’s point – that each branch must be de Montesquieu. In his Two Treatises of Government, Locke independent of each other: had written that men are naturally free and equal2 (a senti- Each department is truly independent of the others, ment echoed in the Declaration of Independence), and be- and has an equal right to decide for itself what is the cause they are free, the establishment of government is a social meaning of the constitution in the cases submitted to contract, by which government is established by the consent its action.10 of the governed.3

And hence it is evident that absolute monarchy, which Further, James Madison made the same point in his by some men is counted for the only government in the Federalist No. 51: world, is indeed inconsistent with civil society, and so can be no form of civil government at all.4 [T]he great security against a gradual concentration of Locke identified the legislative branch as that arm which the several powers in the same [branch] consists in giv- makes the laws, and the executive branch as that arm which ing to those who administer each [branch] the neces- enforces the laws; he made little mention of the judicial branch sary constitutional means and personal motives to resist (“magistrates”). However, Locke strongly warned against al- encroachments of the others. . . . Ambition must be lowing legislative power to proceed unrestrained.5 made to counteract ambition. The interest of the man The Founding Fathers were also well aware of the writings of must be connected with the constitutional rights of the Baron de Montesquieu, who had more recently authored The [office].11 Spirit of Laws.6 In that volume, Montesquieu described the concept of governmental power spread among three equal but So, the Founding Fathers were doubtless aware of Locke’s differing branches of government, tracing the history of that and Montesquieu’s writings about the separate functions of concept as far back as the Roman Empire after the Caesars.7 government and the need for independence among those Montesquieu recognized and denominated these branches as functions. They were also keenly aware of the failings of the the Executive, the Legislative, and the Judicial. parliamentary monarchy under whose thumb they had only so recently suffered and from which they had more recently The three powers were there distributed in such a man- set themselves free. And, of course, they were aware that the ner, that the people were the legislature, and the king thirteen states and the World were watching. had the executive, together with the judiciary, power; These representatives of the thirteen former colonies decid- whereas, in modern monarchies, the prince is invested ed to try something bold and different, to create a government with the executive and legislative powers, or, at least, based on a document with firm principles, based on lofty as- with part of the legislative, but does not act in a judi- pirations, and to make the document subject to amendment ciary capacity. as times changed – if that amendment were relatively diffi- cult. They wanted to avoid repeating history by imposing a monarchy. And they wanted to avoid civil war or the dissolu- In the government of the kings of the heroic times, the tion of the union. So, as they adopted this bold and unique three powers were ill-distributed. Hence those monar- Constitution, following Montesquieu’s principle of “trias po- chies could not long subsist.8 litica,” three equal branches covering the separate functions Montesquieu, this progenitor of our liberty, because of this of government, all acting in concert to influence each other lesson of history, emphasized the importance of a separation through checks and balances, while preserving their own 12 between these three separate but equal branches, particularly independence. as it relates to the judicial branch: Legislative Branch Under this trias politica, the legislative branch “makes” the Again, there is no liberty if the judiciary power be not laws, the executive branch “enforces” the laws, and the judicial separated from the legislative and executive. Were it branch “interprets” the laws.13 joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul [sic]; for Thus, under Article I of the United States Constitution: the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.14 There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the Article I then follows with certain enumerated acts permit- people, to exercise those three powers, that of enacting ted to the legislature, such as taxation, borrowing, regulating laws, that of executing the public resolutions, and of commerce, raising an army and navy, declaring war, etc.15 trying the causes of individuals.9 Similarly, Article Two of the Kansas Constitution first 32 The Journal of the Kansas Bar Association opinion provides that “The legislative power of this state shall be vest- apprehensions may arise lest the same monarch or sen- ed in a house of representatives and senate,”16 while the re- ate should enact tyrannical laws to execute them in a mainder of the Article details manners and methods for the tyrannical manner.32 organization and structure of these bodies.17 Because the legislative branch is directly elected by the The United States Supreme Court has declared unequivo- people, it is thought that the legislative branch may be more cally: “At the center of the Framers’ dedication to the separa- 33 attuned to the people’s will, and more responsive to that will. tion of powers was individual liberty.” For this reason, James Madison believed the legislative branch to be the most important of the three.18 Even a cursory examination of the Constitution reveals the influence of Montesquieu’s thesis that checks and Executive Branch balances were the foundation of a structure of govern- Article II of the federal Constitution creates the executive ment that would protect liberty. The Framers provided branch, but by contrast to Article I, imposes no specific limits a vigorous Legislative Branch and a separate and wholly upon the executive branch,19 though the President is named independent Executive Branch, with each branch re- Commander in Chief, and is empowered to grant reprieves sponsible ultimately to the people. The Framers also and pardons and (subject to approval of the Senate) to make provided for a Judicial Branch equally independent, appointments and make treaties.20 with “[t]he judicial Power . . . extend[ing] to all Cases, Under Article One of the Kansas Constitution, “The su- in Law and Equity, arising under this Constitution and preme executive power of this state shall be vested in a gover- the Laws of the United States.” Art. III, § 2.34 nor, who shall be responsible for the enforcement of the laws of this state.”21 Similarly, the separation of powers is not expressly stated The Kansas Governor is only expressly granted the power in the Kansas Constitution. But its principle has long been to pardon,22 to reorganize government agencies,23 to call for recognized and upheld in this State. In 1904, our Court held: legislative sessions24 to report on the state of the State,25 and to fill vacancies.26 The further powers exercised by the Governor [T]he people have set the Constitution over themselves presumably fit within the “supreme executive power” gener- as a limitation upon their own sovereignty, and it is ally ceded to that office. their duty to obey it precisely the same as officials who are given authority under it. By that instrument a gov- Judicial Branch ernment has been established, and its powers defined Article III of the federal Constitution vests judicial power and distributed. Among the powers granted are such as in the Supreme Court and inferior federal courts.27 Federal are designated legislative, executive, and judicial. These courts are empowered to hold trials and resolve issues involv- are sovereign powers, and the people, having delegated ing the Constitution, federal laws or treaties, or controver- them to instruments of their own creation, cannot in- sies between states or citizens of different states.28 There is no terfere with their exercise. They may meet in their or- mention in the Constitution of the Court’s power to declare ganized political capacity and change the fundamental statutes unconstitutional, though this power is inherent in the law, but, so long as the Constitution stands, they can- concept of checks and balances.29 not legislate or execute laws or adjudicate controversies. Article Three of the Kansas Constitution similarly provides The recognition of any other doctrine would sound the that “The judicial power of this state shall be vested exclu- death-knell of constitutional government.35 sively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are Thus, the importance of the doctrine cannot be understat- provided by law.”30 ed. It is essential to the functioning of government.36 “[I]t re- Separation of Powers mains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central Again, while there is no express provision for the separation prerogatives of another.”37 of powers in the United States Constitution,31 that separation is clearly implied by the relationship of the three independent The doctrine of separation of powers is an inherent and branches. integral element of the republican form of government. By dividing the government into three branches, each James Madison, writing in the Federalist No. 47, de- of which is given the powers and functions appropriate fended the work of the Framers against the charge that to it, a dangerous concentration of power is avoided and these three governmental powers were not entirely sepa- the respective powers are assigned to the branch best fit- rate from one another in the proposed Constitution. ted to exercise them. This doctrine prevents one branch He asserted that, while there was some admixture, the of government from usurping another branch's pow- Constitution was nonetheless true to Montesquieu’s ers. Usurpation occurs when one branch of government well known maxim that the legislative, executive, and significantly interferes with the operations of another judicial departments ought to be separate and distinct: branch.38 The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, there can be no liberty, because www.ksbar.org | May 2016 33 opinion

Checks and Balances Have Evolved This was one of the fundamental concepts which led to Under the concept of checks and balances, each branch the Revolution. The Declaration of Independence excoriated holds sway over the others, and each, in turn, is subject to King George III for, among other things, making colonial controls by the other two.39 “judges dependent on his will alone, for the tenure of their The executive branch is subject to having its veto overruled offices and the amount and payment of their salaries.” Such by the legislative, and is subject to a Supreme Court’s declara- dependence naturally would motivate a judge to look to the tion that executive action is unconstitutional.40 The legislative King’s wishes and will in making decisions, and to expect to branch is subject to having its actions vetoed by the presi- receive an expression of the King’s dissatisfaction after deci- dent, and its laws declared unconstitutional by the judicial sions unsatisfactory to the King. branch.41 And executive appointment of the members of the Thus, the Constitution vests the judicial power of the judicial branch is subject to the approval of the Senate, while United States in federal judges, who “shall hold their offices the President makes those appointments, and also has the during good behaviour and shall, at stated times, receive for power to pardon, despite a court’s sentence.42 their services a compensation, which shall not be diminished 55 Under this method of government, the judicial branch must during their continuance in office,” thus insuring judges’ in- not only be equal in power to the other two, it must be so dependence from the will and wishes of the executive or the perceived. A vital court, with the power to check unrestrained legislative branches. actions by the legislative and the executive branches is essen- This independence is tempered by the principle of checks tial to the function of a free state. Power and control cannot and balances. The Constitution can be amended, statutes can run just one way. be re-written, and new judicial appointments can be made as Under the federal system, justices and judges serve for life. vacancies occur. But the bedrock foundation of judicial inde- The number of justices on the Supreme Court is set by Con- pendence should not be eroded. gress, and that too has changed over time. In 1789, the first The Risk of Partisan Politics 43 Judiciary Act set the number of justices at six. The number If American political history teaches anything, it is the con- 44 was decreased to five in 1801 for just one year, when it was cept that a faction currently in control will wane, and a dif- 45 returned to six in 1802. The number was increased to eight ferent faction will follow, and the more radical the first, the 46 47 justices in 1837. Finally, the Judiciary Act of 1869 fixed the equally radical will be the second. It is a beauty of this system, number of Justices at nine and no subsequent change to the and the foreseeability of the inevitability of this change, which number of justices has occurred since then. does or should restrain those currently in power from over- The Court-Packing Plan stepping or creating standards and rules which will then be 56 However, there have been efforts to change the number of applied to that first group when it falls from power. Thus, justices on the Supreme Court since 1869. President Frank- those in power should be circumspect in imposing draconian lin Delano Roosevelt saw a number of his “New Deal” laws actions on the minority, when those in power will likely find declared unconstitutional by the conservative Supreme Court themselves in the minority in the not-too-distant future. in 1935 and 1936. Indeed, in those two years, the Supreme One universally accepted method for avoiding this phe- Court struck down eight of FDR’s New Deal programs, in- nomenon, at least in the appointment of judges and for pre- cluding the National Recovery Act (NRA) and the Agricul- serving judicial independence, is the “Missouri Plan.” tural Adjustment Act (AAA).48 Concluding that his landslide The Missouri Plan re-election in 1936 was a public mandate for his New Deal The “Missouri Nonpartisan Court Plan,” also called “The 49 50 programs, Roosevelt introduced a plan for the mandatory Missouri Plan,” was first adopted in Missouri in response to retirement of each Supreme Court justice reaching the age of the Pendergast Era in that state, when court appointments, 70, with a new justice to be appointed to serve alongside him like other governmental appointments, were doled out as po- 51 if the Justice refused to retire. litical patronage, rather than on merit. Three weeks after introduction of this bill, Justice Owen Roberts changed sides and upheld the constitutionality of sev- After the turn of the last century, political machines eral New Deal laws, including the Wagner Labor Relations rose to power in Kansas City and St. Louis. These Act and the Social Security Act,52 thus signaling an end to the political machines used their power over the elector- Court’s opposition to the New Deal. The court-packing bill ate to influence who was nominated to be a judge, thereafter failed, and an amended Judicial Procedures Reform who was elected to be a judge, and who remained a Act of 1937, without the court-packing provision, passed.53 judge. Because Kansas City and St. Louis had much The Judiciary Must Stay Independent of the population of the state, the influence of these political machines could reach all levels of judg- In order for checks and balances to work, each branch must es in Missouri, including the Supreme Court. . . . be equally strong; none must have precedence or power over the other. As Alexander Hamilton observed in urging the . . . Allegiance to party bosses in Kansas City was criti- adoption of the Constitution, there is a need for “a steady, up- cal to being nominated and selected to be a judge. right, and impartial administration of the laws by a judiciary In 1936, the Pendergast and Shannon factions of the of firmness and independence. . . . Liberty would have every- Jackson County Democratic Party fought a bitter intra- thing to fear from [the judiciary’s] union with the legislature party battle before the public during the primary for a or the executive.”54 34 The Journal of the Kansas Bar Association opinion state Supreme Court Judge. Two years later, the factions Plan as their prescribed method of selecting and retaining joined together, again for the public to see, to try to judges. unseat a Supreme Court Judge who was said not to have voted Pendergast’s way in a case before the court. The The Nonpartisan Selection of Judges Court Plan, which meaning of these political battles over judgeships was has come to be known as the Missouri Plan, has served not lost upon the citizens of Missouri, especially law- as a model for the thirty-four other states that use merit 63 yers. People saw that political allegiance was trumping selection to fill some or all judicial vacancies. judicial qualifications in the selection of judges.57 History since 1940 has proven the validity of a judicial- Thus, once Pendergast was no longer in total control of state selection system removed from politics. and local politics, Missouri’s citizens acted to adopt a plan which removed the selection of judges from political influ- The principal argument made by proponents of “merit” ences, and based their selection and retention more on merit. selection, regardless of the particulars of the given plan The result was the Missouri Plan.58 In November 1940, Mis- being discussed, is that it removes politics from the pro- souri voters amended the Missouri constitution by adopting cess of selecting judges. Almost always accompanying the “Nonpartisan Selection of Judges Court Plan,” which this argument is the correlative argument that, because was placed on the ballot by initiative petition, passed, and politics is removed from the selection process, the re- thus became a part of the Constitution.59 Under the Missouri sult is selection of “better” judges. Proponents also fre- Nonpartisan Court Plan, a nonpartisan judicial commission, quently claim that more women and minorities reach comprised of lawyers and non-lawyers, reviews applications, the bench under “merit” selection systems than under interviews candidates and selects a judicial panel. With any systems based upon contested elections and that, there- fore, the result in states using some form of “merit” sys- vacancy, the appropriate commission reviews applications of 64 lawyers who wish to join the court and interviews the appli- tem is a more diverse judiciary. cants. It then submits the names of three qualified candidates Thus, judges under the Missouri Plan do not run or cam- – called the “panel” of candidates – to the Missouri governor. paign for election or for re-election. This removes judges from Normally, the governor will interview the three candi- the obligation to raise funds (with the favors inherent in that dates and review their backgrounds before selecting one function), to take a public stand on controversial issues, or to for the vacancy. If the governor does not appoint one make campaign promises about outcomes, decisions or results in cases which might come before the judge if elected to the of the three panelists within 60 days of submission, the 65 commission selects one of the three panelists to fill the bench. Further, being aloof from such activities, specific ex- vacancy.60 pectations on the part of the electorate are avoided. Kansas and the Missouri Plan Once a judge has served for at least a year, the judge’s name is placed on a ballot for voter determination whether the Supreme Court Justices judge should be retained. Voters are provided information via For the selection of Supreme Court Justices, Kansas has ad- a judicial performance evaluation report, compiled by a com- opted the Missouri Plan by Constitution,66 as a result of simi- mittee of lawyers and non-lawyers based on objective criteria lar political shenanigans to those encountered in Missouri.67 including decisions written by judges on the retention ballot Thus, this method of selecting Supreme Court Justices can as well as surveys completed by lawyers and jurors who have only be changed by amending the Constitution. 61 direct and personal knowledge of the judges. Thus, in states Court of Appeals Judges following the Missouri Plan, judges are not elected in partisan The selection of Court of Appeals judges followed the Mis- elections, and they are retained or rejected in office through souri Plan from the time of the Court’s creation in 1975, until non-partisan votes based on merit. And the Plan has worked 2013, by statute.68 That statute was amended, and since July for Missouri. 1, 2013, appointments to the Court of Appeals are made by the governor, subject to confirmation by a majority vote of Missourians learned long ago, before they adopted the 69 nonpartisan plan, what can and does happen when pol- the Senate. Thus, the Missouri Plan no longer applies to ap- itics becomes a key factor in determining who will be a pointment of Court of Appeals judges. judge. That is why they adopted the Missouri Nonpar- District Judges tisan Court Plan -- the least-political method for select- The selection of district court judges is left to the decision of ing judges. They adopted the nonpartisan plan because each district. The Kansas Constitution provides: they sought to minimize - not maximize – politics in judicial selection. They also wanted stability in the ju- The district judges shall be elected by the electors of the dicial system. Businesses, families and all Missourians respective judicial districts unless the electors of a judi- depend on justice being even, fair, just, deliberate and cial district have adopted and not subsequently rejected consistent, no matter who holds the other offices in the a method of nonpartisan selection. The legislature shall state.62 provide a method of nonpartisan selection of district judges and for the manner of submission and resub- The majority of the other states have selected the Missouri mission thereof to the electors of a judicial district. A www.ksbar.org | May 2016 35 opinion nonpartisan method of selection of district judges may Ask whether citizens want their judicial candidates to solicit be adopted, and once adopted may be rejected, only political contributions, publicly to debate matters which may by a majority of electors of a judicial district voting on come before them, or to make promises of future decisions to the question at an election in which the proposition is curry favor with voters now. submitted.70 The United States Constitution and the Kansas Constitu- tion are vital, living documents, clearly providing for three Some fourteen districts elect their judges by partisan elec- equal branches of government, with checks and balances from 71 tion, while the seventeen others rely on non-partisan selec- and to each branch. The Judicial Branch must remain a strong 72 tion after nomination by a commission. and equal branch, equal to the other two, or imbalance –or Conclusion worse – is likely to arise. n The Missouri Plan insulates judges from the vicissitudes of political wrangling, and insures their independence. While a About the Author faction in power may be tempted to wrest this selection meth- od from a qualified commission, and place the entire power J. Nick Badgerow is a partner with Spencer with the governor, that faction may not always be in power, Fane Britt & Browne LLP in Overland Park, and and may later come to regret having made so significant a is a trial lawyer practicing mainly in the areas change. Montesquieu’s concept of judicial independence, of construction, employment, and professional and Madison’s idea of three equal branches of government responsibility. He is a member of the Kansas Judicial would be eroded if selection of judges is removed from a non- Council, and Chair of the Judicial Council’s Civil Code Committee; member of the Kansas State partisan process. Board of Discipline for Attorneys; Chair of the KBA Ethics Advisory Opinion Committee; and Chair of The separation of powers requires nothing less among the Johnson County (Kansas) Ethics & Grievance the co-equal participants in the tripartite form of gov- Committee. Nick was Chairman of the Kansas Ethics ernment adopted federally and in Kansas. Though ju- 2000 Commission and the Kansas Ethics 20/20 dicial restraint in addressing executive actions may be Commission, and he was the editor and a co-author less frequently discussed and less often at hand than of the KBA’s Ethics Handbook (Third Edition). the interplay between courts and legislative bodies, it [email protected] is a doctrine of long standing and demands scrupulous adherence.73

Endnotes 22 Id., art. 1, § 7. 1 Isaiah 33:22, King James Bible. 23 Id., art. I, § 6. 2 John Locke, Two Treatises of Government (1689), available online at 24 Id., art. I, § 5. http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/locke/government. 25 Id. pdf , at 46 (“man has a natural freedom; all . . . are in nature equal”) 26 Id., art. I, § 11. 3 Id., at 62 (government must be created “for the benefit of the gov- 27 U.S. Const. art. III, § 1 (“The judicial Power of the United States, erned, and not the sole advantage of the governors.”) shall be vested in one supreme Court, and in such inferior Courts as the 4 Id. at 143. Congress may from time to time ordain and establish”). 5 Id., at 164 (warning that by giving up “to the absolute arbitrary power 28 Id., art III, § 2. and will of a legislator, [citizens] have disarmed themselves, and armed him 29 Marbury v. Madison, 5 U.S. 137 (1803); College of American Gov- to make a prey of them when he pleases”). ernment, Checks and Balances: Internal Constraints on Government Power, 6 Charles Louis de Secondat, Baron de Montesquieu, The Spirit of Laws available online at http://collegeamericangovernment.org/checks-and- (1748), available online at http://oll.libertyfund.org/titles/837. balances-internal-constraints.html. See also, Lathrop v. Donohue, 367 U.S. 7 Id., Book 10, Chapters 16, 17 and 18, and Book 16, Chapter 12. 820, 855, 81 S. Ct. 1826, 6 L. Ed. 2d 1191 (1961) 8 Id., Book 11, Chapter 11. 30 Kan. Const. art. III, §1 9 Id., Book 11, Chapter 6 (“the judiciary power ought not to be united 31 Principality of Monaco v. Mississippi, 292 U.S. 313, 323 (1934), with any part of the legislative”). Hughes, J. (“The doctrine of separation of powers is fundamental in our 10 Thomas Jefferson to Spencer Roane, Works 12:135—38 (Sept. 6, system. It arises, however, not from Art. III, nor any other single provision 1819); available online at http://press-pubs.uchicago.edu/founders/docu- of the Constitution, but because ‘behind the words of the constitutional ments/a1_8_18s16.html. provisions are postulates which limit and control’”). 11 James Madison, Federalist Papers, No. 51 (February 6, 1788), avail- 32 Buckley v. Valeo, 424 U.S. 1, 120, 96 S. Ct. 612, 46 L. Ed. 2d 659 able on line at http://www.constitution.org/fed/federa51.htm (1976)(footnote omitted). 12 Legal Dictionary, “Separation of Powers,” available online at http:// 33 Department of Transportation v. Association of American Railroads, __ legal-dictionary.thefreedictionary.com/Trias+politica U.S. __, 135 S. Ct. 1225, 191 L. Ed. 2d 153 (2015). 13 U.S. Const. art. I, II & III; Kan. Const., art. I, II & III. 34 Bowsher v. Synar, 478 U.S. 714, 722, 106 S. Ct. 3181, 92 L. Ed. 2d 14 U.S. Const. art. I, § 1. 583 (1986). 15 Id., art. I, § 8. 35 State v. Durein, 70 Kan. 1, 78 P. 152, rehearing, 70 Kan. 13, 80 P. 16 Kan. Const. art. II, § 1. 987 (1904), aff’d 208 U.S. 613, 52 L. Ed. 645, 28 S. Ct. 567 (1908). 17 Id., art. II, §§ 2–30. 36 Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973) 18 Federalist Papers, No. 51, supra note II. (“the doctrine of separation of powers is an inherent and integral element 19 U.S. Const. art II, 1 (“The executive Power shall be vested in a Presi- of the republican form of government”). dent of the United States of America”). 37 Loving v. U.S., 517 U.S. 748, 757, 116 S. Ct. 1737, 135 L. Ed. 2d 20 Id., art. II, § 2. 36 (1996), citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225-26 21 Kan. Const. art 1, § 3. (1995).

36 The Journal of the Kansas Bar Association opinion

38 Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098, Syl. ¶9 (2012). Judges, Including the Missouri Plan, available online at http://www.mobar. 39 Montesquieu, Spirit of the Laws, bk. XI, ch. 6, at 150, 157 (“power org/nonpartisancourtplan/the-missouri-plan.htm should be a check to power” lest the legislature “arrogate to itself what 58 Id. authority it pleased . . . [and] soon destroy all the other powers”). 59 Mo. Const. art. V, § 25(a). 40 Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L. 60 Missouri Courts, Missouri Non-Partisan Court Plan, available online Ed. 2d 992, Syl. ¶ 1 (1964)(Executive order ruled “unconstitutional on its at https://www.courts.mo.gov/page.jsp?id=297. face, for it too broadly and indiscriminately transgresses the liberty guar- 61 Id. anteed by the Fifth Amendment”). 62 Hon. Laura Denvir Stith and Jeremy Root, The Missouri Nonpartisan 41 Marbury v. Madison, 5 U.S. 137 (1803). An extensive and historic Court Plan: The Least Political Method of Selecting High Quality Judges, 74 Mis- exegesis on the power of courts to declare legislation to be unconstitutional souri Law Rev. No. 3, 711, at 725 (2009), available on line at http://scholarship. is found in Atkinson v. Woodman, 68 Kan. 71, 74 P. 640 (1903). See also, law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr&sei- State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa% 293, 337-38, 955 P.2d 1136 (1998). (“Courts are limited to the exercise 3Dt%26rct%3Dj%26q%3Dmissouri%2520constitution%2520non- of judicial power in interpreting and applying the law and may not usurp partisan%2520judge%2520selection%26source%3Dweb%26cd%3D the legislative power of determining policy matters or the executive power 6%26ved%3D0CEAQFjAFahUKEwjWx7L7lpDHAhUJgJIKHQnz of implementing such policy”). AqU%26url%3Dhttp%253A%252F%252Fscholarship.law.missouri. 42 National Constitution Center, Article I, Legislative Branch, available edu%252Fcgi%252Fviewc ontent.cgi%253Farticle%253D3841%2526c online at http://constitutioncenter.org/constitution/the-articles/article-i- ontext%253Dmlr%26ei%3DyRTBVZa_EomAygSJ5ouoCg%26usg%3 the-legislative-branch. DAFQjCNFuA0fduDPM_7kzcDocUdBL5s0lAg%26bvm%3Dbv.9926 43 The United States Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789). 1572%2Cd.aWw#search=%22missouri%20constitution%20non-parti- 44 Judiciary Act of 1801, 2 Stat. 89 (1801). san%20judge%20selection%22. 45 Judiciary Act of 1802, 2 Stat. 132 (1802). 63 National Center for State Courts, Judicial Selection in the States, 46 Judiciary Act of 1837, 5 Stat. 176 (1837). available online at http://www.judicialselection.us/judicial_selection/in- 47 Judiciary Act of 1869, 16 Stat. 44 (1869). dex.cfm?state=MO. 48 Railroad Ret. Bd. v. Alton R. Co., 295 U.S. 330 (1935); Humphrey’s 64 Peter D. Webster, Selection and Retention of Judges: Is There One “Best” Executor v. United States, 295 U.S. 602 (1935); Louisville Joint Stock Land Way?, Fla. St. U. L. Rev. (1995), available online at http://archive.law.fsu. Bank v. Radford, 295 U.S. 555 (1935); A.L.A. Schechter Poultry Corp. v. edu/journals/lawreview/issues/231/webster.html#heading8. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 65 Stade L. Sanders, Kissing Babies, Shaking Hands, and Campaign Con- (1936); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Carter v. Cart- tributions: Is This The Proper Role for the Kansas Judiciary?, 34 Washburn er Coal Co., 298 U.S. 238 (1936); Morehead v. New York ex rel. Tipaldo, L.J. 573, 577-78 (1995). 298 U.S. 587 (1936); Ashton v. Cameron County Water Improvement Dist. 66 Kan. Const. art. III, §5. No. 1, 298 U.S. 513 (1936). 67 R. Alton Lee, The Triple Switch: How the Missouri Plan Came to 49 Franklin Delano Roosevelt, Fireside Chat on Reorganization of the Kansas, J. Kan. Bar Ass'n, (January 2004), available online at http://www. Judiciary (March 9, 1937), available online at http://www.mhric.org/fdr/ washburn.edu/reference/cks/politics/pdf/triple.switch.pdf. chat9.html. 68 K.S.A. 20-3007 – 20-3010 (1975). 50 Judicial Procedures Reform Bill of 1937. 69 K.S.A. 20-3020 (2013). 51 This Day in History, February 5, 1937, Roosevelt Announces “Court 70 Kan. Const. art. III, §6. Packing” Plan, available online at http://www.history.com/this-day-in-his- 71 13th District, 14th District, 15th District, 16th District, 17th Dis- tory/roosevelt-announces-court-packing-plan. trict, 18th District, 19th District, 20th District, 22nd District, 23rd Dis- 52 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones trict, 24th District, 26th District, 27th District, 29th District. Source, & Laughlin Steel Corp., 301 U.S. 1 (1937); Helvering v. Davis, 301 U.S. Ballotpedia, available online at http://ballotpedia.org/Judicial_selection_ 619 (1937). in_Kansas. 53 Judicial Procedures Reform Act of 1937. 72 1st District , 2nd District, 3rd District, 4th District, 5th District, 54 Alexander Hamilton, The Federalist Papers, No 78. 6th District, 7th District, 8th District , 9th District, 10th District, 11th 55 U.S. Const. art. II, §1. District, 12th District, 21st District, 25th District, 28th District ,30th 56 See, e.g., United States Senate, Filibuster and Cloture, available on- District. Source, Ballotpedia, supra. line at http://www.senate.gov/artandhistory/history/common/briefing/ 73 Theisman v. City of Overland Park, 253 P.3d 798, 2011 WL 2637452, Filibuster_Cloture.htm. at *8 (Kan. App. 2011). 57 The Missouri Bar, A Short History of How Missouri Has Chosen Its

www.ksbar.org | May 2016 37 Opinion Testimony Concerning the Separation of Powers and the Judiciary

By Lumen Mulligan*

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication.

I. Introduction served: “No country can be called free which is governed by eparation of powers and the judiciary—or judicial inde- an absolute power; and it matters not whether it be an abso- pendence, as it is often termed—“refers to the need for lute royal power or an absolute legislative power, as the conse- 4 courts that are fair and impartial when reviewing cases quences will be the same to the people.” George Washington Sand rendering decisions, . . . [which] requires freedom from forcefully advocated this same commitment to separation of outside influence or political intimidation.”1 As recognized by powers in his famous Farewell Address. “Liberty itself will find President Ronald Reagan, and scores upon scores of our na- in such a Government, with powers properly distributed and 5 tion’s most preeminent leaders, “’[t]he independence of the adjusted, its surest Guardian.” courts from improper political influence is a sacred principle,. President Reagan, Thomas Paine, and President Washing- . . . It must always be guarded.’”2 ton’s message to us today is clear. The independence of the This cornerstone of our free society—judicial indepen- judiciary is not maintained for the benefit of the judges. It is dence—has been the bedrock of Kansas’ republican form of for us—free citizens of a democratic republic governed under government since the state’s founding.3 Indeed, separation of rule of law— for whom the courts stand open as fair and im- powers is one of the most important political principles upon partial tribunals. which our entire nation was founded. As Thomas Paine ob- opinion

II. The Vast Majority of the Time the Kansas day in court must feel fairly treated---win or lose. Only courts Courts Act as Essential Implementers of that are insulated from outside intimidation and pressure can Legislative Policy fairly administer justice and be perceived to be doing so by To some, it may appear that over the past few years the our fellow Kansans. As such, our family lives, our commercial Kansas courts and the Legislature are at odds on every issue. transactions, our physical safety and our ability to pursue hap- From this erroneous perspective, judicial independence could piness is deeply rooted in the existence of independent courts. be misunderstood to mean that a judge is free to do as he or It is no surprise, then, that the leading economic studies find she sees fit in any situation. Nothing could be further from a strong causal link between economic growth and the the truth, however. Indeed, the overwhelming bulk of the dis- existence of an independent judiciary that stands ready to putes resolved by our Kansas courts never reach the headlines, resolve these many and various quarrels of our everyday per- 10 which distorts a true understanding of what our courts do. sonal and professional lives. Any attack upon the institution Some perspective, therefore, on the workload of our Kansas of independent courts sacrifices all these benefits. courts is helpful. III. Our History, Tradition and Law Compel the Kansas judges handled approximately 1,600 cases per judge Conclusion that an Independent Judiciary Must in FY2015.6 Or to look at it another way, there were about Be Able to Strike Statutes in Order to Protect 392,000 judicial cases filed in FY2015 across the state of Kan- Constitutional Rights 7 sas. Nearly 42 percent of these suits were traffic violations. In highlighting the Kansas courts’ role in fairly deciding Just about another 25 percent of cases filed in FY2015 were these thousands upon thousands of everyday statutory dis- Chapter 61 Limited Actions, which are small-claims-court putes, I do not mean to sweep the very small number of high- disputes. Another 10 percent were run-of-the-mill family-law profile constitutional cases, in which the Kansas courts have matters such as divorces, alimony, child custody, etc. Non- struck down acts of the Kansas Legislature, under the rug. traffic-related criminal cases—convictions and sentencing of Quite to the contrary. As Chief Justice William Rehnquist, crimes running the gamut from misdemeanor property crimes appointed to that post by President Reagan, recognized: “[An to felonies such as rape—comprise an additional 9 percent of independent judiciary with the authority to declare laws the Kansas courts’ caseload. Yet another 9 percent of the case- passed by . . . [the legislature] unconstitutional . . . . is one load from last year fell within lesser jurisdictions, such as mu- of the crown jewels of our system of government today.”11 In nicipal courts and the like; these are typically city- ordinance- the throes of our fights here in Kansas concerning great is- violation complaints (noise violations and that type of thing). sues of the day, one might question Chief Justice Rehnquist’s Finally, approximately 4 percent of cases filed in FY2015 view that judicial independence remains a crown jewel of our were “civil” matters such as breach of contract suits, property system of government. Reflecting upon our history, however, claims and the like. Of course, each of these suits are of great helps us understand the continuing importance, today, of the importance to the parties involved; but of the approximately ability of an independent judiciary to find acts of the legisla- 392,000 cases filed last year, less than a handful of those suits ture unconstitutional. made any ripples in the state-wide headlines. Of all the evils listed in the Declaration of Independence, This lack of newsworthiness is not surprising given that, in none was worse than the colonial judges’ complete depen- the vast majority of these 392,000 cases, the primary legal task dence upon the king. As Thomas Jefferson penned, “[King for Kansas courts is to interpret statutory language. That is to George III] has obstructed the Administration of Justice, by say, in the overwhelming set of Kansas cases, the job for our refusing his Assent to Laws for establishing Judiciary pow- Kansas courts is to apply the Kansas Legislature’s directives as ers. He has made Judges dependent on his Will alone, for the set out by statute. Indeed, when faced with this task, the Kan- tenure of their offices, and the amount and payment of their sas courts universally hold that “[t]he most fundamental rule salaries.”12 Although judges in England had life tenure protec- of statutory construction, is that the intent of the legislature tions and other hallmarks of judicial independence since at 8 governs.” What this means is that when acting within consti- least 1700, colonial judges were under the direct political and tutional bounds, the Kansas courts have always acknowledged financial thumb of the king. It is no surprise, then, that these that the Kansas Legislature reigns supreme in the making of judges ruled against the American colonists and in favor of the 9 Kansas law. king and his agents in case after case. Nevertheless, the independence of the judiciary remains Having experienced life under a system where judges bowed crucial in these hundreds of thousands of run-of-the-mill cas- to political pressure, instead of standing up for the rights of es. If citizens fear that the outcome of, say, their disputes over the people under law, the founders were determined not to re- ownership of 300 acres of prime farm land hinges upon who peat that mistake. As such, James Madison stressed the impor- has more political pull in the county or the state, then citizens tance of separation of powers. “An elective despotism was not will seek other, possibly more violent, avenues than the courts the government we fought for; but one . . . in which the pow- to solve their differences. Simply put, our free and democratic ers of government should be so divided and balanced among society would crumble, if these 392,000 annual disputes were the several bodies of magistracy, as that no one could tran- not peacefully and orderly resolved under law. scend their legal limits, without being effectually checked and The peaceful and orderly administration of this multitude restrained by the others.”13 Alexander Hamilton highlighted of conflicts demands a system of dispute resolution that is fair, that in our constitutional republic “the legislative authority impartial, and just and that is perceived to be so by the citi- [is limited by the Constitution and that] . . . . [l]imitations zenry. This is the case because every citizen who has his or her of this kind can be preserved in practice no other way than www.ksbar.org | May 2016 39 opinion through the . . . courts . . ., whose duty it must be to declare IV. Our Recent History Shows Just How Essential all acts contrary to . . . the Constitution void. Without this, this Power to Strike Unconstitutional Legislation all the reservations of particular rights or privileges would is Today 14 amount to nothing.” Our Founders knew that our freedoms Our recent history shows, once again, that the founders would only be protected by courts. Courts standing ready were right. We cannot rely solely upon the legislative or ex- to strike unconstitutional acts. Entrusting courts with this ecutive branches to protect our rights. Consider these recent power was an intended and foundational part of our form of examples where we — the People — needed an independent government. judiciary to strike down legislative acts and executive action Indeed, this commitment to separation of powers and ju- to protect our rights: dicial independence was the guiding light of the early years • In 2001, the District of Columbia’s legislature passed of the American republic. Upon leaving office, President an act, which was overwhelmingly popular among the Washington reminded the nation to guard against the “love voters in the District, banning all handguns.19 Despite of power and [its] proneness to abuse [when] it . . . predomi- the popularity of this act among D.C. voters, and the nates in the human heart” and warned all of the citizens of the passage of it by the D.C. legislature, the independent “necessity of reciprocal checks of political power, by dividing courts were there to exercise their duty of reviewing the and distributing it into different depositories and constituting law to ensure it comported with the Second Amend- each the guardian . . . against invasions by the others.” “To ment. And this is precisely what the courts did, striking preserve,” this system of checks and balances, our first presi- this D.C. statute as a violation of the people’s right to 15 dent concluded, “must be as necessary as to institute them.” bear arms.20 We see again the founding generation’s commitment to judicial independence, and specifically a commitment to the • In 2005 under the Governor Sebelius administration, courts’ duty to strike unconstitutional legislation, in the cele- officials attempted to condemn property as abandoned brated case of Marbury v. Madison.16 In that case Chief Justice without first ensuring that all the creditors of the pri- John Marshall found the written nature of our constitution or owner of the property were paid. Our independent key. There would be no point of having a written Constitu- Kansas judiciary was there to protect the creditor and tion, he concluded, if the courts could just ignore it. “To what find the administration’s conduct an unconstitutional purpose are powers limited, and to what purpose is that limi- violation of the people’s right to due process of law.21 tation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”17 He went on • Similarly, the Governor Sebelius administration at- to reason: tempted retroactively to apply the 2003 amendments to K.S.A. 79–213(k) to a taxpayer and thus take back a It is emphatically the province and duty of the Judicial tax refund already given. Again our independent Kansas Department to say what the law is. . . . So, if a [statute] courts stood ready to rule that such conduct deprived be in opposition to the Constitution . . . so that the the taxpayer, and thus all of the people, of property Court must either decide that case conformably to the in violation of the United States and Kansas constitu- [statute], disregarding the Constitution, or conform- tions.22 ably to the Constitution, disregarding the [statute], the Court must determine which of these conflicting rules • In 2008, relying upon the Bipartisan Campaign Re- governs the case. This is of the very essence of judicial form Act of 2002’s changes to the Federal Election duty. . . . [In such cases, because the] Constitution is Campaign Act, the federal government attempted to superior to any ordinary act of the Legislature, the Con- suppress the release of a documentary critical of then- stitution, and not such ordinary act, must govern the Senator Hillary Clinton. Despite the fact that the fed- case to which they both apply. . . . [To decide other- eral statute in question enjoyed both Republican- and wise] would subvert the very foundation of all written Democratic-party support, the independent courts constitutions.18 struck down the act as a violation of the people’s right to freedom of speech.23 All this is to say, the very point of having a written constitu- tion, as we do in Kansas and at the federal level, is to create • Just two years ago, President Obama sought to ap- a duty in the judiciary to strike legislative and executive ac- point a person to the National Labor Relations Board tion that contradicts the terms of the written constitution. A without Senate approval. Once again the independent written Constitution, moreover, that was established by the courts were there to strike this action as violation of people. Judicial independence and the power to find legisla- the separation of powers that protects the liberty of the tion unconstitutional, then, was not designed for the aggran- people.24 dizement of the judges but for the protection of the people’s rights. • The Affordable Care Act, as passed by Congress and signed by President Obama, mandated that business- es controlled tightly within a family must offer birth control coverage to all their employees — even when such coverage runs contrary to the deeply held religious beliefs of the business owners. The independent courts 40 The Journal of the Kansas Bar Association opinion

were there to strike that portion of the statute so as to propriate to its own department and no other.”31 Similarly, protect the people’s right to religious freedom.25 our Kansas Supreme Court, dating back over 100 years, has “jealously [and strictly] . . . guarded and upheld this principle As these cases, and many more that I could list for you, of the separation of sovereign powers.”32 demonstrate, we need an independent judiciary in our state This push to have bright and clear lines of demarcation now as much as we ever have. Even if some believe the inde- between the judiciary and legislative branches of govern- pendence of the courts a barrier to the enactment of wise laws ment must not, however, be confused to mean that the three at this current moment, can these same people be sure that branches of government must never interact. It is essential to the next state or federal administration will not act beyond remember that the founders created one government with the bounds of the Constitution? None of us knows who the three parts — not three separate governments. next governor or president will be. History teaches us that we Ours is a system of checks and balances. While our Kansas will need our independent courts down the road. Indeed, our courts have always insisted that core judicial power be pre- legislature could well turn to our independent courts soon to served to the judiciary, even our Kansas supreme court cases resolve disputes over the executive’s authority to enter into that most strongly support this high-wall view recognize that 26 lease-purchase agreements involving key state buildings. “the line of division between the three powers is not marked Now is time to embrace our traditional reliance upon an distinctly, and it is not always easy to lay down an abstract rule independent judiciary— not the time to reject it. As Chief defining each of the separate powers of sovereignty.”33 Justice Marshall put the principle: "The Government of the Because we have a system of checks and balances, our courts United States has been emphatically termed a government of have always noted, often in the same breath as they espouse 27 laws, and not of men.” Similarly, our Kansas supreme court a strict separation of powers, that they are subject to legisla- in the first decade of our existence as a state held that attack- tive checks. Hence, the “legislature . . . is at liberty to confer ing an independent judiciary “is subversive of the constitu- judicial power, and to create courts inferior to the supreme tion, which has carefully kept separate the executive, legisla- court,”34 to control the courts’ jurisdiction to a large degree,35 tive, and judicial departments of the government, ‘to the end and the like. 28 that this may be a government of laws, and not of men.’” Our Kansas experience is in line with what our nation’s Our Kansas Supreme Court as early as 1894 further recog- founders’ envisioned.36 As President Washington instructed, nized that “[n]othing is more firmly fixed in the governmental separation of powers does not entail a lack of all interaction systems of all English-speaking countries than the division of between the branches. Quite the opposite is the case. “The powers between the three great departments of government— necessity of reciprocal checks in the exercise of political power, 29 the executive, legislative, and judicial.” by dividing and distributing it into different depositories, and Indeed, if it were not for the independent courts, all our constituting each the guardian of the public weal against inva- cherished constitutional freedoms would be put at risk. As sions by the others, has been evinced by experiments ancient recounted by Chief Justice John Roberts, “President Ronald and modern, some of them in our country and under our own Reagan used to speak of the Soviet constitution, and he not- eyes.”37 President Madison gives us the same message, “these ed that it purported to grant wonderful rights of all sorts to departments [of government must] be so far connected and people. But those rights were empty promises, because that blended as to give to each a constitutional control over the system did not have an independent judiciary to uphold the others, [or else] the degree of separation [of powers] . . . , as rule of law and enforce those rights. We do, because of the essential to a free government, can never in practice be duly wisdom of our founders and the sacrifices of our heroes over maintained.”38 The branches must work together, to regulate 30 the generations to make their vision a reality.” Without our and check each other, in much the same way that the sepa- independent Kansas courts, just as President Reagan recog- rate organs of the body engage in unique core functions (the nized, our cherished liberties and freedoms would be little pumping of blood by the heart or the taking in of oxygen by more than pipedreams written on dusty parchments. It is our the lungs) while still working together to sustain life. independent Kansas courts that ensure that our constitutional From this point of view, the examples of the legislature’s liberties may be enforced. rightful regulation of the Kansas courts abound. All of the fol- V. An Independent Judiciary is One that is lowing are regulated by statute in Kansas: the rules of criminal Subject to Checks and Balances procedure, the rules of civil procedure, the rules of evidence, Separation of powers, as the name implies, requires that the rules for personal jurisdiction, the rules for subject matter each branch of government stay out of the other branch’s core jurisdiction, the rules for limited actions, the rules for statutes functions. There are some who believe that the separation of of limitations, the rule capping punitive damages, and one powers is best obtained by building easy to spot, high walls could go on and on. These are all appropriate exercises of the between the three powers of government. There is much to be legislature’s checks upon the judicial power, which do not in- said in favor of the idea that good fences make good neigh- fringe upon the independence of the courts. From this point bors. Indeed, the United States Supreme Court has often held of view, then, perhaps the best we can do in the abstract is as much. “It is [thus] essential to the successful working of conclude that “[o]ne department of government [usurps the this system that the persons intrusted [sic] with power in any powers of another department only when it exercises] coercive 39 one of these branches shall not be permitted to encroach upon influence on the other.” the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers ap- VI. Our System of Independent Courts, While www.ksbar.org | May 2016 41 opinion

Not Perfect, Remains the Envy of the World to amend Article 6. I am sure that this admittedly fuzzy separation-of-powers VII. Conclusion standard may leave some unsatisfied. In response, I am re- President Eisenhower likely put it best. “Our system of minded of Prime Minister Winston Churchill’s famous quip: government, in my opinion, could not exist without an in- “It has been said that democracy is the worst form of govern- dependent judiciary . . . . I . . . believe that the United States 40 ment except all the others that have been tried.” What he respects the Supreme Court and looks to it as one of the great meant was, democracy is a human endeavor. It is, therefore, stabilizing influences in this country to keep us from going not perfect. But it is better than any of the alternatives. We from one extreme to the other; and possibly in their latest would all choose democracy, with all its headaches and dif- series of decisions there are some that each of us has very great ficulties, over a dictatorship. Much the same can be said of trouble understanding. But, even so, I think we should not independent courts with the power to strike statutes as un- forget this: the Supreme Court is just as essential to our sys- constitutional. tem of government as is the President or the Congress, and we I make no claim that the Kansas or federal courts have never should respect its duties and its responsibilities.”43 Learning erred, at least from my perspective, in applying constitutional from President Eisenhower, an independent judiciary is best law. I know full well that the Senate Judiciary Committee has promoted by respecting that the independent Kansas courts passionate views on this topic as well. But perfection cannot have duties and responsibilities to perform in order to pre- be the right measure for any human institution—including serve the peoples’ freedoms— even if all of us do not always our independent Kansas courts. The question must be, over agree with each of their decisions. n the course of our history and looking toward an uncertain future, are our rights and liberties better protected with an independent judiciary? The answer to this question can only About the Author be “yes.” Lumen “Lou” Mulligan is the Earl B. Shurtz If the Kansas Legislature and the People themselves, are Research Professor of Law at the University of assured that the courts have erred in the protection of their Kansas Law School. His legal experience includes rights, their reaction should not be to tear down the inde- co-founding a small firm, working at a large pendent courts as an institution. Instead, I recommend the litigation firm, clerking on the Tenth Circuit Court of Appeals, and continuing a small appellate and sage advice of President Washington. “If, in the opinion of consulting practice. The student body at KU has the people, the distribution or modification of the constitu- recognized him multiple times for his classroom tional powers be in any particular wrong, let it be corrected teaching. He has written numerous articles and by an amendment in the way, which the constitution desig- three books, which includes co-authoring the three- nates. But let there be no change by usurpation [of the inde- volume Kansas Code of Civil Procedure Annotated treatise. He serves on the KBA’s Appellate Section pendent courts]; [it] is the customary weapon by which free Executive Committee, is a member of the Lawrence 41 governments are destroyed.” The People need not kowtow to Inn of Court, and is a frequent speaker across the Kansas constitutional law opinions —be it a matter of school country and the state. finance or any other topic— that they as a whole believe was [email protected] announced in error. Yet they and the legislature must not re- ject the rule of law either. Amendment of our state constitu- Endnotes tion, not attack upon the independent judiciary, is the proper * This essay is derived from the written testimony given by the author course. to the Kansas Senate Judiciary Committee on Jan. 28, 2016. The testi- Let the people decide if Article VI, § 6(b), the “suitable pro- mony and this essay do not necessarily represent the views of the Univer- sity of Kansas or the University of Kansas School of Law. vision for finance of . . . education[ ]” provision of our Kansas 1 Michael Wolff, Chief Justice Michael A. Wolff: 2006 State of the Judi- constitution should be amended. Perhaps the people will de- ciary Address, J. Mo. Bar, Mar.-Apr. 2006, at 56, 57. cide that placing targeted funding directives into the consti- 2 Bernard Weinraub, Reagan Says He’ll Use Vacancies To Discour- tutional text—a constitutional-drafting decision that compels age Judicial Activism, New York Times, Oct. 22, 1985, at A29, available judicial engagement with school finance—is not wise. Or, at http://www.nytimes.com/1985/10/22/world/reagan-says-he-ll-use- vacancies-to-discourage-judicial-activism.html. perhaps, the people will continue to insist upon the consti- 3 See In re Sims, 54 Kan. 1, 37 P. 135 (1894). tutionalization of school finance as a check upon the other 4 Thomas Paine, Four Letters on Interesting Subjects 18-24, in the branches of our state government. It is the people’s govern- Founders’ Constitution Vol. 1, Ch. 17, Doc. 19 (Univ. of Chicago ment. They can decide. Press), available at http://press- pubs.uchicago.edu/founders/documents/ What I am sure of, however, is that we should not destroy v1ch17s19.html. 5 George Washington, Farewell Address, Sept. 19, 1796, in W. B. Al- the institution of independent courts simply because the len, ed., George Washington: A Collection (Liberty Fund 1988), 512-17. courts enforced the provisions of our written constitution, 6 Statistical History of Case Filings by Judicial District, Kansas Average a document that our judges, like all lawyers in Kansas, have Caseload Per Judge, http://web.kscourts.org/stats/15/10year/2015%20 sworn an oath to uphold and defend.42 To echo Marbury v. District%20Judges%20Only.pdf. Madison, enforcing the Kansas constitution is emphatically 7 Statistical History of Case Filings by Judicial District, Statewide Summary, http://web.kscourts.org/stats/15/10year/2015%20Statewide. the duty of our Kansas courts. If the people wish the Kansas pdf. courts to be removed from the school finance fray, do not 8 Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607, 214 P.3d 676 demand that they turn their backs upon their oaths of office. (2009). Instead, take the constitutionally prescribed course and seek 9 See In re Davis, 58 Kan. 368, 49 P. 160, 162-63 (1897) (recognizing 42 The Journal of the Kansas Bar Association opinion

“the supremacy of the legislature unless restricted by express constitutional three departments of government created by the Kansas constitution and provision . . . . in making laws, supremacy in the exercise of legislative the principle that “persons charged with the exercise of powers properly functions.”). belonging to the one shall not exercise any functions pertaining to either 10 See Daniel Klerman & Paul Mahoney, The Value of Judicial Indepen- of the others”). dence: Evidence from Eighteenth Century England, 7 Am. L. & Econ. Rev. 29 In re Sims, 54 Kan. 1, 37 P. 135, 135 (1894). 1 (2005). 30 John Roberts, Opening Statement for his Senate Confirmation 11 William Rehnquist, Remarks of the Chief Justice Delivered at Ameri- Hearing (Sept. 12, 2005), available at http://www.cnn.com/2005/ can University’s Washington College of Law (Apr. 9, 1996), http://www.lect- POLITICS/09/12/roberts.statement/. law.com/files/jud38.htm 31 Kilbourn v. Thompson, 103 U.S. 168, 190–91 (1880). 12 The Declaration of Independence (U.S. 1776). 32 State v. Johnson, 61 Kan. 803, 60 P. 1068, 1075 (1900). 13 The Federalist No. 48 (James Madison) (Clinton Rossiter ed., 33 Id. at 1074. 1961). 34 In re Sims, supra note 29, 37 P. at 135. 14 The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 35 See Chicago, K. & W. R. Co. v. Harris, 42 Kan. 223, Syl. ¶ 1, 21 P. 1961). 1071 (1889) (noting that courts are given jurisdiction “by the constitution 15 George Washington, Farewell Address, supra note 5. and the statutes”). 16 5 U.S. 137 (1803). 36 “As to the doctrine of separation of powers, . . . the Kansas Constitu- 17 Id. at 176. tion is almost identical to the federal Constitution. The doctrine . . . is an 18 Id. at 177-78. inherent and integral element of the republican form of government and 19 D.C. Code §§ 7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) is expressly guaranteed to the states by the federal Constitution.” Gleason (2001). v. Samaritan Home & Church Mut. Ins. Co., 260 Kan. 970, 982, 926 P.2d 20 D.C. v. Heller, 554 U.S. 570, 635 (2008). 1349 (1996). We may fairly, then, look to both federal and Kansas law in 21 Kansas v. Mike W. Graham & Assocs., LLC, 42 Kan. App. 2d 1030, setting a sound course in preserving the separation of powers in our state. 1033, 220 P.3d 1105, 1108 (2009). 37 George Washington, Farewell Address, supra note 5. 22 In re Garden City Med. Clinic, P.A., 36 Kan. App. 2d 114, 114, 137 38 The Federalist No. 48 (James Madison) (Clinton Rossiter ed., P.3d 1058, 1059 (2006). 1961). 23 Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365 (2010). 39 State v. Bennett, 219 Kan. 285, 290, 547 P.2d 786 (1976). 24 N.L.R.B. v. Noel Canning, 573 U.S. ___, 134 S. Ct. 2550, 2574 40 Winston Churchill, Speech in the Parliament of the United King- (2014). dom (1947). 25 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751, 41 George Washington, Farewell Address, supra note 5. 2775 (2014). 42 See Kan. Sup. Ct. R. 720(a) (“Before becoming eligible to practice 26 See Tim Carpenter, Legislators Blast $20 Million Deal for Power Plant law in the State of Kansas, an applicant must take the following oath: ‘You in Topeka, The Topeka Capital-Journal, Jan. 20, 2016, http://m.cjonline. do solemnly swear or affirm that you will support and bear true allegiance com/news/2016-01-20/legislators-blast-20-million-deal-power-plant- to the Constitution of the United States and the Constitution of the State topeka#gsc.tab=0. of Kansas . . .’”). 27 Marbury, 5 U.S. at 163. 43 Dwight Eisenhower, The President's News Conference (June 28 Auditor v. Atchison, T. & S. F. R. Co., 6 Kan. 500, 505 (1870); see 26, 1957), http://www.presidency.ucsb.edu/ws/?pid=10822. also State v. Johnson, 61 Kan. 803, 60 P. 1068, 1072 (1900) (discussing the

www.ksbar.org | May 2016 43 Appellate Decisions Appellate Decisions

All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at [email protected] or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions. Supreme Court practice. Once Vaughn has been reinstated in Florida and is in Attorney Discipline good standing there he may take steps to again become active in Kansas. TWO-YEAR SUSPENSION IN THE MATTER OF DAVID A. HARDY NO. 114, 725 – MARCH 25, 2016 Civil FACTS: The Office of the Disciplinary Administrator filed a complaint against Hardy in July 2015, alleging that Hardy ADMINISTRATIVE LAW—STATUTES violated KRPC 8.4(b) and 8.4(g) by committing a criminal HANSA CENTER FOR OPTINUM HEALTH V. KANSAS act that reflected adversely on his honesty. The claims arose af- BOARD OF HEALING ARTS, ET AL. ter Hardy was convicted of felony driving under the influence. SHAWNEE DISTRICT COURT – AFFIRMED NO. 113,986 – MARCH 4, 2016 Hardy's license to practice law in Missouri was indefinitely FACTS: A former patient filed suit against the Hansa Cen- suspended in February 2015. After noting the mitigating fac- ter and a treating chiropractor claiming negligence which re- tors, including Hardy's impairment, his self-reporting of the sulted in two subsequent hospital stays. Although the patient incident, and his willingness to seek treatment, the hearing did not prevail in small claims court, the chiropractor got panel recommended that Hardy's law license be suspended a letter from the Board of Healing Arts (Board) requesting for two years. medical records relating to the claim. The chiropractor pro- HELD: The factual allegations and legal conclusions were vided some information, but did not give a "complete written not challenged by Hardy. The Court unanimously adopted narrative" about the incident and did not send any medical the recommendation and suspended Hardy's license for two records. The Board later sent an administrative subpoena to years, with the suspension retroactive to January 7, 2015, the the Hansa Center requesting the production of medical re- date that a temporary suspension was put in place. cords, including notes and correspondence. The center sought to have the subpoena quashed, and that request was denied. ORDER OF SUSPENSION ISSUE: Scope of administrative subpoena IN THE MATTER OF CHARLES P. VAUGHN NO. 114,582 – MARCH 4, 2016 HELD: The Board has statutory power to "make all neces- FACTS: Vaughn admitted to practice, but resides and pri- sary investigations" relative to the Kansas Healing Arts Act. marily works in Florida. A client in a divorce matter filed a As a check on that power, the district court may quash an ad- complaint in Florida alleging that the divorce decree con- ministrative subpoena if, in the court's opinion, the requested tained multiple errors and that Vaughn double billed for cer- evidence does not relate to acts which could be grounds for tain services. There was also evidence that Vaughn used mon- disciplinary action or if the subpoena requests irrelevant infor- ey from his "cost funds" to pay a portion of his attorney fee mation or does not specifically describe the evidence sought. balance, even though there had not been permission given to In this case, the allegations made the patient justified an inves- do so. Because of this behavior, the Supreme Court of Florida tigation into the chiropractor's conduct and the subsequent suspended Vaughn for 91 days, beginning in October 2014. request for records. Vaughn has not yet applied for reinstatement. The matter STATUTES: K.S.A. 2014 Supp. 65-2836, -2837, -2840; came to Kansas as one of reciprocal discipline. K.S.A. 60-245(b), K.S.A. 40-3409, K.S.A. 65-2801, K.S.A. HEARING PANEL: After reviewing the evidence from 65-2839a the Supreme Court of Florida, a hearing panel of the Kansas ADMINISTRATIVE LAW—TELECOMMUNICATIONS Board for Discipline of Attorneys found multiple violations of KANSAS CITY POWER & LIGHT COMPANY V. THE the Kansas Rules of Professional Conduct. The panel recom- STAET CORPORATION COMMISSION OF mended a 91 day suspension of Vaughn's Kansas law license, THE STATE OF KANSAS with reinstatement to practice tied to his reinstatement in ORIGINAL ACTION – AFFIRMED Florida. NO. 114,781 – MARCH 9, 2016 HELD: The court accepted the findings and recommenda- FACTS: After the Kansas Corporation Commission (KCC) tions of the hearing panel and suspended Vaughn's ability to granted Kansas City Power & Light (KCPL) a $48.67 mil-

44 The Journal of the Kansas Bar Association Appellate Decisions lion rate increase, KCPL requested more, arguing that the EVIDENCE—NEGLIGENCE—RAILROADS—SUMMARY Commission erred when calculating the rate increase. Specifi- JUDGMENT—TORTS cally, KCPL claimed that the KCC used the wrong return on SMART V. BNSF RAILWAY COMPANY equity when calculating KCPL's cost of capital. There were SHAWNEE DISTRICT COURT – AFFIRMED four expert calculations submitted to the KCC for what an NO. 113,809 – MARCH 4, 2016 appropriate return on equity would be. After it was displeased FACTS: Smart was employed by BNSF for almost 20 years. with the final calculation, KCPL appealed, claiming that the He filed this action under the Federal Employers' Liability KCC's return on equity determination was not supported by Act (FELA) claiming to have suffered cumulative trauma in- substantial competent evidence. juries to his neck, back, hips, legs, and arms as a result of his ISSUE: Whether the KCC properly determined the appro- job duties. After deposing Smart's sole expert witness, BNSF priate return on equity when calculating the rate increase moved for summary judgment, claiming that Smart would HELD: The KCC's order may only be set aside if it is not not be able to prove his claim for neck injuries. That motion supported by substantial competent evidence "based upon the was granted, with the district court finding that the expert's record as a whole" or if it is otherwise unreasonable, arbitrary, testimony lacked "sufficient factual foundation to show its re- or capricious. The KCC has been given broad discretion in liability." executing its specialized and complex areas of operation. In ISSUES: (1) The scope of FELA and (2) The reliability and its final order, the KCC justified why it believed that KCPL's admissibility of the expert's testimony proposed return on equity was too high, and its reliance on a HELD: While there is a lower standard of causation in different expert's testimony was supported by findings in the FELA actions, the employee must still prove the traditional record on appeal. In an appeal such as this, the court cannot common-law elements of negligence. And courts need not make credibility findings of witness testimony; that sort of consider expert testimony that would otherwise be inadmis- fact-finding is left to the KCC. The KCC made a reasonable sible. The purpose of a Daubert analysis is to evaluate whether decision based on the evidence presented that was neither ar- the proposed expert's conclusions were reached in a reliable bitrary nor capricious. manner. In this case, where the expert's testimony was not STATUTES: K.S.A. 2015 Supp. 77-621; K.S.A. 66-118c, linked to Smart's actual workplace or the particular tools that K.S.A. 77-601, -621 he used, the testimony lacked reliability and would not have been helpful to the jury. CONSTITUTIONAL LAW—DAMAGES—INSURANCE— STATUTES: 45 U.S.C. §51; K.S.A. 2015 Supp. 60-456; STATUTES K.S.A. 60-456, -457, -458 HILBURN V. ENERPIPE, LTD. SEDGWICK DISTRICT COURT – AFFIRMED JURISDICTION—PARENT AND CHILD NO. 112,765 – MARCH 11, 2016 IN THE INTEREST OF N.U. FACTS: A car in which Hilburn was riding was rear-ended FORD DISTRICT COURT by a truck owned and operated by Enerpipe, Ltd. Injuries from REVERSED AND DISMISSED the accident necessitated back surgery and resulted in chronic NO. 114,161 – MARCH 11, 2016 pain for Hilburn. A jury returned a verdict of $335,000 in FACTS: N.U. is a child with a home state of Nebraska. mostly noneconomic damages for Hilburn. The district court, The child's father resides in Nebraska, but the mother lives in over Hilburn's objection, reduced the damages to $250,000 Kansas. In 2015, a Kansas district court exercised temporary under the Kansas noneconomic loss damages statute. Hilburn emergency jurisdiction over N.U. to place the child with her appealed the constitutionality of the cap as applied to a negli- mother in Kansas. When the six-month period of emergency gence claim that did not involve medical malpractice. jurisdiction expired, neither the state nor the mother had at- ISSUES: (1) Whether the Miller v. Johnson quid pro quo tempted to transfer permanent jurisdiction from Nebraska to test applies to claims under Section 5 of the Kansas Constitu- Kansas. The district court granted the mother's motion al- tion and (2) Whether the noneconomic loss cap applies to lowing her more time to accomplish that transfer. The father negligence claims not involving medical malpractice appealed, claiming that the state's temporary emergency juris- HELD: A panel of the Kansas Court of Appeals is bound by diction had expired. prior precedent from the Kansas Supreme Court. Any analysis ISSUES: (1) Whether the appeal is moot and (2) Whether regarding the constitutionality of the damages cap must be Kansas properly extended temporary emergency jurisdiction made using the quid pro quo test. Since motor carrier liabil- HELD: Appellate courts do not generally decide moot ques- ity insurance is mandatory in Kansas, the state "maintains an tions. While Nebraska might have relinquished jurisdiction interest" in making sure that motor carrier insurance remains after the expiration of the temporary emergency jurisdiction affordable and available. And because insurance is available, in Kansas, questions still remain regarding the Kansas court's a "reliable source of recovery" exists through motor carrier actions. Accordingly, there remains an active controversy that liability insurance. This availability satisfies the second step may be heard by the court. A finding that a child is in need of in the quid pro quo test, rendering the damages cap constitu- care by itself is not sufficient to trigger the exercise of emer- tional as applied to Hilburn. gency jurisdiction under the UCCJEA. And, the emergency STATUTES: 49 U.S.C. § 31139(b), § 13906(a)(1) (2012); jurisdiction is temporary. The state exercising emergency ju- Kansas Constitution, Section 5, Kansas Constitution, Section risdiction must determine how long the emergency order can 18; K.S.A. 2010 Supp. 40-3104, -3403, 66-1,108b, -1,128(a); remain in effect. In this case, the district court determined K.S.A. 40-3102, -3104, -3107, -3402(a), 60-19a02 that six months would be an adequate period. Once that six- www.ksbar.org | May 2016 45 month period expired, the Kansas district court lost jurisdic- v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. Shelly tion. argued the first exception applied because he was not informed STATUTES: K.S.A. 2015 Supp. 23-37,201, -37,204, 38- of right to appeal the severity level of the sentence as required 2273, -2274, 60-2103; K.S.A. 2014 Supp. 23-37,202 by State v. Patton, 287 Kan. 200 (2008), and third exception applied because defense counsel knew Shelly wanted to appeal the sentence and failed to file timely notice of appeal. District Criminal court found that no exception applied, noting third exception not applicable because Shelly did not direct counsel to perfect APPELLATE PRACTICE – CRIMES AND PUNISHMENT an appeal. Court of Appeals panel in Shelly’s case affirmed and – CRIMINAL PROCEDURE dismissed the appeal. 49 Kan. App. 2d 942 (2014). Shelly’s STATE V. PERRY petition for review was granted. BROWN DISTRICT COURT – REVERSED; COURT OF ISSUES: (1) First Ortiz exception for untimely appeal, (2) APPEALS – AFFIRMED Third Ortiz exception for untimely appeal NO. 109,506 – MARCH 25, 2016 HELD: Panel did not err in concluding the first Ortiz excep- FACTS: Perry and husband Shelly each pled no contest to tion was inapplicable. Patton was discussed and distinguished. unlawful distribution of drug precursor and unlawful posses- Evaluation of third Ortiz exception requires consideration sion of drug precursor. Defense counsel filed no direct appeal. of whether the defendant received effective assistance of coun- Perry filed a K.S.A. 60-1507 motion arguing for sentence sel under Roe v. Flores-Ortega, 528 U.S. 470 (2000). That was reduction under the identical offense doctrine discussed in not done in this case by district court or the panel. As to State v. Snellings, 294 Kan. 149 (2012), a case handed down whether Shelly satisfied the exception’s standard, federal cir- the date of Perry’s sentencing. District court held Snellings cuit court opinions were cited for persuasive guidance. When applied only to the possession of drug precursor conviction, counsel erroneously advises there is no issue worthy of direct and reduced that sentence. Perry appealed. Court of Appeals appeal, a criminal defendant is eligible for application of third remanded for hearing to determine if any exception under Ortiz exception if the defendant demonstrates a timely appeal State v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. would have been taken but for the erroneous advice. Under District court found no exception applied. Court of Appeals facts in this case, the third Ortiz exception permitted Shelly’s panel in Perry’s case was reversed in unpublished opinion, untimely direct appeal. Court of Appeals’ dismissal of the holding the third Ortiz exception applied. It also ruled in appeal is reversed and case is remanded for consideration of Perry’s favor on merits of her Snellings challenge, and ordered Shelly’s Snellings argument on his distribution of drug precur- resentencing on Perry’s conviction for unlawful distribution sor conviction. See also Perry’s appeal, decided the same date. of drug precursor. State’s petition for review on Ortiz issue STATUTES: K.S.A. 2015 Supp. 22-3608(c); K.S.A. 2011 granted. State did not contest panel’s ruling on merits of Supp. 21-5710; K.S.A. 22-3210(a)(2), -3424(f), -4505, 60- identical offense doctrine. 1507 ISSUES: Third Ortiz Exception for Untimely Appeal HELD: As in Shelly decided this date, evaluation of third CRIMINAL LAW – STATUTES Ortiz exception requires consideration of whether the de- STATE V. JORDAN fendant received effective assistance of counsel under Roe v. SEDGWICK DISTRICT COURT – AFFIRMED Flores-Ortega, 528 U.S. 470 (2000). A criminal defendant NO. 106, 409 – MARCH 25, 2016 whose counsel erroneously advises that there is no issue wor- FACTS: After Jordan allegedly drove away with the car while thy of direct appeal is eligible for application of third Ortiz taking a test drive, police stopped him for traffic violations. In exception if the defendant demonstrates that a timely appeal one case, he was charged with the commission of four traffic would have been taken but for the erroneous advice. Court of offenses. The case went to trial on stipulated facts, and Jordan Appeals was affirmed on this point of law. was found guilty of three of the four crimes charged. In a sec- STATUTES: K.S.A. 2011 Supp. 21-5710; K.S.A. 60-1507 ond case, Jordan was charged with theft by deception and in- tentionally obtaining control over a stolen license plate. Prior APPELLATE PRACTICE – CRIMES AND PUNISHMENT to trial, defense counsel moved to dismiss the charges based STATE V. SHELLY on K.S.A. 21-3102(2)(a), the compulsory joinder rule. The BROWN DISTRICT COURT – REVERSED; COURT OF motion was denied, and Jordan was convicted after a bench APPEALS – REVERSED AND REMANDED trial. On appeal, Jordan challenged the district court's refusal NO. 109,292 – MARCH 25, 2016 to dismiss for failure to join. FACTS: Shelly and wife Perry each pled no contest to un- ISSUE: (1) Whether the District Court Erred By Failing lawful distribution of drug precursor and unlawful possession to Dismiss the Complaint Due to the State's Failure to Join of drug precursor. Defense counsel filed no direct appeal. Charges Shelly filed K.S.A. 60-1507 motion arguing for sentence re- HELD: Compulsory joinder exists to prevent the state from duction under the identical offense doctrine discussed in State "substantially proving" a crime at a trial where that crime is v. Snellings, 294 Kan. 149 (2012), a case handed down the not charged and then essentially retrying the defendant for date of Shelly’s sentencing. District court held Snellings ap- that same crime in a different trial where the crime is charged. plied only to the possession of drug precursor conviction, and In order to have the compulsory joinder rule bar subsequent reduced that sentence. Shelly appealed. Court of appeals re- prosecution, the defendant must show that evidence present- manded for hearing to determine if any exception under State 46 The Journal of the Kansas Bar Association ed at the first trial would lead a rational factfinder to find the standing rule that district court may summarily dismiss a mo- defendant guilty at the second trial. In this case, the evidence tion to correct an illegal sentence if district court’s preliminary at Jordan's first trial was insufficient to prove guilt, and the examination of the motion and record of the case conclusively district court correctly denied Jordan's motion to dismiss. shows the defendant is not entitled to relief. DISSENT: Justice Johnson would have revisited the court's Under facts of this case, district court did not err in con- prior decision in State v. Wilkins, as he believes it dilutes the cluding that Gray’s sentence was legal. District court’s denial joinder requirements that protect a criminal defendant's con- of Gray’s motion to correct an illegal sentence was affirmed. stitutional rights. STATUTES: K.S.A. 2015 Supp. 22-3601; K.S.A. 21-3301, STATUTE: K.S.A. 21-3108(2)(a) -3502, -4501(b), -4618, 22-3504, -3504(1), -3504(2)

CRIMINAL PROCEDURE – MOTIONS CRIMINAL LAW—STATUTES STATE V. DAVISSON STATE V. MARTIN NEOSHO DISTRICT COURT – AFFIRMED SEDGWICK DISTRICT COURT – REVERSED AND NO. 109,778 – MARCH 25, 2016 REMANDED FACTS: Davisson filed a 2011 motion to withdraw his NO. 113,189 – MARCH 4, 2016 2000 guilty plea. At the evidentiary hearing to determine if FACTS: Martin had prior juvenile adjudications for bur- excusable neglect justified the late motion, Davisson claimed glary which were scored as person felonies for criminal history he had been unaware of the plea withdrawal statute and time purposes. Many years later, Martin filed a motion to correct limit for filing. The District court found this did not consti- illegal sentence in which he claimed that he was entitled to tute excusable neglect, and dismissed the motion. Davisson relief because of an improper criminal history score. The State appealed. argued that Martin's claims were barred by the doctrine of res ISSUE: Excusable Neglect - K.S.A. 2015 Supp. 22-3210(e) judicata because Martin could have challenged his criminal (2) history score on direct appeal, but failed to do so. The State HELD: Issue of first impression for Kansas Supreme Court. also alleged that the Kansas Supreme Court's holding in State Based upon holding and rationale in State v. Woodward, 288 v. Dickey should not be applied retroactively to Martin's case. Kan. 297 (2009), which rejected the use of newly found ISSUES: (1) Res Judicata and (2) Retroactive application of statutory grounds in support of motion to withdraw plea, a criminal case law defendant’s untimely use of newly found statutory right to HELD: The burglary statute in effect at the time of Mar- file such a motion was rejected. Under circumstances of this tin's prior convictions did not contain a dwelling element, case, Davisson’s ignorance of the law was insufficient to show rendering unconstitutional the scoring of those convictions as excusable neglect that would justify the late filing. Civil and person felonies. The appellate courts have been given jurisdic- criminal cases were cited for the proposition that ignorance tion to correct an illegal sentence at any time. This statutory of the law should not constitute excusable neglect. District directive prevents application of the doctrine of res judicata court’s decision was affirmed. given the facts of this case. And even though a motion to cor- STATUTES: K.S.A. 2015 Supp. 22-3210, -3210(d), rect illegal sentence may not be based on a constitutional chal- -3210(d)(2), -3210(e)(1), -3210(e)(2), -3601(b)(3), 60- lenge to the sentence, if a constitutional challenge results in 260(b)(1); K.S.A. 2010 Supp. 22-3210(d); K.S.A. 22-2901,-3 the determination that the criminal history score is incorrect, the resulting sentence is illegal and may be corrected at any CRIMINAL PROCEDURE time. STATE V. GRAY STATUTES: K.S.A. 1990 Supp. 21-3715; K.S.A. 22- SEDGWICK DISTRICT COURT – AFFIRMED 3504(1) NO. 109, 912 – MARCH 18, 2016 FACTS: Gray was convicted of four counts of rape and one count of attempted rape. District court imposed con- secutive sentences for each rape conviction, and a concurrent sentence for the attempted rape conviction. Twenty-six years later Gray filed a motion under K.S.A. 22-3504 to correct an illegal sentence, which the district court summarily dis- missed. On appeal Gray claimed the plain language of K.S.A. 22-3504 dictates that movants should be entitled to counsel and a hearing, and argued for reversal of Kansas case law to the contrary. He also challenged the sentence as ambiguous because the sentencing court failed to identify crimes and stat- utes for three rape charges, and failed to identify statute for rape charge underlying the attempt. ISSUES: (1) Procedure for K.S.A. 22-3504 motion, (2) Le- gality of sentence HELD: District court used proper procedures in summar- ily denying Gray’s motion to correct an illegal sentence. No convincing argument was advanced for withdrawing long- www.ksbar.org | May 2016 47 Appellate Decisions

Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office Annual Attorney Registration for 2016-2017

In mid-May the Appellate Clerk’s Office will mail 2016-17 attorney registration forms to over 15,500 attorneys currently registered in Kansas. Both the Annual Registration Form and fees are due on or before July 1, and a late fee will be im- posed after July 31. The active registration fee is $175, and the inactive fee is $65. There is no fee for attorneys on retired or disabled status. The Supreme Court has authorized a $100 late fee for delinquent registration. Any registration fee received after July 31 must be accompanied by the $100 late payment fee.

Remember that registration fees are sent to a bank lockbox. Upon receipt by the bank, fees are deposited, and the forms are sent to the Registration Office for data entry. The bank deposit date is the date the fee is "received by the Clerk." Mail the registration form and fee well before the deadline to avoid the $100 late fee.

PAY CLOSE ATTENTION TO THESE POINTS: • Enclose your fee with the registration form. A check or money order is required. Attorney Registration is not able to accept payment by credit or debit card. • Sign the back of the form. Unsigned forms will be returned as incomplete. • Check to make sure your email address is correct. All attorneys on active status are required to provide an email address, and others are encouraged to provide an email address. • Check your own information online at www.kscourts.org. Click on “Online Attorney Directory” found on the "At- torney Registration" page under the "Quick Links" tab. Only business addresses are listed. • A firm check that contains payment for more than one attorney must be accompanied by (1) a list giving firm name, firm address, name of each attorney, attorney’s registration number, and amount paid for each attorney; and (2) a com- pleted registration form for each attorney listed. • A change from inactive to active status requires a $25 change of status fee. The total fee is $200. If the attorney has been on inactive status for more than two years, a separate “Application for Return to Active Status” form must be completed. Contact Attorney Registration to obtain that form. Call Debbie Uhl at (785) 296-8409 or email [email protected].

Failure of any attorney to receive a statement from the Clerk does not excuse the attorney from paying the fee. See Supreme Court Rule 208(c) (2015 Kan. Ct. R. Annot. 343). Most statement returns occur because the Clerk’s Office does not have a current address for the attorney. An attorney must notify the Clerk of any address change within 30 days of the change. See Rule 208(c). To update your information, please submit an address change form online, which is available on the website http://www.kscourts.org.

For other questions related to appellate practice, call the Clerk’s Office at (785) 296-3229 and ask to speak with Douglas T. Shima, Clerk of the Appellate Courts.

48 The Journal of the Kansas Bar Association Appellate Decisions

www.ksbar.org | May 2016 49 Upcoming CLE Schedule

For more details or to register for a CLE visit www.ksbar.org/cle Live

2016 Midwest Intellectual Legislative & Case Law Institute KBA Replay Week – Brown Bag Property Institute Debut Ethics, The Relevance of Civil Friday, May 6, 2016 Friday, June 3, 2016 Rights Encompassing the Daily Sprint Corporation Topeka, Kansas City Area, Wichita Practice of Law, and LCLI 6050 Sprint Parkway June 20-24 Overland Park, KS 66251 Brown Bag Ethics Replay Multiple Locations Tuesday, June 7, 2016 2016 Solo and Small Firm Wichita, Topeka Ethics for Good XVII Conference Wednesday, June 22, 2016 Friday, May 6-7, 2016 The Relevance of Civil Rights Nelson Atkins Museum of Art Atrium Conference Center Encompassing the Daily Practice Atkins Auditorium 1400 N Lorraine St. of Law Debut 4525 Oak St. Hutchinson, KS 67501 Friday, June 10, 2016 Kansas City, MO 64111 Kansas Law Center Corporation, Banking and 1200 SW Harrison St. Brown Bag Ethics Replay Business, Corporate Counsel and Topeka, KS 66612 Monday, June 27, 2016 Tax Kansas Law Center Friday, May 13, 2016 The Relevance of Civil Rights 1200 SW Harrison St. Hyatt Place Kansas City/Lenexa City Center Encompassing the Daily Practice Topeka, Kansas 66612 8741 Ryckert St. of Law Replay Lenexa, KS 66219 Monday, June 13, 2016 LCLI Replay Kansas Law Center Friday, June 27, 2016 2016 Criminal Law CLE 1200 SW Harrison St. Kansas Law Center Friday, May 20, 2016 Topeka, Kansas 66612 1200 SW Harrison St. Kansas Law Center Topeka, Kansas 66612 1200 SW Harrison St. Brown Bag Ethics Replay Topeka, KS 66612 Monday, June 13, 2016 Kansas Law Center Ethics for Good XVII 1200 SW Harrison St. Friday, May 20, 2016 Topeka, Kansas 66612 Polsky Theatre, JCCC Carlsen Center 12345 College Blvd, (College & Quivira) Overland Park, KS 66210

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Tips and Tricks for Legal Tips and Tricks for Legal Research on Casemaker: Research on Casemaker: How to Use Your New Tools How to Use Your New Tools Monday, June 6, 2016 Wednesday, June 15, 2016

50 The Journal of the Kansas Bar Association A Special Presentation of Law Wise A free electronic publication presented by your LRE Committee

The KBA Law Related Education Committee (LRE) wishes you a Happy Law Day! One of the publications that the LRE Committee oversees is Law Wise, which you will find Law Related Education printed in the following pages. This electronic publication provides educators and students with general information Committee about law-related matters, updates on events happening throughout the state (such as the High School Mock Trial 2015-16 program, We the People, and iCivics), and lesson plans. Law Wise is published six times a year during the school year, and is designed primarily for middle school and high Chair school students and teachers. The March 2016 issue is Hon. G. Joseph Pierron Jr. focused on Law Day and the 50th anniversary of Miranda v. Arizona. Board Liason Cheryl Whelan Law Day originated in 1957 when American Bar Association (ABA) President Charles Rhyne envisioned Staff Liason a special day for celebrating the U.S. legal system. On Anne Woods Feb. 3, 1958, President Dwight D. Eisenhower issued a proclamation to establish Law Day. In 1961, May 1 was Members designated by joint resolution of Congress as the official Hon. Kathryn A. Gardner date for celebrating Law Day. Each year, the ABA selects a Don Gifford theme. This year the theme is Miranda—More than Words. Ruth E. Graham In the following pages, please enjoy reading about Miranda Linda R. Hayse v. Arizona in the March edition of Law Wise, and consider Ron Keefover receiving every issue electronically. Bruce W. Kent Hon. Marla J. Luckert Additional information about Law Day and Miranda v. Crystal D. Marietta Arizona can be found on www.ksbar.org/lawday Hon. Christel E. Marquardt In addition to the March issue of Law Wise, the KBA Rick Reed provided speakers for any teacher or organization Sarah L. Shipman requesting a guest speaker for Law Day. Hard copies of Donna L. Whiteman the March issue were also made available. Please enjoy this issue and encourage students, teachers and others to sign-up to receive this free and informative publication. You can view past issues at www.ksbar.org/ lawwise. Just click on “Group Pages” in the top left corner and select “Current School Year” or "Archive".

www.ksbar.org | May 2016 51 PUBLISHED BY MARCH 2016 • ISSUE 5 LAEditor: Ron Keefover W WISE Coordinators: Hon. G. Joseph Pierron Jr. • Anne Woods & Ryan Purcell, KBA staff

Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise and the fifth edition of the 2015-2016 school year.

IN THIS ISSUE “Miranda: More than Words” “Miranda: More than Words” Named 2016 Law Named 2016 Law Day theme Day theme ...... 1 n 2016, the nation marks the 50th anniversary of perhaps the nation’s best-known U.S. Supreme Court case, Miranda v. Arizona, 384 U.S. 436 Kansas Bench and Bar Leaders I(1966). The Miranda Warning has become engrained in law enforcement Urge Reflection on Law Day ...... 3 and has permeated popular consciousness through countless recitations in Who was Ernesto Arturo Miranda? ...... 4 fi lms and television shows. Yet Miranda is only part of the story when it comes to the procedures for ensuring justice. This edition of Law Wise ex- Lesson Plan 1: Miranda Rights for Juveniles: plores the Miranda decision, its holding, the life and death of Ernesto Mi- Yarborough v. Alvarado ...... 5 randa, and some of the innumerable procedural protections and exceptions that resulted. Lesson Plan 2: Miranda v. Arizona The Administrative Offi ce of the U.S. Courts explains the Supreme 654 U.S. 437 (1966) ...... 6 Court’s decision in the Miranda and its three related cases as follows: Terrific Technology for Teachers ...... 7 The Supreme Court’s decision in Miranda v. Arizona, addressed four dif- ferent cases involving custodial interrogations. In each of these cases, the March Buzz ...... 7 defendant was questioned by police offi cers, detectives, or a prosecuting 2016 Mock Trial Tournament Update ...... 7 attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning Dear Readers: NEW Law Wise Group ...... 8 of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed state- ments that were admitted at trial. CALENDAR OF EVENTS • Miranda v. Arizona: Miranda was arrested at his home and taken in custody to a police station where he was identifi ed by the complaining March 25-26 State High School Mock witness. He was then interrogated by two police offi cers for two hours, Trial Competition which resulted in a signed, written confession. At trial, the oral and writ- May 1 Law Day ten confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession. • Vignera v. New York: Vignera was picked up by New York police in connection with the robbery of a dress shop that had occurred three days prior. He was fi rst taken to the 17th Detective Squad headquarters. He was then taken to the 66th Detective Squad, where he orally admitted the robbery and was placed under formal arrest. He was then taken to the 70th Precinct for detention, where he was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and answers. At trial, the oral confession and the transcript were presented to the jury. Vignera was found guilty of fi rst degree robbery and sentenced to 30-60 years imprisonment. The conviction was affi rmed without opinion by the Appellate Division and the Court of Appeals. www.ksbar.org/lawwise (Continued from Page 1) • Westover v. United States: Westover was arrested by local police in Kansas City as a suspect in two Kansas City rob- beries and taken to a local police station. A report was also received from the FBI that Westover was wanted on a felony charge in California. Westover was interrogated the night of the arrest and the next morning by local police. Then, FBI agents continued the interrogation at the station. After two- and-a-half hours of interrogation by the FBI, Westover signed separate confessions, which had been prepared by one of the PUBLISHED BY MARCH 2016 • ISSUE 5 agents during the interrogation, to each of the two robberies in LAEditor: Ron Keefover W WISE California. These statements were introduced at trial. Westover Coordinators: Hon. G. Joseph Pierron Jr. • Anne Woods & Ryan Purcell, KBA staff was convicted of the California robberies and sentenced to 15 years’ imprisonment on each count. The conviction was af- Greetings from the Kansas Bar Association (KBA). fi rmed by the Court of Appeals for the Ninth Circuit. Welcome to this edition of Law Wise and the fifth edition of the 2015-2016 school year. • California v. Stewart: In the course of investigating a series of purse-snatch robberies in which one of the victims died of IN THIS ISSUE “Miranda: More than Words” injuries infl icted by her assailant, Stewart was identifi ed as the endorser of checks stolen in one of the robberies. Stewart “Miranda: More than Words” Named 2016 Law Named 2016 Law Day theme was arrested at his home. Police also arrested Stewart’s wife Day theme ...... 1 n 2016, the nation marks the 50th anniversary of perhaps the nation’s and three other people who were visiting him. Stewart was best-known U.S. Supreme Court case, Miranda v. Arizona, 384 U.S. 436 placed in a cell, and, over the next fi ve days, was interrogated Kansas Bench and Bar Leaders I(1966). The Miranda Warning has become engrained in law enforcement on nine different occasions. During the ninth interrogation ses- Urge Reflection on Law Day ...... 3 and has permeated popular consciousness through countless recitations in sion, Stewart stated that he had robbed the deceased, but had Who was Ernesto Arturo Miranda? ...... 4 fi lms and television shows. Yet Miranda is only part of the story when it not meant to hurt her. At that time, police released the four comes to the procedures for ensuring justice. This edition of Law Wise ex- other people arrested with Stewart because there was no evi- Lesson Plan 1: Miranda Rights for Juveniles: plores the Miranda decision, its holding, the life and death of Ernesto Mi- dence to connect any of them with the crime. At trial, Stewart’s Yarborough v. Alvarado ...... 5 randa, and some of the innumerable procedural protections and exceptions statements were introduced. Stewart was convicted of robbery that resulted. and fi rst-degree murder and sentenced to death. The Supreme Lesson Plan 2: Miranda v. Arizona The Administrative Offi ce of the U.S. Courts explains the Supreme Court of California reversed, holding that Stewart should 654 U.S. 437 (1966) ...... 6 Court’s decision in the Miranda and its three related cases as follows: have been advised of his right to remain silent and his right to Terrific Technology for Teachers ...... 7 The Supreme Court’s decision in Miranda v. Arizona, addressed four dif- counsel. http://1.usa.gov/1nRYbF5 ferent cases involving custodial interrogations. In each of these cases, the March Buzz ...... 7 defendant was questioned by police offi cers, detectives, or a prosecuting The issues before the high court were 2016 Mock Trial Tournament Update ...... 7 attorney in a room in which he was cut off from the outside world. In whether “statements obtained from an indi- none of these cases was the defendant given a full and effective warning vidual who is subjected to custodial police Dear Readers: NEW Law Wise Group ...... 8 of his rights at the outset of the interrogation process. In all the cases, the interrogation” are admissible against him questioning elicited oral admissions and, in three of them, signed state- in a criminal trial and whether “procedures ments that were admitted at trial. which assure that the individual is accorded his privilege under the Fifth Amendment to CALENDAR OF EVENTS • Miranda v. Arizona: Miranda was arrested at his home and taken in the Constitution not to be compelled to in- custody to a police station where he was identifi ed by the complaining criminate himself” are necessary. March 25-26 State High School Mock witness. He was then interrogated by two police offi cers for two hours, The Supreme Court reversed the judg- Trial Competition which resulted in a signed, written confession. At trial, the oral and writ- ment of the Supreme Court of Arizona in ten confessions were presented to the jury. Miranda was found guilty of May 1 Law Day Miranda, reversed the judgment of the New kidnapping and rape and was sentenced to 20-30 years imprisonment on York Court of Appeals in Vignera, reversed each count. On appeal, the Supreme Court of Arizona held that Miranda’s the judgment of the Court of Appeals for the constitutional rights were not violated in obtaining the confession. Ninth Circuit in Westover, and affi rmed the • Vignera v. New York: Vignera was picked up by New York police in judgment of the Supreme Court of California connection with the robbery of a dress shop that had occurred three days in Stewart. prior. He was fi rst taken to the 17th Detective Squad headquarters. He The Miranda decision was decided by a was then taken to the 66th Detective Squad, where he orally admitted 5-4 decision that was fi led June 13, 1966. the robbery and was placed under formal arrest. He was then taken to The majority opinion was written by Chief the 70th Precinct for detention, where he was questioned by an assistant Justice Earl Warren. A dissent was written by district attorney in the presence of a hearing reporter who transcribed the Justice John Marshall Harlan, with a separate Signed copy of Miranda warning by Ernesto Miranda. questions and answers. At trial, the oral confession and the transcript were opinion, dissenting in part, written by Justice presented to the jury. Vignera was found guilty of fi rst degree robbery Tom Clark. and sentenced to 30-60 years imprisonment. The conviction was affi rmed without opinion by the Appellate Division and the Court of Appeals. | www.ksbar.org/lawwise www.ksbar.org/lawwise 2 LAW WISE MARCH 2016 Kansas Bench and Bar Leaders Urge Reflection on Law Day

aw Wise asked three of Kansas’ bench and bar leaders for and the Sixth Amendment which guarantees criminal defen- their comments on Law Day and this year’s Miranda-based dants the right to an attorney. All three of these protections Ltheme. We begin with remarks by Chief Justice Lawton R. melded together create the Miranda warning. Nuss: “It should be noted that 50 years ago the decision to exclude “It is my honor as Chief Justice of the Kansas Supreme Court evidence of the confession of Ernesto Miranda, who confessed to urge citizens across the state to commemorate and celebrate to raping and kidnapping a young woman, was certainly not a Law Day, designated as May 1st by President Eisenhower in popular decision. However, the U.S. Supreme Court Justices 1958, and by Congress three years later. took an oath to uphold the Constitution of the United States. “The American Bar Association Upholding this oath may at times result in decisions that run throughout the years has selected a contrary to popular opinion. Independence from political pres- theme as a focal point for our refl ection. sure allows judges to make decisions that protect the rights This year, the ABA has chosen to recog- of all Americans, even when the general public and political nize the 50th anniversary of one of our leaders disagree with the outcome. nation’s best-known U.S. Supreme Court “Even if you are a person who believes that the Miranda cases, Miranda v. Arizona. The Miranda warning no longer serves a valid purpose, I encourage you to Warning—“you have the right to remain celebrate the fact that the Miranda v. Arizona decision repre- silent . . . “—has become ingrained in sents an historical example of how an independent judiciary Chief Justice law enforcement, and has permeated allows a socially unacceptable or “bad” person to be protected Lawton Nuss popular consciousness through count- by the Constitution to the same degree that a “good” or social- less recitations in fi lms, television shows, ly acceptable person might be protected,” the KBA president and writings. Yet Miranda is only part of the story when it concluded. comes to procedures for ensuring justice. Court of Appeals Judge G. Joseph “The 2016 Law Day theme—Miranda: More than Words— Pierron Jr. said the Miranda decision is designed to explore the procedural protections afforded to gives meaning to our constitutional all of us by the U.S. and Kansas Constitutions, and why the rights, but probably has not resulted in preservation of these principles is essential to our liberty. It is fewer confesions. He said: my hope that we all pause to refl ect on how the rule of law, “The Miranda ruling helps to give as safeguarded by our courts, continues to protect our liberties meaning to our constitutional rights and rights under our U.S. and Kansas Constitutions.” under the Fifth (self-incrimination) and Kansas Bar Association President Sixth (right to counsel) Amendments in Natalie Haag echoed the Chief Justice’s Hon. G. Joseph our Bill of Rights, which were adopted sentiments in her statement for Law Pierron Jr. by we the people nearly 225 years ago. Wise when she wrote, Richard A. Leo, of the University of San “For the last 25 years, shows like Law Francisco School of Law, and George C. Thomas III, of Rut- and Order have familiarized the Ameri- gers Law School, have pointed out that “Two generations of can public with the Miranda warning: empirical scholarship on Miranda suggest that the Miranda re- the warning given to a suspect prior to quirements have exerted a negligible effect on the ability of the a custodial interrogation which reminds police to elicit confessions and on the ability of prosecutors to KBA President the suspect of the right to remain silent win convictions. There is no good evidence that Miranda has Natalie Haag and the right to counsel. The Miranda substantially depressed confession rates or imposed signifi cant vs. Arizona decision is one of the cases costs on the American criminal justice system.” which exemplifi es the complexity of the United States Consti- Miranda is probably the best known U.S. Supreme Court tution. While there isn’t a provision in the Constitution saying decision and there has been no serious movement to abolish that a suspect is entitled to a Miranda warning, the Constitution it through constitutional amendment, which could be done. does include the Fifth Amendment right against self-incrimina- Interestingly, Miranda was retried without the use of his confes- tion, the Due Process Clause of the Fourteenth Amendment sion and was convicted.

MARCH 2016 | LAW WISE 3 www.ksbar.org/lawwise Who was Ernesto Arturo Miranda?

he website “fi ndagrave.com” (http://bit.ly/1nP56i9) de- and was pronounced dead on arrival at age 35 at Good Samar- scribes Miranda as an American legal fi gure who was itan Hospital. The suspect arrested was read his Miranda rights. Tborn on March 9, 1941, in Mesa, Arizona. After the death Upon release, he absconded to Mexico. The case was closed. of his mother and while still in school, his troubles with the Miranda was buried in the City of Mesa Cemetery, Mesa, police began. A conviction of burglary while in the 8th grade Maricopa County, Arizona. resulted in incarceration at an Arizona reform school. Quickly upon release, another conviction and another term in reform school followed. A move to Los Angeles resulted in arrests for armed robbery and minor sex offenses, and after incar- ceration, he was sent back to Arizona. A tour in the Army resulted in stockade time at hard labor for AWOL and various other charges. He was dishonorably discharged. Arrested in Nashville driv- ing a stolen car across state lines, he was sentenced to the federal prison system. Back in Phoenix, Miranda was arrested for armed robbery of a bank employee and the kidnap/rape of an 18-year-old woman. Inten- sive interrogation by the Phoenix police resulted in a written signed confession with a paragraph typed at the top stating the confession was made with full knowledge of his legal rights, and understanding any statement he made may be used against him. He was convicted solely on the strength of the confession. On appeal, the Supreme Court set down the rule re- quiring a defendant be advised of his right to remain silent and to have an attorney. Under the new rule, a confession obtained without this warning could not be used at trial. Released, he was re-arrested, “Mirandized” and convicted on the strength of an actual witness without the confession. He was sentenced to 20 to 30 years on each of the two counts, to be served concurrently. He served eleven years before being paroled. After his release, he earned money by selling autographed Miranda warning cards but continued his criminal lifestyle with numerous arrests for driving offenses which resulted in suspen- sion of driving privileges. Found in the possession of a gun, he was returned to prison for another year. After his release, Miranda spent his time in bars living in cheap hotels. While playing cards at the La Amapola Bar in Phoenix, a violent con- frontation occurred. He was mortally wounded with a knife www.ksbar.org/lawwise 4 LAW WISE | MARCH 2016 Lesson Plan 1 Miranda Rights for Juveniles: Yarbo rough v. Alvarado

Source: http://bit.ly/22ldKbp Grades: 7–12 Directions: Yarborough v. Alvarado: Decision— 1. Read the synopsis of facts for Yarborough v. Alvarado. Majority: Justice Kennedy delivered the majority opinion in 2. Complete the legal arguments for each side using the a 5-4 decision that reversed the Ninth Circuit. The majority graphic organizer. found that the state criminal court that convicted Alvarado had 3. With your class, review the possible opinions. Select the reached a reasonable conclusion that the minor was not in opinion you fi nd most persuasive and articulate reasons custody for Miranda purposes when he was interviewed. The why. Court cited a number of factors that indicated that Alvarado 4. Read about the decision in Yarborough v. Alvarado and was not in custody at the time he was questioned, including discuss which arguments appeared most persuasive to the the fact that he went to the station voluntarily, was never told Court. he could not leave, was not threatened by authorities, was told Synopsis: the interview would be brief, and was allowed to return home afterwards. According to the Court, Miranda can be distin- Michael Alvarado was convicted of second-degree murder guished from other cases that require special consideration of and robbery for his alleged role in a 1995 killing. Alvarado, age for juvenile offenders. who was not the triggerman, was convicted in large part be- The majority also stressed the importance of a clear rule cause of incriminating statements he made during a two hour for police to apply. Allowing different standards for juveniles interview with a police detective. At the time of the interview, would make it more diffi cult for police to determine when Mi- Alvarado was a 17-year-old high school student with no prior randa warnings are necessary. arrest record. The detective had contacted Alvarado’s mother, Concurrence: Though she joined the majority, Justice who agreed to bring him to the police station for questioning. O’Connor wrote a separate, single paragraph to emphasize her When Alvarado arrived with his parents, the detective denied sense that in other cases the age of the defendant could be the parents’ request to remain with their son during the inter- relevant to the custody determination. She suggested that the view. While they waited in the lobby, Alvarado was questioned failure to consider age could justify reversal in other circum- alone for two hours. He was not placed under arrest and was stances. The fact that Alvarado was 17 years old made a dif- allowed to leave after the questioning ended. At no time was ference to her. Alvarado advised that he had a right to remain silent, a right to Dissent: Justice Breyer wrote a forceful dissent in which he consult an attorney prior to answering, or a right to leave the criticized the majority’s characterization of the facts. Justice police station at any time. Alvarado alleges he was deprived of Breyer framed the issue in the following way: his Fifth and Sixth Amendment rights in violation of Miranda What reasonable person, brought to a police station by his v. Arizona. parents at police request, put in a small interrogation room, Following his criminal conviction, Alvarado brought a peti- questioned for a solid two hours, and confronted with claims tion in federal district court against Yarborough, the warden of that there is strong evidence that he participated in a serious the prison where he was being held. The district court denied crime, could have thought to himself, “Well, anytime I want to Alvarado’s petition. However, the Ninth Circuit Court of Ap- leave I can just get up and walk out? The dissent said that the peals reversed, holding that Alvarado was “in custody” when involvement of Alvarado’s parents suggested that his participa- he was interrogated by police and, therefore, should have been tion was not voluntary and that a two-hour meeting gave the read his Miranda warnings. The Ninth Circuit insisted that fed- appearance of custody. The dissent also considered the many eral criminal law treated children differently and this principle ways in which the court system treats juveniles differently, em- should apply to Miranda custody determinations. phasizing that confi nement determinations for juveniles should Graphic Organizer: Legal Issue: In determining “custody” also be treated differently. for purposes of Miranda, should a court apply a different stan- dard for juveniles?

Arguments for Yarborough: Arguments for Alvarado: 1. 1. 2. 2. 3. 3.

MARCH 2016 | LAW WISE 5 www.ksbar.org/lawwise Lesson Plan 1 Miranda Rights for Juveniles: Yarbo rough v. Alvarado

Source: http://bit.ly/22ldKbp Grades: 7–12 Directions: Yarborough v. Alvarado: Decision— 1. Read the synopsis of facts for Yarborough v. Alvarado. Majority: Justice Kennedy delivered the majority opinion in 2. Complete the legal arguments for each side using the a 5-4 decision that reversed the Ninth Circuit. The majority graphic organizer. found that the state criminal court that convicted Alvarado had 3. With your class, review the possible opinions. Select the reached a reasonable conclusion that the minor was not in opinion you fi nd most persuasive and articulate reasons custody for Miranda purposes when he was interviewed. The why. Court cited a number of factors that indicated that Alvarado 4. Read about the decision in Yarborough v. Alvarado and was not in custody at the time he was questioned, including discuss which arguments appeared most persuasive to the the fact that he went to the station voluntarily, was never told Court. he could not leave, was not threatened by authorities, was told Synopsis: the interview would be brief, and was allowed to return home afterwards. According to the Court, Miranda can be distin- Michael Alvarado was convicted of second-degree murder guished from other cases that require special consideration of and robbery for his alleged role in a 1995 killing. Alvarado, age for juvenile offenders. who was not the triggerman, was convicted in large part be- The majority also stressed the importance of a clear rule cause of incriminating statements he made during a two hour for police to apply. Allowing different standards for juveniles interview with a police detective. At the time of the interview, would make it more diffi cult for police to determine when Mi- Alvarado was a 17-year-old high school student with no prior randa warnings are necessary. arrest record. The detective had contacted Alvarado’s mother, Concurrence: Though she joined the majority, Justice who agreed to bring him to the police station for questioning. O’Connor wrote a separate, single paragraph to emphasize her When Alvarado arrived with his parents, the detective denied sense that in other cases the age of the defendant could be the parents’ request to remain with their son during the inter- relevant to the custody determination. She suggested that the view. While they waited in the lobby, Alvarado was questioned failure to consider age could justify reversal in other circum- alone for two hours. He was not placed under arrest and was stances. The fact that Alvarado was 17 years old made a dif- allowed to leave after the questioning ended. At no time was ference to her. Alvarado advised that he had a right to remain silent, a right to Dissent: Justice Breyer wrote a forceful dissent in which he consult an attorney prior to answering, or a right to leave the criticized the majority’s characterization of the facts. Justice police station at any time. Alvarado alleges he was deprived of Breyer framed the issue in the following way: his Fifth and Sixth Amendment rights in violation of Miranda What reasonable person, brought to a police station by his v. Arizona. parents at police request, put in a small interrogation room, Following his criminal conviction, Alvarado brought a peti- questioned for a solid two hours, and confronted with claims tion in federal district court against Yarborough, the warden of that there is strong evidence that he participated in a serious the prison where he was being held. The district court denied crime, could have thought to himself, “Well, anytime I want to Alvarado’s petition. However, the Ninth Circuit Court of Ap- leave I can just get up and walk out? The dissent said that the peals reversed, holding that Alvarado was “in custody” when involvement of Alvarado’s parents suggested that his participa- he was interrogated by police and, therefore, should have been tion was not voluntary and that a two-hour meeting gave the read his Miranda warnings. The Ninth Circuit insisted that fed- appearance of custody. The dissent also considered the many eral criminal law treated children differently and this principle ways in which the court system treats juveniles differently, em- should apply to Miranda custody determinations. phasizing that confi nement determinations for juveniles should Graphic Organizer: Legal Issue: In determining “custody” also be treated differently. for purposes of Miranda, should a court apply a different stan- dard for juveniles?

Arguments for Yarborough: Arguments for Alvarado: 1. 1. 2. 2. 3. 3.

MARCH 2016 | LAW WISE 5 www.ksbar.org/lawwise TERRIFIC TECHNOLOGY FOR TEACHERS

For a comprehensive look at the Miranda decision and its The Court’s decision in Miranda was met with criticism when players, C-Span has chronicled it along with 11 other U.S. Su- it was handed down in 1966, and it continues to be contro- preme Court landmark cases. Rich videos and interesting read- versial today. A table containing commentary on the decision ing about those directly involved in the appeal may be found and its effect on law enforcement may be used as an excellent at: http://bit.ly/1UjftZH discussion group tool in which students are asked to deter- The U.S. Supreme Court decision in Miranda v. Arizona is mine whether various quotations on the decision are support- said to be one of the most controversial of any handed down ing (pro) or criticizing (con.) See: http://bit.ly/1MpA7Qg in criminal law. The full text of the decision may be found here Additional resources and information on KBA Law Day at: http://bit.ly/1RoWYfW http://www.ksbar.org/LawDay

March Buzz @ THE LAW-RELATED COLLECTION, EMPORIA STATE UNIVERSITY, TEACHERS COLLEGE RESOURCE CENTER

he evening news shouts out about the latest debates, and to be in our area, we are located on the second fl oor of Visser Tthere are so many candidates that it may be confusing for Hall, on the campus of Emporia State University, and we would the learners in our schools. So what can we do? We can teach be proud to give you the guided tour. You may also call 620- about voting and the election process. “The Election Process 341-5292 to check out resources during our hours, 9-6, Mon- in America”, a 50 minute DVD from the Just the Facts Learn- day through Thursday, and 9-5 on Friday. We are able to mail ing Series, is packed with information about voting rights. It out and receive items with no charge to the patron, thanks to considers the vocabulary, and travels learners through some the generosity of the Kansas Bar Association. Please help us to recent campaigns to explain. We also have books about sev- continue our “Buzz” here at the Law Related Education Collec- eral presidents, and other resources that will tempt learners tion at Emporia State University! to fi nd out more about: political parties, the electoral college, lobbyists, and more. Janice Romeise If any of these topics fi t your interests or needs, you may (620) 341-5292 search online at emporiastate.worldcat.org and choose “Re- emporiastate.worldcat.org source Center” from the drop box to see the full array of ma- [email protected] terials and resources available here at the Center. If you plan Corky the Hornet 2016 Mock Trial Tournament Update On February 27, six teams from the Regional Mock Trial Competitions advanced to State Competition on March 25-26. Congratulations!

Wichita Regional KC Regional 1. Sunrise Christian Academy (First Place) 1. Shawnee Mission East High School (First Place) 2. The Independent School (Second Place) 2. Blue Valley Northwest High School (Second Place) 3. Northeast Magnet High School (Third Place) 3. Olathe North High School (Third Place)

Sunrise participants (L to R): Sarah Myose, Cynthia Matson, Nathan SME participants (L to R): Caleb Hanlon, Iman Jaroudi, Nate Paris, Spencer Keck, Cameryn Rasmussen, Bethany Reeder (front); Emily Kelley (back); Mitchell, Jack Eddy, (Not Pictured Reami Boone) Gretchen Keck; Michael Goddard MARCH 2016 | LAW WISE 7 www.ksbar.org/lawwise

Changes to the Journal Policy Substantive articles The primary purpose of KBA Journal articles and columns is to educate or inform Kansas law- yers about issues of substantive law while keeping our members abreast of legal developments. Accordingly, substantive article submissions should be oriented specifically to be of interest to Kansas lawyers, as distinguished from articles of general interest, or of particular interest to lawyers elsewhere in the U.S. Articles on current issues, recent changes in the law, and trends in the legal profession are especially encouraged. Articles dealing with Kansas law or of particular interest to Kansas lawyers will be given publication priority. Information should not duplicate other articles recently published in the Journal. The subject matter should deal with the law as it is rather than a discussion of what the law should be (i.e., be practice oriented). A substantive article is not to advocate a position or policy. See discussion on opinion articles.

The Journal ordinarily does not publish substantive articles on topics in appellate litigation or on topics being deliberated in the current legislative session. No substantive article submitted for publication in the Journal should focus on, or draw conclusions from, a case that is pending. Articles by authors involved in pending proceedings on the topic of the article, or by authors whose firm is involved in such proceedings, will not be published, except as follows: The Board of Editors may publish articles on broad, common topics on which numerous proceedings often are pending, such as jurisdiction, as well as articles specifically approved by the Board of Editors as part of a forum for conflicting sides of one or more issues in any pending proceedings. The primary citation for each legal conclusion should be final, not pending appellate review. Upon request by an author, the Board of Editors will review any article relying heavily on non-final au- thorities to determine whether to publish it to illuminate one or more important issues despite the pendency of any proceedings on point. Prior to publication consideration, authors must disclose or disclaim their involvement in such pending proceedings. The Journal will not publish articles being published in other bar association journals or law reviews. Please advise the Journal staff immediately if your article, or one like it, is pending for consideration, or being published, in another journal or other publication. Further, be advised that only articles written by authors licensed in Kansas or by law professors at Kansas law schools will be accepted. Opinion articles The KBA Journal strives to publish articles that express the ideas and views of our members and display well-reasoned analysis. While we discourage both commercial writings and clear advo- cacy pieces, we may choose to flavor our publications occasionally with submissions containing analysis, opinion, and criticism of the present state of the law. These opinion articles may be ac- cepted when clearly identified as such and accompanied by sufficient legal authority on all sides of the issue to enable the reader to assess the validity of the opinion. When criticism is voiced, suggestions for reform should also be included. Criticism should be directed to issues only. Although advocacy pieces that may be of particular interest to Kansas attorneys may be accepted for publication, the Board of Editors is cognizant that the Journal’s readership consists of a broad spectrum of individuals with varying viewpoints. When appropriate, the Board of Editors will

60 The Journal of the Kansas Bar Association afford an opportunity for those with opposing viewpoints to be heard in subsequent issues. The Journal encourages pro/con articles by two or more authors who take opposing views on impor- tant law-related issues.

Procedure for submitting substantive and opinion articles The Board of Editors considers potential new articles at each quarterly meeting. If you have not already done so, you will need to submit a typed, brief outline of the article you propose to submit. Please include a short explanation of why you believe your topic will be of interest to Kansas attorneys. If your draft or topic is approved by the Board of Editors, you will be notified and assigned an editor to assist you in the preparation of the final article. The Board will con- sider articles that are already in finished form; however, these articles are subject to the Board's right, as with any article, to refuse publication or to request revision. It is advisable to have the Board first consider your proposal before it is written.

Letters to the editor policies 1. Letters to the editor are invited on bar-related issues from KBA members who are licensed to practice in Kansas. 2. Letters should be no longer than 200 words and the Board of Editors reserves the right to edit the letter for brevity and style. 3. Letters must be typewritten and signed, and include the author’s KBA member number. 4. No more than two letters from any individual will be published within one year. 5. The editor reserves the right to choose which letters to publish. Unpublished letters cannot be returned unless accompanied by a self-addressed, stamped envelope. 6. Letters responding to a previously published letter, column, or article should address the is- sues and not be a personal attack on the author. 7. No letter shall be published that contains defamatory or obscene material, violates the Kansas Rules of Professional Conduct, or otherwise may subject the KBA or the Board of Editors to civil or criminal liability or to embarrassment. 8. No letter shall be published that advocates or opposes a particular candidate for a political or judicial office or that contains a solicitation or advertisement for a commercial or business purpose.

www.ksbar.org | May 2016 61

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