30 | Bankruptcy & Divorce: A Marriage of Inconvenience By The Hon. Robert D. Berger
Cover layout & design by Ryan Purcell, [email protected]
10 | A Gift That Can Never Be Taken Away 20 | Recommended Reading for Your Next Appeal By Gene Balloun and Zach Chaffee-McClure 12 | Because I Said I Would By Anne McDonald 21 | 2014 KBA Elections 18 | Succession Planning Really Isn’t Optional 24 | 2014 KBA Awards (Particularly for the Solo Attorney) By Mark Bassingthwaighte 26 | State of the Judiciary By Chief Justice Lawton R. Nuss
Regular Features 6 | KBA President 16 | Substance & Style By Dennis D. Depew By Pamela Keller 8 | YLS President 22 | Members in the News By Jeffrey W. Gettler 22 | Obituaries 13 | The Diversity Corner By Katherine Lee McBride 38 | Appellate Decisions 14 | A Nostalgic Touch of Humor 39 | Appellate Practice Reminders By Matthew D. Keenan 46 | Classified Advertisements 15 | Law Practice Management Tips & Tricks By Larry N. Zimmerman E Let your VOICE be TH 2013-14 Heard! KBA Officers & Board of Governors President JOURNAL Dennis D. Depew, [email protected] OF THE KANSAS BAR ASSOCIATION President-Elect Gerald L. Green, [email protected] Vice President 2013-14 Natalie Haag, [email protected] Journal Board of Editors Secretary-Treasurer Stephen N. Six, [email protected] Richard D. Ralls, chair, [email protected] Terri Savely Bezek, BOG liaison, [email protected] Immediate Past President Lee M. Smithyman, [email protected] Joan M. Bowen, [email protected] Hon. David E. Bruns, [email protected] Young Lawyers Section President Jeffrey W. Gettler, [email protected] Boyd A. Byers, [email protected] District 1 Toby J. Crouse, [email protected] Toby J. Crouse, [email protected] Emily Grant, [email protected] Gregory P. Goheen, [email protected] Connie S. Hamilton, [email protected] Mira Mdivani, [email protected] Katharine J. Jackson, [email protected] Jennifer K. Vath, [email protected] Michael T. Jilka, [email protected] District 2 Lisa R. Jones, [email protected] Charles E. Branson, [email protected] Hon. Sally D. Pokorny, [email protected] Hon. Janice Miller Karlin, [email protected] Casey R. Law, [email protected] District 3 Eric L. Rosenblad, [email protected] Julene L. Miller, [email protected] District 4 Hon. Robert E. Nugent, [email protected] Chad D. Giles, [email protected] Professor John C. Peck, [email protected] District 5 Rachael K. Pirner, [email protected] Terri S. Bezek, [email protected] Karen Renwick, [email protected] Cheryl L. Whelan, [email protected] Teresa M. Schreffler, [email protected] District 6 Richard H. Seaton Sr., [email protected] Bruce W. Kent, [email protected] Sarah B. Shattuck, [email protected] District 7 Richard D. Smith, [email protected] Matthew C. Hesse, [email protected] Marty M. Snyder, [email protected] J. Michael Kennalley, [email protected] Calvin D. Rider, [email protected] Matthew A. Spurgin, [email protected] Catherine A. Walter, [email protected] District 8 John B. Swearer, [email protected] Beth A. Warrington, staff liaison, [email protected] Issaku Yamaashi, [email protected] District 9 David J. Rebein, [email protected] The Journal Board of Editors is responsible for the selection and editing of District 10 all substantive legal articles that appear in The Journal of the Kansas Bar Jeffery A. Mason, [email protected] Association. The board reviews all article submissions during its quarterly District 11 meetings (January, April, July, and October). If an attorney would like to Nancy Morales Gonzalez, [email protected] submit an article for consideration, please send a draft or outline to Beth Warrington, communication services director, at [email protected]. District 12 William E. Quick, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Christi L. Bright, [email protected] monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., KDJA Representative and at additional mailing offices. The Journal of the Kansas Bar Association Hon. Thomas E. Foster, [email protected] is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KBA Delegate to ABA KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member Linda S. Parks, [email protected] subscription is $25 a year, which is included in annual dues. Nonmember Rachael K. Pirner, [email protected] subscription rate is $45 a year. ABA Board of Governors The Kansas Bar Association and the members of the Board of Editors assume Thomas A. Hamill, [email protected] no responsibility for any opinion or statement of fact in the substantive ABA State Delegate legal articles published in The Journal of the Kansas Bar Association. Hon. Christel E. Marquardt, [email protected] Copyright © 2014 Kansas Bar Association, Topeka, Kan. Executive Director For display advertising information contact Bill Spillman at (877) 878-3260 Jordan E. Yochim, [email protected] or email [email protected]. For classified advertising information contact Beth Warrington at (785) 234- Our Mission 5696 or email [email protected]. 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4 The Journal of the Kansas Bar Association DON'T FORGET TO MARK IT TODAY!
REGISTER ONLINE AT WWW.KSBAR.ORG/CLE
March 7 3rd Annual Oil, Gas & Mineral Spring Conference Whiskey Creek, Hays 7.0 CLE credit hours, including 1.0 hour ethics and professionalism March 11 Telephone or Web Seminar TBD 1.0 CLE credit hour March 25 Telephone or Web Seminar TBD 1.0 CLE credit hour March 26 Telephone or Web Seminar TBD 1.0 CLE credit hour March 27 Telephone or Web Seminar TBD 1.0 CLE credit hour March 28 KBA Employment Law CLE The Dodge House, Dodge City 4.0 CLE credit hours, including 1.0 hour ethics and professionalism
CLE is pending approval in Kansas and Missouri. kba president How Do You Like Your Furloughs? n mid-December, the Court Budget Advisory Council with the very real question of: “How do you like your fur- made its report to the Kansas Supreme Court. The full re- loughs?” There are a number of answers to this question, but Iport is available online at the Kansas Courts website: www. the bar of Kansas and thus the KBA does need to carefully kscourts.org. Every attorney in Kansas who interacts with consider if it wants to offer its input to the judicial branch as state courts should take the time to read the report. it decides how to structure the coming furloughs. The council was made up of capable and intelligent peo- In the past, furloughs were spread out among multiple pay ple from across Kansas. They were given the unenviable task periods and multiple months so as to not leave employees of figuring out how to trim $8.25 million from the judicial with any one period of time when they had no income. This branch’s FY2015 budget. This was one of those appointments was also done to try to minimize the impact of the furloughs that would lead to a big sigh of relief when you didn’t get the on the public and business interests that use the courts on a call from Chief Justice Nuss to participate! daily basis. Since the judicial branch budget is 96 percent salary ex- Another option is not to close the courts but furlough dif- pense for personnel, the only way to eliminate 8 percent of ferent staff members in each court at different times. This al- the total budget is to negatively impact people. The judicial lows the courts to stay open, but then dramatically increases branch has already been operating on a reduced budget, and the workload on everyone else in each court. In areas where fortunately (if there can be anything labeled as fortunate in the courts are already understaffed due to the current backlog of present predicament) the $8.25 million figure includes some authorized but unfilled positions, this practice would signifi- expenditures that are not being made now. The fact remains, cantly increase the opportunity for error and delay in court however, that the funding that has been approved for FY2015 operations. by the Kansas legislature is 8.25 percent below what has been Perhaps the most controversial option would be to wait requested in a base budget request by the judicial branch. until the end of the fiscal year approaches when a more ex- The council’s first recommendation is to recommend the act determination of what the budget shortfall will actually elimination of 19.5 FTE court service officer positions across be. Once that number has been determined, then the courts the state. These positions currently perform duties that are not would just shut down for the time period required to reach required by current statute. Examples of this include screen- the needed savings. At a minimum, if all the other savings ing of PFA and PFS applications, conducting domestic me- strategies named by the council were implemented, the courts diations, conducting criminal history reviews prior to pleas would be closed 12 days, or two-and-a-half weeks. That time and sentencing, to name a few. Savings equal $1.08 million period would come in June, the last month of the fiscal year. in FY2015. If some of the other strategies to save money were not used, The next recommendation deals with the current num- then the court shutdown would have to be longer. This option ber of authorized but unfilled staff positions across the state. is controversial because it would create chaos for individuals, This amounts to $2.5 million. These vacancies create hard- businesses, law enforcement, attorneys, and any other users ship where they occur and lead to increased workloads on the of the Kansas court system. On a positive note, this option staff that remains. The council recommends an increase in this would allow laid off court staff to apply for unemployment number of up to a total of 120 authorized but unfilled staff benefits since the layoff would be for a longer period. One positions. This will save $3.75 million in FY2015. other result of this option might be to get the attention of The third recommendation from the council is to delay by many Kansas legislators who seem not to have the interest 120 days filling district judge and magistrate judge positions or desire to properly fund the third and co-equal branch of when they become vacant. Based on anticipated retirements Kansas government. of four district judges and four magistrate judges, this strategy It is interesting to note that the Kansas Association of Dis- would save approximately $440,000 in FY2015. trict Court Clerks and Administrators has voted to support The final recommendation is that of unpaid staff furloughs. the block furlough at the end of the year option. It is also To reach the $8.25 million budget cut will require 12 unpaid significant that the Kansas District Judges Association has also furlough days at a savings of $250,000 per day. We have seen voted to support the block furlough approach, even though this strategy utilized before when there were funding and bud- the brunt of providing emergency services during the fur- get issues for the judicial branch. Obviously, this will have a lough period would fall on them. huge impact on non-judicial employees of the judicial branch, At the time this column is being written, the KBA has no amounting to a 4 percent pay cut. Keep in mind that these position on the options available to implement furloughs in same employees have not seen a raise in a number of years the judicial branch. The KBA’s position is that the judicial and many are already actively looking for other, more stable, branch should be funded at a minimum at the base budget employment. If any of the other budget cutting strategies are request level. The reasons why the judicial branch should be not implemented, there will need to be further furloughs that funded at the enhanced budget request level are material for will save enough money to equal the savings from the other another column or two, as are the other longer term budget strategies that were not used. strategies that the Budget Council considered but could not So, the purpose of the title of this column now becomes ap- recommend due to how quickly they could be implemented. parent, as a group Kansas attorneys across the state are faced These strategies are numerous and include a number of things 6 The Journal of the Kansas Bar Association kba president that would significantly alter the current practice of law in the courts of Kansas. (Eliminating all court reporters is but one example.) FY2015 will be upon us in less than five months. The KBA Board of Governors will be discussing whether or not it should weigh in on the “how do you like your furloughs” question. Please consider this column as my request that the KBA mem- bership let its regional Board of Governors members, KBA staff, and KBA officers know how you feel regarding this issue. If, by some miracle, the legislature adds supplemental funding so that furloughs are not required, then this exercise will have been for naught. If that miracle does not materialize, then all of us will be facing the certainty of furloughs, so the answer to the question of how they are implemented is one that the lawyers of Kansas have a very real interest in. n
About the President
Dennis D. Depew is an attorney with the Depew Law Firm in Neodesha. He currently serves as president of the Kansas Bar Association. [email protected] (620) 325-2626
www.ksbar.org | February 2014 7 yls president From Scout Law to the Law s February approaches, I find myself in a reflective is it good for your community, but it is also a good network- mood. No, I have not been looking in the mirror too ing tool for your business. Upon reflection, this probably has Along. I have made my resolutions. Enough about that. roots in my early experiences in scouting. During my reflections, I realized there are some parallels in In scouting, you “advance” your way up the ladder by earn- my life from my past to my chosen profession. For example, ing badges and being recognized. As a young attorney, you “ad- from high school debate, to the courtroom. But what really vance” by gaining your got me thinking was the number of former participants of client’s trust and positive . . . [H]elp other scouting who are now attorneys. Even in my own firm, we outcomes. If you work at have Jeff Chubb who earned the highest rank of Eagle Scout. a firm with a partnership people at all times; And Dan Reynolds and myself who, while we didn’t go that track, your years of gain- to keep myself far, did participate in scouting. ing clients, their trust and physically strong, Upon further reflection, I realized that scouting and lawyers positive outcomes will basically follow much of the same core principles. We both hopefully result in you mentally awake, and strive to be “trustworthy, loyal, helpful, friendly, courteous, advancing from associ- morally straight. kind, obedient, cheerful, thrifty, brave, clean, and reverent.” ate to partner. Does this (Scout Law) While we may fall short in the brave, thrifty always happen? No. Do you try to “do your best” to achieve a and reverent departments sometimes, in order to acquire and positive outcome? Yes. Is that what your client is paying you to maintain good relationships with clients, fellow attorneys, do? Yes. Goal achieved. Badge earned. Good job! and judges, it behooves us to make every effort to uphold the Scouting is also fun! Being an attorney is fun! Not ALL the remainder of the Scout Law. And I find it ironic that it is the time. After all, it is a job. But when I think about a lot of Scout “Law.” Not ideal, not goal, but LAW! people and what they do for a living, I’d much rather be an A portion of the Scout Oath is to “. . . help other people at attorney than a whole lot of other jobs out there. all times; to keep myself physically strong, mentally awake, and Scouting is a place to build strong friendships which will morally straight.” Here again, as attorneys we need to exhibit last a lifetime. The KBA Young Lawyers Section is the same these attributes in our own lives in order to be attractive to cli- type of place. By joining, you will interact with other young ents searching for reputable attorneys. Are we above reproach? lawyers who are in the same place you are professionally. They No. Are we held to a higher standard? Oftentimes, yes. are facing many of the same conflicts and celebrating many of If you are afforded the privilege, as I am, to practice in a rela- the same achievements. You will be provided several opportu- tively small community, especially the one in which you grew nities throughout the year to congregate, socialize and form up, your personal life and behavior is called into play a little friendships that will last a lifetime and will often prove very more often than if you are working in a larger city. This has its beneficial to your practice. pros and cons. Pro: Little Is this article about scouting? No. Is it a recommendation Scouting is a place old ladies from the church that all of you with children who hope they will one day be- where you attended as come attorneys run out and sign them up immediately? No. Is to build strong a small child call you to scouting the only reason I became an attorney? No. Is scout- friendships which do their estate planning ing the only place I learned good character and citizenship? will last a lifetime. because they remember No. I do have some pretty great parents that played an im- how sweet you were run- portant role in raising my brother and me, so I have to give a The KBA Young ning between the pews. shout out to them. All I am saying is that I needed an article Lawyers Section is Con: They call you by for this month’s edition of the KBA Journal and, when I was your older brother’s name pondering what to write, I realized that at least three of the the same type of when they schedule their five attorneys in my own firm were involved in scouting. Re- place. By joining, appointment. Pro: You go flections began. . . .n you will interact out to dinner with an old friend (female) from high About the YLS President with other young school to catch up. Con: The next day your email Jeffrey W. Gettler is a partner at the Independence lawyers who are in law firm of Emert, Chubb & Gettler LLC. He is also explodes asking if you the prosecutor for the City of Independence. the same place you have broken up with your are professionally. serious girlfriend who re- [email protected] sides out of town. At the core of scouting is the development of character and a spirit of community service. As I have mentioned in several previous articles, volunteering and involvement in commu- nity and civic organizations are pretty high on my priority list. I believe they should be for all young attorneys. Not only 8 The Journal of the Kansas Bar Association kansas bar foundation A Gift That Can Never Be Taken Away 7 law students receive KBF scholarships The beautiful thing about learning is that no “Receiving this scholarship has been another example of one can it away from you. how people dedicated to the state and this profession make – B.B. King a huge difference in the lives of students. This scholarship is American blues guitarist and songwriter going to help me make it through the last semester of school without having to take out any loans. That is truly amazing he KBF Scholarship Committee selected seven students with the cost of a legal education. Beyond the financial sup- to receive scholarships in 2014. Through generous en- port this award also serves as a reminder, as I am getting ready Tdowments from individuals and firms, the KBF is able to graduate, that giving back to the legal community is impor- to offer the scholarships. Congratulations to these outstand- tant, and I plan to do my part.” ing students! Maxine S. Thompson Memorial Scholarship Case Moses & Zimmerman P.A. Law Student Scholarship This scholarship promotes the practice of law in the state of Kansas by awarding a law student, originally from Kan- This scholarship is intended to go to a future Kansas law- sas and attending the University of Kansas School of Law or yer including both Kansas law schools and Creighton Uni- Washburn University School of Law an annual scholarship. versity School of Law. This award is specifically given to a The award recipient must have completed no less than 60 second-year student who intends to practice law in the state hours toward a law degree and must plan to practice in a rural of Kansas. Kansas area, preferably western Kansas. Richard W. “Rick” Smith, Washburn University School of Christopher A. “Chris” Rohr, Washburn University School Law of Law Married with two small children, Smith and his family came A native of Colby, Rohr attended Colby Community Col- to Kansas from Ohio. He chose Kansas because his long-term lege and Fort Hays State University prior to attending law plans include living and raising his family in school. He has interned for the Washburn Law Kansas. He is a law clerk for the Kansas Corpora- Clinic, has participated in numerous community tion Commission and hopes his experience there events, including assisting third grade students will help him make a valuable contribution to in putting on their own mock trial. He plans to Kansas in several ways. Smith is involved in sev- practice in a rural Kansas community. eral community activities and service to others is “I am very grateful to receive this scholarship an important part of his life. and it is another example of how the KBA is committed “The Kansas Bar Foundation is a positive reflection of the to help future attorneys in Kansas. This scholarship is go- good that exists in the Kansas legal community. The scholar- ing to help me make it through the last semester of school ship benefits the community at large as much as it aids in and through bar prep without having to be so dependent on my legal education. As a recipient of this scholarship, I feel a loans. Beyond the financial support, this award will also put desire and obligation to contribute to the Kansas legal com- me in a better position to help the people in my hometown munity in the years to come.” community who have helped me through my law school The Justice Alex M. Fromme Memorial Scholarship journey.” Award The John E. Shamberg Memorial Law Student This award is provided to a law student attending the Uni- Scholarship versity of Kansas Law School or Washburn University Law This scholarship is for a Washburn University School of School who is committed to practicing law in Kansas. Law student who has an interest in plaintiff’s work as well as a Katherine E. “Kate” Marples, University of Kansas School bona fide intention to practice law in Kansas. of Law Kurtis K. Wiard, Washburn University School of Law A native of Dodge City, Marples attended the University A native Kansan, Wiard attended Little River High School of Kansas and earned a B.A. in Germanic languages and lit- and earned a degree in political science at Washburn Univer- eratures. She has lived her entire life in Kansas sity. After graduation, he will work as a research except for a year of study abroad in Germany. attorney for the Hon. David E. Bruns on the She will clerk for a federal magistrate judge for Kansas Court of Appeals. He is currently the two years and then plans to practice in Kansas. Notes Editor of the Washburn Law Journal and She and her law school partner will be represent- works as a law clerk for the Kansas Department ing KU at the Pace National Environmental Law of Labor. He has previously worked as an extern Moot Court Competition in late February 2014. When she is for the Hon. David J. Waxse and was a Member of Parliament not busy with law school, she spends time rowing and coach- research assistant in London for Rob Wilson MP. ing the KU Crew team. 10 The Journal of the Kansas Bar Association kansas bar foundation
“Thank you to the Kansas Bar Foundation Thomas Hiatt, University of Kansas School of for its support of my legal education. I am hon- Law ored to receive the John E. Shamberg Memorial A fourth generation Kansan, Hiatt intends to Scholarship. Like Mr. Shamberg, I hope to serve practice law in Johnson County. He values the the people of my state, particularly those who Kansas work ethic and has worked cannot afford legal representation.” various jobs, including as an assis- Hinkle Law Firm Student Scholarship tant manager for the Shawnee Mis- ... serving the citizens of Kansas and the sion Park Marina and as a resident legal profession through funding chari- table and educational projects that foster This scholarship shall be given to a law student assistant for KU Student Housing/ the welfare, honor, and integrity of the at the University of Kansas School of Law or residence halls. He has also given legal system by improving its accessibility, Washburn University School of Law. Applicants equality, and uniformity, and by enhanc- time to help others by volunteering at a food ing public opinion of the role of lawyers should demonstrate a bona fide intention to pantry, participating in Relay for Life, and or- in our society. practice law in Kansas. Because community ser- ganizing various events and community service OFFICERS vice is extremely important to Hinkle Law Firm activities for Phi Alpha Delta at KU. LLC, applicants must also demonstrate a history Katherine L. Kirk Lawrence “As a proud Kansan and a future member of President of community involvement to be considered. the Kansas Bar, I am honored to have received the [email protected] Kayla Lynn Roehler, Washburn University Lathrop & Gage Scholarship Award. Being a law- Edward J. Nazar Wichita yer is so much more than just doing your job; it is President-elect School of Law [email protected] A Washburn Rural High School and Kansas about being an upstanding member of the com- Laura L. Ice Wichita State University graduate, Roehler intends to munity and giving back. When our communities Secretary-Treasurer remain in Kansas to practice law. are strengthened, we all are strengthened, and I [email protected] look forward to contributing to the work the Kan- Joni J. Franklin Wichita She is considering practicing in Immediate Past President the areas of criminal law or medi- sas Bar Foundation is doing to help those in need.” [email protected] cal malpractice. She plans to intern Frank C. and Jeanne M. Norton BOARD OF TRUSTEES with the Shawnee County District Scholarship Award John C. Brown Hays Attorney’s Office during the sum- Amy Fellows Cline Wichita This scholarship is available exclusively to Melissa R. Doeblin Topeka mer of 2014. Roehler has served as a volunteer Gregory P. Goheen Kansas City, Kan. for several organizations, including Girl Scouts Washburn University School of Law students in James L. Hargrove El Dorado of America, cancer awareness programs, and their second or third year of study who are not Scott M. Hill Wichita receiving any other scholarship support. Aaron L. Kite Dodge City disability awareness programs. Charles D. Lee Hutchinson “I would like to thank the Kansas Bar Foun- Aaron Othmer, Washburn University School Kurtis I. Loy Pittsburg Amy E. Morgan Overland Park dation for selecting me to receive the Hinkle of Law David H. Moses Wichita Scholarship. Working to help the community A graduate of Shawnee Heights High School C. David Newbery Topeka Susan G. Saidian Wichita has always been important to me and my fam- and the University of Kansas, Othmer plans to Todd N. Thompson Lawrence ily; my earliest memories are community service use his environmental studies de- Kenneth W. Wasserman Salina projects with the Girl Scouts and Boy Scouts. gree and his law degree to work on Hon. Evelyn Z. Wilson Topeka I plan to continue working in the community land and environmental issues in Brooks G. Severson Wichita after graduation. A major goal of mine is to help Kansas and surrounding areas. He Young Lawyers Representative Margaret A. Farley Lawrence find the cure to pancreatic cancer by 2020. Pan- plans to participate in several of the Kansas Association for Justice creatic cancer is the fourth deadliest cancer with programs offered by Washburn’s Representative Patrice Petersen-Klein Topeka a life span of less than five years after diagnosis. I Oil and Gas Law Center. Kansas Women Attorneys also plan to stay involved with the Race Against “I would like to thank the Kansas Bar As- Association Representative Breast Cancer. I plan to continue running the sociation for choosing me to receive the Frank Nathan D. Leadstrom Topeka Kansas Association of Defense race and raise funds to provide no-cost mam- Norton Scholarship. Receiving this scholarship Counsel Representative mograms to men and women of Shawnee and symbolizes the hard work I put in over the last Sara S. Beezley Girard Kansas Bar Association the six surrounding counties. I would like to, few years and will provide incentive to continue Representative again, thank the Kansas Bar Foundation for this my role as a contributing citizen to the sur- Bruce W. Kent Manhattan Kansas Bar Association honor.” rounding community.” Representative Lathrop & Gage Student Scholarship The scholarship recipients were recognized Timothy M. O’Brien Kansas City, Kan. in February at the Court Appreciation Din- Kansas Bar Association Award Representative ner. In addition, they had the opportunity to This scholarship shall be given to a law stu- meet members of the families of the donors EXECUTIVE DIRECTOR Jordan E. Yochim Topeka dent at the University of Kansas School of Law who established the scholarships. Contact Anne [email protected] or Washburn University School of Law. Appli- Woods, KBA public services manager, if you cants should demonstrate a bona fide intention would like additional information about estab- MANAGER, PUBLIC SERVICES Anne Woods Topeka to practice law in Kansas. Applicants must dem- lishing a KBF scholarship fund or contributing [email protected] onstrate a history of community involvement to to an existing fund at [email protected] or at be considered. (785) 234-5696. n www.ksbar.org | February 2014 11 kansas lawyers assistance program Because I Said I Would f you made any New Year’s resolutions, this is likely crunch So this is where New Year’s resolutions, the bisiw organi- time: some of us are keeping them but most of us have zation and the Pillars of Professionalism intersect. If we do Islacked off and many of us are probably feeling guilty something because we said we would and honor our commit- about that. ment, we both keep our resolution and act in accordance with Last fall I traveled literally from Atlantic to Pacific – four our best legal traditions. trips by air, two to California, one to Chicago, and one to Now, here’s a riff on keeping our resolutions. You’ve prob- Maine. Lots of time to read Spirit, Southwest Airlines maga- ably heard or read that many people make too many or too zine. And I came across an article about Alex Sheen, a guy broad or too vague resolutions, which often leads to the lack of who started a movement and a nonprofit called “Because I follow through. And then we feel guilty and berate ourselves said I would.” His father died and as he thought about his life, and what began as a hopeful and positive enterprise degener- the one thing that stood out was that his dad had always kept ates into negativity and despondency. Remember, the quote his word. He decided he would honor his father by advocating from the bisiw organization at the beginning of this article for that behavior. spoke about “promises both big and small.” So start small, just like your fitness coach tells you about your training – don’t But what my dad did do was keep a promise. If he begin by running 5 miles; start by walking 1 mile and build said he was going to do it, it would certainly be done. up from there. The more you do it, the better you feel and the Too often we make promises, little and big, that we more confidence you gain. BUT you still have to do it. The do not honor. It becomes easy to say “I’ll get to it” doing of it is as important as the what it is you are doing. or “tomorrow.” I want to remember my Dad and the We usually ask lawyers who work with KALAP to sign a promises he kept. I want to help others remember their short contract that sets out some goals and behaviors needed commitments. (http://becauseisaidiwould.com) for growth. I explain that the purpose of the contract is two- fold: to establish expectations and to build a record of compli- Because The website, http://becauseisaidiwould.com, says: “ ance. There is something about putting a promise in writing I said I would is a social movement and nonprofit organiza- that can be solemn and motivating. Of course the other thing tion dedicated to bettering humanity through the power of a is, one needs to believe that what he/she is promising to do is promise. To encourage positive change and acts of kindness, desirable and beneficial. There would be no point in promis- we send ‘promise cards’ to anywhere in the world at no cost. ing to do something harmful, or even something you’re going People use these cards to remember the importance of their to do anyway. No, it ought to be some niggling little some- word, for promises both big and small.” thing that you’ve been avoiding, or remiss about doing. Some- The movement had gotten some publicity earlier in 2013 thing that will make you feel better when you do it and that is when Matthew Cordle, a young man who had killed someone accomplished fairly easily and for a finite time. It may sound in a drunken driving accident, made a video confession re- wonderful and romantic to say you will love your spouse for- corded and promulgated by bisiw. He said his confession was ever, or even that you will always be completely candid with motivated in part by the bisiw web site and its goal of keeping your colleagues or clients. But “forever” and “completely” can a promise. become something between inconvenient and impossible over Lawyers, as members of a profession, take special care to time. And of course there’s that Alcoholics Anonymous slogan keep their word. The KBA Pillars of Professionalism introduc- “One Day at a Time” to keep in mind. So maybe today I say tion says: Admission to practice law in Kansas carries with it “Tomorrow I will (select one – and only one) 1) Meditate for not only the ethical requirements found in the Kansas Rules 10 minutes; 2) Exercise or stretch for 10 minutes; 3) Call Mr. of Professional Conduct, but also a duty of professionalism or Ms. Doe and follow up on that case; 4) Spend 5 minutes “. . . Kansas lawyers have a duty to perform their work pro- giving my full attention to my child, my spouse, or my client; fessionally by behaving in a manner that reflects the best le- 5) . . .” – well, you get the idea so pick your own promise. Just gal traditions, with civility, courtesy, and consideration. Act- keep it. n ing in such a manner helps lawyers preserve the public trust that lawyers guard and protect the role of justice in our so- About the Author ciety . . .” These Pillars should guide lawyers in striving for professionalism. Anne McDonald was appointed to the Lawyers While our conduct as lawyers is guided by the Code of Pro- Assistance Program Commission since its inception fessional Responsibility, our reputation is an important part in 2001 and has served as the Executive Director of KALAP since 2009. She graduated from the Univer- of our practice and involves behavior beyond the baseline of sity of Kansas School of Law in 1982. the Code. One component of our reputation is whether we are known for keeping our word. Being trusted is part of our [email protected] “best legal traditions.”
12 The Journal of the Kansas Bar Association the diversity corner The Association for Legal Career Professionals 2013 Review of Law Firm Diversity ALP, or the Association for Legal Career Professionals, Associates is a legal association that provides career counseling and planning, recruitment and professional develop- NALP found that representation of women associates had N decreased for the fourth year in a row, though minority as- ment for lawyers, law schools, law students, and law offices worldwide. The association reviews law firm demographics to sociate representation demonstrated improvement for the last understand the extent of women associate and minority as- three years. The association began gathering this statistical in- sociate representation across the United States.1 formation in 1993, and has recognized an increase in women In late December 2013, NALP published its statistical find- associate law firm representation from 38.99 percent in 1993 ings and demographic analysis of both women and minor- to 45.66 percent in 2009. Minority associate percentages ity associate representation. Since I was unfamiliar with the documented a gain over this same period, from 8.36 percent breakdown of minority and women representation nationally, to 20.93 percent. The recession’s blow to the legal profession I thought that members of the bar would be interested in a explained a dip in both women and minority associate repre- summary of NALP’s findings. sentation in 2009, but only minority representation has been able to bounce back. Partners Summer Associates NALP’s recent review of women and minority partners in law firms nationwide discovered a small increase in represen- Since 2000, the percentage of minority law school graduates tation over the past year. For the majority of the 21 years that has ranged from 20 percent to 24 percent and the percentage NALP has been gathering law firm demographic information, of women law school graduates has ranged from 46 percent the association has recognized a slow but steady trend in firm to 49 percent of graduates, according to the American Bar representation of women and minorities, both as partners and Association. In 2013, women accounted for 45.32 percent of associates. In 2013, minorities represented 7.10 percent of summer associates, minorities amounted for 29.51 percent of all partners in major firms, while women represented 20.22 summer associates (of this percentage, 15.75 percent of sum- percent. mer associates were minority women). Overall, there has been In NALP’s 2013 annual report of law firm demographics, a slight decrease in the representation of women summer as- the association has also reviewed the figures of minority and sociates and a slight increase in representation of minority women attorney representation by geographic region. Specifi- women summer associates. Figures for minority summer as- cally, the association has analyzed 40 cities with the most law- sociates have demonstrated the most improvement, increasing yers represented in their annual directory of legal employer almost 5.5 percent since 2009. n data, the 2013-2014 NALP Directory of Legal Employers, find- ing that there is significant geographic variation of minority About the Author women partner representation. Firms in Miami reported the Katherine Lee McBride is an assistant revisor of highest minority women partner representation, at 9.16 per- statutes for the Office of Revisor of Statutes and cent, while eight other cities (including Kansas City, Mo.) a member of the KBA Diversity Committee. She reported less than 1 percent of minority women partner rep- received her J.D. from Washburn University School resentation. of Law in 2010 and her LL.M. in elder law from the University of Kansas School of Law in 2012. The cities of Los Angeles and San Francisco demonstrated the highest representation of women, minorities, and mi- [email protected] nority women. Smaller cities, such as Austin, San Jose, and Orange County, exceeded the national average of minority associate representation. However, cities such as Charlotte, Nashville, and Kansas City were below average on most or all diversity measures. In Kansas City, out of the 886 total partners, only 19.64 percent were women, 3.05 percent mi- nority, and 0.79 percent minority women. Out of 426 Kansas City associates, women represented 42.96 percent, minorities represented 13.62 percent and minority women represented 6.34 percent.2
Footnotes Women and Minority Partners Continue to Make Small Gains (December 1. All information contained in this article derives from NALP research 11, 2013), available at http://www.nalp.org/lawfirmdiversity_2013. and statistical analysis, which can be found at The Association for Legal 2. NALP’s research indicates that these figures for Kansas City, Mo., Career Professionals (NALP), Representation of Women Associates Falls were based on a total of nine offices. for Fourth Straight Year as Minority Associates Continue to Make Gains – www.ksbar.org | February 2014 13 a nostalgic touch of humor B-4-I-Die: My Short List Editor’s note: This month’s column was originally published in February 2006.
ast month I was driving to work and was listening to sports the benefits of digital enhancements. I want to win a pro bono radio. As the jocks were babbling about the porous Chiefs’ case and have all my fees awarded with some additional pre- Ldefense, I started to channel surf. Eventually I ended up mium added for “superior service.” B-4-I-Die, I want to free at National Public Radio. And what I heard there captured an innocent man. To have a client pay me before my bill is sent my attention for a bit. enclosing a letter using I caught the start of a the kind of praise you story about a new ad- consider framing. vertising campaign for My list continued Alaska tourism featur- to grow. B-4-I-Die, I ing billboards with the would love to get off slogan “B-4-U-DIE”— a plane and have my or “before you die.” The entire family greet me point is to enlist senior there, with balloons or citizens to head to Alas- something nice, like ka before their name I see all the time with appears in the obitu- other passengers on my ary section. I started to business trips. think about that notion There are some things as I dodged cars on I-35. At first it sounded pretty stupid, but outside the practice I would like to do. To live long enough as I continued my 30-minute commute to work, I concluded it to see my children marry. To see the sunrise in the Flint Hills. wasn’t a silly notion after all. To get pulled over while speeding on Highway 56 and have I decided that maybe there were some things I wanted to do the policeman say something like this: “Hey, aren’t you that as a lawyer before I die. And in no time, my list began. And guy who writes for the KBA Journal? You are probably trying between 95th Street and 63rd, it had grown long. So here it is. to make your deadline. Just count this as a warning. Have a B-4-I-Die, I want to pick a jury and take a verdict in the nice day.” I’d love to see one of my sons sworn into the U.S. Barton County courthouse where my dad was once the Supreme Court, as I did with my dad last summer. county attorney. In that trial, I want my local counsel to be And as I parked my car, one other thought came to mind. my two brothers, Tim and Marty, who live in Great Bend. It would be cool to have an adversary write me a letter and say After that trial is over, I want to drive to Chase County and something nice about me with the punch line “You remind do an opening statement in the courthouse at Cottonwood me of your father.” Falls. I would even settle for a pretrial conference there. There And once I accomplished all the above, then maybe a trip to are a couple other spectacular courthouses I would love to Alaska might make my list. n visit on official business. Like the courthouses in Kingman, Russell, Thomas, and Harper counties. I want to finish a jury About the Author trial and have the jury foreman ask me for my business card. That would be cool. Matthew Keenan has practiced with Shook, Hardy B-4-I-Die, I want to use my e-mail to tell a billion Black- & Bacon LLP, Kansas City, Mo., since 1985. berry users that “I’m waiting on a jury verdict right now, so I [email protected] can’t respond to your messages anytime soon.” I want to be on the proverbial “short list” for an appointment to a judgeship to federal or state court with an accompanying photo that shows
14 The Journal of the Kansas Bar Association law practice management tips & tricks Time Mastery for Lawyers oor planning and the unexpected caught me short an The first three or four hours are spent in various exercises hour of CLE in 2013 for my Nebraska license. Time that build on specific points of the 20-point quiz. How much Phad run out and I was desperate in the last weeks of of our time is spent managing versus doing? Where does my the reporting period. Fortunately, Kathryn Bellman, program time go in a typical day? What do I want to achieve profes- coordinator for the Nebraska State Bar, has an ornery sense sionally? How do my professional achievements serve my per- of humor and was willing to use it for a subtle jab at procras- sonal goals? By lunchtime, attendees have pretty decent out- tinating attorneys. The barnburner, six-and-a-half hour CLE lines of goals and some very specific, measurable action steps complete with two full ethics hours in the last full week of to achieve them. This process is solidified and strengthened the reporting period was Time Mastery for Lawyers: Over 100 by working with an “accountability buddy.” As you do the Ways to Maximize Your Productivity and Satisfaction by Frank exercises, you also collaborate with a partner at the seminar to Sanitate. How appropriate. hone each other’s priorities and assessment method. Sanitate Frank Sanitate Associates also asks for a four-week, post-seminar commitment. I have my buddy’s cell number and he has mine and we scheduled Mr. Sanitate presides over his firm in Santa Barbara focused check-up appointments to report on our progress toward goal. on presenting “transformational workshops for professionals.” I was a bit cynical about this part but surprised how seriously In other words, Sanitate’s company helps professionals buckle my colleagues took the assignment. down and learn to discipline our behavior in a wide range Once our deeply personal goals for our professional life are of areas. Frank Sanitate Associates’ schedule for 2014 shows established, the seminar transitions into training on actual seminars on finances (Re-building a Successful Retirement), techniques for time mastery. The program promises more than productivity (The Virtual Office), conflict resolution (Dealing 100 tips and tricks to maximize productivity and the last page with Difficult People), and practice management (Managing of the workbook is a checklist of each of those tips. As the sem- People, Performance and Pressure). Nine different presenters, inar progresses, Sanitate refers to that page and asks attendees including Sanitate, present the CLEs in-person, via webinar, to mark any we believe apply or which we would be willing to or by DVD for groups and firms. Six hours of instruction on attempt. Some of the specific helps for email include: DVD runs about $199. The in-person training in Nebraska was $295. The full schedule with presenter biographies and • Set all out-bound email to deliver at 5:15 PM. This curricula are at franksanitate.com. helps protect against being caught unexpectedly in The CLE day-long email conversations. The program is quite detailed as you would imagine from • If an item in your inbox can or will be dealt with at a the time involved. The objectives, however, necessitate the later date, forward it to yourself but set delivery time time commitment: to that future date. • Turn off email and declare an email “holiday” with • Eliminate time stress an auto-response that “Your mail will be received and • Get over 100 practical ideas addressed tomorrow.” • Create a balance between your work life and personal life Resolution • Increase your productivity and satisfaction Similar tips and tricks accumulate for virtually all areas of The program is not a lecture. Materials include a well-de- practice management. There are sections for phone manage- signed, 26-page workbook and it turns out to be a lot of work ment, controlling interruptions, clearing and organizing your to complete it. Time Mastery for Lawyers is what I would call a desk, running efficient meetings, and pausing for well-being Steven Covey approach – it focuses on your personal aspirations to name a few. The list is daunting and could easily turn into and motives first and then builds a practical framework designed a checklist of all you do wrong if not for Sanitate’s careful to make achievement of those aspirations more possible. This is guidance through selecting small steps and setting small goals. a different approach from something like Getting Things Done Sanitate’s former life as a monk comes out as he teaches “line or Pomodoro Technique (both discussed here in prior articles) upon line, precept upon precept” as the path to improvement. that are time management techniques that can be divorced from By the end of the day, I was exhausted from the introspection any grander understanding of our motives and values. but energized by the prospects. n The day begins with self-examination and introspection. A 20-point quiz is provided at the outset examining our impres- About the Author sions of how we use and manage our time. The competitive Larry N. Zimmerman is a partner at Zimmerman among us were not provided any explanation of what a pass- & Zimmerman P.A. in Topeka and an adjunct ing grade would be but the 75-member audience was polled professory teaching law and technology at so we saw how we stacked up to those in the room. I think Washburn University School of Law. He is one of the best use of this quiz would involve asking staff or partners the founding members of the KBA Law Practice to provide a second opinion to check that our “introspection Management Section. meter” is correctly engaged. [email protected]
www.ksbar.org | February 2014 15 substance & style Comes Now Must Go Now Have you recently read a document that begins like this? Plaintiffs, TSC Operating Limited Partnership and Lit- tus LLC, respond as follows to Defendant Henry Hine- COMES NOW the Plaintiffs, TSC Operating Limited man’s motion for stay pending appeal: Partnership (hereinafter “TSC”) and Littus LLC (“Lit- tus”), by and through their attorneys of record and file The evidence also suggests that judges like introductions this, TSC and Littus’s Response of TSC Operating Lim- that provide a roadmap for an argument and sentences that ited Partnership and Littus, LLC to Motion of Henry directly state the inference the writer wants the reader to draw. H. Hineman for Stay Pending Appeal and would re- Judges do not favor long sentences with lots of commas and spectfully show to the court as follows:1 clauses; a relatively simple sentence structure works well. You can see this by comparing the two introductions in the study Have you asked yourself why lawyers still include “COMES samples, which are set out below. Judges strongly favored the NOW,” or why we can’t let go of repetitive phrases like “by plain language version: and through”? Why do we hold on to this language? I don’t know why we do it. We have read articles and at- Legalese: Defendant Hineman is attempting to stay tended CLE sessions telling us that plain language is best, and the force and effect of the remand orders entered by we all nod in agreement. I suspect, though, that when it comes this court on February 25, 2004 (hereinafter the “Re- to documents we file with the court, we hesitate to change be- mand Orders”) under Federal Rule of Bankruptcy Pro- cause we worry that judges still prefer a more formalistic style, cedure 8005 governing stays pending appeal because especially in the opening paragraphs of our submissions. he believes that he will likely succeed on appeal to the An empirical study designed to test whether judges want District Court. Hineman, unlikely to prevail on appeal, to see this formalistic style confirms that they do not. The cannot meet Rule 8005’s threshold inquiry which is a study confirms that most judges do not prefer the legalese- “strong showing” of the likelihood of success, and is, laden writing style in the above paragraph but rather prefer a thus, incorrect in his analysis under Rule 8005. Fur- plain language style.2 thermore, Hineman cannot make appropriate showings In the study, judges were shown sample documents that on the other three inquiries under the Rule: whether were written in different writing styles but contained the same appellant will suffer irreparable injury absent a stay; substantive law and arguments.3 The above paragraph opened whether a stay would substantially harm other parties the writing sample in the “legalese” style. A different sample, in the litigation; and whether a stay is in the public in- the “plain language” sample, incorporated the hallmarks of terest. Hineman fails on all counts, and the request for the plain language style: It avoided legalese, had fewer unnec- stay must be denied. essary words, avoided sentences that contain multiple ideas, used shorter sentences (an average of 17.8 words as opposed Plain language: Hineman seeks to stay the effect of the to 25.2 in the legalese sample), and had topic or thesis sen- remand orders this court entered on February 25, 2004. tences that more clearly identified each paragraph’s purpose.4 Hineman is incorrect, however, in his analysis under Judges preferred plain language to legalese 66 percent to 34 Rule 8005, and he is unlikely to prevail on appeal for percent.5 Whether a judge practiced in a rural or urban area four reasons: had no correlation with whether she preferred plain language. A judge’s age or gender also had no correlation. State and fed- 1. He has not met and cannot meet the “strong show- eral judges preferred plain language at about the same rate, ing” of likely success threshold required under and so did trial and appellate judges.6 Rule 8005; Perhaps this empirical evidence will persuade those who still 2. He cannot show that he will suffer irreparable in- resist to give their form pleadings and motions a modern edit. jury absent a stay; This empirical evidence suggests that most judges would wel- 3. A stay could substantially harm other parties in the come an opening paragraph that banishes “COMES NOW” litigation; and and reads more like this:7 4. He cannot show that a stay is in the public interest.
Footnotes 5. Id. at 199. 1. This is the opening paragraph of one of the writing samples used in 6. Id. the empirical study I refer to in this column. Sean Flammer, a trial attorney 7. At least one judge has ordered a party to give its brief a plain language in a Texas law firm, conducted the study and published an article explain- edit. In an order denying plaintiffs leave to exceed the brief page limit, ing his methodology and results. See Sean Flammer, Persuading Judges: An a Florida judge required plaintiffs to edit their brief to “eliminat[e] re- Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, dundancy, verbosity, and legalisms.” Belli v. Hedden Enters., No. 8:12-CV- 16 J. Legal Writing Inst. 183 (2010). This paragraph is an excerpt from 1001-T-23MAP, 2012 WL 3255086, at *1 (M.D. Fla. Aug. 7, 2012). To an original court filing. Id. at 193. You can find a copy of the samples in provide plaintiffs an example of the possibilities for reducing the brief’s their entirety in Mr. Flammer’s article. See id. at 213-19. size and improving clarity, the judge actually edited the brief’s introduc- 2. Id. at 199, 211-12. tory paragraph. Id. The judge’s order was republished in a legal writing 3. Id. at 193. column in the Michigan Bar Journal, which you can access at http://www. 4. Id. at 193-95, 216-17. michbar.org/journal/pdf/pdf4article2139.pdf.
16 The Journal of the Kansas Bar Association substance & style
So what about the 34 percent? That puzzled me as well. About the Author I have trouble understanding why 34 percent of judges pre- ferred a legalese style. I simply do not see how it can be more Pamela Keller is a clinical associate professor and the Schroeder Teaching Professor at the University effective than what seems to me clearer prose. I suppose if of Kansas School of Law. Keller also directs you know the judge deciding your case likes a legalese style, a the lawyering skills program and the judicial modern edit is unnecessary. If not, I would go with the odds clerkship program. Before teaching, she practiced and write in the plain language style that the majority of judg- employment law with Ice Miller in Indianapolis and es prefer. I suspect that if more lawyers filed documents in a clerked for the Hon. John W. Lungstrum. plain language style, we would likely convince that 34 percent [email protected] to jump on our plain language bandwagon. The next time you file a motion, give it a modern edit. Give it the hallmarks of the plain language style:
• Reader friendly, but not informal In a future column, we would like to answer your legal • Use of roadmaps and thesis sentences writing questions. Email questions to [email protected] • Clear assertions (sentences directly state the inference with the subject line SUBSTANCE & STYLE. You can the writer wants the reader to draw) also mail your questions to Pam Keller, University of • Shorter sentences and paragraphs Kansas School of Law, 1535 W. 15th St., Lawrence, KS • Simpler sentence structures 66045. • No legalese n
www.ksbar.org | February 2014 17 risk management Succession Planning Really Isn’t Optional (Particularly for the Solo Attorney) t ALPS, be it from RISC visits, on applications for in- The most important aspect of planning for your death or surance, or at CLE events, we continue to find that disability is in the designation of an attorney who will be re- Aa significant number of solo practitioners have yet to sponsible for administering the winding down of your prac- take the step of creating a succession plan. When working tice. This attorney should be competent, experienced, and with these attorneys our message is always the same, if no someone who displays the utmost professionalism. This per- plan is in place, now is the time. You really don’t want to leave son should have the time, or the ability to make the time, the headache of having to deal with stacks of closed files to to come into the practice. She must be able to make rapid an unsuspecting non-lawyer spouse, and yes, such calls con- decisions and assume, at least for a period of time, something tinue to come in. Always remember that someone paid for the of an additional practice. Now remember that the purpose production of every file you have in your possession and that of the designated attorney is not to come in and take over someone has an interest in their file. We all know that client the practice but rather to take the lead in winding down the property cannot be destroyed whenever an attorney feels like practice. It’s about being expeditious with file review, client doing so; but of course, non-lawyer spouses aren’t bound by notification, protective action, and transitioning files to other our rules, and it happens because they don’t know what else to attorneys. Perhaps these responsibilities could even be shared do. Heaven forbid that post attorney death and after a griev- among a select group if time constraints are a concern. Ob- ing spouse has had all the old files destroyed, a certain file viously, the designated attorney ought to be someone quite is needed to properly defend against a claim of malpractice. familiar with your practice areas and also not likely to have a Making matters worse, it turns out that there is no insurance significant number of conflict concerns arise as a result of ever in place to cover the fallout of the claim because no one knew having to step in. Finally don’t overlook the importance of they had to timely contact the malpractice carrier in order to making certain that appropriate employees are aware of who purchase tail coverage after the attorney passed. The end result the designated attorney is and how to contact that individual is that the deceased attorney’s estate may now not be what ev- in an emergency. One added benefit of choosing a designated eryone was counting on it being. The failure to plan can end attorney (and often this is a reciprocal designation) is that the badly; but wait, there’s even more. individual can also act as your backup attorney thereby allow- Rule 1.3 of the ABA Model Rules of Professional Conduct ing you to take extended absences from your office for work, addresses diligence. The Rule reads, “A lawyer shall act with pleasure, or health reasons. reasonable diligence and promptness in representing a cli- Beyond designating an attorney, there are a number of other ent.” Most attorneys, if not all, are well aware of this rule. things that should be done with your practice if they are not As lawyers, we are to act with commitment, dedication, and already taken care of. Consider providing notice of the exis- where appropriate even zealous advocacy. Our workloads are tence of and reason for a designated attorney in your fee agree- to be reasonable so that all matters can be resolved compe- ments so that clients are aware of the steps you have taken to tently. Procrastination is an enemy to be avoided at all costs; protect their interests in the event of an emergency. Maintain for it has and will continue to lead to malpractice claims if and a current office procedures manual that discusses the calendar- when clients are ever harmed as a result. In the end we are all ing system, conflict system, active file list, open and closed file to strive to deliver our services in a professional, competent systems, accounting system, and any other key system as this and timely fashion. Yet our obligations do not end here. There can be valuable in expeditiously bringing the designated attor- is an obligation to prevent neglect of a client matter post at- ney up to speed on how your practice is run. It is imperative torney death or disability. that critical systems such as the calendar and conflict systems In 2002 the comments to ABA Model Rule 1.3 were amend- be kept current at all times and make certain that all files are ed with the following language. Comment 5 now states, thoroughly documented. The designated attorney will need to review all client files as quickly as possible in order to make To prevent neglect of client matters in the event of a sole a determination whether any immediate protective action is practitioner’s death or disability, the duty of diligence necessary. Mistakes can and will be made with poorly docu- may require that each sole practitioner prepare a plan, mented files. Finally, write a letter for the designated attorney in conformity with applicable rules, that designates an- that details duties for all employees; includes passwords for other competent lawyer to review client files, notify each and instructions on the use of the computer system; provides client of the lawyer’s death or disability, and determine if financial details, such as location and account numbers for all there is a need for immediate protective action. bank accounts, particularly client trust accounts; and contact information for all staff and principal vendors such as banks, Given all that I have seen and experienced over my years with insurance companies, utility companies, and the landlord. In ALPS, I personally have trouble coming up with a set of cir- short, think about what you would need to know if you were cumstances where I would feel comfortable saying no such the person coming in to wind down your practice and capture plan would be required for a solo. The only question for me that intellectual capital in a way that will be useful to the des- is how to get there. ignated attorney. 18 The Journal of the Kansas Bar Association risk management
If you feel that you need assistance in developing a plan for your death or disability, the Oregon State Bar Profes- sional Liability Fund has published a handbook with related forms that can be of real help. This handbook, available to out-of-state lawyers at a reasonable price, will also provide significant help to the designated attorney should his or her services ever be needed. In this book, titled, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death,” you will find items such as a checklist for closing another attorney’s office, a sample notice of designated assisting attorney, sample letters to cli- ents, a sample authorization for the transfer of a client file, and much more. Also be aware that a few useful resources based on the materials in this Oregon guide are available on the websites of a number of state bars. Finally, the ABA has published a similar resource titled, “Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events,” that might be of use as well. n
About the Author
Mark Bassingthwaighte, Esq., has conducted more than 1,000 law firm risk management assessment visits, presented numerous CLE seminars throughout the United States, and written extensively on risk management and technology.
www.ksbar.org | February 2014 19 book review Recommended Reading for Your Next Appeal here is no substitute for experience, but the next best thing might be the guidance of someone who has it. At- The Appellate Practice Compendium Ttorneys venturing into any appellate court in the coun- Edited by Dana C. Livingston try without the former can benefit from a generous helping of Pages: 1,458 the latter in The Appellate Practice Compendium, a publication Regular Price: $199.95 of the American Bar Association’s Council of Appellate Law- yers. The Compendium is a practitioner’s guide to the rules Order online at http://apps.americanbar.org/abastore/ and customs of each state and federal appellate court in the country, each chapter authored by an attorney experienced in The Compendium also serves as a handy topical reorganiza- that jurisdiction. While such a collection would be of inter- tion of the relevant Supreme Court Rules, Internal Operating est to, and appears intended for, large firms with nationwide Procedures, and other materials cited. Each chapter follows a practices, there is enough to like about the Compendium’s largely uniform, standard outline of topics of interest. Because discussion of local courts for any Kansas practitioner to con- not every jurisdiction has something noteworthy on every sider having this excellent work as a part of the library. topic, this structure sometimes produces isolated sections that The Compendium includes insights from highly experi- appear vestigial or out of place. Despite this, the overall result enced appellate attorneys from each jurisdiction. The chap- is a convenient grouping of the related rules and statutes by ter concerning Kansas ap- topic. This format spotlights the key rules on particular top- [T]he [Appellate pellate practice is authored ics and could well save a reader time looking for answers to a Practice] by a noted Kansas appellate given procedural question, for example. Compendium attorney, Steve Kerwick, of Kansas attorneys will also appreciate the Compendium’s Foulston Siefkin. Kerwick is chapter on Tenth Circuit federal practice, authored by Gregory complements the thoroughly familiar with the J. Kerwin and K. Casey Lewis, of Gibson Dunn’s Denver office. Appellate Practice Kansas appellate courts and Like the Kansas chapter, it joins a concise description of the has presented numerous cases procedural aspects of an appeal with some helpful and practical Handbook, and in them. information about the court’s practices and preferences. neither publication Like any good resource, The Compendium aims to be much more than a guide to is a substitute for the Compendium acknowl- Kansas appeals – it stands out as a collection of pointers from edges the existing, principal practically every appellate court in the country. For the Kansas the other. work in the field – specifi- content alone, however, this book is worth your attention. cally, the Kansas Appellate Practice Handbook. That publi- The Kansas chapter is representative of the remaining material cation of the Kansas Judicial Council and product of prior in terms of its quality, and it is an excellent guide. Who knows work by the Kansas Bar Association, now in its fifth edition, what jurisdiction you’ll be in when the Compendium comes is available without charge in PDF at http://www.kscourts. in handy? n org/pdf/KAPH.pdf. Whereas the Appellate Practice Hand- book is a comprehensive summary of the procedural (and About the Authors some substantive) issues likely to arise in an appeal in Kansas, the Compendium seeks to go beyond the rules and provide a Gene Balloun is a partner at Shook, Hardy & Bacon LLP and has extensive experience in the Kansas from-the-trenches view of appellate practice that is less aca- Supreme Court and Court of Appeals. demic and more hands-on. The Compendium lays out vari- ous norms and common practices, some that are grounded in the rules but bear emphasis, others that cannot be gleaned from the rules. For example, the Compendium advises that Kansas appellate practice rarely involves aggressive motion Zach Chaffee-McClure is an associate at Shook, practice. And any lawyer about to orally argue an appellate Hardy & Bacon LLP. He is a member of the firm’s Class Action and Appellate Practice groups, and he case in Kansas will be well-advised to know that the Court has argued cases in the Kansas Supreme Court and will be “hot,” will know the case, and will participate with Court of Appeals. active inquiries. In short, the Compendium complements the Appellate Practice Handbook, and neither publication is a substitute for the other.
20 The Journal of the Kansas Bar Association www.ksbar.org | February 2014 21 kba news Members in the News Changing Positions Jill Ann Renae Mitchell has joined the Of- Miscellaneous Chane C. Carpenter has joined Spirit Aero- fice of the District Attorney, 18th Judicial Polsinelli P.C. has opened an office in At- Systems, Wichita, as director of contracts. District, Wichita, as an assistant district lanta Eleven attorneys from Atlanta-based Ashley E. Dillon has joined Stinson Leon- attorney. law firm, Rafuse Hill & Hodges LLP, have Megan S. Monsour Richard C. ard Street LLP, Kansas City. Mo., as a and joined the firm. Stevens litigation associate. have joined Martin, Pringle, F. James Robinson, Wichita, received a Timothy L. Dupree has been named a dis- Oliver, Wallace & Bauer LLP, Wichita, as Distinguished Service Award by the Kan- trict court judge for Wyandotte County, partners. sas Association for Justice. Hon. Richard B. Walker Kansas City, Kan. has been reap- pointed as chief judge of the 9th Judicial Andrew T. Geren has joined DeVaughn Editor’s note: It is the policy of The Journal District, Newton. James, Wichita. of the Kansas Bar Association to include Scott E. Wasserman has been named presi- Megan L. McCann has joined Tamara L. only persons who are members of the Kansas dent/CEO of the Christian Foundation Davis P.A., Dodge City, as partner. The Bar Association in its Members in the News firm has changed its name to Davis and for Children and Aging, Lenexa. Jennifer L. Wickersham section. McCann P.A. has joined Swen- Brian L. Main, Angela M. Pate, and Katy son, Brewer& Long Chtd., Concordia, as J. Tyndell have joined Kutak Rock LLP, partner. Wichita.
Obituaries Jack E. Dalton trial law practice, The Hollis Law Firm, in 1996. He was li- censed to practice in Missouri, Kansas, Minnesota, Nebraska, Jack E. Dalton, 85, of Dodge City, died December 12, at and Iowa. Hollis was a member of the American Association Presbyterian Manor of the Plains in Dodge City. He was born for Justice. on March 18, 1928, in Sedan, the son of John W. and Frances He is survived by his wife, Gina, of the home; sons, Bruce, (Ewalt) Dalton. Mark, and Jeff, all of the home; mother and stepfather, Bar- He was raised in Sedan, graduating from Sedan High bara and Wendell Weathers, of Sikeston, Mo.; sister, Lynne School. Dalton began his college education at Baker Univer- Rhodes, of Old Saybrook, Conn.; and five nieces and neph- sity before transferring to the University of Kansas, where he ews. He was preceded in death by his father, Jerrold Hollis. received his bachelor’s degree in 1950. He then attended the University of Kansas School of Law, graduating in 1953. Charles G. Stewart Dalton was a member of the Kansas Bar Association from Charles G. Stewart, 81, of Oakley, died November 18, at 1953 until his death, and served as president from 1976-77. his home. He was born September 18, 1932, in Quinter to He was also a member of the Dodge City Chamber of Com- Ora and Anna (Cooper) Stewart. He graduated from the Uni- merce and St. Bernard Lodge of Kansas Free Masons. He also versity of Kansas School of Law in 1956 and practiced law in served in the U.S. Army during the Korean War. Grainfield, Quinter, and Oakley. Dalton is survived by his wife, Janet Lee Dalton, of the Stewart is survived by his son Kevin, of Topeka; daughter, home; daughter, Mary Schultz, of Lawrence; sons, John Shane Jana Selley, of Topeka; and grandchildren, Bryan Stewart, Bo Dalton, of Thornton, Colo., and Ross Dalton, of Atlanta; sis- Selley, and Jeremy Selley, all of Topeka, and Ashley Stewart, of ter, Helen Call, of Emporia; six grandchildren; and two great- Springfield, Mo. He was preceded in death by his parents.n grandchildren. He was preceded in death by his parents. Lee J. Hollis Lee J. Hollis, 54, of Leawood, an attorney in Kansas City, KBA CLE has Gone Green died December 23. He was born on March 8, 1959, in Cape In moving forward with an initiative to go green, KBA Girardeau, Mo., to Barbara and Jerrold Lee Hollis. He attend- CLE will start providing registrants their CLE materials in ed Cape Central High School, was named an Eagle Scout, electronic format effective January 1. Materials will be and received his undergraduate and law degrees from the sent to the email address on file with the Bar. Please make University of Missouri-Columbia, where he was a member of sure your email is updated on your profile page to ensure Sigma Chi and served on the Law Review. Before law school, receipt of materials. If you wish to still Hollis was a reporter and announcer for KFVS-TV in Cape receive a hard copy, you must mark that Girardeau, where his father worked for 40 years. on your registration, as hard copies will Hollis began practicing law in 1984 as an associate with only be available at the door for walk-in Watson, Ess, Marshall & Enggas in Kansas City. He later registrants and those who made a request. joined Sprint Corp. as a corporate attorney before starting his 22 The Journal of the Kansas Bar Association
2014 KBA Awards
he KBA Awards Committee is seeking nominations for award recipients for the 2014 KBA Awards. These awards will be presented at the KBA Annual Meeting, September 19-20, in Topeka. Below is an explanation of each award, and a nomination form can be found on the next page. The Awards Committee, chaired by Sara Beezley, of Girard, appreci- atesT your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is Friday, April 4.
Distinguished Service Award: This award recognizes an in- Pro Bono Award: This award recognizes a lawyer or law firm dividual for continuous long-standing service on behalf of the for the delivery of direct legal services, free of charge, to the legal profession or the public, rather than the successful ac- poor or, in appropriate instances, to charitable organizations complishment of a single task or service. whose primary purpose is to provide other services to the • The recipient must be a lawyer and must have made a poor. In addition to the Pro Bono Award, the KBA awards a significant contribution to the altruistic goals of the legal number of Pro Bono Certificates of Appreciation to lawyers profession or the public. who meet the following criteria: • Only one Distinguished Service Award may be given in • Lawyers who are not employed full time by an organiza- any one year. However, the award is given only in those tion that has as its primary purpose the provision of free years when it is determined that there is a worthy recipient. legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have Phil Lewis Medal of Distinction: The KBA’s Phil Lewis provided direct delivery of legal services in civil or Medal of Distinction is reserved for individuals or organiza- criminal matters to a client or client group that does not tions in Kansas who have performed outstanding and con- have the resources to employ compensated counsel; spicuous service at the state, national, or international level • Lawyers who have made a voluntary contribution of a in administration of justice, science, the arts, government, significant portion of time to providing legal services to philosophy, law, or any other field offering relief or enrich- the poor without charge; and/or ment to others. • Lawyers whose voluntary contributions have resulted in • The recipient need not be a member of the legal profession increased access to legal services on the part of low and or related to it, but the recipient’s service may include moderate income persons. responsibility and honor within the legal profession. • The award is only given in those years when it is Distinguished Government Service Award: This award rec- determined that there is a worthy recipient. ognizes a Kansas lawyer who has demonstrated an extraordi- nary commitment to government service. The recipient shall Professionalism Award: This award recognizes an individual be a Kansas lawyer, preferably a member of the KBA, who who has practiced law for 10 or more years who, by his or has demonstrated accomplishments above and beyond those her conduct, honesty, integrity, and courtesy, best exemplifies, expected from persons engaged in similar government service. represents, and encourages other lawyers to follow the highest The award shall be given only in those years when it is deter- standards of the legal profession. mined that there is a recipient worthy of such award. Outstanding Young Lawyer: This award recognizes the efforts of Courageous Attorney Award: This award recognizes a lawyer a KBA Young Lawyers Section member who has rendered merito- who has displayed exceptional courage in the face of adver- rious service to the legal profession, the community, or the KBA. sity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include Outstanding Service Awards: These awards are given for the a small town lawyer who defended a politically unpopular de- purpose of recognizing lawyers and judges for service to the fendant and lost most of his livelihood for the next 20 years, legal profession and/or the KBA and for recognizing nonlaw- an African-American criminal defense attorney who defend- yers for especially meritorious deeds or service that signifi- ed two members of the white supremacist movement, and a cantly advance the administration of justice or the goals of the small town judge who lost his position because he refused the legal profession and/or the KBA. town council’s request to meet monetary quotas on traffic of- • A total of six Outstanding Service Awards may be given fenses. This award will be given only in those years when it is in any one year. determined that there is a worthy recipient. • Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations. Diversity Award: This award recognizes a law firm; corpora- • Outstanding Service Awards may be given to recog- tion; governmental agency, department, or body; law-related nize: Law-related projects involving significant contri- organization; or other organization that has significantly ad- butions of time; • Committee or section work for the vanced diversity by its conduct, as well as by the development KBA substantially exceeding that normally expected of a and implementation of diversity policies and strategic plans, committee or section member; • Work by a public offi- which include the following criteria: cial that significantly advances the goals of the legal pro- fession or the KBA; and/or • Service to the legal profes- sion and the KBA over an extended period of time. 24 The Journal of the Kansas Bar Association • A consistent pattern of the recruitment and hiring of • Commitment to mentoring diverse attorneys, and; diverse attorneys; • Consideration and adoption of plans to continue to • The promotion of diverse attorneys; improve diversity within the law firm or organization, • The existence of overall diversity in the workplace; whereas; • Cultivating a friendly climate within a law firm or • Diversity shall be defined as differences of gender, skin organization toward diverse attorneys and others; color, religion, human perspective, as well as disablement. • Involvement of diverse members in the planning and The award will be given only in those years when it is deter- setting of policy for diversity; mined there is a worthy recipient. n
KBA Awards Nomination Form
Nominee’s Name
Please provide a detailed explanation below of why you have nominated this individual for a KBA Award. Attach additional information as needed.
q Phil Lewis Medal of Distinction q Diversity Award q Outstanding Service Award q Professionalism Award q Outstanding Young Lawyer Award q Pro Bono Award/Certificates q Distinguished Government Service Award q Courageous Attorney Award q Distinguished Service Award
Nominator’s Name Address
Phone E-mail Return Nomination Form by Friday, April 4, 2014, to: KBA Awards Committee 1200 SW Harrison St. Topeka, KS 66612-1806
www.ksbar.org | February 2014 25 State of the Judiciary 2014 Annual Report of the Chief Justice of the Kansas Supreme Court
Delivered by Chief Justice Lawton R. Nuss on Wednesday, January 22, 2014
Good afternoon. Distinguished members of the House and Sen- And operating with less authorized employees is exactly the ate, judges and justices, honored guests, and my fellow Kansans. opposite of what the weighted caseload study told us in late Many years ago I was receiving cold weather training in the 2011, when, for the first time in state history, we measured the snows at Camp Fuji in Japan. While I was there, a visiting Ma- actual workloads of all district courts in our 105 counties. The rine Corps lawyer learned that I was thinking about attending study said we needed more than those authorized. law school. So he gave me – a combat engineer – a book about On top of these reductions in our historically authorized work- an American lawyer. force, our employees have been paid below market rates. And Now there is not a lot of free time in the Marines. So I put that they have not had a pay raise since July 2008, but watched while book in the side pocket of my camouflage uniform. And I carried other groups of state employees have received raises. it with me for weeks, reading a few pages here and there. But: I am pleased to report that within the past hour, the I still have that book. It has been snowed on in Japan, frozen House of Representatives passed legislation granting our employ- shut in Korea, and soaked in the jungles of the Philippines. Al- ees a 2% pay raise. That legislation should be on its way to the though its pages are falling out, I would like to read something Governor. Please join me in thanking the Legislature for passing from it that made a lasting impression on me so long ago. As this legislation. background, you should know this American lawyer had a case That gives us a big step toward equity with the Executive in France: Branch employees – who two years ago received their own pay increase to progress toward meeting market levels. “When we landed in Paris, we were met by a French avo- But our employees are still understaffed. They handled more than cat, a man I had asked to join the case because he knew 400,000 new cases filed last fiscal year, as well as many older ones. his way around the Paris courts: ‘We can’t lose,’ he told me Now, some may say justice is not in any jeopardy because the proudly after we had gotten into his car. ‘I have given the reduced number of employees have handled the workload the judge one hundred thousand francs.’ last four years. But let’s take a closer look. The Judicial Branch is blessed with hundreds of dedicated em- “That gave me some pause. It wasn’t quite the way we did ployees and judges. And because of their dedication and profes- legal business in California. ‘Uhh,’ I said, ‘what about the sionalism, we have kept the courts running as best we can. other side? What did the other side give him?’ But even dedicated employees reach their limit when there is “My colleague was shocked. ‘Mr. Belli,’ he cooed, ‘we are no relief in sight. Some of our longtime employees have left for dealing with a respectable judge. He is a man of honor. He work in the private sector, many because they did not like the would not think of taking from both sides.’” constant stress created by years of understaffing. And some of them have left to work, ironically, for other We chuckle, and perhaps even laugh. Because that is certainly branches of state government where their duties were compa- not the way judges decide cases in Kansas. We do not take any rable but the paycheck more certain. As one such employee put money from either side. it last October in her letter of resignation, “As you know, my cur- Nor do we decide cases based on money’s distant cousins: rent position offers a strong likelihood of furloughs.” threats and other pressures. Instead, we carry on the tradition The departure of these experienced and well-trained employees established by the judges who served this area in the 1850’s when puts additional strain on those who remain because the vacancies it was simply the territory of Kansas. are not filled. Or if filled, filled by new employees who are not Instead of deciding cases by money or pressure, what we do? trained and who cannot have formed the good judgment that We fairly and impartially apply the law to the facts. Because we comes only from experience. all believe in the words inscribed on the U.S. Supreme Court In the military, that would be like having senior sergeants leave building in Washington D.C.: equal justice under law. Because the weapons groups they had led for years and then telling new for more than 150 years Kansans have deserved no less. enlistees to fill the mature leadership roles – enlistees who then And we try to keep in mind the pledge of allegiance that virtu- ask, “What’s a machine gun?” Simply put, units without experi- ally everyone in this room took at one time or another – the one enced leaders cannot be efficient – or very effective. that ends with “and liberty and justice for all.” Others have compared our situation to eating at a restaurant But justice in Kansas is in some jeopardy. Since 2010, the where you wait 20 minutes for the server to come to your table, Kansas Judicial Branch has been required to maintain at least 80 then wait 10 more minutes for your water glasses to be filled, vacancies in our authorized workforce of 1600 employees. That then wait one hour for your meal to be served. And when it ar- computes to roughly a 5% loss of employees. rives, it is underseasoned.
26 The Journal of the Kansas Bar Association State of the Judiciary
You are rightfully upset at the slow service and the meal’s fla- ployee or officer – including most of the people in this room – is vor. But what you do not know is that because of staffing short- required by law to take an oath. ages, the waiter has the responsibility for 50 tables. And only one And lest you think I only read paperbacks, let me read from cook is preparing all the meals. Yet they are doing their best. the original volume – a statute passed by the Kansas Legislature You may choose to never go back to that particular restaurant. in 1868 – that sets out this oath: But you only have one court system in Kansas. And as much as I personally love eating, I think you will agree with me. The service “I do solemnly swear that I will support the constitution of you receive in our courts is more important than the service you the United States and the constitution of the state of Kansas receive in a restaurant. and faithfully discharge the duties of [my office].” So one thing is clear: adequate staffing is required for the Judi- cial Branch to meet its core functions – maintaining fair and im- As you know, since 1861, Section 18 of the Kansas Consti- partial courts, enforcing Kansans’ rights, and serving their needs. tution Bill of Rights has provided that Kansans are entitled to Because as I said in my State of the Judiciary speech in 2011, “remedy by due course of law, and justice administered without “Kansas children are still being sexually victimized; Kansas citi- delay.” The Bill of Rights similarly guarantees “a speedy public zens are still getting injured or killed; and our business owners’ trial by an impartial jury” to criminal defendants. Obviously, contracts are still being breached.” none of us can make good on our solemn oaths of office – to I am grateful that we do have many employees who despite provide or guarantee these constitutional rights – when Kansas these challenging conditions will continue to do everything they courts are closed. can to serve Kansans – as best they can, for as long as they can, Based in part on these constitutional rights, I wrote in last regardless of how hard it is on them. But as their chief justice, I year’s report on the State of the Judiciary ask on their behalf, “Isn’t four years of understaffing enough?” “[I]t is clear that administering justice to all Kansans has Now during the fiscal year that ends this June 30, the Judicial been an original function of government performed by the Branch of government does have enough money from the legis- Judicial Branch since 1861. Such an original function cer- lature to operate at these reduced levels. That means we should tainly qualifies as a core function, i.e., an essential service be able to keep the Kansas courts open. But things get somewhat . . . Adequate court funding is critical to providing these darker as of July 1. essential services – while inadequate funding undermines As most of you are aware, the money we are to receive for that not only access to justice, but also the people’s belief in the fiscal year is below what we requested – $8.25 million below justice system itself.” (Emphasis added.) our base budget request and $19 million below what we need to operate as effectively as we should. Chief Justice John Roberts of the U.S. Supreme Court ex- The $8.25 million amount is not just something we dreamed pressed an even greater concern in his report last month on the up. That figure has been verified by the legislature’s financial ana- state of the federal judiciary. Given the roles that the legislative lyst for the Judicial Branch. He participated in the work of the and executive branches play in funding the courts, the chief jus- Court Budget Advisory Council that examined ways to reduce tice said, “It takes no imagination to see that failing to meet the $8.25 million in expenditures in the Judicial Branch. Members judiciary’s essential requirements undermines the public’s confi- of the Council are here today. We are grateful for their hard work. dence in all three branches of government.” Because their mission was a challenging one. Each county is Underfunding and court closings not only jeopardize the fun- responsible for funding the operations costs of the district courts, damental rights of Kansans and undermine the public’s confi- which means approximately 96% of our budget is dedicated to dence in all three branches of government, but they also under- personnel costs. And because the vast majority of Judicial Branch mine the economic plans for the State established by the heads activities are mandated by state or federal law, we lack many of of two of those branches. the options available to the other two branches, and to state Those leaders all have publicly set the course of promoting agencies, for reducing budget costs. economic growth in Kansas. So at the outset, it is important to Now some may quibble about the Council’s recommendations recognize the Kansas Judicial Branch as a vital factor in that for- for reducing the expenditures. And some may quibble about the mula for success. priorities for the reductions they suggest. But however you slice Among other things, Kansas courts historically have enforced it, however you dice it, however you shuffle these cards, one un- businesses’ rights by ordering monetary damages paid when pleasant fact remains: contracts have been breached, protected valuable business trade secrets from misappropriation by a competitor, and provided a If some additional money is not provided, then employ- forum for the collection of businesses’ debts. ees will be sent home without pay, and Kansas courts will But the importance of the Kansas Judicial Branch as a factor in close statewide sometime after July 1. The only question the formula for private business success is not just my opinion based is for how long. And on those days, the almost 3 million upon reviewing past cases. That importance has been recognized by people in Kansas will have no place to go for justice. the U.S. Chamber of Commerce’s Institute for Legal Reform. If you find court closings unacceptable, and I hope you do, You have probably heard by now that according to a 2012 na- then let’s adequately fund the courts – the Judicial Branch of tional survey of senior business executives and corporate lawyers government created by the people of Kansas in their constitution conducted by the Chamber, Kansas courts rank fifth among the more than 150 years ago. 50 states in the overall ranking of state liability systems, as per- I’d like to list a few of the reasons I hope you find court clo- ceived by U.S. businesses. sures unacceptable. I mentioned earlier the pledge of allegiance. What you may not know is that a full 70% of the business In addition to that national pledge, in Kansas every state em- leaders surveyed report that a state’s litigation environment is
www.ksbar.org | February 2014 27 State of the Judiciary likely to impact their important business decisions, “such as The funding before this fiscal year has been provided primar- where to locate or do business.” ily by federal grants. But continuing to receive federal grants is But inadequately funded courts, or otherwise stagnant courts, unlikely – so we will still need state funding to reach our goal. will cause Kansas to drop both in their effectiveness and in those II. The Commission Recommended Increased Use of Other national rankings. Technology More important, any decrease in those rankings will demon- The Court of Appeals continues to develop a pilot project strate to the business community – whose growth the leaders of to use video conferencing for certain activities in the appellate Kansas want to promote – that Kansas’ abilities to administer courts – instead of requiring attorneys from across the state to justice have declined in comparison to other states. Particularly spend time and money going to and from Topeka. those that may be competing with us in attracting new business Likewise, our development of rules and technical standards and creating new jobs. for video conferencing in the district courts statewide is nearing But despite these hardships and challenges, thanks to the Ju- completion. Providing the equipment for video conferencing in dicial Branch’s actual 1500 employees and 250 judges, not all is those local courts will continue to be up to the counties. But the negative. So allow me to update you on some of the positives in expanded use of this technology should result in further savings this branch of government. Like last year’s report, I start with for law enforcement, attorneys and their clients. progress made on some of the Blue Ribbon Commission recom- In August 2012, the Supreme Court installed in this court- mendations from Project Pegasus. room cameras and affiliated hardware for transmitting proceed- You recall Project Pegasus – perhaps the largest study under- ings live over the internet. Since then, our proceedings have been taken in the history of the Kansas court system. It consisted of viewable by anyone with an internet connection from anyplace two main parts: (1) The State’s first-ever weighted caseload study in the world. I mentioned earlier and (2) the Blue Ribbon Commission of 25 Last year one person observed our proceedings from Katman- Kansans from various backgrounds. du, Nepal. So in addition to you who are physically present at The Commission performed the most extensive review of Ju- this moment, many more are watching from other locations. The dicial Branch operations statewide since the 1970’s and made digitized proceedings are archived for future reference – so you recommendations to the Supreme Court for improvement. can enjoy us over and over again. Even from Nepal. I. The Commission Recommended Electronic Filing and In addition to the Supreme Court making its proceedings Enhanced Use of Computer Capabilities more accessible to the people of Kansas through technology – Electronic filing (or e-filing) allows lawsuits and related legal such as this courtroom’s cameras – it has also taken its proceed- documents to be filed with the courts electronically – from one’s ings directly to the people’s locations. office or home. But it is not only the capability to electronically Since 2011, we have traveled to hear cases argued in Salina, submit documents to the courts. It is also to have those submis- Wichita, Greensburg, Overland Park – and two months ago, on sions integrate with electronic case management and document the beautiful campus of Pittsburg State University. Similarly, our management systems used now by court personnel in processing colleagues on the Court of Appeals continue their great tradition cases. It reduces the system’s dependence on paper documents by hearing cases argued in numerous locations all across the state. and provides attorneys with immediate, 24-hour access to court III. The Commission suggested the possibility of increasing systems. Judicial Branch funding through fee revenues. First considered by the Supreme Court in 2009, development For a number of years the fees collected for filing lawsuits were and implementation of the statewide e-filing system is underway distributed among multiple state funds and entities. Last session in several locations. They include the appellate courts in Topeka. the legislature altered that distribution so 99% of all this docket And for the district courts, they include three original pilot proj- fee revenue currently goes to the Judicial Branch. Our State Gen- ects (Douglas, Leavenworth, and Sedgwick counties) – and as eral Fund appropriation was reduced accordingly. of Friday, Wyandotte County. By this month’s end, Butler and This change was intended to be revenue neutral. But it obvi- Reno counties also will be online. ously requires the Judicial Branch to rely even more heavily on And by June 30, e-filing will be present in 11 counties, in- docket fees. Unfortunately, this is an uncertain source of revenue cluding Saline, Geary, Finney, Shawnee, and Johnson with its which has been steadily declining [at roughly 6% each year] for JIMS e-filing system. With these installations, more than half each of the last three years. I understand this year’s legislative of the non-traffic case filings in the state will be eligible to use proposals may include further increasing all docket fees. e-filing. Don’t get me wrong. We gladly accept additional funding. But As for appellate courts, the briefs and thousands of other pages some argue that the last few years’ reductions in court case filings of paper that can accompany an appeal are scheduled to be sent – that in turn generate the revenue through their filing fees – is to Topeka electronically from three counties thus far: Sedgwick, because of already high filing fees. I am told that in California Shawnee, and Johnson. this is known as “fee fatigue.” The Supreme Court ultimately intends to develop and imple- ment a complete centralized statewide e-courts environment – e- IV. Commission Miscellaneous: filing plus electronic case management systems and document management systems. 1. The Commission recommended increasing Judicial Upon completion, such a combination of statewide systems Branch efforts to collect more of the monies actually could allow court personnel in any location to work “virtually” ordered by the courts such as fees, fines, and court costs. on court business in any other location. That allows the Supreme Last year the National Center for State Courts gave us Court to more effectively and efficiently manage the state’s court technical assistance in reviewing our processes. And system. then in developing best practices and standardization of collection methods. 28 The Journal of the Kansas Bar Association State of the Judiciary
Implementing a number of their recommendations will tion. Judge Mary Thrower received an Award from the assure that court orders are taken seriously and will be Specialized Court Judges Division of the American Bar enforced. It will also increase the receipts going into our Association. public treasuries. And our employee Denise Kilwein won a national award 2. The Commission recommended examining our spe- for her excellence as Director of Judicial Education. cialty or problem-solving courts. Approximately 15 of these courts have been established by various trial judg- 2. Shawnee County District Court received a $50,000 es throughout the state. grant for helping to address operational improvements in processing its cases. The court will retain the Nation- They differ from the usual courts because they coor- al Center to assist in this review. dinate services provided to criminal offenders with di- rect, sometimes intense, supervision by a judge. Most 3. And the Judicial Branch is working with the KBI and of these are drug courts, which attempt to address an the Kansas Department of Transportation in the sub- offender’s underlying substance-abuse problems – prob- mission of DUI information to the “KBI Report and lems that often lead to criminal offenses. Police” Impaired Driver portal. As a result, more timely and accurate information about repeat DUI violators is National research has shown that drug courts can be available to prosecutors, judges, and probation officers effective in reducing offender recidivism. That in turn across the state. saves considerable judicial and correctional resources. As I mentioned, these are but a few of the positives hap- We created the Specialty Courts Commission which pening in the Judicial Branch. examined these courts’ operations. Last month we re- ceived its report. Its recommendations include increas- Finally, I want to thank you for helping us make history today. ing uniformity by establishing statewide specialty court To my knowledge, for the first time in the 153-year history of standards for better serving the users of this unique Kansas, the State of the Judiciary address is being presented in system. the courtroom of the Supreme Court. For the first time in our history, the address is being video streamed live over the internet. 3. The Commission recommended looking at the nation- These proceedings, like the trials and hearings in the district wide issue of providing language access to the state courts, and oral arguments in the appellate courts, are open for courts. According to our information, including a re- the people of Kansas to see. cent language access survey, some users of the courts I began my remarks by reading from a worn out paperback to in 69 of our 105 counties do not speak English as their make a strong point about Kansas judges. I will not return to that first language. Across the state, that amounts to 31 dif- old paperback in closing. Instead, I will make an equally strong, ferent languages: from Burmese to German Mennonite. and related, point as I adopt the words from a State of the Judi- Our recent efforts include reviewing language access ciary Address delivered by Kansas Chief Justice Richard Holmes programs in similar states such as Nebraska. to a joint session of the legislature in January 1991: 4. The Commission recommended our looking at certain “In closing, I want to extend to you my sincere pledge functions and procedures in the district and appellate of our cooperation with both the legislative and executive courts. After review at all levels, the Judicial Branch is branches of government, with the overriding goal of better continuing to improve on timely disposition of pend- government as a whole for the people of Kansas. The lines ing cases. of communication . . . are open at all times. Give us a call.” 5. The Commission recommended we look at mediation I like to think the passage of the pay raise bill this morning is a which is required in some federal appellate courts. The fine example of that cooperation. Court of Appeals has developed a pilot project for me- And speaking with my own words, please allow me to express diating its cases. At this stage of the pilot, parties have my gratitude today for your careful attention, and to bid you the option of accepting appellate mediation – and at no Godspeed. Thank you. cost through the use of volunteer mediators. Our first In the spirit of cooperation, allow me to invite you to our case has already been resolved through this process. reception downstairs in the Hall of Justice. And tours of the Judicial Center are available starting here. Just as Chief Justice We look for more to come. Because when successful, Holmes invited legislators and guests after his speech in January mediation can save resources of Kansans and the appel- 1991. late courts. Just as important, it can permit the courts to BUT, if you would like a rare glimpse into my chief justice’s concentrate efforts on the other hundreds of cases that chambers – something very few people have seen since they were would remain on their dockets every year. built in 1978 – please move to the side door where a guide will accommodate you. As for some of the positives in areas not necessarily addressed Thank you again.n by the Blue Ribbon Commission: 1. Several Kansans in the Judicial Branch won national awards in 2013. Judge Patrick McAnany received an Award of Merit from the American Judges’ Associa- www.ksbar.org | February 2014 29 Bankruptcy & Divorce: A Marriage of Inconvenience
By The Hon. Robert D. Berger he client for whom you concluded visions and a journalized settlement is a divorce one year ago returns to reached wherein the bankruptcy court Tyour office. She tells you that she finds that the child support payments has just received a notice from the bank- are not discharged under § 523(a)(5), ruptcy court that her ex-husband filed a and all other obligations under the di- Chapter 7 bankruptcy in Kansas within vorce decree are not discharged under the last 30 days. § 523(a)(15). The matter is quickly, Under the marital settlement agree- amicably, and efficiently concluded, and ment incorporated into the divorce you have protected your client from the decree, the ex-husband is to pay child effects of her ex-husband’s bankruptcy. support for their two minor children, Or have you? including 50 percent of the children’s Pitfalls for the Unwary—The on-going medical expenses. The debts Bankruptcy Code’s Treatment of divided in the divorce were jointly owed DSOs and all property was jointly owned. The ex-husband is to pay the following: a The scope of this article is limited by second mortgage note on the marital necessity. There are volumes devoted residence that was awarded to your client to the interplay of bankruptcy and di- and in which she lives with their minor vorce.6 So constrained, this article fo- children; $30,000 in joint credit card cuses on the dischargeability of family debts; the joint loan on the automobile law debts in bankruptcy proceedings. that was set over to him in the divorce A few of the important topics not dis- and which he still owns; your attorney’s cussed in this article include concurrent fees incurred representing her in the di- jurisdiction of the bankruptcy court and vorce; your attorney’s fees related to sub- the state court,7 abstention by the bank- sequent child custody proceedings; and ruptcy court,8 the domestic relations ex- guardian ad litem and psychologist’s fees ception to federal jurisdiction,9 and the incurred in custody proceedings. effect of an ex-spouse’s bankruptcy on Since you recently attended a divorce his former spouse’s credit history. seminar, one hour of which was devoted State family law and federal bank- to bankruptcy, you know that in bank- ruptcy law frequently involve coun- ruptcy, debts for a domestic support ob- tervailing policies. When these worlds ligation (DSO)—i.e., debts arising from collide, something has to give. From a divorce proceedings that are in the na- financial perspective, aside from cus- ture of support—are not dischargeable tody matters, divorce proceedings in under 11 U.S.C. § 523(a)(5).1 You also the main are an economic process that recall that non-DSOs arising from fam- allocate financial obligations and assets ily law proceedings2 are not discharge- between the parties. Frequently, this is a able under § 523(a)(15)3 in a Chapter negotiated transaction memorialized in 7 bankruptcy.4 Much of the interaction a marital settlement agreement, and it is between family law and bankruptcy law expected that the parties will fulfill their evolves from these definitional launch respective financial obligations under points. the agreement. In contrast, bankruptcy Since it appears that debts that arose provides relief to the “honest but unfor- in the divorce proceedings are not dis- tunate debtor”10 by discharging debts. chargeable under either of the above For a family law lawyer, much of sections, you file an adversary proceed- the important work needed to address ing in the bankruptcy case so the court a possible bankruptcy of a client’s ex- can make such a determination.5 As to spouse is performed during the divorce discharge, you feel that it makes little proceedings. There are two facets of par- difference whether a debt is formally ticular importance. First, any settlement categorized as a DSO, because all cat- should be structured to reduce risk to egories of debt owed to a former spouse one’s client if her soon to be ex-spouse arising from divorce proceedings are, files bankruptcy. To the extent possible, since 2005, no longer dischargeable in a avoid allocating or creating non-support Chapter 7 bankruptcy. The bankruptcy debt obligations from the ex-spouse to a attorney for the ex-husband agrees that client. Establish a client’s financial need his client’s obligations to your client are for the assistance, and do not waive not dischargeable under these two pro- maintenance in an agreement. It is bet-
www.ksbar.org | February 2014 31 Bankruptcy & Divorce ter to allocate property or at least interests in property.11 Sec- date for that determination is the date of the divorce, and any ond, it is important to instruct one’s client that there is only so change in circumstances of the parties thereafter cannot be much protection from a possible bankruptcy by her ex-spouse considered.22 If the divorce was litigated (as opposed to the that may be accomplished in the divorce proceedings. This court merely adopting the parties’ mutual marital settlement educational component prepares a client for a possible worst- agreement), then it is the intent of the state court judge that case scenario; it may also make her more flexible with regard is considered. The inquiry is whether the state court judge to settlement by focusing on property rights at the expense of believed and found that the debt was in fact for support, or reducing division of debt and creating new debt obligations whether that debt was established by the court merely as a from the ex-spouse to her. means of fairly dividing the parties’ assets and liabilities.23 As a practical matter, if the parties’ financial situation is The 2005 Amendments expanded the definition of what desperate, it may be advisable for both of them to file bank- is in the nature of support to include debts owed to obligees ruptcy or to seek other financial relief.12 That alternative may such as a legal guardian, responsible relative, or a governmen- also facilitate a divorce settlement between the parties because tal unit. The definition applies whether the liabilities are es- elimination of debt as a result of their receipt of a discharge in tablished before or after the bankruptcy, and it includes an bankruptcy will obviously diminish allocation of debt as an is- administrative determination by a governmental unit. If the sue. Of course, whether a husband and wife should file bank- debt is not discharged, then the associated interest, both pre- ruptcy—and the timing of any filing, pre or post divorce—is a and post-bankruptcy, is likewise not discharged.24 Section significant decision that should be undertaken after a consid- 523(a) exceptions to discharge usually are strictly construed ered evaluation of the alternatives.13 In the end, reality should in favor of the debtor; however, that rule does not apply to drive the decision-making. Even the most novel and assertive DSOs.25 The burden of proof to demonstrate nondischarge- legal theories will not alter a desperate financial situation in ability is by a preponderance of the evidence and rests with which a client’s ex-spouse simply cannot afford to satisfy his the objecting creditor.26 The burden for the objecting creditor financial obligations. is both to establish the existence of the underlying debt and In bankruptcy, debts are subject to discharge, but property to demonstrate that the debt is of a kind contemplated under rights are not.14 However, property rights may be subject to the exceptions to discharge.27 modification or termination.15 When a debtor receives a dis- Section 523(a)(5) excepts DSOs from discharge. Section charge in bankruptcy, § 524 of the Bankruptcy Code perma- 523(a)(15) excepts from discharge non-DSOs that arise in nently enjoins the collection (from the debtor) of any debts family law proceedings, such as the division of debts and that were not excepted from discharge. The terms “discharge” property. However, as previously noted, § 523(a)(15) does not and “dischargeability” are often confused but they have dis- apply to Chapter 13 (wage earner) bankruptcies. In the above tinct meanings:16 scenario, the attorney likely committed an error by agreeing to a journal entry that found most of the obligations under the The term discharge refers to the operation of the Bank- divorce proceedings were not dischargeable under § 523(a) ruptcy Code provision (§ 727 in a Chapter 7 case) that (15).28 That is because if the ex-husband elected to convert effects a general discharge of the debtor’s prepetition his Chapter 7 case to one under Chapter 13,29 his obligations debts. The term dischargeability refers to the operation under § 523(a)(15) are subject to discharge. In addition, a of the Code provision, § 523, that excepts particular debtor becomes eligible to file a Chapter 13 bankruptcy, and debts from the general discharge provision of the Code. to seek discharge of his § 523(a)(15) obligations, only four Under § 523, certain kinds of debts are delineated as years after the debtor files his Chapter 7 bankruptcy.30 being nondischargeable, meaning that those debts are The analysis is difficult when the ex-spouse’s obligation is to not operated on by the general discharge and therefore pay joint debt that is not associated with the parties’ former 17 remain collectable outside of bankruptcy. joint residence, such as their joint credit card debt. Whether the requirement that a debtor pay these debts and hold his Until a debtor receives a bankruptcy discharge, even the col- 18 ex-spouse harmless therefrom and indemnify her qualifies as a lection of nondischargeable debts is stayed, although there DSO or as division of debts is problematic.31 That tension is are family law-related exceptions, such as collection of DSOs 19 pronounced: “No type of obligation is more difficult for the that do not involve property of the bankruptcy estate. bankruptcy courts to analyze in determining dischargeability From a bankruptcy discharge perspective, the focus is to under section 523(a)(5) than a spouse’s undertaking to pay determine which family law debts are nondischargeable DSOs joint marital debts or to hold the other spouse harmless from under § 523(a)(5) and which debts are non-DSOs that fall such debts.”32 The waters are muddy when attempting to de- within the ambit of § 523(a)(15). From the non-debtor ex- termine the intent of the parties and the actual function of the spouse’s perspective, it is always beneficial for debts to be clas- hold-harmless language. sified as nondischargeable support obligations under § 523(a) If the debtor does not pay debts jointly owed by the par- (5) because that exception applies to all chapters of the Bank- 20 ties, then the creditors may pursue the non-debtor ex-spouse, ruptcy Code. Whether a debt is a DSO is determined by in- creating a potential financial hardship for her. The problem quiry into the parties’ shared intent at the time of the marital is that negative financial impact, alone, is insufficient to ren- settlement agreement, the substance of the divorce obligation, der the hold-harmless agreement in the nature of support. whether the purpose and effect of the obligation is to provide Also, if the hold-harmless obligation is not discharged and support to a spouse, a spouse’s need for support, and what the debtor must thereafter pay these otherwise discharge- function the obligation is intended to serve.21 The relevant 32 The Journal of the Kansas Bar Association Bankruptcy & Divorce able joint debts post-discharge, the intended benefits of a be paid first from funds received by a Chapter 7 Trustee after bankruptcy discharge can be significantly diminished. This satisfaction of administrative expense claims. Also, a Chapter is an area in which the imbalance of income between the 13 plan, in order to be confirmed, must generally provide for parties and the earning capacities of each party at the time payment in full of DSOs.41 of the divorce are relevant. Considerations include whether Plan of Action the financial needs of the debtor’s children and his ex-wife are otherwise provided for in other portions of the divorce In the event a client’s ex-spouse files bankruptcy, the first agreement, whether it is clear that the division of the debts act of a divorce attorney should be to consult with compe- was attendant to the division of property and debts, and the tent bankruptcy counsel. Bankruptcy practice is deadline effect of non-payment on the non-debtor ex-spouse’s stan- driven: deadlines are set relatively early in the case and are dard of living.33 Even if the hold-harmless obligation does unforgiving.42 Even if the client does not receive official no- not meet the definition of a nondischargeable DSO, it is tification from the bankruptcy court but otherwise receives nevertheless excepted from discharge in a Chapter 7 bank- actual knowledge of the bankruptcy case (e.g., her ex-husband ruptcy under § 523(a)(15). orally mentions it to her during a child visitation exchange), Despite how complex it may be to determine whether a debt she may be bound by those deadlines.43 is a DSO, the analysis still focuses on the intent of the par- In a consumer case, many of the deadlines are triggered by ties and whether the debtor’s obligation to pay marital debts the first date set for the first meeting of creditors (called the is in the nature of support.34 If the debtor’s obligation to pay § 341 meeting, after its governing statute in the Bankruptcy marital debts is not actually in the nature of support, then it Code). For instance, the deadline to file a complaint to deter- is not excepted from discharge as a DSO under § 523(a)(5).35 mine dischargeability under §§ 523(a)(2), (4) and (6) is 60 And it does not matter what label the parties place on this ob- days from the first date set for the § 341 meeting, whether ligation in the divorce proceedings, since the classification of that meeting is concluded or is not concluded.44 The deadline the obligation with respect to dischargeability is determined to object to a Chapter 7 debtor’s discharge generally has the under federal law.36 The bankruptcy court is free to disregard same deadline, although there are some objections or revo- labels allocated to family law obligations because state courts cation proceedings that do not fall within the ambit of this typically do not “label obligations in a divorce settlement or rule.45 The deadline to object to the debtor’s claimed exemp- judgment with the [Bankruptcy] Code provisions and defini- tions is 30 days from the date that the § 341 meeting is con- tions in mind.”37 Similarly, a prepetition waiver of the benefits cluded, not the date on which it was initially scheduled.46 Fre- of a bankruptcy discharge is not enforceable.38 The determina- quently the § 341 meeting is concluded on the date initially tion of dischargeability under § 523(a)(5) is made based on set, but that is not always the case. The deadline to object to the facts as they existed at the time of the divorce and not at a Chapter 13 debtor’s proposed plan is typically set out in a later date, such as when the bankruptcy is filed or the dis- the notice of commencement or in a subsequent notice that chargeability adversary case is litigated.39 should provide at least 28 days within which to object to con- Family lawyers are wise to be preoccupied with establish- firmation of the plan.47 ing whether the obligations of the debtor to an ex-spouse are Variations of this situation are, for example, if your client DSOs subject to § 523(a)(5) versus a non-DSO obligation receives notice after the expiration of certain deadlines and subject to § 523(a)(15) exceptions to discharge. The benefit whether her ex-spouse’s bankruptcy case is a no asset or an to the non-debtor ex-spouse to establish that the debtor’s asset case. Most Chapter 7 cases do not have a proof of claim obligations to her are DSOs is considerable. With respect deadline and are noticed as no asset cases. It is thus arguable to dischargeability, DSOs are not discharged in any of the that § 523(a)(3), which excepts from discharge unscheduled bankruptcy chapters, whereas the § 523(a)(15) exception to debts, does not apply to those cases.48 If an ex-spouse receives discharge for non-DSOs does not apply to a Chapter 13 full notice of the bankruptcy prior to the expiration of certain payment discharge under § 1328(a). Additionally, DSOs are deadlines, then she is bound by those deadlines.49 If a client categorized as first priority claims,40 entitling those claims to does not receive notice of a bankruptcy case in time to timely
www.ksbar.org | February 2014 33 Bankruptcy & Divorce file a complaint under § 523(c) to determine the discharge- property were allocated to the ex-spouse and instead of de- ability of the obligations, then she would not be bound by livering it, the debtor converted the property, then that con- that deadline.50 In Hathorn v. Petty (In re Petty),51 neither the version may give rise to a nondischargeability claim under § creditor nor the creditor’s attorney was scheduled in the debt- 523(a)(6).63 Think outside the box. Under our facts, because or’s Chapter 7 bankruptcy, but the creditor obtained actual the bankruptcy was filed one year after the divorce was con- knowledge of the bankruptcy filing six days prior to expira- cluded, it is possible that the debtor already had the intent to tion of the § 523(c) deadline. That deadline applies to the file bankruptcy when the divorce agreement was entered into, discharge exceptions under § 523(a)(2), (4) and (6), but the did not intend to fully comply with his obligations, or may creditor did not then timely file a complaint to determine dis- have fraudulently induced your client to enter into the agree- chargeability. The court in Petty found that the creditor did ment. If those facts can be established, it is possible that your not receive actual notice of the bankruptcy case in time to client may successfully assert that the debtor’s obligations to timely file a complaint to determine dischargeability; as a re- her are not dischargeable under the fraud exception.64 Con- sult, the creditor was not bound by the 60-day deadline under tempt judgments may also be excepted from discharge under Rule 4007(c).52 The creditor’s adversary action to determine § 523(a)(6).65 Once again, those other exceptions to discharge dischargeability under § 523(a)(6) was allowed to proceed.53 are particularly relevant to a Chapter 13 case because § 523(a) The notice considerations for a Chapter 13 bankruptcy are (15) does not apply to a full payment discharge. different because the debtor seeks confirmation of a plan that Since bankruptcy law is deadline driven, by logical exten- is binding on the debtor and all creditors; absent timely no- sion it is also procedure heavy. A bankruptcy case is initiated tice, it is arguable that a creditor is not bound by the plan.54 by the filing of a petition, which also serves as the order But with proper notice, a Chapter 13 plan is binding on all for relief.66 Within the main case, motions, applications, creditors.55 Even plan provisions that contradict the Bank- and objections are filed, and they are contested matters un- ruptcy Code may be binding.56 “[F]ailure to timely object der the Bankruptcy Rules.67 Adversary proceedings are es- to or appeal confirmation is fatal to all procedural and legal sentially individual lawsuits that are attached to the main challenges to the content of the Chapter 13 plan.”57 This is bankruptcy case. Various actions, such as the determination the “snooze, you lose” rule.58 The only way a client can hope of dischargeability and a complaint objecting to discharge, to escape that result is to file a complaint for revocation of must be brought by complaint filed as an adversary proceed- the confirmation order within 180 days of entry, alleging that ing. A party who seeks the extension of a deadline that is set the confirmation order was procured by fraud59—a decidedly in the main case does so by motion. If the parties agree with steep evidentiary standard. the relief sought, such as an extension of a deadline, then an As a result of bankruptcy deadlines, representing an ex- agreed order may be submitted. spouse who is a creditor in a bankruptcy requires prompt Addressing our facts, it is axiomatic that any child support action on your part and your client’s part. For instance, the owed by the debtor on behalf of his minor children is in the ex-spouse should procure a copy of all of the paperwork nature of support and not dischargeable.68 Other expenses re- filed with the bankruptcy court to insure that it accurately lated to a debtor’s minor children are considered DSOs. For reflects the debtor’s financial information. No one knows a example, the debtor’s obligation to pay fees and costs for a debtor’s business and financial status better than an ex-spouse, guardian ad litem,69 a psychologist,70 and an attorney retained and since the ex-spouse is now a creditor of the debtor in a for a custody proceeding71 are frequently considered in the bankruptcy proceeding, this review is advisable.60 Although it nature of support and not dischargeable under § 523(a)(5). is the two exceptions to discharge discussed earlier that spe- There is also an argument to be made that the debtor’s obli- cifically pertain to family law and divorce obligations,61 the gation to pay the mortgage note on the home that is allocated ex-spouse’s analysis should not end with those subsections. to the wife who has residential custody of the parties’ minor There are occasions when the fraud exceptions—the breach children is in the nature of support.72 Again, the bankruptcy of fiduciary duty and the willful and malicious injury excep- court is not bound by the labels placed on debtor’s obligations tions—may apply to the ex-spouse’s claims.62 For instance, if in the divorce proceedings and may look beyond those labels to ascertain their true nature because the determination as to dischargeability is made pursuant to federal law.73 The analysis rests upon the shared intent of the parties at the time of the divorce and the function of the obligation,74 which is why Bruce Nystrom, PhD testimony is oftentimes required in § 523(a)(5) discharge pro- Licensed Psychologist ceedings. As discussed above, it may be that the ultimate func- tion of the debtor’s obligation to pay the second mortgage on River Park Psychology Consultants, LLC the home is to provide shelter to the debtor’s children and www.riverparkpsych.com former spouse; if so, courts generally will consider that obliga- 727 N. Waco, Suite 320 tion in the nature of support since the provision of shelter to one’s family is considered a fundamental obligation to provide Wichita, KS 67203 support to one’s family.75 Whether the debtor’s obligation to pay attorney’s fees not re- telephone: (316) 616-0260 • fax: (316) 616-0264 lated to custody of the children and incurred in the divorce proceeding by the ex-spouse is in the nature of support is not
34 The Journal of the Kansas Bar Association Bankruptcy & Divorce as clear.76 For example, there is no consensus whether attorney’s early in the case and there are myriad considerations. When fees incurred by the ex-spouse to adjudicate the dischargeability the worlds of bankruptcy and family law collide, tread care- of obligations in the bankruptcy proceeding may be awarded by fully but quickly into the newly disrupted terrain. n the bankruptcy court or whether the ex-spouse must return to state court to request that award of attorney’s fees.77 About the Author
Conclusion Hon. Robert D. Berger was appointed to the U.S. Bankruptcy Court for the District of Kansas in 2003. Although it should go without saying that you should not He received his B.A. in history and political science handle a divorce proceeding in the first instance without from the University of Kansas in 1983 and his J.D. knowing the basics of bankruptcy law, it is also true that if from Washburn University School of Law in 1986. your client is an ex-spouse of a debtor who has filed bankrupt- After graduation, Berger entered private practice cy, time is critical. Run—do not walk—to experienced bank- where he practiced as a bankruptcy and insolvency specialist. ruptcy counsel who is well-versed with the interplay of bank- ruptcy and divorce proceedings. The failure to act promptly Berger has written numerous articles on bankruptcy may result in significant adverse financial consequences to issues and is a contributing author for the KBA’s Bankruptcy Handbook. your client. The deadlines in a bankruptcy proceeding expire
Endnotes course of a divorce or separation or in connection with a separation 1. This and all future statutory references are to the Bankruptcy Code, agreement, divorce decree or other order of a court of record, or a as amended by the Bankruptcy Abuse Prevention and Consumer Protec- determination made in accordance with State or territorial law by a tion Act of 2005 (“BAPCPA” or “the 2005 Amendments”), 11 U.S.C. §§ governmental unit; . . . . 101-1532, unless otherwise specifically noted. These DSOs are defined by 4. Importantly, this exception does not apply to a Chapter 13 “full pay- the Bankruptcy Code in § 101(14A) as: ment” discharge under § 1328(a). Full payment does not mean full pay- The term “domestic support obligation” means a debt that accrues ment of all of the debtor’s debts; it only requires the debtor to satisfy the before, on, or after the date of the order for relief in a case under this terms of the confirmed plan by making all the payments required by that title, including interest that accrues on that debt as provided under plan. Frequently, general unsecured creditors receive few, if any, payments. applicable nonbankruptcy law notwithstanding any other provision of In contrast, DSOs are priority unsecured claims. § 507(a)(1). this title, that is— 5. The dischargeability of debts in bankruptcy is ordinarily determined by an adversary action filed with the bankruptcy court. Fed. R. Bankr. (A) owed to or recoverable by— P. 4007 and 7001. An adversary action is an individual lawsuit filed and (i) a spouse, former spouse, or child of the debtor or such child’s litigated within the main bankruptcy case. parent, legal guardian, or responsible relative; or 6. See Henry J. Sommer & Margaret Dee McGarity, Collier Fam- (ii) a governmental unit; ily Law and the Bankruptcy Code (2013). Extensive learned articles are also available. See, e.g., Daniel A. Austin, For Debtor or Worse: Discharge (B) in the nature of alimony, maintenance, or support (including of Marital Debt Obligations Under the Bankruptcy Abuse Prevention and assistance provided by a governmental unit) of such spouse, former Consumer Protection Act of 2005, 51 Wayne L. Rev. 1369 (2005); J. Scott spouse, or child of the debtor or such child’s parent, without regard Pohl and C.J. Wahrman, Bankruptcy and Divorce in Kansas, 29 Washburn to whether such debt is expressly so designated; L.J. 551 (1990). (C) established or subject to establishment before, on, or after the 7. See In re Marriage of Sailsbury, 13 Kan. App. 2d 740, 745 (1989) date of the order for relief in a case under this title, by reason of (holding that the state court holds concurrent jurisdiction to determine applicable provisions of— the dischargeability of a debt under § 523(a)(5) of the Bankruptcy Code, even though the matter gives rise to a federal question); 4 Collier on (i) a separation agreement, divorce decree, or property settlement Bankruptcy ¶ 523.03, at 523-17 (Alan N. Resnick & Henry J. Sommer, agreement; eds., 16th ed. 2013) (noting that with the exception of dischargeability (ii) an order of a court of record; or determinations to which § 523(c) applies, jurisdiction may be exercised (iii) a determination made in accordance with applicable non- either by the bankruptcy courts or the state courts). bankruptcy law by a governmental unit; and 8. Sommer & McGarity, supra note 6, ¶ 5.01[2][d] and [e], at 5-14 to 5-21. (D) not assigned to a nongovernmental entity, unless that obligation 9. See Barber v. Barber, 62 U.S. 582, 584 (1858) (“We disclaim alto- is assigned voluntarily by the spouse, former spouse, child of the gether any jurisdiction in the courts of the United States upon the subject debtor, or such child’s parent, legal guardian, or responsible relative of divorce, or for the allowance of alimony . . . .”) In Ankenbrandt v. Rich- for the purpose of collecting the debt. ards, 504 U.S. 689, 701 (1992), the Court observed that the exception ap- 2. In bankruptcy parlance, DSOs are commonly referred to as “sup- plies only to “a narrow range of domestic relations issues,” such as “divorce, port obligations” or as obligations “in the nature of support.” The terms alimony, and child custody decrees . . . .” Id. at 703, 704. For instance, “domestic law” and “family law” are used interchangeably. Sections 523(a) federal courts are at liberty to enforce support obligations. Id. at 702. (5) and (a)(15) are likewise referred to as the family law or domestic law 10. Grogan v. Garner, 498 U.S. 279, 286 (1991) (quoting Local Loan exceptions to discharge. Co. v. Hunt, 292 U.S. 234, 244 (1934)). 3. § 523. Exceptions to discharge. 11. For example, the division of a pension may create a separate prop- erty interest, and perfection of a security interest to secure debts is advis- (a) A discharge under section 727, 1141, 1228(a), 1228(b), or able. Sommer & McGarity, supra note 6, ¶ 6.05[6]; Long v. Donahue (In 1328(b) of this title does not discharge an individual debtor from any re Long), 148 B.R. 904, 907 (Bankr. W.D. Mo. 1992). debt— 12. Sommer & McGarity, supra note 6, ¶ 7.02[1], at 7-3. . . . . 13. Brenda J. Bell, et al., The Effect of Bankruptcy on Divorce Planning, 70 J. Kan. B. Ass’n 30 (2001). (15) to a spouse, former spouse, or child of the debtor and not of the 14. Sommer & McGarity, supra note 6, ¶ 6.02[3], at 6-8. kind described in paragraph (5) that is incurred by the debtor in the www.ksbar.org | February 2014 35 Bankruptcy & Divorce
15. Liens may be crammed down, stripped off or avoided. See, e.g., Far- 34. Id. at 6-67. rey v. Sanderfoot, 500 U.S. 291, 299-301 (1991) (applying § 522(f) lien 35. Of course, in a Chapter 7 bankruptcy, § 523(a)(15) would except avoidance power on real estate to a post-divorce bankruptcy). For a fresh the obligation from discharge. As noted, § 523(a)(15) does not apply to a and insightful analysis, see Laura B. Bartell, Extinguishment and Creation full payment Chapter 13 discharge. of Property Interests Encumbered by Liens—The Strange Legacy of Farrey v. 36. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722 (10th Cir. Sanderfoot, 87 The American Bankruptcy Law Journal 375 (2013). 1993). 16. Beardslee v. Beardslee (In re Beardslee), 209 B.R. 1004, 1007 (Bankr. 37. Woodward v. Ehrler-Nugent (In re Nugent), 484 B.R. 671, 679 n.6 D. Kan. 1997). (Bankr. S.D. Tex. 2012) (giving as an example that while under Texas state 17. Id. at 1007-08. law, alimony does not exist, a debt could be characterized by a bankruptcy 18. See § 362(a) (automatic stay). The automatic stay goes into effect court as alimony under the Bankruptcy Code). upon the filing of the bankruptcy petition, regardless of a creditor’s notice. 38. Hayhoe v. Cole (In re Cole), 226 B.R. 647, 652–53 (B.A.P. 9th Cir. The automatic stay is a broad injunction that enjoins almost all actions 1998); Airlines Reporting Corp. v. Mascoll (In re Mascoll), 246 B.R. 697, to collect upon prepetition claims against the debtor or any act to obtain 706 (Bankr. D.D.C. 2000). possession of, or to control property of, the bankruptcy estate to collect 39. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir. 1989). upon a debt. See 3 Collier on Bankruptcy ¶ 362.01, at 362-20 (Alan N. 40. See § 507(a)(1) (describing first priority expenses and claims). Resnick & Henry J. Sommer, eds., 16th ed. 2013) (describing Bankruptcy 41. However, if the claimant agrees to other treatment or if the debtor Code’s automatic stay). commits his projected disposable income for five years, and that is insuf- 19. See § 362(b)(2) (listing exceptions to the automatic stay of § ficient to pay the DSO that has been assigned to a governmental entity in 362(a)). Even under the 2005 Amendments that expanded the family law full, then the plan need not provide for payment in full of that DSO dur- exceptions, the § 362(a) automatic stay still applies to a property division ing the plan (§§ 1322(a)(4) and 507(a)(1)(B)), but any remaining DSO re- that affects property of the estate. Sommer & McGarity, supra note 6, ¶ mains non-discharged at the completion of the bankruptcy. In re Penaran, 5.03[2][a], at 5-30. 424 B.R. 868, 876-77, 876 n.30 (Bankr. D. Kan. 2010). That allows a 20. Although this article does not discuss at length DSOs within the Chapter 13 debtor to discharge his dischargeable debt, which will theoreti- Chapter 13 context, the difference between a nondischargeable support cally make it easier for him to repay the remaining DSO post-discharge, obligation and a debt that arose from the property settlement agreement is although it may be unwise not to pay the debt in full during the Chapter critical in the Chapter 13 context. The latter exception does not apply to a 13 because the accumulated interest also remains non-dischargeable. full payment Chapter 13 discharge. § 1328(a). In addition, nondischarge- 42. See, e.g., Fed. R. Bankr. P. 4004 and 4007 (establishing deadlines to able support obligations are entitled to priority claim status under § 507(a) object to discharge under § 727(a) and to file a dischargeability complaint (1), whereas non-DSOs are not. In a Chapter 13 bankruptcy, a proof of under § 523(c)); Fed. R. Bankr. P. 3002(c) (setting deadlines to file a claim must be filed by the deadline set out in Federal Rule of Bankruptcy proof of claim in a bankruptcy). Procedure 3002(c) in order for an ex-spouse to receive distribution on her 43. 9 Collier on Bankruptcy ¶ 4004.03, at 4004-12 (Alan N. Resn- claims from the Chapter 13 Trustee. ick & Henry J. Sommer, eds., 16th ed. 2013). 21. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 723, 726 (10th 44. Fed. R. Bankr. P. 4007. In the aggregate, these are also referred to Cir. 1993); Yeates v. Yeates (In re Yeates), 807 F.2d 874, 879 (10th Cir. as the § 523(c) exceptions. 1986); Williams v. Williams (In re Williams), 703 F.2d 1055, 1057 (8th 45. See § 727(d) and (e) (governing revocation of discharge). Cir. 1983); see also Taylor v. Taylor (In re Taylor), 737 F.3d 670, 676 (10th 46. Fed. R. Bankr. P. 4003(b). Even if there is not a colorable statutory Cir. 2013) (“When determining whether an obligation is in the nature predicate for the claimed exemption, upon expiration of the 30-day time of alimony, maintenance, or support, this court conducts a ‘dual inquiry’ limit, sans an extension of time to object, the exemption is allowed. Taylor looking first to the intent of the parties at the time they entered into their v. Freeland & Kronz, 503 U.S. 638, 643 (1992). That result was mitigated agreement, and then to the substance of the obligation.”). somewhat as to the trustee with a 2008 amendment to Rule 4003(b) that 22. Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir. 1989); Austin, allows the trustee to file an objection within one year of the closing of the supra note 6, at 1403. debtor’s case if the debtor fraudulently claimed an exemption. 23. Good v. Good (In re Good), 187 B.R. 337, 338-40 (Bankr. D. Kan. 47. Fed. R. Bankr. P. 2002(b). 1995). 48. Sommer, et al., supra note 31, ¶ 15.4.3.3; see In re Mendiola, 99 24. See Tuttle v. United States (In re Tuttle), 291 F.3d 1238, 1241 (10th B.R. 864, 867 (N.D. Ill. 1989) (concluding that § 523(a)(3) was “not ap- Cir. 2002), for an example case in which the court found that the post- plicable in a no-asset case”). bankruptcy interest associated with a nondischargeable tax debt is not dis- 49. Sommer, et al., supra note 31, ¶ 15.4.3.3; 9 Collier on Bank- charged. ruptcy ¶ 4007.04[2], at 4007-11 to 4007-13. 25. 4 Collier on Bankruptcy ¶ 523.05, at 523-1; Mantooth v. Jones 50. 4 Collier on Bankruptcy ¶ 523.09[4][a], at 523-67 to 523-69. (In re Jones), 9 F.3d 878, 880 (10th Cir. 1993). Some exceptions to discharge, such as those associated with fraud, breach 26. Grogan v. Garner, 498 U.S. 279, 286–87 (1991). of fiduciary duty, and willful and malicious injury, have a 60-day dead- 27. Sommer & McGarity, supra note 6, ¶¶ 6.07[4] and 6.07A[3][b], at line from the original setting of the meeting of creditors that applies to 6-97 and 6-106, respectively. both Chapter 7 and Chapter 13 bankruptcies. See Fed. R. Bankr. P. 4007. 28. A § 523(a)(5) complaint ordinarily should include a § 523(a)(15) These are referred to as the § 523(c) exceptions, although the specific ex- claim in a Chapter 7 bankruptcy. See Woodward v. Ehrler-Nugent (In re Nu- ceptions are set out in § 523(a)(2), (4), and (6). Other exceptions, such as gent), 484 B.R. 671, 684 (Bankr. S.D. Tex. 2012), wherein the ex-spouse § 523(a)(5) and § 523(a)(15), do not have such a deadline. only pleaded for a finding of nondischargeability under § 523(a)(5), and 51. 491 B.R. 554 (B.A.P. 8th Cir. 2013). the court found that the divorce obligations were not DSOs, but instead 52. Id. at 560. fell under § 523(a)(15). The court did not allow the ex-spouse to later 53. Id. at 561. pursue a § 523(a)(15) action. 54. Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 29. See § 706, which allows conversion of a Chapter 7 case to one under 4th Edition, § 229.1, at ¶ 349.1 Sec. Rev. Oct. 8, 2010 (also available at Chapter 13 at any time, as long as there has been no prior conversion. That http://www.Ch13online.com). right is not unlimited because if the debtor seeks conversion in bad faith, 55. See § 1327(a) (“The provisions of a confirmed plan bind the debtor the court may deny the debtor’s conversion request. Marrama v. Citizens and each creditor, whether or not the claim of such creditor is provided for Bank of Mass., 549 U.S. 365, 373-74 (2007). by the plan, and whether or not such creditor has objected to, has accepted, 30. § 1328(f). or has rejected the plan.”). 31. Henry J. Sommer, et al., Consumer Bankruptcy Law and Prac- 56. See United Student Aid Funds Inc. v. Espinosa, 559 U.S. 260, 275 tice ¶ 15.4.3.5.3, at 489 (10th ed. 2013). (2010) (concluding that a provision in the debtor’s confirmed Chapter 13 32. Sommer & McGarity, supra note 6, ¶ 6.05[5], at 6-66. plan that discharged student loan interest in contravention of § 523(a) 33. Id. at 6-66 and 6-67. (8) was binding on the student loan creditor even though the debtor did
36 The Journal of the Kansas Bar Association Bankruptcy & Divorce not comply with the procedural requisites to determine that not discharg- tions by the debtor, and objections to confirmation of a bankruptcy plan. ing the student loan interest was an undue hardship on him); Lundin & Fed. R. Bankr. P. 9014. Brown, supra note 54, § 229.1, at ¶ 77. 68. Most obligations pertinent to a debtor’s minor children are not dis- 57. Lundin & Brown, supra note 54, § 229.1, at ¶ 103. chargeable under §523(a)(5), including a parent’s continuing obligation to 58. Id. § 229.1, at ¶ 77. pay college and educational expenses, medical expenses and health insur- 59. § 1330; In re Lane, Case No. 12-23111, 2013 WL 3102600, at *3 ance. Sommer & McGarity, supra note 6, ¶ 6.05[3], at 6-64 to 6-65. (Bankr. D. Kan. June 20, 2013). 69. Miller v. Gentry (In re Miller), 55 F.3d 1487, 1489-90 (10th Cir. 60. If the debtor’s bankruptcy paperwork contains material inaccuracies, 1995). that should be brought to the attention of the assigned Chapter 7 trustee 70. Id. and it may be advisable for the ex-spouse to file a complaint under § 727 to 71. Jones v. Jones (In re Jones), 9 F.3d 878, 881–82 (10th Cir. 1993). deny the ex-spouse’s general discharge. The downside to the latter approach The court in Jones found the attorney’s fees obligation nondischargeable is that it may be in your client’s best interest simply to have only her claims support under § 523(a)(5) even though the attorney’s fees were owed to a determined nondischargeable and for the debtor to receive a general dis- third party by the debtor. The court focused on the nature of the debt and charge. That would enhance the debtor’s ability to pay your client’s claims not the identity of the payee. Id. because it relieves the debtor of other debts, the holders of which may 72. Robinson v. Robinson (In re Robinson), 921 F.2d 252, 253 (10th Cir. make claim on his income and assets. 1990); Busch v. Hancock (In re Busch), 369 B.R. 614, 621-23 (B.A.P. 10th 61. §§ 523(a)(5) and 523(a)(15). Cir. 2007); Lewis v. Trump (In re Trump), 309 B.R. 585, 593-95 (Bankr. 62. See Sommer & McGarity, supra note 6, ¶ 6.08, for a review of the D. Kan. 2004). exceptions to discharge and their possible application to family law debts. 73. In re Trump, 309 B.R. at 591-93. 63. Courts have also on occasion imposed a constructive trust on prop- 74. Taylor v. Taylor (In re Taylor), 737 F.3d 670, 676 (10th Cir. 2013); erty of the debtor in favor of the ex-spouse. Long v. Donahue (In re Long), Sampson v. Sampson (In re Sampson), 997 F. 2d 717, 723 (10th Cir. 1993). 148 B.R. 904, 909 (Bankr. W.D. Mo. 1992); Sommer & McGarity, supra 75. Sommer & McGarity, supra note 6, ¶ 6.05[2]; see also supra note 68 note 6, ¶ 6.05[8], at 6-76. But see Steele v. Heard, 487 B.R. 302 (S.D. Ala. (discussing nondischargeability of obligations pertinent to a debtor’s minor 2013), wherein the court found that the debtor’s obligation to make peri- children). See also Robinson v. Robinson (In re Robinson), 921 F.2d 252, 253 odic payments to his ex-wife as a settlement of the debtor’s pension was not (10th Cir. 1990) (holding that a debtor’s obligation to pay second mort- a DSO, and thus declined to impose a constructive trust on the property. gage debt on former marital residence is in the nature of support and not 64. See § 523(a)(2)(A) (excepting from discharge debts “for money, discharged under § 523(a)(5)); Busch v. Hancock (In re Busch), 369 B.R. property, services, or an extension, renewal, or refinancing of credit” when 614, 623 (B.A.P. 10th Cir. 2007) (same). obtained by “false pretenses, a false representation, or actual fraud”); Som- 76. As discussed above, the debtor’s obligation to indemnify and hold mer, et al., supra note 31, ¶ 15.4.3.5.3, at 488 n.391. harmless the ex-spouse from obligations such as attorney’s fees that are as- 65. Lowry v. Nicodemus (In re Nicodemus), 497 B.R. 852 (B.A.P. 6th signed to the debtor in the divorce is only one factor to determine whether Cir. 2013). In a Chapter 13 context, a similar, but not identical, exception that obligation is in the nature of support. applies to a willful or malicious injury “by the debtor that caused personal 77. Compare Sommer & McGarity, supra note 6, ¶ 6.07[3], at 6-93 injury to an individual or the death of an individual.” § 1328(a)(4). n.51 (citing In re Busch, 369 B.R. at 623-27), id., ¶ 6.05[1], at 6-60 n.49 66. This is referred to as the “main case.” (citing In re Trump, 309 B.R. at 596). If there is a fee shifting provision in 67. Contested matters include such requests as motions for relief from the marital settlement agreement, however, the bankruptcy court may have the automatic stay, motions requesting that the bankruptcy court abstain authority to grant attorney’s fees. In re Taylor, 737 F.3d at 682. from hearing a particular matter, objections to claimed property exemp-
www.ksbar.org | February 2014 37 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 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 ISSUES: (1) Time limit on filing motion for new trial, (2) motion Civil for habeas relief under K.S.A. 60-1507, and (3) ineffective assistance of 60-1507 counsel CONTRACTS AND OPERATING AGREEMENT HELD: Time limit set in K.S.A. 2012 Supp. 22-3501(1) for mo- IRON MOUND LLC V. NUETERRA tions for new trial based on grounds other than newly discovered ev- HEALTHCARE MANAGEMENT LLC ET AL. idence is examined under State v. Bradley, 246 Kan. 316 (1990), and RILEY DISTRICT COURT – AFFIRMED the four-factor analysis in State v. Raschke, 289 Kan. 911 (2009). COURT OF APPEALS – REVERSED All support a reading that the language “shall be made” should be NO. 101,647 – DECEMBER 6, 2013 read as mandatory. No abuse of trial court’s discretion in dismissing FACTS: Iron Mound and ASC Group LLC entered into an operat- Holt’s motion as untimely. ing agreement on March 26, 1999, for the formation and governance Even if motion is treated as a 60-1507 claim, it was filed well of ASC Midwest LLC. The parties created the company “to develop, beyond the time limit in K.S.A. 60-1507(f)(1)(i), and Holt failed own, and operate ambulatory surgical facilities and other healthcare to demonstrate that an extension was necessary to prevent manifest facilities.” Nueterra is the successor-in-interest to the ASC Group LLC. injustice. Iron Mound alleged that under the operating agreement of ASC, a Holt’s claim of ineffective assistance of counsel at his first 60-1507 limited liability company formed by Nueterra and Iron Mound and hearing in 1997, raised for first time on appeal, was not considered. later dissolved, Iron Mound was entitled to receive a percentage of the STATUTES: K.S.A. 2012 Supp. 22-3210, -3501, -3501(1), gross fees earned by Nueterra under a management agreement entered -3502, -3608(c); K.S.A. 2010 Supp. 22-3501; K.S.A. 2009 Supp. into after the operating agreement had expired. The district court 22-3210(e); K.S.A. 22-3501, -3504, -3601(b), 60-1507, 1507(f), granted Nueterra’s second motion for summary judgment, denied Iron -1507(f)(1)(i), -1507(f)(2); K.S.A. 22-3502 (Furse); and K.S.A. 22- Mound’s cross-motion, and dismissed the action. The district court 3501(1) (Ensley 1988) determined that while the parties to the operating agreement could have reserved or extended rights beyond termination of the operating HABEAS CORPUS agreement, their intent to do so must have been explicitly stated. But MAKTHEPHARAK V. STATE the court found the operating agreement silent regarding future man- SEDGWICK DISTRICT COURT – AFFIRMED agement agreements or the survival of rights upon termination or expi- NO. 105,932 – DECEMBER 27, 2013 ration of the operating agreement. The Court of Appeals reversed and FACTS: Makthepharak charged as juvenile on charges related to found the operating agreement to be ambiguous and unresolved issues home invasion and murder. District court granted state’s motion for of fact remained regarding Iron Mound’s entitlement to a percentage adult prosecution. Makthepharak’s convictions and sentences for first- of fees under the management agreement. degree felony murder, aggravated burglary, and criminal possession ISSUES: (1) Contracts and (2) operating agreement of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010 HELD: Court reinstated the district court’s summary judgment Makthepharak filed pro se motion to correct illegal sentence and for ruling in favor of Nueterra. Court concluded the unambiguous appointment of counsel. District court denied the motion without terms of the operating agreement rendered it inapplicable to the fees a substantive hearing or appointment of counsel. Makthepharak ap- received by Nueterra under the management agreement. pealed, claiming that the district court lacked jurisdiction to impose STATUTES: K.S.A. 20-3018; and K.S.A. 60-2101 sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that the district court improperly con- HABEAS CORPUS strued his pro se motion. He also claimed that the district court’s sum- STATE V. HOLT mary denial of K.S.A. 22-3504 motion was fundamentally unfair, and GEARY DISTRICT COURT – AFFIRMED alternatively claimed he was entitled to assistance of counsel during NO. 105,854 – DECEMBER 6, 2013 the court’s initial examination of the motion. FACTS: Holt convicted in 1994 of offenses, including first- ISSUES: (1) Procedural claims – motion to correct illegal sentence, degree murder. Convictions and sentence affirmed in direct appeal. (2) summary denial of motion to correct illegal sentence and certifica- Numerous post-conviction proceedings filed thereafter in state and tion for adult prosecution, and (3) construing the pro se motion federal court. In 2010 Holt filed a motion for a new trial, which HELD: Makthepharak made no persuasive argument for revisit- district court dismissed as successive and untimely. Holt appealed ing or abandoning the longstanding interpretation of K.S.A. 22- on abuse of discretion claim, arguing the time-limiting language in 3504 as not requiring a substantive proceeding and assistance of K.S.A. 2012 Supp. 22-3501(1) is directory rather than mandatory, counsel in all cases, and that the statute’s protections do not ap- and the district court should have treated motion as seeking habeas ply when a court summarily denies a motion to correct an illegal relief under K.S.A. 60-1507. He also claimed ineffective assistance sentence. of counsel in Holt’s first 60-1507 hearing. 38 The Journal of the Kansas Bar Association Appellate Decisions
The district court properly considered statutory factors in K.S.A. tory requirements for service of process by return receipt mail deliv- 38-1636(e). Because Makthepharak was properly certified as an ery, that the defendant’s actual notice of the lawsuit did not confer Appellate Decisions adult under the statute, the district court had jurisdiction over the personal jurisdiction on the district court absent a proper service of criminal trial. Makthepharak’s sentence was therefore lawful. process, and that Fisher was not entitled to the additional time to Although the district court erred in part by construing Maktheph- effect service after the adjudication of invalidity, pursuant to K.S.A. arak’s motion as an improper method of attack and perhaps as seek- 60-203(b), because her initial attempt at service did not appear to ing unavailable relief, Makthepharak was not prejudiced because his be valid. The Court of Appeals affirmed the district court’s dismissal. claim was still considered and properly denied on its merits. ISSUES: (1) Service and (2) substantial compliance STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2012 HELD: The Court agreed with the results reached on the issues Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et of substantial compliance and actual notice, but it held that Fisher seq., -1636(e); and K.S.A. 60-1507 should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of SERVICE AND SUBSTANTIAL COMPLIANCE process after the district court’s adjudication of invalidity. The Court FISHER V. DECARVALHO reversed and remanded with directions for the district court to af- ELLIS DISTRICT COURT – REVERSED AND REMANDED ford the plaintiff that opportunity. WITH DIRECTIONS STATUTES: K.S.A. 12-105b; K.S.A. 20-3018; and K.S.A. 60- COURT OF APPEALS – REVERSED 102, -103, -203(b), -204, -303(e), -304(a), -513(a)(7), -2101(b) NO. 104,644 – DECEMBER 13, 2013 FACTS: Fisher attempted to commence a medical malpractice NOISE ORDINANCE action against DeCarvalho, M.D., by mailing the summons and pe- CITY OF LINCOLN CENTER V. tition via unrestricted certified mail, sent to the doctor’s business ad- FARMWAY CO-OP INC. ET AL. dress. The doctor actually received the petition and filed an answer LINCOLN DISTRICT COURT – AFFIRMED IN PART, that asserted several affirmative defenses, including insufficiency of REVERSED IN PART, AND REMANDED process, lack of personal jurisdiction, and a statute of limitations COURT OF APPEALS – AFFIRMED IN PART bar. After participating in the discovery process for a time, the doc- AND REVERSED IN PART tor filed a motion to dismiss, alleging an absence of personal juris- NO. 105,962 – APRIL 12, 2012 diction because Fisher’s attempted certified mailing did not comply FACTS: The City of Lincoln Center cited Farmway Co-Op Inc. with the requirements of K.S.A. 60-304(a) to effect a valid service and Farmway Storage #1 LLC (together “Farmway”) for violating of process. The district court dismissed the lawsuit with prejudice, municipal noise and nuisance ordinances. The violations arose out finding that Fisher had failed to substantially comply with the statu- of Farmway’s operation of a grain elevator facility inside the city
Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office The “Expedited” Designation There is a common misconception that the appellate courts exercise discretion when deciding which cases should be as- signed to expedited briefing and hearing schedules. With rare exceptions, the appellate courts only expedite cases that are required to be expedited by statute. During research, attorneys should review statutes which authorize the appeal for their particular issues and be alert to language which mentions priority. Common statutory language requires that “appeals under this section shall have priority over all others.” An illustrative, but not comprehensive, list of appeals which are expedited includes: K.S.A. 2013 Supp. 38-2273 [appeals from orders of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights]; K.S.A. 2013 Supp. 38-2380 [orders appealable after juvenile adjudications]; and K.S.A. 2013 Supp. 59-2401a(b)(1)-(5) [appeals under the Kansas Adoption and Relinquishment Act, Care and Treat- ment Act for Mentally Ill Persons, Sexually Violent Predator Act, Care and Treatment Act for Persons with an Alcohol or Substance Abuse Problem, Act for Obtaining a Guardian or Conservator]. Appointment of Counsel or Change of Appointment After Docketing When a docketing statement is filed with the appellate courts, the district court judge loses jurisdiction to make an ap- pointment of counsel or to change an existing appointment unless there is a remand order issued from the appellate court in which the case is docketed. If appellate counsel discovers a conflict of interest or other issue which necessitates withdrawal from the case, a motion to withdraw should be filed in the appellate court along with a request for remand to the district court for appointment of new counsel. Briefing Schedule When a Jurisdictional Show Cause is Issued If an appellate court issues an order to show cause questioning appellate jurisdiction, an existing briefing schedule is not suspended. If the attorney does not want to proceed with briefing during the court’s consideration of the show cause order, a motion for extension of time to complete the brief should be filed.
If you have questions these practices or appellate procedure generally, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.
www.ksbar.org | February 2014 39 Appellate Decisions limits. After the municipal court convicted Farmway under both STATUTORY LIENS – CONSUMER PROTECTION ordinances, the district court reversed the convictions, holding the VIA CHRISTI REGIONAL MEDICAL ordinances are unconstitutionally vague. The Court of Appeals af- CENTER INC. V. REED firmed the district court. RENO DISTRICT COURT – REVERSED WITH ISSUE: Noise ordinance DIRECTIONS HELD: Based upon the standards established in Kansas case law, KANSAS COURT OF APPEALS – REVERSED the Court concluded that the noise ordinance is unconstitutionally NO. 101,690 – DECEMBER 20, 2013 vague as applied to Farmway. More particularly, it failed the second FACTS: Reed treated at Via Christi Regional Medical Center af- prong of the vagueness inquiry by failing to convey sufficient clar- ter his car collided with a Union Pacific train. Reed settled with ity to those who apply the ordinance standards to protect against Union Pacific for $450,000. Via Christi filed a hospital lien to col- arbitrary and discriminatory enforcement. Consider the uncertainty lect on a bill for services provided to Reed. When Via Christi filed facing the ordinance’s enforcing agents when they determined, for an action to enforce lien, Reed claimed the lien was invalid because example, whether Farmway’s noise was “excessive,” “unnecessary,” or a modified treatment consent form signed by his sister did not es- “unusually loud,” which “disrupts” or “annoys” others in the City. tablish a debt. Reed also counterclaimed on Kansas Consumer Pro- The ordinance's lack of objective standards for making those de- tection Act (KCPA) claims that Via Christi engaged in deceptive terminations readily promotes varying and somewhat unpredictable and unconscionable acts and practices in efforts to enforce lien. On bases for enforcement. The Supreme Court agreed with the district motions for partial summary judgment, district court ruled in favor court and Court of Appeals that the City’s noise ordinance is uncon- of Via Christi on lien, against Reed on KCPA counterclaims, and stitutionally vague. As applied to Farmway, it fails to protect against entered journal to enforce full amount of lien. The Court of Appeals arbitrary enforcement. However, the Court held the noise ordinance (1) affirmed enforceability of lien because Via Christi substantially was constitutional as applied to Farmway. Farmway clearly was complied with statutory notice requirement, and no underlying debt on notice that its facility was injuring or endangering the public’s was necessary to support it; (2) remanded for hearing on what por- health, safety, or welfare. It is undisputed that Farmway knew the tion of lien constituted an equitable distribution of settlement pro- effect its facility’s dust and noise had on the surrounding residential ceeds; (3) held as matter of law that hospital cannot violate KCPA neighborhood—aggravating residents’ health and disrupting many by seeking enforcement of lien to recover for services rendered; and aspects of their lives—and that it took multiple steps to try to curtail (4) Reed was not an “aggrieved” consumer under KCPA. 45 Kan. the injurious effects. Simply put, the ordinance conveyed to Farm- App. 2d 365 (2011). Reed’s petition for review was granted. way “sufficient definite warning and fair notice as to the prohibited ISSUES: (1) Necessity of underlying debt for hospital lien, (2) ef- conduct in light of common understanding and practice.” fectiveness of lien, (3) viability of KCPA claims, (4) deceptive acts STATUTES: K.S.A. 2-2472(b); K.S.A. 21-3608, -4106, -4107, and practices, (5) unconscionability, and (6) number of KCPA claims -6204; K.S.A. 60-2101(b); K.S.A. 65-5007; and K.S.A. 77-706(a) HELD: Giving ordinary words their ordinary meaning and fol- (1) lowing established precedent, a hospital lien requires an underlying debt for lien to secure. Without such a debt, the lien is invalid. Court of Appeals holding to the contrary is rejected. Via Christi did not strictly comply with notice requirements in K.S.A. 65-407, thus its lien was ineffective and unenforceable against Union Pacific and Reed. Via Christi’s filing and attempt to enforce lien that exceeded the reasonable and necessary charges for Reed’s care negatively affected Reeds’ interest in timely availability of entire settlement amount, thus Reed qualified as “aggrieved” consumer under KCPA. Via Christi was not entitled to summary judgment on Reed’s KCPA claims. KCPA deceptive acts and practices claims were remanded for fur- ther proceedings. Reed came forward with enough evidence to de- feat summary judgment in favor of Via Christi. The bill supporting the hospital’s lien contained inaccuracies, and auditor’s report dem- onstrates existence of genuine issue of material fact on any theory that Via Christi engaged in billing practices so confusing as to be intentionally misleading. A hospital may engage in unconscionable conduct prohibited by KCPA when it files and pursues enforcement of lien based on bill that was inaccurate because of overcharges or duplicate charges, and hospi- tal enjoyed superior bargaining power compared to patient. Remand- ed to district court for review of evidence under correct legal standard. On remand there will be one claim for deceptive acts and prac- tices, and one claim for unconscionable acts and practices. Filing of lien and its ensuing enforcement is one transaction between hospital supplier and its consumer patient, not hundreds of discrete transac- tions as Reed alleged. STATUTES: K.S.A. 12-105b, 50-623, -624, -624(b), -624(c), -624(j), -626(a), -626(b), -626(b)(1), -626(b)(1)(A), -626(b)(1)(C), -626(b)(1)(D), -626(b)(2), -626(b)(3), -627(a), -627(b), -627(b) (2), -634, -634(a), -634(b); and K.S.A. 65-406 et seq., -406(a), -406(b), -406(c), -407
40 The Journal of the Kansas Bar Association Appellate Decisions
TAXATION, PUBLIC UTILITY, GAS COMPANY, multiplicitous and violated the Double Jeopardy Clauses of the state COMMERCE CLAUSE, AND DUE PROCESS CLAUSE and federal constitutions. Court of Appeals affirmed in unpublished IN RE TAX APPEAL OF VARIOUS APPLICANTS opinion. Hensley’s petition for review granted. COURT OF TAX APPEALS – AFFIRMED IN PART, ISSUES: (1) Probable cause affidavit, (2) compulsory process, and REVERSED AND VACATED IN PART, AND REMANDED (3) multiplicitous convictions WITH DIRECTIONS HELD: Affidavit provided probable cause to support the warrant. NO. 105,785 – DECEMBER 6, 2013 The six pieces of information in the affidavit were examined. Of FACTS: This is a consolidated tax appeal disputing whether nat- the four challenged as stale, two were unquestionably stale, but two ural gas stored in facilities located in Kansas under contract with arguably had probative value. Tip from unidentified informant was interstate companies is subject to ad valorem taxation. The Kansas entitled to no weight under totality of circumstances analysis in Il- Constitution, Article 11, § 1 (2012 Supp.) exempts merchants’ in- linois v. Gates, 462 U.S. 213 (1983), but there were sufficient indicia ventory from such taxation, but that exemption does not include of reliability to rely on the tip by Post. tangible personal property owned by a public utility. The taxpayers Although Court of Appeals concluded Hensley failed to dem- claim they are entitled to the exemption. They are 40 business enti- onstrate that Post’s testimony would have been material, it was ties that fall into three general categories: out-of-state natural gas unnecessary to address materiality. District court initially assisted marketing companies, out-of-state local distribution companies cer- Hensley’s effort to contact Post. Because Hensley never renewed his tified as public utilities in their states, and out-of-state municipali- request for additional compulsory process, district court never ruled ties. Each buys natural gas from producers or other marketers and on whether Hensley was entitled to a pick-up order. then delivers it to the pipelines under contracts with the pipeline Court’s earlier holding in State v. Berberich, 248 Kan. 854 companies allowing the taxpayer to withdraw equivalent amounts of (1991), was revisited in light of multiplicity analysis set forth in gas at a later time from out-of-state distribution points. The Kansas State v. Schoonover, 281 Kan. (2006). Under K.S.A. 21-3107(2)(b), Court of Tax Appeals (COTA) determined that the natural gas is possession of marijuana is a lesser included crime of possession of not exempt because of a statute broadly defining what constitutes marijuana with no tax stamp. Hensley’s convictions of possession a “public utility” for these purposes. The taxpayers challenge CO- of marijuana and possession of marijuana with no tax stamp were TA’s decision arguing, in part, that it violates the Commerce Clause multiplicitous. Conviction and sentence for possession of marijuana of the U.S. Constitution and the Due Process Clause of the 14th were reversed. Amendment to the U.S. Constitution, as well as Article 11, § 1(b) STATUTES: K.S.A. 2012 21-5109(b)(2); K.S.A. 20-3018(b), 21- of the Kansas Constitution (2012 Supp.), which provides for the ad 3107, -3107(2), -3107(2)(b); K.S.A. 22-3214; K.S.A. 65-4162(3); valorem tax exemption for merchants’ inventory. and K.S.A. 79-5201(c), -5208 ISSUES: (1) Taxation, (2) public utility, (3) gas company, (4) Commerce Clause, and (5) Due Process Clause STATE V. HOLT HELD: Court held that this taxation does not violate the Com- BOURBON DISTRICT COURT – REVERSED merce Clause or Due Process Clause, and held further that K.S.A. AND REMANDED 2012 Supp. 79-5a01 is constitutional as applied to the out-of-state NO. 103,532 – DECEMBER 20, 2013 local distribution companies. Court also held that K.S.A. 2012 Supp. FACTS: Holt appealed his conviction for aggravated indecent 79-5a01 is unconstitutional as applied to the out-of-state natural gas liberties with a child. Appeal disclosed significant problems with marketing companies and those taxpayers that are out-of-state mu- transcript of pretrial hearing that included Holt’s request for inde- nicipalities. Those entities are not public utilities as that term was pendent psychological examination of victim. No written order was commonly understood when Kansas voters excluded public utility filed, and attempts to reconstruct the record resulted only in agree- personal property from the merchants’ and manufacturers’ inventory ment on general nature of arguments. exemption. Court affirmed in part and reversed and vacated in part. ISSUE: Due process – adequacy of appellate record Court remanded to COTA for further proceedings to decide where HELD: Due process requires a reasonably accurate and complete each taxpayer falls within the three described categories. record of trial proceeding in order to allow meaningful and effec- STATUTES: K.S.A. 20-3017; K.S.A. 77-601, -621; and K.S.A. tive appellate review. Findings below must be preserved in such a 79-101, -5a01, -5a25, -201a Second, -201f, -201m way that adequate appellate review is possible. While a defendant does not have a constitutionally protected right to a totally accurate transcript of the criminal proceeding, when legitimate claims hav- Criminal ing a substantial foundation based on the available record are not susceptible to appellate review because the transcript is manifestly STATE V. HENSLEY incomplete or inaccurate, the proper remedy is to reverse and re- SALINE DISTRICT COURT – AFFIRMED IN PART mand for a new trial. Here, Holt’s request for independent psycho- AND REVERSED IN PART logical evaluation of victim was potentially critical to his defense, COURT OF APPEALS – AFFIRMED IN PART and record is insufficient to ascertain whether trial court abused its AND REVERSED IN PART discretion in denying that motion. Reversed and remanded for new NO. 102,055 – DECEMBER 6, 2013 trial at discretion of state. FACTS: Hensley convicted of possession of marijuana, posses- STATUTE: K.S.A. 21-3502(a)(2), -3502(a)(3)(A) sion of marijuana with no tax stamp affixed, and possession of drug paraphernalia. On appeal he claimed that the district court erred in STATE V. HURD denying motion to suppress evidence discovered with search war- SEWARD DISTRICT COURT – REVERSED rant that was unsupported by probable cause because affidavit’s AND REMANDED information was stale and of limited value and recent tips lacked COURT OF APPEALS – REVERSED credibility. He next claimed that the district court’s failure to issue NO. 104,198 – DECEMBER 27, 2013 pick-up order for a witness (Post) denied Hensley his right to com- FACTS: Hurd convicted in trial that consolidated a case with as- pulsory process. Third, he claimed that his convictions of possession sault, battery, and criminal threat charges, and a case charging two of marijuana and possession of marijuana with no tax stamp were counts of failure to register as sex offender. Hurd appealed on nine www.ksbar.org | February 2014 41 Appellate Decisions issues, in part challenging the district courts decision to consolidate stantially follow language of K.S.A. 22-4904(a)(1), nor charge the the cases, the trial judge’s refusal to recuse, and the district court’s offense in equivalent words to fully inform Hurd of particular of- refusal to find the complaint charging him with failing to register was fense charged. Final charging document also was confusing because jurisdictionally defective. In an unpublished opinion, the Court of it blended language from two different statutory provisions. Because Appeals rejected each issue and affirmed convictions and sentences. the conviction was void as a result of the district court’s error in Hurd’s petition for review granted. denying motion for arrest of judgment, state not prevented from ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) recharging Hurd. sufficiency of evidence of criminal threat, (4) recusal of trial judge, Under the facts of case viewed in the light most favorable to pros- and (5) authority to disqualify prosecutor ecution, sufficient evidence supported Hurd’s conviction for crimi- HELD: District court erred in consolidating the two cases. District nal threat. Remand for a new trial on that charge did not violate the court’s calendar considerations do not provide a basis for joinder, Double Jeopardy Clause. and Supreme Court rejected Court of Appeals’ finding that crimes Because Hurd essentially alleged the prosecutor violated Kansas were connected. State v. Anthony, 257 Kan. 1003 (1995) was distin- Rules of Professional Conduct, trial court had discretion to disqual- guished. State’s case as to battery, assault, and criminal threat charges ify that attorney from the case. If issue arises on remand, district was not strong, and jury might well have been influenced by Hurd’s court should consider whether prosecutor’s alleged conduct war- prior convictions. Under the circumstances there was a reasonable rants disqualification. probability that the improper consolidation affected the outcome of STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, Hurd’s trial. Reversed and remanded for two separate trials. -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, Complaint charging Hurd with two counts of failing to register -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b) was jurisdictionally defective. Complaint’s language did not sub-
Court of Appeals ress toward finding an adoptive placement for N.A.C. Second, even Civil if the court had jurisdiction to consider the appeal, C.J. Malone would conclude on the merits that the district court's decision was ADOPTION supported by substantial competent evidence. IN RE N.A.C. STATUTE: K.S.A. 38-1202, -2201, -2202(d), (h), (z), -2243, SEDGWICK DISTRICT COURT – REVERSED IN PART, -2250, -2251, -2253(b), -2254, -2255, -2256, -2264, -2269, VACATED IN PART, AND REMANDED WITH -2270(a), -2273(a), -2274(b) DIRECTIONS NO. 109,208 – DECEMBER 6, 2013 AT-WILL EMPLOYMENT FACTS: Mother gave birth to N.A.C. on the sidewalk in front of SMITH V. KANSAS ORTHOPAEDIC CENTER P.A. a sandwich shop in Wichita. N.A.C. was born six weeks premature, SEDGWICK DISTRICT COURT – AFFIRMED weighed less than 5 pounds, and tested positive for cocaine. N.A.C. NO. 109,084 – DECEMBER 27, 2013 was placed into police protective custody that same day. H.G. and FACTS: In 2007, Lana Smith began work as a physical therapist D.G. (maternal cousins from Idaho) appeal from the district court’s for a Wichita medical practice. After she left its employment, she order (1) finding that the Department of Social and Rehabilitation sued for bonuses she said were owed to her. Smith said that the prac- Services (SRS) failed to make reasonable efforts or progress toward tice’s business manager promised her a minimum $10,000 per year finding an adoptive placement for N.A.C., (2) removing N.A.C. bonus before she began work. But Smith’s employment agreement from the custody of SRS for adoptive placement, and (3) granting also clearly provided that she was an at-will employee, something custody directly to S.D. and D.D. (foster parents) with court ap- she has not contested, and the compensation of at-will employees proval to adopt. may be changed on a going-forward basis. Her employer announced ISSUE: Adoption new compensation terms during 2008, paid her more than $10,000 HELD: Court concluded that the district court’s finding regard- in bonuses for 2008, and applied the new compensation terms to ing the lack of reasonable efforts by SRS toward finding an adoptive bonuses in later years. Smith sued for her benefits, and the district placement was not supported by substantial competent evidence, court held that by staying on after new compensation terms are an- which in turn divested the court of its legal authority to remove nounced for future compensation, an at-will employee impliedly ac- N.A.C. from SRS custody for adoptive placement or grant legal cepts those terms. Accordingly, the district court granted summary custody directly to foster parents for adoption. The court reversed judgment against Smith’s claim for additional bonuses from 2009 the district court’s finding regarding reasonable efforts, vacated the until she ended her employment in 2011. court’s orders regarding custody, and remanded the cause while the ISSUE: At-will employment Department for Children and Families proceeds with and finalizes HELD: Court held that in an at-will employment, the employer adoption placement. can change the terms under which the employee is compensated for DISSENT: Chief Judge Malone dissented for two reasons. First, wages not yet earned by providing notice to the employee. If the consistent with prior published decisions of the Court of Appeals, employee continues to work after the new compensation terms have C.J. Malone would find that the Court of Appeals lacked juris- been announced, the employee impliedly accepts those terms. diction to consider an appeal by H.G. and D.G. from the district STATUTES: No statutes cited. court’s ruling that SRS failed to make reasonable efforts or prog- 42 The Journal of the Kansas Bar Association Appellate Decisions HABEAS CORPUS RATE HEARING AND JURISDICTION STANLEY V. SULLIVAN BLUESTEM TELEPHONE CO. ET AL. V. KCC ET AL. PAWNEE DISTRICT COURT – AFFIRMED WASHINGTON DISTRICT COURT – REMANDED TO NO. 109,388 – DECEMBER 6, 2013 DISTRICT COURT FOR FURTHER PROCEEDINGS FACTS: Stanley was civilly committed as a sexually violent NO. 110,791 – DECEMBER 12, 2013 predator pursuant to Sexually Violent Predator Act (SVPA). He FACTS: Bluestem Telephone Co. and numerous other Kansas filed three separate habeas corpus petitions under K.S.A. 60-1501, Rural Local Exchange Carriers (RLECs) appeal from orders of the which the district court dismissed for failure to exhaust adminis- Kansas Corporation Commission issued during two general inves- trative remedies prior to seeking court intervention. In consoli- tigation dockets. The commission opened those dockets to explore dated appeal, Stanley argued that K.S.A. 2012 Supp. 59-29a24 the impact of proposed new federal regulations (Kansas Universal excuses him from having to exhaust administrative remedies prior Service Fund) relating to the provision of and payment for univer- to seeking habeas relief. sal service in the telecommunications industry. The RLECs filed ISSUE: Exhaustion of administrative remedies – K.S.A. 2012 their petition for judicial review in the Washington County District Supp. 59-29a-24 and K.S.A. 2012 Supp. 60-1501 Court. The commission filed a motion seeking to transfer the case HELD: District court’s dismissal of Stanley’s petitions was af- to the Court of Appeals under K.S.A. 66-118a(b), claiming that firmed. Based on language of statutes in question and legislative the challenged orders arose from a “rate hearing.” The district court history, a civilly committed sexually violent predator is still re- agreed and found that the Court of Appeals had exclusive jurisdic- quired to exhaust any applicable administrative remedies prior to tion to hear the case. seeking extraordinary remedy of habeas corpus under K.S.A. 2012 ISSUES: (1) Rate hearing and (2) jurisdiction Supp. 60-1501. Court found the legislative intent for language in HELD: Court held that the case did not arise from a “rate hear- K.S.A. 2012 Supp. 59-29a24(d) to apply only to filing restrictions ing,” nor was it sufficiently like a rate hearing to grant the court set forth in K.S.A. 2012 Supp. K.S.A. 2012 Supp. 59-29a24(c). exclusive jurisdiction under K.S.A. 66-118a(b). The commission Whether appropriate administrative remedies were unavailable orders being challenged by the Petitioners address the effect of new to Stanley, or whether administrative remedies afforded him due federal regulations on KUSF payments and establish an industry- process, were issues neither argued nor addressed. The court also wide cost methodology for distributing those payments to RLECs. expressed no opinion on merits of Stanley’s underlying claims, The orders do not determine the amount of KUSF payments that and did not determine what administrative remedies may be will be available to individual RLECs, and the orders do not set the appropriate. rates for services that any individual RLEC can charge to its cus- STATUTES: K.S.A. 2012 Supp. 59-29a24, -29123(a), -29a24(c), tomers. Court stated K.S.A. 66-118a(b) does not grant the Court -29a24(d); K.S.A. 59-29a01 et seq., 60-1501 et seq., -1507; and of Appeals exclusive jurisdiction to review a commission order from K.S.A. 75-52,138 a general investigation docket simply because the order ultimately may impact rates that a public utility charges to consumers. Court concluded that the commission orders being challenged by the Pe-
www.ksbar.org | February 2014 43 Appellate Decisions titioners do not arise from a rate hearing within the meaning of ing symptoms of back pain and arm and leg numbness. Lake’s treat- K.S.A. 66-118a(b), and remanded to the district court for further ing physicians, a neutral physician appointed by the administrative proceedings. law judge (ALJ), and a physician retained by Lake, all testified that STATUTES: K.S.A. 66-117, -118a(b), -2001, -2005, -2008; and the work accident caused his injuries. A physician retained by Lake’s K.S.A. 77-601, -609 employer, Jessee Trucking, offered no opinion because he was uncer- tain regarding the onset of Lake’s symptoms. The ALJ heard sworn WATER RIGHTS, MONITORING PLAN, testimony from Lake describing his work accident, his symptoms, AND JURISDICTION and his medical care. The ALJ determined that the work accident CLAWSON ET AL. V. STATE OF KANSAS ET AL. caused significant neurological injuries and awarded Lake compen- MEADE DISTRICT COURT – AFFIRMED IN PART, sation for his permanent total disability. Upon review, however, the REVERSED IN PART, AND REMANDED WITH Workers Compensation Board (Board) rejected Lake’s testimony INSTRUCTIONS and held that he had failed to prove that the work accident had NO. 108,426 – DECEMBER 20, 2013 caused his neurological injuries. FACTS: Clawson and the Clawson Land Partnership (Clawson) ISSUE: Workers compensation obtained 10 approvals and permits from the chief engineer of the HELD: Court held that under the facts of this workers compen- Division of Water Resources (DWR) to appropriate water. Under sation case, having considered all of the evidence—including the the terms and conditions of the water appropriation permits, the credibility determinations made by the ALJ regarding the claimant chief engineer imposed a specific monitoring plan and retained ju- and the reasons given by the board for disagreeing with those cred- risdiction to reduce the approved rates of diversion and the quanti- ibility determinations, the board's findings of fact in support of its ties of the water rights authorized to be perfected as may be deemed conclusion to deny compensation were not supported by substan- in the public interest. After exhausting administrative remedies, tial evidence when viewed in light of the record as a whole. Court Clawson challenged those terms and conditions in the district court stated that because the question was not the existence of a work of Meade County. The district court upheld the requirements of the accident, which the board found, or even of injury to Lake, which specified monitoring plan but found that the chief engineer could the board found in the form of a pulled groin, but only of a link not retain jurisdiction to reduce the rates of diversion and the quan- between the work accident and Lake’s neurological injuries, the tities of the water rights authorized to be perfected after the issuance causation opinions of the doctors did not seem improbable, unrea- of the permits. The DWR appealed the district court’s finding that sonable, or untrustworthy. Court concluded that the weight of the the chief engineer cannot retain jurisdiction to make reductions in medical evidence, coupled with the lack of substantial evidence to the approved rates of diversion and the quantities of the water rights uphold the board’s findings that Lake was not credible (contrary authorized to be perfected. Clawson cross-appealed, contending the to the ALJ’s determination) and the evidence corroborating Lake’s monitoring plan, which requires Clawson to install electronic rate testimony that he experienced neurological symptoms during and loggers, is unduly burdensome and oppressive. shortly after the accident, require reversal of the board’s ruling. ISSUES: (1) Water rights, (2) monitoring plan, and (3) Court held the board’s findings of fact in support of its conclusion jurisdiction to deny compensation were not supported by substantial evidence HELD: Court held the Kansas Water Appropriation Act viewed in light of the record as a whole. Court reversed the board's (KWAA) does not authorize the chief engineer to reevaluate and order and remanded with directions to reinstate the ALJ’s award reconsider an approval once a permit has been issued. Clawson of compensation. would have to invest significant amounts of money to reperfect STATUTES: K.S.A. 44-501, -556; and K.S.A. 77-601, -621 the existing water rights. If the chief engineer could reduce the rate of diversion and the quantity of the water rights authorized to be perfected, the permit would be meaningless. Court affirmed Criminal the district court’s rejection of the chief engineer’s retention of jurisdiction. Court agreed with the district court that the chief STATE V. PHILLIPS engineer acted within his statutory authority by imposing a moni- JOHNSON DISTRICT COURT – REVERSED toring plan, which included electronic rate loggers, on Clawson’s AND REMANDED permits. However, Court held that since Clawson had the burden NO. 108949 – DECEMBER 13, 2013 to show that the chief engineer's monitoring plan was unreason- FACTS: Phillips convicted of possession of methamphetamine able, Clawson should be given the opportunity to present evidence and possession of drug paraphernalia, based on evidence found in on that point. Court stated that because that has not happened, warrantless search of motel room he shared with Doughtery. Phil- Court remanded that sole question back to the district court with lips claimed his and Dougherty’s encounter with law enforcement instructions that it remand the matter to the DWR for an eviden- officers in motel parking lot prior to the search constituted illegal tiary hearing to determine the reasonableness of the chief engi- detention because officers had seized him without reasonable sus- neer’s monitoring plan in light of the opinion. picion, thus consent to search the motel room was granted invol- STATUTES: K.S.A. 77-501, -529, -601, -621(c); and K.S.A. untarily and evidence should be suppressed. District court denied 82a-701, -705, -706, -706b, -706c, -707(a), -708a, -708b, -709, the motion, finding that Phillips’ and Doughtery’s entire encounter -711, -712, -713, -714, -718, -724, -770, -1901(b) with officers was consensual and the two men voluntarily consented to search of motel room. Phillips appealed. WORKERS COMPENSATION ISSUE: Unlawful detention without reasonable suspicion LAKE V. JESSEE TRUCKING AND HELD: Reversed and remanded. Under totality of circumstanc- CONTINENTAL WESTERN GROUP es, first officer’s approach was voluntary encounter, but after five WORKERS COMPENSATION BOARD – REVERSED AND minutes it should have been reasonably clear the two men were not REMANDED WITH DIRECTIONS engaged in any criminal activity in the parking lot. But additional NO. 109,519 – DECEMBER 27, 2013 officers arrived at the scene, one continued to hold Daugherty’s FACTS: Lake appealed the denial of his workers compensation pocket knife, the encounter was investigatory in nature and lasted claim. Lake had an accident at work and then experienced increas- 18 minutes, no officer told the men they were free to leave, and the 44 The Journal of the Kansas Bar Association Appellate Decisions state concedes the officers had no reasonable suspicion of criminal HELD: The “substantially similar” language in K.S.A. 21010 activity until drugs and paraphernalia were found inside the motel Supp. 21-36101(b) is not unconstitutionally vague. Court ex- room. Phillips was unlawfully detained when he allowed officers to amined K.S.A. 2010 Supp. 21-36101(b) and agreed with district search his motel room, thus his consent to search was rendered in- court’s reading sections (A) and (B) in the conjunctive, requiring voluntary. Evidence found in the motel room was unlawfully seized, state to prove beyond a reasonable doubt that chemical structure and Phillips’ later statements at the detention center were inadmis- of JWH-081 is substantially similar to structure of JWH-018, and sible as “fruit of the poisonous tree.” hallucinogenic effect of JWH-081 on central nervous system is STATUTE: K.S.A. 22-2401, -3216(2) substantially similar to hallucinogenic effect of JWH-018. Lack of controlling Kansas precedent construing the analog statute was STATE V. SRACK noted. Federal court decisions rejecting void for vagueness chal- SALINE DISTRICT COURT – AFFIRMED lenges to identical federal definition of a controlled substance ana- NO. 107660 – DECEMBER 13, 2013 log were cited. FACTS: Srack was convicted of distribution of a controlled sub- All experts at trial agreed that structures of JWH-081 and JWH- stance analog, based upon undercover investigator’s purchase of 018 are identical but for a single methoxy group in JWH-081. herbal potpourri containing synthetic cannabinoid JWH-081, an Whether hallucinogenic effects were substantially similar was a jury analog of schedule I hallucinogenic drug JWH-018. On appeal question to resolve. Here, credible evidence supported jury’s find- Srack claimed (1) the statutory definition in K.S.A. 2010 Supp. ings that substances and their effects were substantially similar based 21-36a01(b) of a controlled substance analog is unconstitutionally on the instructions given. vague, (2) insufficient evidence supported the conviction, and (3) Proffered evidence was not material because any change in list- district court erred in excluding letter written by county attorney to ing of scheduled controlled substances after Srack was arrested and State Board of Pharmacy indicating he was contemplating dismissal charged would have no legitimate bearing on Srack’s case. Even if of the criminal charges if JWH-081 was not named a scheduled relevance is assumed, any error in excluding that evidence would controlled substance by that board. have been harmless under facts of case. ISSUES: (1) Constitutional challenge to Kansas Controlled Sub- STATUTES: K.S.A. 2010 Supp. 21-36a01(b), -36a01(b)(1), stance Analog Statute, (2) sufficiency of the evidence, and (3) exclu- -36a05(a)(4); K.S.A. 2010 Supp. 60-261; K.S.A. 2010 Supp. 65- sion of evidence 4105(d)(33); K.S.A. 60-401(b), -407(f); and K.S.A. 65-4105(d)
www.ksbar.org | February 2014 45 classified advertisements
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To ap- writer is willing to take in appellate pro- QDROs, communicate with the retirement ply, please send your resume with a cover ceedings for any civil matter. Attorney has plans, and assist with qualification of your letter addressed to: Larry G. Karns, Direc- briefed approximately 20 cases in the Kansas DROs or other retirement plan matters. Let tor, Division of Workers Compensation, Court of Appeals and 10 briefs to the 10th me help you and your client through this 401 SW Topeka Blvd., Suite 2, Topeka, KS Circuit, both with excellent results. If you technically difficult process. For more in- 66603-3105. To be considered, application simply don’t have the time to help your cli- formation call Curtis G. Barnhill at (785) must be received by May 1, 2014. ents after the final judgment comes down, 856-1628 or email [email protected]. call or email to learn more. Jennifer Hill, Veterans Services. Associate Position. The Law Firm of (316) 263-5851 or email [email protected]. Do you want to better Bryan, Lykins, Hejtmanek & Fincher PA serve your veteran clients without going to Contract Brief Writing. is seeking an associate with at least 5 years Former federal the trouble of dealing with the VA? I am a experience or possible contract attorney. law clerk and Court of Appeals staff attorney VA-accredited attorney with extensive expe- Please contact Roger Fincher at rdfincher@ available to handle appeals and motions. At- rience applying for various VA benefits, in- torney has briefed numerous appeals in both cluding Improved Pension. I regularly con- aol.com or by telephone at (785) 235-5678. the Kansas and federal appellate courts. Con- sult with attorneys (and their clients) about Do you feel undervalued by your end tact me if you need a quality brief. Michael the various services an attorney can offer Jilka, (785) 218-2999 or email mjilka@ their clients to help qualify veterans and their of year compensation? Now that we have jilkalaw.com. families for various VA programs. As soon as your attention, would you like to forget the a client is in position to qualify, I can further firm politics, stop wasting time in useless Former Probate Judge and Experienced assist by handling the entire application to committee meetings and focus on practicing Litigator. Available to assist you in probate the VA for you. For more information about law? Do you have your own stable client base and trust litigation in courts throughout my various consultation and application ser- which is portable? Do you have an entrepre- Kansas. Please visit us at www.nicholsjilka. vices, please contact the Law Office of Scott neurial spirit and ready to try something com or call Mike Nichols at (316) 303- W. Sexton P.A. at (785) 409-5228. new? Tired of paying for large firm overhead 9616 or Mike Jilka at (785) 218-2999. and want to try a smaller firm format? Do We have the Space You Need at the you have an established clientele who are No Time to Prepare a Critical Ap- Price You Want! We have offices available resistant to billing rate increases required to peal Brief or Dispositive Motion? Let in all sizes from 200 sq. ft. to 8,000, or no keep up with national firm norms or com- an attorney and writer with over 15 years office at all under our virtual program. We petition in other cities? Looking for a way of full-time experience at such tasks in the offer a cost-effective solution for small- to to maintain a first-class law practice with a courts of Kansas, Missouri, the 8th Circuit, medium-sized companies and branch offices reputable law firm with easy access to I-435, and the 10th Circuit prepare it for you, with very little upfront cost and flexible I-69, and I-35? If so, please consider joining likely for considerably less than you would lease terms. You can typically move into our small south Kansas City law firm. This charge your client. Contact James L. “Jay” your office in a day and have access to a long-standing firm may be the right place for MowBray at (816) 805-1376 or by email at professional environment and services with- you. We are looking for hard working law- [email protected]. I have out all the overhead. Please visit us at www. yers who can bolster our multispecialty prac- authored dozens of successful dispositive officetechcenter.us. tice in Kansas and Missouri. Open to plain- motions. See lawofficeofjaymowbray.com tiff and defense business, with proven track for a list of successful appeals. record. Don’t pay a head hunter or recruiter. For Sale Send a resume and cover letter to Blind Box Medical Litigation Support. I am an at- For Sale. Awesome power boat. 2004 Baja A, c/o Kansas Bar Association, 1200 SW torney practicing in Kansas, with a Bachelor 40 Outlaw. T-575 SC Mercruisers. Four Harrison St., Topeka, KS 66612-1806. Re- of Science degree in nursing and substantial bolsters plus back bench. Fully equipped plies will be kept confidential. experience in critical care, burns, trauma, and ready for summer. Approximately 110 and nursing home care. I have consulted hours. Someone will be very happy. For Legal Counsel. We are currently looking with attorneys in the following types of info and photos, contact Charley German for an experienced attorney for our Legal cases: health care provider malpractice, at (816) 471-7700 or [email protected]. 46 The Journal of the Kansas Bar Association classified advertisements
Office Space Available if needed. Reasonable rent. No long-term net access, copier, fax, coffee galley, etc.). lease required. Some possibility of business Staff support available if needed. Please Downtown Overland Park Office referrals depending on your area of practice. contact Tara Davis at (913) 498-1700 or Space for Rent. Free parking, reception We are an AV-rated litigation firm with [email protected]. area, kitchen, and conference room avail- full management, accounting, research, and able for tenant use. The offices are in walk- other support services. We would consider Office Space for Lease. Located at 921 ing distance of coffee shops, restaurants and cost sharing these services with a compatible SW Topeka Blvd., which offers quick and retail stores. 2,970 sf of space available. Easy transactional, tax, and/or real estate practice. easy access to downtown Topeka including access to Metcalf, I-35, I-635. Contact Tim Professional, collegial, friendly atmosphere the County, Municipal, and Federal Court- Gates at Agnes Gates Realty (913) 645- with other attorneys. Confidential inquiries houses; State Capitol Building; Docking 5900 or [email protected]. can be made to Michael Grier at mgrier@ State Office Building; Curtis Building; and wardengrier.com. more. There is available space on the first Leawood, Kansas. Perfect for solo practi- or second floor of the building, which in- tioner, 196 square foot corner office in of- Office Space Available. Great space for cludes individual offices and/or office suites. fice building at 112th and Nall. Walking attorney, businessperson, or CPA. Up to The building also includes a beautiful glass distance to Town Center, Sprint campus, 3,000 feet available, conference room, secu- atrium sitting room used as an art display. etc. Office has hardwood floors, large win- rity system, easy access to downtown Tope- Provided services include private parking dows, and includes use of conference room, ka or interstate. Call Bob Evenson at (785) and receptionist services. Please call Swin- reception etc. External signage (visible from 231-7987. nen & Associates LLC at (785) 272-4878 Nall) is available with long-term lease, or for more information and to schedule an ap- purchase. Lease for $1,100/month, or will Office Space Available. One office (ap- pointment to view the space. sell my 20 percent interest in the 2,400 sf proximately 14” x 12”) is available in AV- building unit (the other 80 percent of the rated firm located at College and Roe in Professional Offices, West of Plaza. building is used by a small accounting firm). Leawood Corporate Manor. Available im- Two corner offices and reception area/3rd Contact Daniel Langin at (913) 661-2430 mediately. Excellent location and recently office, plus kitchenette and bathroom. Win- or [email protected]. redecorated. Furniture not included. Com- dows, hardwood floors, new paint through- petitive price including all the amenities of a out. $1,150/month. Eleven-year tenant just Office Sharing/Office for Lease— full service law firm (phone, Internet access, vacated. Contact (816) 753-2823 for more Country Club Plaza, Kansas City. Of- copier, fax, etc.). Please contact Kent Perry information. fice sharing or office lease opportunity on at (913) 498-1700 or [email protected]. the Country Club Plaza in a Class A high Professional Office Space for Lease profile corner building with ample free Office Space Available. One office (ap- or Sale. Newly vacated space at 79th and public parking for clients. 200 to 11,000 proximately 14” x 15”) is available in AV- Quivira, Lenexa, KS. Great rates and will square feet available. Window offices avail- rated firm located at Metcalf and 110th consider valuable upfront lease concessions able, high-speed DSL, printer, copier, fac- Street in the Commerce Plaza Building in for high quality, long term lease. Office is lo- simile, scanning, telephone, kitchen facili- Overland Park. Available immediately. Ex- cated in a commercial center that is for sale. ties, reception area, and multiple conference cellent location and a class A building. Re- Excellent income-producing investment rooms. Offices are state-of-the-art with cently redecorated. Furniture not included. opportunity for an owner-occupant. Attrac- award-winning interior finish and design. Competitive price including all the ameni- tive owner financing available for qualified Dedicated area available for your assistant ties of a full service law firm (phone, Inter- buyer. Call (816) 805-6415.
Give a Hand Up to Those in Need
• Help is needed to provide pro bono legal • KLS may be able to help with extraordinary services to low-income Kansans; ALL areas of litigation expenses when the interests of practice are needed. justice require it.
• No potential clients will be given your name • For more information or to volunteer, contact without approval and all will be screened the Kansas Bar Association at (785) 234-5696 for financial eligibility through Kansas Legal or at [email protected]. Services.
www.ksbar.org | February 2014 47