Your Partner in the Profession | July/August 2020 • Vol. 89 • No. 6

Cigarettes and Tobacco Sale and Use Case: City Home Rule Prevails by Mike Heim P. 26 Kansas Child Support 2020: Seeing the Future of Child Support with Open Eyes by Bethany Roberts and Casey E. Forsyth P. 36

Mira Mdivani Charles E. Branson KBA Immediate Past President KBA President 2020-2021 POWERING PAYMENTS FOR THE Trust Payment IOLTA Deposit

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www.ksbar.org | July/August 2020 3 THE Let your VOICE 2020-21 be Heard! JOURNAL KBA Officers & Board of Governors OF THE KANSAS BAR ASSOCIATION President Charles E. Branson, [email protected] President-elect 2020-21 Cheryl Whelan, [email protected] Journal Board of Editors Vice President Nancy Morales Gonzalez, [email protected] Secretary-Treasurer Emily Grant (Topeka), chair, [email protected] Laura Ice, [email protected] Sarah G. Briley (Wichita), [email protected] Immediate Past President Hon. David E. Bruns (Topeka), [email protected] Mira Mdivani, [email protected] Richard L. Budden (Kansas City), [email protected] Young Lawyers Section President Boyd A. Byers (Wichita), [email protected] Katherine E. Marples Simpson, [email protected] Jennifer Cocking (Topeka), [email protected] District 1 Connie S. Hamilton (Manhattan), [email protected] Michael J. Fleming, [email protected] Katie A. McClaflin, [email protected] Michael T. Jilka (Lawrence), [email protected] Katherine S. Clevenger, [email protected] Lisa R. Jones (Ft. Myers, FL), [email protected] District 2 Casey R. Law (McPherson), [email protected] Bethany J. Roberts, [email protected] Professor John C. Peck (Lawrence), [email protected] District 3 Rachael K. Pirner (Wichita), [email protected] Angela M. Meyer, [email protected] Richard D. Ralls (Overland Park), [email protected] District 4 Karen Renwick (Kansas City), [email protected] Brian L. Williams, [email protected] Jennifer Salva (Kansas City), [email protected] District 5 Vincent Cox, [email protected] Teresa M. Schreffler (Wichita), [email protected] Terri J. Pemberton, [email protected] Richard H. Seaton Sr. (Manhattan), [email protected] District 6 Sarah B. Shattuck (Ashland), [email protected] Tish S. Morrical, [email protected] Richard D. Smith (Topeka), [email protected] District 7 Marty M. Snyder (Topeka), [email protected] William L. Townsley, III, [email protected] Hon. Jeffrey E. Goering, [email protected] Patti Van Slyke, Journal Editor & Staff Liaison, [email protected] Megan S. Monsour, [email protected] Meg Wickham, Dir. of Communications & Member Svcs., [email protected] District 8 Issaku Yamaashi (Overland Park), [email protected] Dell Marie S. Swearer, [email protected] Natalie Yoza (Topeka), [email protected] District 9 Aaron L. Kite, [email protected] The Journal Board of Editors is responsible for the selection and editing of all District 10 substantive legal articles that appear in The Journal of the Kansas Bar Association. Gregory A. Schwartz, [email protected] The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for District 11 consideration, please send a draft or outline to Patti Van Slyke, Journal Editor Candice A. Alcaraz, [email protected] at [email protected]. District 12 Alexander P. Aguilera, [email protected] Ryan Purcell, graphic designer, [email protected] Bruce A. Ney, [email protected] John M. Shoemaker, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Eunice Peters, [email protected] monthly with combined issues for July/August and November/December for a KDJA Representative total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at Hon. Bruce T. Gatterman, [email protected] additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; KBA Delegate to ABA House Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, Natalie G. Haag, [email protected] which is included in annual dues. Nonmember subscription rate is $45 a year. Eric K. Rosenblad, [email protected] ABA State Delegate The Kansas Bar Association and the members of the Board of Editors assume Rachael K. Pirner, [email protected] no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. YL Delegate to ABA House Copyright © 2017 Kansas Bar Association, Topeka, Kan. Joslyn Kusiak, [email protected] KBF Representative For display advertising information, contact: Scott M. Hill, [email protected] Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email [email protected] Executive Director of the KBA/KBF Stacey Harden, [email protected] For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email [email protected]. Our Mission Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. TheKansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community POSTMASTER: Send address changes to The Journal of the Kansas Bar through advocacy of public policy issues, encouraging public understanding of Association, P.O. Box 751080, Topeka, KS 66675-1080. the law, and promoting the effective administration of our system of justice.

4 The Journal of the Kansas Bar Association Protect Your Firm. Help More People. Be the Lawyer You Want to Be. Find out more about your KBA-endorsed carrier at www.alpsnet.com/kbajournal

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www.ksbar.org | July/August 2020 5 (800) 367-2577 www.alpsnet.com [email protected] from the executive director

Getting to know each other

by Stacey Harden, Executive Director, KBA/KBF

Stacey (center) with sons Austin (L) and Stacey (L) with Mom, MaryAnn Kramer (center) and Brayden (R) sister Amanda Wright (R). Amanda is the KBA’s CLE Director.

reetings and salutations! I joined the KBA team last Giants. What happened in the moments that followed will fall as the association’s Accounting Manager and was stay with me forever—instead of feeling the sting of failure, recently selected to serve as the KBA’s next Executive with the soundtrack provided by chants of “Let’s Go Royals,” GDirector. I start that new adventure on August 3rd. 40,000 people filed out of the stadium cheering, smiling and A hometown girl, I was born and raised in Topeka. I gradu- hopeful for what was to come next. There was no failure that ated from Topeka High School just up the street, and then night in October, only lessons learned. And with those les- twice from Baker University, a little farther down the road. sons learned—and a little patience—came the ultimate suc- With my roots already planted in the Topeka area, I embarked cess just one year later. on many amazing yet challenging opportunities in this com- I am fortunate to be working with such a fantastic team munity that have allowed me to grow professionally. I have at the KBA/KBF. The talent, personality and professional- served as a regulatory analyst for a State advocacy agency, a ism of the KBA/KBF staff are second to none. I hope in fu- grants accountant, a Chief Financial Officer and an adjunct ture editions of the Journal to be able to spotlight members business and accounting instructor. of the KBA staff. I would like to give a special shout-out to A self-professed sports fanatic, I identify the season by the Ms. Karla Whitaker, who graciously came out of retirement sport I am watching—its either basketball season, baseball to take on the Executive Director duties on an interim ba- season or football season. To say that I have a healthy com- sis this past January, without any knowledge that the world petitive spirit might be an understatement. But in all serious- as we know it would be tipped upside down and inside out. ness, consuming sporting activities for the better part of my Karla has done an amazing job of navigating the KBA/KBF life has taught me priceless lessons about success and failure through the choppy waters of a global pandemic. If you have and the value of having a great team. a moment, please reach out and thank Karla for her service to the KBA/KBF. I was lucky enough to attend game seven of the 2014 World Series, where I watched my favorite team try to reverse nearly We are still learning how to successfully plot our course three decades of failure by upending a formidable opponent through this COVID world, but I am confident the KBA/ on the field. In the bottom of the ninth inning, with the ty- KBF will emerge stronger than before. I anxiously await the ing run standing on third base, I, along with 40,000 of my opportunity to welcome you back in person, to shake hands closest friends, watched our championship moment slip away, and exchange stories and lessons with each other first-hand. as the Royals were unable to defeat the literal and figurative For the time being, however, this runner will have to remain standing on third base. n 6 The Journal of the Kansas Bar Association from the kba president

“It’s an Adventure!” by Charles E. Branson KBA President, 2020-2021

hen those words are uttered in my household, it navigate this new frontier. I could not be prouder of the KBA’s holds a special meaning for my entire family. Typi- response to our members during this time. cally, it is a signal we are embarking on a trip or In the midst of the pandemic, the KBA and the Kansas Bar Wouting where we have little idea what is going to happen—but Foundation also interviewed and hired a new executive di- we are going to do it anyway. Sometimes, this phrase also rector. More than forty people applied, with interest coming evokes that internal feeling of being in a roller-coaster car as from all over the country. As President-Elect, I had the privi- you clatter towards the top of the track for the first big plunge. lege of leading an amazing search committee. These dedicated As my term starts as President and I survey the landscape, people experienced business in the age of COVID firsthand. those words come to mind. Both as an association and as After reviewing applicants and several Zoom interviews, we individual legal professionals, we have watched our world passed finalists on to the Board for consideration. The final change like it never has before. Due to the pandemic, we have interview process really showed the KBA’s creativity. On the had courts close and clients vanish. We have had to learn new first day, each candidate hosted a Zoom social hour as Board technology. Where we used to rely on a face-to-face meeting members rotated between the candidates in small groups. On and a handshake, we now rely on a video call and the inevi- the second day, the candidates each went through a formal table cat that walks across on the participant’s screen. interview with the Board. On the final day, the candidates Your KBA has been rising to meet the new challenges we presented a formal action plan to the Board concerning how face. Our Past President Mira Mdivani was quick to take ac- to study and account for the challenges of maintaining and tion in April, creating a series of informative, live-streamed increasing bar membership in the wake of COVID-19. With roundtable discussions on the impact of COVID-19 on our that process complete, the Board met and deliberated in a law practices. These programs helped many Kansas attorneys digital meeting before selecting Stacey Harden as the new Executive Director for the KBA and KBF. Congratulations, Stacey!

www.ksbar.org | July/August 2020 7 kansas bar association president

Sadly, we were unable to join together for our annual meet- Clacky, clacky, clacky, the roller coaster car heads up the ing in June. But take heart, we are working on a virtual meet- track. I anticipate it will be an interesting year to be President ing for August 21. Stay tuned for more details. of the Kansas Bar Association. As we all collectively climb I also have great hope that this year marks a turning point into the car though, I cannot possibly think of better com- n where we will finally confront the longstanding systemic rac- panions for this “adventure.” ism in our society. It is high time we not only recognize that all people are equal, but do the work to stamp out inequality About the Author wherever it is found. The KBA’s diversity committee is already working on actions the bar can take to strengthen our profes- Charles E. Branson is the President of the sion’s response. Kansas Bar Association for 2020-2021. He is the Douglas County District Attorney, Before Finally, I want to close out my first column by extending a running for election in 2004, Branson was heartfelt thank you to two people who have performed above in private practice in Lawrence; his practice and beyond the call of duty during these last several months. focused on the areas of criminal and civil Immediate Past President Mira Mdivani, you have handled a litigation. A long-time active member of the difficult presidency with grace and poise. I will strive to fol- KBA, Branson has served on the Executive Committee of the Board of Governors, has low your example. been the KBA Representative on the Board Karla Whitaker, you came to us in our time of need with- of Trustees of the Kansas Bar Foundation, out knowing the unusual times we would be facing. You have and has also been a member of the Bench-Bar Committee and the Scholarship Committee. Charles and his wife Kathy have two been a calm and collected steward of the bar and an amazing children, Chance and Grace, and are very proud to call Lawrence colleague over the last several months. As you transition back and Douglas County their home. into retirement, please know you have left a lasting impres- sion on the bar. [email protected]

PRO BONO LEGAL SERVICES • Domestic violence reports saw a double digit increase from last year during the stay-at-home order. • Every court is trying to schedule the backlog of PFA hearings as fast as they can. • 1% of the population of Kansas contact Kansas Legal Services for assistance each year. • Using all of our resources, KLS assists all but 32% of our applicants. is year’s unique needs have stretched our resources, but one thing is for sure: WE NEED YOUR HELP! Volunteer! Put your professional skills to work! Opportunities range from full representation to advising people from your home. Let us fi nd an option for your schedule. To volunteer, visit: klsprobono.org OR email: [email protected]

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8 The Journal of the Kansas Bar Association kansas bar foundation president

Please Hug the KBF Mission by Scott Hill, KBF President

t was about this time in 2008 when I sat down to write lifetime.” Maybe that is not exactly how the quotation my first column for The Journal of the Kansas Bar Asso- goes, but the point is, we can significantly impact the ciation as the new KBA Young Lawyers Section (“YLS”) young lawyer by first reminding the senior members of IPresident. At that time, I had been in practice for only about a thing or two. five years. So I begin with a question: Have you hugged a young Here were my first three paragraphs of that column: lawyer today? We have all heard the expression, “have My charge over the next year as the author of this Young you hugged your child today,” meaning that parents Lawyers Section column is to provide direction, educa- need to show physical affection to children to nurture tion, or other enlightenment to the junior attorneys of both physical and emotional development. But how our bar. If I follow that charge to a “T,” I should only be does this translate to the practice of law? I hypothesize writing to our younger members and anyone more than —no better yet I promise—through professional affec- 35 years of age should just turn the page (I say that only tion, you can nurture the development of our young figuratively; stick with me). lawyers. It is now my pleasure in 2020 to serve the Kansas Bar But before I reach out directly to the young lawyers, I Foundation (“KBF”) as its President. In these last 12 years, want to take this opportunity to direct questions and I have graduated from the YLS and lost some hair (and what comments to the senior bar. You might ask how ad- remains is pretty gray), but I feel like I have grown much as dressing older attorneys provides direction, education, a person and a lawyer. However, I find that these “words of and/or enlightenment to young lawyers? A wise man wisdom” from 2008 might be just as applicable today to the once said, “Give a man a fish, and you have fed him for KBF. today. Teach his mentor to fish, and you fed him for a

www.ksbar.org | July/August 2020 9 kansas bar foundation president

Hear me out. First, I am not advocating that anyone hug Are you aware that the KBF does not just administer anyone —keep your six feet of social distance (hopefully, in IOLTA grants? I urge each Kansas lawyer to learn about 12 more years we will have forgotten that term.) Second, I am our Community Redevelopment & Homeowners Assistance not here to scold any non-fellows of the KBF. The connection (“CRHA”) grant program, and our law school scholarship is that we cannot only look to our own membership to satisfy programs. Take awareness of these sorts of programs and our mission. As President of the KBF, I challenge our existing share it with your communities and the organizations that fellows to step forward to lead the charge. We continue to you support that might benefit from these programs. The need the direct financial support from our members. But in KBF’s mission is greatly furthered with meaningful and suc- addition, our members must reach out to non-fellows to help cessful charitable partners. us with our mission. Please hug the KBF mission. In whatever way you can. The mission of the KBF is “to serve the citizens of Kansas With your help, we all can “foster the welfare, honor and and the legal profession through funding charitable and edu- integrity of the legal system by improving its accessibility, cational projects that foster the welfare, honor and integrity equality and uniformity, by enhancing public opinion of the of the legal system by improving its accessibility, equality and role of lawyers in our society.” n uniformity, by enhancing public opinion of the role of law- yers in our society.” How can a non-fellow of the KBF help with this mission? I would love it if each non-fellow reading this article made a pledge to financially contribute to the KBF each and every About the Author year. Too much? How about a one-time contribution? I say this a bit tongue-in-cheek, as the goal of this article is not to Scott Hill is a partner at Hite, Fanning & reach out my hand to you for a donation. Writing a check is Honeyman L.L.P. He concentrates his practice in banking, business transactions, business litigation not the only way you can help support that mission. and real estate. Scott sits on his firm’s management Much of the KBF’s mission is met through the administra- committee and devotes substantial time to his tion of the IOLTA grants. Is your trust account an IOLTA firm’s management and marketing efforts. Raised in Independence, Kan., he graduated from Pittsburg account? Is your bank a “Partner in Justice” bank that is com- State University and Washburn University School of Law. Scott mitted to paying a higher interest rate and waiving routine earned his MBA at Washburn during law school. He is married to fees on IOLTA accounts? Significant support towards the Jennifer Hill of McDonald, Tinker, and has two sons (ages 11 and 7). KBF’s mission is possible through even passive action such as this. [email protected]

10 The Journal of the Kansas Bar Association kansas bar foundation Fellows Giving levels as of July 2020

Pillar oF ProFession Thomas V. Murray, Lawrence Pillar oF Foundation Arden J. Bradshaw, Wichita Edward J. Nazar, Wichita Laura Ice, Wichita David J. Rebein, Dodge City Robert W. Minto, Jr., Missoula, MT Mikel L. Stout, Wichita Fellow diamond Sara S. Beezley, Girard Gloria Farha Flentje, Wichita Hon. Marla J. Luckert, Topeka Michael P. Crow, Leavenworth James L. Hargrove, El Dorado Daniel D. Metz, Lincoln Whitney B. Damron, Topeka Richard Hayse, Topeka Byron E. Springer, Lawrence Fellow Platinum Thomas A. Adrian, Newton Gerald L. Goodell, Topeka E. Lou Bjorgaad Probasco, Topeka Hon. Jesse D. Euler, Wathena C. David Newbery, Topeka Hon. Dale L. Somers, Topeka

Fellow Gold J. Eugene Balloun, Kansas City, MO William S. Mills, McPherson William H. Seiler, Jr., McPherson Anne E. Burke, Overland Park John R. Morse, Sanibel, FL Hon. Fred Six, Lawrence Nancy M. Dixon, Topeka Timothy M. O’Brien, Kansas City H. David Starkey, Topeka Jack Focht, Wichita James D. Oliver, Overland Park Hon. David J. Waxse, Kansas City Dennis L. Gillen, Wichita Linda S. Parks, Wichita Mary Kathryn Webb, Wichita Albert J. Kirk, Wichita Terri J. Pemberton, Topeka Hon. Evelyn Z. Wilson, Topeka Randee Koger, McPherson David G. Seely, Wichita

Fellow silver Jana D. Abbott, Wichita James E. Benfer III, Topeka John J. Bryan, Topeka Alan F. Alderson, Topeka L. O. Bengtson, Salina Mert F. Buckley, Wichita Stanley G. Andeel, Wichita Mary Beth Blake, Kansas City, MO Hon. Benjamin L. Burgess, Wichita Mark A. Andersen, Lawrence Brett C. Bogan, Overland Park Vaughn L. Burkholder, Overland Park David W. Andreas, Winfield Richard L. Bond, Overland Park James L. Bush, Hiawatha Stephen T. Ariagno, Wichita Robert M. Bond, Haysville Jeffery L. Carmichael, Wichita Kevin J. Arnel, Wichita Carol Ruth Bonebrake, Topeka Hon. William R. Carpenter, Topeka Charles S. Arthur III, Manhattan Ray L. Borth, Overland Park George L. Catt, Lawrence Gary L. Ayers, Wichita Hon. Donald W. Bostwick, Wichita Stephen W. Cavanaugh, Topeka Mark G. Ayesh, Wichita Philip L. Bowman, Santa Rosa, CA Edward J. Chapman Jr., Leavenworth Anne L. Baker, Topeka Stephen W. Boyda, Topeka Pamela C. Clancy, Wichita Ernest C. Ballweg, Overland Park Hon. J. Patrick Brazil, Topeka James W. Clark, Lawrence D. Shane Bangerter, Dodge City Kevin J. Breer, Overland Park Martha J. Coffman, Topeka Thomas J. Bath Jr., Overland Park Dana E. Brewer, Concordia Prof. James M. Concannon III, Topeka Gregory L. Bauer, Great Bend Hon. Joseph Bribiesca, Wichita Scott R. Condray, Concordia Martin W. Bauer, Wichita Robert C. Brown, Wichita Ray L. Connell, El Dorado Hon. Carol A. Beier, Topeka Steven W. Brown, Salina Jeffrey K. Cooper, Topeka

www.ksbar.org | July/August 2020 11 kansas bar foundation Fellow silver Linda K. Cooper, St. Louis, MO E. Charles Hageman, Stockton John G. Kite, Saint Francis Donald L. Cordes, Wichita Lowell F. Hahn, Phillipsburg Mark W. Knackendoffel, Manhattan Christopher G. Costello, Tampa Debra D. Hallauer, Leawood Gerald R. Kuckelman, Atchison Wendell F. “Bud” Cowan Jr., Thomas A. Hamill, Overland Park Tammie E. Kurth, Liberal Overland Park John R. Hamilton, Topeka Mark T. Lair, Chanute David G. Crockett, Wichita Gary Hanson, Topeka Jodde O. Lanning, Overland Park Daniel W. Crow, Topeka Ron H. Harnden, Wichita Hon. Edward Larson, Topeka Hon. Sam A. Crow, Topeka Richard C. Harris, Eric J. Larson, Wichita June R. Crow-Johnson, Topeka Colorado Springs, CO Charles F. Lay, Spring Hill Terry C. Cupps, Wichita Charles R. Hay, Topeka Hon. Steve Leben, Topeka Peter K. Curran, Lawrence William G. Haynes, Topeka Charles D. Lee, Hutchinson Michael J. Day, Saint Francis Robert L. Heath, Wichita Gregory A. Lee, Topeka Patricia M. Dengler, Wichita Lewis A. “Pete” Heaven, Jr., Amy S. Lemley, Wichita Dennis D. Depew, Neodesha Overland Park Jacqueline K. Levings, Wichita Sue A. Dickey, Olathe Danton C. Hejtmanek, Topeka Joe L. Levy, Coffeyville Daniel H. Diepenbrock, Liberal Keith R. Henry, Junction City Aubrey G. Linville, Salina Sen. Robert J. Dole, Washington D.C Charles N. Henson, Topeka Richard D. Loffswold, Jr., Girard Michael A. Doll, Dodge City Thomas D. Herlocker, Winfield Scott Christopher Long, Overland Park J. Darcy Domoney, Paola G. Taylor Hess, Leawood Hon. Kurtis I. Loy, Pittsburg Wade A. Dorothy, Overland Park Matthew C. Hesse, Wichita Robert W. Loyd, Overland Park Jerry E. Driscoll, Russell B.J. Hickert, Topeka Hon. Ward E. Loyd, Topeka Debra S. Duncan, Topeka Max M. Hinkle, Walnut Creek, CA Hon. Cathy J. Lucas, Sublette Kenneth J. Eland, Hoxie Richard C. Hite, Wichita Hon. John W. Lungstrum, Kansas City Jane M. Eldredge, Lawrence Ray Hodge, Wichita Hon. Patricia A. Macke Dick, Jeffrey O. Ellis, Overland Park David K. Holmes, Hailey, ID Hutchinson Prof. Linda D. Elrod, Topeka Richard L. Honeyman, Wichita T. Bradley Manson, Overland Park H. Philip Elwood, Topeka Hon. Steven L. Hornbaker, Kim R. Martens, Wichita John A. Emerson, Lawrence Junction City Jeffery A. Mason, Goodland J. Eric Engstrom, Wichita Donald J. Horttor, Topeka Christopher J. Masoner, Lenexa Jerry D. Fairbanks, Goodland Blake D. Hudson, Fort Scott Robert S. Maxwell, Topeka Hon. Robert W. Fairchild, Lawrence Leigh C. Hudson, Fort Scott Jacob F. May Jr., Kansas City, MO Margaret A. Farley, Lawrence Robert M. Hughes, Wichita Jack Scott McInteer, Wichita G. Michael Fatall, Kansas City, MO Leslie F. Hulnick, Wichita David L. McLane, Pittsburg Jack D. Flesher, Wichita John H. Hutton, Topeka Calvin L. McMillan, Wichita Patrick T. Forbes, Eureka James M. Immel, Iola Brock R. McPherson, Great Bend Jay F. Fowler, Wichita Curtis M. Irby, Wichita Kerry E. McQueen, Liberal Drew D. Frackowiak, Overland Park R. Eric Ireland, Wichita Teresa M. Meagher, Overland Park Joni Jeanette Franklin, Wichita Arvid V. Jacobson, Manhattan S. Richard Mellinger, Leawood Curtis A. Frasier, Beloit Susan C. Jacobson, Manhattan Hal D. Meltzer, Kansas City, MO Phillip S. Frick, Wichita Debra A. James, Salina Alan G. Metzger, Wichita Bernie D. Frigon, Scottsdale, AZ Hon. Teresa J. James, Overland Park Jill A. Michaux, Topeka John D. Gatz, Colby John W. Johnson, Wichita Phillip A. Miller, Kansas City, MO John F. Gernon, Hiawatha Hon. Lee A. Johnson, Topeka Michael T. Mills, McPherson Jack Glaves, Wichita Lynn R. Johnson, Kansas City, MO Derenda J. Mitchell, Topeka Alan C. Goering, Medicine Lodge Robert E. Johnson II, Iola John H. Mitchelson, Pittsburg Jim H. Goering, Wichita Robyn E. Johnson, Troy Kevin F. Mitchelson, Pittsburg Dana L. Gorman, Independence Alan Joseph, Wichita Daniel E. Monnat, Wichita Ruth E. Graham, Topeka John D. Jurcyk, Kansas City Tim J. Moore, Wichita James T. Graves, Overland Park John J. Jurcyk Jr., Kansas City Hon. Nancy L. Moritz, Topeka Carol Gilliam Green, Topeka Norman R. Kelly, Salina J. Joseph Morris, Leawood Don D. Gribble II, Wichita Craig D. Kershner, Manhattan Otis W. Morrow, Arkansas City William A. Guilfoyle, Abilene Stephen M. Kerwick, Wichita Ronald C. Myers, Eureka Lawrence M. Gurney, Wichita E. L. Kinch, Wichita John C. Nettels Jr., Kansas City, MO Frederick L. Haag, Wichita Katherine L. Kirk, Lawrence Patrik W. Neustrom, Salina

12 The Journal of the Kansas Bar Association kansas bar foundation

Fellow silver (con’t.)

Rodney G. Nitz, Lawrence Larry R. Rute, Topeka Todd N Thompson, Lawrence Don W. Noah, Beloit Thomas E. Ruzicka, Olathe Willard B. Thompson, Wichita Erick E. Nordling, Hugoton Frank C. Sabatini, Topeka Hon. Nelson E. Toburen, Pittsburg Christopher W. O’Brien, Wichita Susan G. Saidian, Wichita M. Moran Tomson, Johnson Nancy A. Ogle, Wichita William R. Sampson, Kansas City, MO William L. Townsley III, Wichita William L. Oliver Jr., Wichita Gerald Sawatzky, Santa Fe, NM William P. Trenkle Jr., Overland Park James R. Orr, Westwood Michael K. Schmitt, Hiawatha Hon. Linda S. Trigg, Olathe Sen. Thomas C. “Tim” Owens, Hon. Kim R. Schroeder, Hugoton Thomas C. Triplett, Wichita Overland Park Sheila M. Schultz, Paola Hon. Thomas M. Tuggle, Concordia W. Dean Owens, Lawrence Steve A. Schwarm, Olathe Phillip L. Turner, Topeka Stephen R. Page, Topeka Hon. K. Gary Sebelius, Topeka Jeffrey L. Ungerer, Topeka Arthur E. Palmer, Topeka David G. Seely, Wichita Michael J. Unrein, Topeka Hon. Floyd V. Palmer, Topeka David C. Seitter, Kansas City, MO Thomas A. Valentine, Topeka Jerry R. Palmer, Topeka Shoko Kato Sevart, Wichita Thomas W. Van Dyke, Hon. James A. Patton, Hiawatha Gene H. Sharp, Liberal Kansas City, MO Kenneth E. Peirce, Hutchinson Rex A. Sharp, Prairie Village John A. Vetter, Wichita Kent T. Perry, Overland Park Sarah B. Shattuck, Ashland J. Ronald Vignery, Goodland H. Douglas Pfalzgraf, Wellington J. Bradley Short, Overland Park Hon. Mark A. Vining, Wichita Timothy V. Pickell, Westwood Michael S. Sizemore, Leawood Hon. John L. Vratil, Overland Park Hon. G. Joseph Pierron Jr., Topeka Bryan W. Smith, Topeka John H. Wachter, Lawrence Rachel K. Pirner, Wichita E. Dudley Smith, Leawood Darrell L. Warta, Wichita Hon. David R. Platt, Junction City Eric B. Smith, Topeka Kenneth W. Wasserman, Salina Hon. Sally D. Pokorny, Lawrence Stanford J. Smith Jr., Wichita Hon. Teresa L. Watson, Topeka Alan R. Post, Chatham, IL Lee M. Smithyman, Overland Park William K. Waugh III, Overland Park Marc A. Powell, Wichita Brock R. Snyder, Topeka Kevin D. Weakley, Overland Park Hon. James A. Pusateri, Naples, FL Harvey R. Sorensen, Wichita Hon. John L. Weingart, Hiawatha Eric C. Rajala, Shawnee Mission William B. Sorensen Jr., Wichita Craig W. West, Wichita David M. Rapp, Wichita Jeffrey S. Southard, Lawrence Philip R. White, Wichita Brett A. Reber, McPherson Steven L. Speth, Wichita Cindy L. Whitton, Southlake, TX Jay M. Rector, Wichita Frank G. Spurney Jr., Belleville Clarence R. Wietharn, Overland Park Elaine Reddick, Wichita Hon. Melissa Taylor Standridge, Topeka Calvin K. Williams, Salina Sharon M. Reilly, Manhattan Roger D. Stanton, Overland Park Laurie B. Williams, Wichita Prof. Sheila M. Reynolds, Lawrence Frederick K. Starrett, Overland Park T. Michael Wilson, Wichita Zackery E. Reynolds, Fort Scott S. Philip Stover, Quinter Larry W. Winn III, Overland Park Thomas M. Rhoads, Wichita Wayne T. Stratton, Topeka Robert W. Wise, McPherson John L. Richeson, Ottawa Alan Mark Stremel, Manhattan Warren B. Wood, Burlington Ann T. Rider, Wichita Gregory J. Stucky, Wichita Lee H. Woodard, Wichita Calvin D. Rider, Wichita Hon. David L. Stutzman, Manhattan John P. Woolf, Wichita Stephen E. Robison, Wichita Hon. Ronnie L. Svaty, Ellsworth Hon. William S. Woolley, Wichita Eric L. Rosenblad, Pittsburg William B. Swearer, Hutchinson Brian C. Wright, Great Bend Kelly J. Rundell, Wichita Wayne R. Tate, Hugoton H. Morgan Wright, Larned Alan L. Rupe, Wichita Connie D. Tatum, Houston, TX Thomas E. Wright, Topeka Anthony F. Rupp, Overland Park L. Franklin Taylor, Olathe Angel R. Zimmerman, Topeka Hon. Gerald L. Rushfelt, Kansas City Trisha A. Thelen, Wichita Larry N. Zimmerman, Topeka

www.ksbar.org | July/August 2020 13 kansas bar foundation

Fellow

Hon. Adrian J. Allen, Topeka Paul E. Dean, Emporia James R. Howell, Wichita Daniel N. Allmayer, Kansas City, MO Richard C. Dearth, Pittsburg Roger D. Hughey, Wichita Craig J. Altenhofen, Junction City Stanley Lucky DeFries, Topeka Paul H. Hulsey, Charleston, SC Charles J. Andres, Olathe Michael Francis Delaney, Overland Park Hon. Fred S. Jackson, Topeka Samantha P. Angell, Salina Cheryl L. Denton, Lawrence Linda P. Jeffrey, Topeka Stephen B. Angermayer, Pittsburg Bradley D. Dillon, Hutchinson Scott D. Jensen, Wichita Nancy S. Anstaett, Overland Park James Curtis Dodge, Liberal Alan V. Johnson, Topeka James M. Armstrong, Wichita Hon. J. Charles Droege, Olathe Peter S. Johnston, Salina Hon. Karen M. Arnold-Burger, Topeka Holly A. Dyer, Wichita Robert S. Jones, Salina Stanley R Ausemus, Emporia Philip David Egan, Wichita Jeffery A. Jordan, Wichita Gary M. Austerman, Wichita Yvette L. Ehrlich, Bakersfield, CA Seth M. Jurcyk, Kansas City Mary K. Babcock, Wichita Timothy R. Emert, Independence Melissa E. Kasprzyk, Topeka Deena Hyson Bailey, Wichita Jay Scott Emler, McPherson Hon. David J. Kaufman, Wichita Anthony S. Barry, Topeka Prof. J. Lyn Entrikin Goering, Prof. Mike Kautsch, Lawrence Charles Darren Baskins, Troy Little Rock, AR Timothy E. Keck, Topeka Kermit M. Beal, Lawrence David Eron, Wichita Matthew D. Keenan, Kansas City, MO Norman E. Beal, Shawnee Todd D. Epp, Harrisburg, SD J. Michael Kennalley, Wichita Terry Beck, Topeka Joel R. Euler, Troy Jeff Kennedy, Wichita David J. Berkowitz, Lawrence Roger L. Falk, Wichita Jennifer Kinzel, McPherson Susan A. Berson, Overland Park Kimberly D. Farha, Wichita Anne M. Kindling, Topeka Dennis L. Bieker, Hays Roger D. Fincher, Topeka Richard C. King, El Dorado John T. Bird, Hays Hon. Thomas E. Foster, Olathe Timothy J. King, Wichita Brett C. Bogan, Overland Park John E. Foulston, Wichita Thomas D. Kitch, Wichita Cydney D. Boler, Overland Park Gregory L. Franken, Wichita Aaron L. Kite, Dodge City William B. Bolin, Garden City Bradley J. Frigon, Englewood, CO Ruben J. Krisztal, Leawood Hon. Danny D. Boyer, Salina Theron E. Fry, Wichita James A. Kuharic, Hugoton Charles E. Branson, Lawrence Kathryn A. Gardner, Topeka Joslyn Kusiak, Independence Hon. Glenn R. Braun, Hays Thomas P. Garretson, Wichita Christine M.T. Ladner, Topeka John T. Bullock, Lawrence Jeffrey W. Gettler, Independence Brad J. LaForge, Wichita Stacy A. Burrows, Kansas City, MO A. James Gillmore III, Newton Chelsey G. Langland, Topeka Hon. Michael B. Buser, Topeka W. Thomas Gilman, Wichita Karen L. Langston, Wichita Kathryn B. Bussing, Kansas City, MO Gregory P. Goheen, Kansas City Luanne C. Leeds, Topeka Ronald L. Campbell, Wichita Nancy Morales Gonzalez, Jeffrey D. Leonard, Wichita Terrence J. Campbell, Lawrence Kansas City, MO Brett D. Leopold, Fairway Don A. Cashman, Hiawatha Steven Gough, Wichita Lori A. Leu, Plano, TX Jeff Chanay, Topeka Gerald L. Green, Hutchinson Robert A. Levy, Garden City Michele Marie Chollet, Scott C. Gyllenborg, Olathe Jennifer L. Magana, Wichita Kansas City, MO Hellen L. Haag, Wichita Hon. Thomas E. Malone, Topeka Shelley Hickman Clark, Lawrence Natalie G. Haag, Topeka Norman G. Manley, El Dorado Amy Fellows Cline, Wichita Marilyn M. Harp, Topeka Scott M. Mann, Shawnee Charles E. Cole Jr., Wichita Kurt A. Harper, Wichita Terry L. Mann, Wichita Michael E. Collins, Garden City Hon. Charles M. Hart, El Dorado Norbert C. Marek Jr., Westmoreland Jane Colonno, Overland Park Jennifer R. Hays, Topeka David K. Markham, Parsons John D. Conderman, Manhattan Kimberly W. Helvey, Alexandria, VA Katherine E. Marples, Lawrence Craig D. Cox, Manhattan Michael D. Herd, Wichita Hon. J. Thomas Marten, Wichita Vincent M. Cox, Topeka Jennifer M. Hill, Wichita James E. Martin, Overland Park Daniel D. Crabtree, Kansas City, MO Kevin M. Hill, Hiawatha Jack C. Marvin, Wichita Martha Burnett Crow, Leavenworth Scott M. Hill, Wichita Hon. Rhonda K. Mason, Olathe Marshall Crowther, Lawrence Mark D. Hinderks, Kansas City, MO Michelle M. Masoner, Kansas City Paul T. Davis, Lawrence Martha J. Hodgesmith, Topeka Timothy A. McNearney, Overland Park Victor A. Davis Jr., Junction City Donald F. Hoffman, Hays Lisa Adrian McPherson, Wichita Thomas M. Dawson, Leavenworth Harold A. Houck, Safety Harbor, FL Shirla R. McQueen, Liberal

14 The Journal of the Kansas Bar Association kansas bar foundation

Fellow (con’t.) Mira Mdivani, Overland Park Timothy P. O’Sullivan, Wichita Alan R. Stetson, Overland Park Angela M. Meyer, Pittsburg Evan J. Olson, Houston, TX Bradley A. Stout, Wichita Kent A. Meyerhoff, Wichita Timothy P. Orrick, Overland Park Paul B. Swartz, Andover Matthew Crane Miller, Hon. C. William Ossmann, Topeka John B. Swearer, Hutchinson Kansas City, MO Randall J. Pankratz, Newton Benoit M.J. Swinnen, Topeka Hon. Paul E. Miller, Manhattan Hon. John K. Pearson, Lawrence Todd N. Tedesco, Wichita Jim D. Mills, Garden City Prof. John C. Peck, Lake Quivira Thomas L. Theis, Topeka Charles E. Millsap, Wichita Patrice Petersen-Klein, Topeka Gabrielle M. Thompson, Manhattan Alexander B. Mitchell, Wichita Roger K. Peterson, Ellsworth Gaye B. Tibbets, Wichita Derenda J. Mitchell, Topeka Brandon T. Pittenger, Overland Park Clyde W. Toland, Iola John W. Mize, Salina James P. Rankin, Topeka Karen L. Torline, Shawnee Joseph N. Molina III, Topeka Forrest T. Rhodes Jr., Wichita David M. Traster, Wichita Lisa D. Montgomery, Independence R. Chris Robe, Wichita Cheryl L. Trenholm, Lawrence John Terry Moore, Wichita Hon. Julie A. Robinson, Topeka Randy J. Troutt, Wichita James H. Morain, Haven Nancy Schmidt Roush, Richard G. Tucker, Parsons Amy E. Morgan, Overland Park Kansas City, MO Craig Lee Uhrich, Boston, MA David H. Moses, Wichita Hon. Rebecca A. Sanders, Topeka Kathleen R. Urbom, Topeka Catherine Veach Moyer, Ulysses Terri Savely, Topeka John L. Utz, Overland Park Thomas M. Mullinix, Shawnee Scott R. Schillings, Wichita Jennifer K. Vath, Kansas City, MO William E. Muret, Winfield Gregory A. Schwartz, Hays Hon. Kathryn H. Vratil, Kansas City John J. Murphy, Plano, TX Richard H. Seaton Sr., Manhattan Hon. A. J. Wachter, Pittsburg Gregory L. Musil, Overland Park Susan P. Selvidge, Santa Cruz, CA John M. Waldeck, Prairie Village Scott C. Nehrbass, Overland Park Constance L. Shidler, Overland Park James A. Walker, Wichita Jon E. Newman, Wichita John Shoemaker, Singapore Larry W. Wall, Wichita Hoa Alec Nguyen, Wichita David G. Shriver, Topeka Roger W. Warren, Overland Park Brian J. Niceswanger, Overland Park Steve Six, Kansas City, MO Hon. Sarah E. Warner, Lenexa Tamara Niles, Arkansas City Melissa D. Skelton, Lawrence David E. Waters, Overland Park Andrew J. Nolan, Wichita William J. Skepnek, Lawrence Sherri L. Wattenbarger, Cynthia A. Norton, Kansas City, MO Duston J. Slinkard, Topeka Kansas City, MO Michael J. Norton, Wichita Branden L. Smith, Lawrence Kimberly W. Wiggans, Hon. Robert E. Nugent, Wichita Charles F. Speer, Kansas City, MO Washington, D.C. Ammon Martin Nunley III, Douglas C. Spencer, Oakley James T. Wiglesworth, Shawnee Mission Midland, TX Fred J. Spigarelli, Pittsburg Philip B. Wolfe, Topeka Katherine L. O’Connor, Leawood Stephen M. Stark, Wichita Teresa A. Woody, Kansas City, MO Charles A. O’Hara, Wichita Mary Stephenson, Louisburg Gregory S. Young, Wichita

Fellow PledGes 2019-20 Glenda Cafer, Topeka Paul M. Keithley, Topeka Sabrina K. Standifer, Wichita Jennifer M. Cocking, Topeka John H. Mitchelson, Pittsburg Catherine C. Theisen, Lawrence Michelle Chollet, Kansas City, MO Kevin F. Mitchelson, Pittsburg Benjamin M. Thomas, Topeka Craig D. Cox, Manhattan John Shoemaker, Singapore

www.ksbar.org | July/August 2020 15 kansas bar foundation

Gernon Fund donors Donor list from September 2005-September 2008

Mr. & Mrs. David C. Adams, Mr. & Mrs. Joseph P. Geier, Topeka Mr. William B. Pendleton, Lawrence Lawrence Mr. & Mrs. John F. Gernon, Hon. & Mrs. G. Joseph Pierron, Mr. & Mrs. Larry M. Adcock, Hiawatha Lawrence Hiawatha Mr. & Mrs. Jon T. Graves, Mr. & Mrs. Rodney J. Rice, Horton Mr. Eric J. Aufdengarten, Lawrence Centerville, OH Mr. & Mrs. James A. Roberts, Mr. J. Eugene Balloun, Lenexa Mr. & Mrs. Leland Hansen, Hiawatha Lawrence Mr. & Mrs. Richard E. Barton, Mr. & Mrs. Robert N. Haselwood, Mr. & Mrs. Steve Roberts, Hiawatha Lawrence Berryton Mr. & Mrs. Bill Sampson, Lawrence Mr. & Mrs. Charles Bebermeyer, Ms. Carole Hawk, Osage Beach, MO Mr. & Mrs. Delwin Scarbrough, Hiawatha Rich Hayse, Topeka Hiawatha Mr. & Mrs. Kevin T. Beckwith, Perry Mr. Jeffrey O. Heeb, Lawrence Ms. M.L. Schmitt, Hiawatha Mr. & Mrs. Matt Bellemere, Lawrence Mr. & Mrs. Jeffery J. Heline, Ms. Erin R. Schneider, Shawnee Mr. & Mrs. Michael Blake, Lawrence Mr. & Mrs. Richard Schroff, Lake Quivira Ms. R. Ann Henderson/Mr.Quinby J. Corvallis, OR Mr. & Mrs. Geral L. Blanton, Henderson, Lenexa Mr. & Mrs. Blaine Shaffer, Hiawatha White Cloud Mr. & Mrs. Eugene R. Hillyer, Mr. Rex A. Sharp, Prairie Village Mr. & Mrs. Ryan D. Blum, Topeka Hiawatha Ms. Diane W. Simpson, Lawrence Ms. Ilene S. Blum, Angel Fire, NM Ms. Mary S. Hirsch, Hiawatha Ms. Mary Sue Smith, Wichita Mr. John K. Bork/Hon. Jean F. Shep- Mr. & Mrs. Greg Hough, Topeka Mr. & Mrs. Glee S. Smith, Jr., herd, Lawrence Mr. & Mrs. Robert M. Idol, Robinson Lawrence Mr. & Mrs. Tom E. Bowser, Olathe Mr. & Mrs. Norman W. Johnson, Ms. Paula W. Starr, Hiawatha Mr. & Mrs. Charles E. Branson, Mercer Island, WA Ms. Mary G. Starr, Hiawatha Lawrence Ms. Margaret Jones, Sabetha Ms. Barbara /Ms. Helen Starrett, Hon. & Mrs. J. Patrick Brazil, Topeka Mr. & Mrs. Frank R. Jordan, Abilene Lawrence Ms. Judith E. Bruning, Robinson Hon. David W. Kennedy, Wichita Mr. & Mrs. Frank Sullivan, Jr., Ms. Paula Roberts Buchele, Topeka Prof. Janet K. Kerr, Topeka Indianapolis, IN Ms. Holly L. Buser, Overland Park Ms. Cora A. King, Hiawatha Prof. Ellen E. Sward, Lawrence Mr. & Mrs. Thomas H. Bush, Ms. Greer S. Lang, Lawrence Ms. Joyce R. Swim, Hiawatha Blue Springs, MO Mr. & Mrs. Warren K. Legler, Hon. Deanell R. & Mr. John A. Tacha, Mr. & Mrs. Terry Campbell, Lawrence Lawrence Lawrence Hon. Nancy M. Caplinger, Topeka Mr. & Mrs. Terence E. Leibold, Mr. & Mrs. Shaun P. Trenholm, Mr. George L. Catt, Lawrence Lawrence Lawrence Ms. Martha J. Coffman, Lawrence Ms. Jane S. Lewis, Topeka Mr. & Mrs. Lester Trentman, Fairview Ms. Terri A. Combs, Kansas City, MO Mr. & Mrs. Don O. Loyd, Hiawatha Hon. Thomas M. & Mrs. Suzanne F. Mr. & Mrs. Gerald L. Cooley, Hon. & Mrs. John W. Lungstrum, Tuggle, Concordia Lawrence Lawrence Mr. & Mrs. Roger A. Vickery, Topeka Hon. Rebecca & Mr. Douglas M. Crot- Ms. Sherry Maxwell, Santa Fe, NM Mr. & Mrs. Gerald K. Wagner, ty, Garden City Ms. Patricia Ann McGrew, Lawrence Hiawatha Mr. & Mrs. Charles V. Curless, Ms. Esther M. Miller, Hiawatha Mr. & Mrs. Marvin D. Watts, Granby, CO Mr. & Mrs. Jerry L. Miller, Topeka Hiawatha Mr. & Mrs. Thomas W. Delpesco, Mr. Thomas V. Murray, Overland Park Matthew S. Wheeler /Maria A. Tacha, Hockessin, DE Mr. & Mrs. Erick E. Nordling, Hays Mr. & Mrs. Loren Doll, Dodge City Hugoton Mr. & Mrs. Stephen R. Wilson, Mr. Kenneth J. Doll, Shawnee Mission Mrs. Barbara Nordling, Lawrence Hiawatha Mr. & Mrs. Randall E. Dooley, Mr. & Mrs. Cameron E. Oury, Mr. & Mrs. Bradley S. Winfrey, Lawrence Lawrence Prairie Village Hon. Jerry G. Elliott /Ms. Debra S. John B. Patterson Lori L. Heasty, Hon. & Mrs. James R. Wolf , Duncan, Lawrence Lawrence Tallahassee, FL Mr. & Mrs. Kent H. Flury, Mr. & Mrs. Richard L. Patterson, Ms. Ruth E. Wolfe, Hiawatha Charlottesville, VA Topeka Hon. Lee Yeakel, Austin, TX Hon. & Mrs. Phillip M. Fromme, Mr. & Mrs. Leonard Peck, Mr. & Mrs. Jerry Young, Topeka Burlington Scottsdale, AZ

16 The Journal of the Kansas Bar Association kansas bar foundation

Gernon Fund donors (con’t.) 21st Funeral Company LC, Lawrence James M. Milliken, Chartered, O’Neal State Rep Agy Appellate Defender’s Office & the St. Francis Short & Borth Attorneys at Law, LLC, Capital Appellate Defender’s Office, The Judge Hugh Means American Inn of Overland Park Lawrence Court, Lawrence Thompson & Associates, PA, Lawrence Collister & Kampschroeder, Judges Fund, Topeka Trail Ends Farm, Moran Attorneys at Law, Lawrence Kansas Court Reporters Association, Wichita Women Attorneys Association, Fleeson Gooing Coulson & Kitch LLC, El Dorado Wichita Wichita Missouri Court of Appeals, Hite Fanning & Honeyman LLP, Kansas City, MO Wichita

Burn the mortGaGe Fund donors

Mark A. Andersen, Lawrence Bruce Kent, Manhattan Terri Pemberton, Topeka Terrence J. Campbell, Lawrence Mark Knackendoffell, Manhattan David Rebein, Dodge City Cafer Pemberton LLC, Topeka Randee Koger, McPherson Mikel L. Stout, Wichita Family of Robert L. Gernon Amy Morgan, Overland Park Todd N Thompson, Lawrence Richard Hayse, Topeka Edward J. Nazar, Wichita Weary Davis L.C. Firm, Junction City Laura Ice, Wichita C. David Newbery, Topeka

our mission

The purpose of the Kansas Bar Foundation is to serve Kansans and the legal profession by funding charitable and educational projects that foster the welfare, honor and integrity of the legal system by improving its accessibility, equality and uniformity and by enhancing public opinion of the role of lawyers in our society. The Kansas Bar Foundation is a 501(c)(3) charitable organization and is supported by contributions from private donations from lawyers, corporations and the public.

Attorneys may make ongoing donations to the KBF Fellows Program. These “Fellows” sign a pledge to commit at least $1,000 over a 10-year period. After reaching Fellow status, donors can reach the following higher-giving categories: Fellow Silver: $2,500 – $4,999 Fellow Gold: $5,000 – $7,499 Fellow Platinum: $7,500 – $9,999 Fellow Diamond: $10,000 – $14,999 Pillar of Foundation: $15,000 – $49,999 Pillar of Profession: $50,000 or more Individuals, corporations and other organizations may also contribute gifts online at www.ksbar.org/donations www.ksbar.org | July/August 2020 17 Give later, too kansas bar foundation By participating in the KBF Planned Giving Planned giving possibilities include but are not Program, you can help ensure the future access limited to: to justice for all Kansans • Naming the KBF as a beneficiary of part or all of your Planned charitable giving can be done during your lifetime retirement assets. or through your will. The tax benefits depend Gon theive vehicle later • Donating, too your life insurance policy. used. Donor restricted and unrestricted funds allow for a • Creating a bequest in your will or living trust. range of options in creating your gift. • Leaving a lasting legacy with a major gift. By participating in the KBF Planned Giving Planned• Creating giving memorial possibilities or honorary include gifts in but recognition are not Program, you can help ensure the future access limitedof KBA to: members or special occasions. Howto canjustice a planned for all Kansans gift benefit Kansans and • Naming the KBF as a beneficiary of part or all of your membersPlanned charitableof the KBA? giving can be done during your lifetime retirement assets. Youror gift through will helpyour supportwill. The current tax benefits and future depend KBF on programsthe vehicle • Donating your life insurance policy. thatused. facilitate Donor the restricted administration and unrestricted of justice funds and theallow success for a of • Creating a bequest in your will or living trust. the rangefoundation of options by providing: in creating your gift. • Leaving a lasting legacy with a major gift. • Support for legal services to low-income Kansans. • Creating memorial or honorary gifts in recognition of KBA members or special occasions. • AdvocacyHow can for a childrenplanned in gift need benefit of care andKansans victims and of domesticmembers violence. of the KBA? • LegalYour giftand willlaw-related help support educational current andmaterials future toKBF the programs public. • Scholarshipsthat facilitate for the students administration and stipends of justice for and teacher the success training of andthe continuingfoundation byeducation. providing: • KBF• Support building for and legal maintenance services to low-incomefund support. Kansans. • Advocacy for children in need of care and victims of domestic violence. • Legal and law-related educational materials to the public. • Scholarships for students and stipends for teacher training and continuing education. • KBF building and maintenance fund support.

Kansas Bar Foundation P...... 785-234-5696 Robert L. Gernon Law Center F ...... 785-234-3813 1200 SW Harrison St. E ...... [email protected] Topeka, KS 66612-1806 fb.me/kansasbarfoundation Kansas Bar Foundation P...... 785-234-5696 Robert L. Gernon Law Center F ...... 785-234-3813 1200 SW Harrison St. E ...... [email protected] Topeka, KS 66612-1806 fb.me/kansasbarfoundation

18 The Journal of the Kansas Bar Association diversity corner

Is the Legal Profession Finally Ready for the Institutional Change Necessary to Yield Greater Diversity? by Carla D. Pratt Dean and Professor of Law Washburn University School of Law

Courtesy Washburn University School of Law

or decades the legal profession in the United States has school because they never saw a lawyer that looked like them embraced diversity and inclusion as core principles. Yet and they couldn’t imagine setting such a lofty goal for them- little structural change has been made to remedy the selves. One Black male in the study said that he set his goal Fcontinued exclusion and subordination of people of color in on being a paralegal. No one in his family had ever graduated the legal profession. Even elite professions such as medicine, high school so attending college and becoming a paralegal accounting and academia achieve more diversity in their pro- was a “big deal” to him and his family. It wasn’t until a Black fessional ranks than the legal profession.1 It’s not that people male lawyer came to speak to his paralegal class one day that of color aspire to be doctors, accountants or professors at a he had the thought that he could be a lawyer. That one mo- rate higher than they aspire to be lawyers. Based on the data, ment of seeing his own Black male identity represented in the throughout the years that I have been in the legal profession, legal profession as a lawyer told him that becoming a lawyer there have been plenty of people of color in the pipeline each was not a pie in the sky dream; it was an attainable goal. But year who wanted to be lawyers. The problem is that we lose in law school he would confront a crisis of confidence when a them. We have been focused on the perceived deficiencies law professor gave him feedback on his first legal writing pa- with the people that we lose in the pipeline to the profession, per and told him that he needed to work on a myriad of issues but from my vantage point the problem lies not in the people, including subject verb agreement. He said that he didn’t even but in the structure of the pipeline. We need to reimagine the know what subject verb agreement was because he had at- pipeline to the legal profession so that we can restructure it in tended underfunded public schools in New York City where ways that afford more people from subordinated social groups many of his teachers would play movies that they had brought a pathway to the profession. from home rather than attempt to deliver a lesson from a les- When I conducted a study of the pipeline to the legal profes- son plan. Thanks to a strong academic support program in his sion that focused on African-Americans, my Co-Investigator law school, he was able to remedy those deficiencies, graduate and I discovered that Black students were lost at every stage from a well-respected law school and pass the NY bar on the in the pipeline.2 Young Black students were lost in elementary first attempt. Today he is a very successful lawyer in private practice in New York City.

www.ksbar.org | July/August 2020 19 diversity corner

Black students were also lost in high school where they ceed academically. I share this information with my faculty so were ushered into coursework that would not adequately pre- that the faculty knows that absent significant evidence to the pare them for college. Many Black students who made it to contrary in the student’s academic record, they should avoid college were lost in college due to working for money while admitting a student with an LSAT score below the identified trying to complete college and finding themselves unable to threshold because we have documented evidence that students devote the time to academics that is necessary for academic below that level do not succeed in law school and/or on the success. Those who made it through college and graduated bar exam. Evidence to the contrary that can offset a low LSAT found themselves unable to pay for an LSAT prep course and score is often a very high undergraduate GPA. Hence, law devote the time necessary to prepare for the entrance test for schools take a chance and admit a very few students with lower law school. Every participant in our study shared that they than desired LSAT scores. Having a non-speeded version of the did not do as well on the LSAT as they expected. Some Black LSAT as a secondary test offered to students who do not obtain students decide to pursue a different career path after taking the score necessary for law school admission would provide an- the LSAT because they equate ability to succeed in the legal other piece of evidence to a law school to demonstrate that the profession with ability to score well on the LSAT. As someone student/applicant to law school is capable of doing the work who has been in legal education for two decades now, I can if afforded adequate time. This information could be a game tell you that I have personally known dozens of students of changer for low-income applicants to law school and applicants color who had LSAT scores in the bottom quarter of scores of color. If the applicant is able to increase their6 LSAT score to nationwide and today those former students are successful, a significant degree, that would demonstrate that the applicant competent lawyers with thriving law practices. has the ability to succeed in law school and that this applicant The Bar Exam is another place in the pipeline where many is one that the law school should take a chance on and admit. students of color are lost. This year the California Board of Law Presently, some law schools are using the GRE in this way and Examiners reported that only five percent of Black first-time inviting applicants to submit a GRE score as well as an LSAT takers of the California bar exam passed the February 2020 score to see if the applicant scored in a higher percentile on the exam.3 Sure, some of those 95 percent will take the exam again GRE. However, a better approach that would be a more apt and pass, but many of them will choose to move in a different comparison would be to have a standard speeded LSAT score direction, and they will be lost to the legal profession. to compare to a non-speeded LSAT score. What would reimagining the pipeline to the legal profession As discussed earlier, another place in the pipeline where look like? Clearly it would look like creating more equity in people of color are lost is the bar exam. When I started law education at the K through 12 level of public education, and school, I was just a country girl from a farm in rural Okla- eliminating the bias that funnels children of color into career homa. I could ride a horse, drive a tractor, and bake a prize- paths that are less intellectually rigorous. But there are some winning pecan pie, but I knew absolutely nothing about the changes that could be made in areas that reside directly within legal profession. I naively thought that once I graduated from the jurisdiction of the leadership of the legal profession. I would law school, I would be a lawyer. But when I arrived at law recommend that we start with the LSAT. Although some law school, I quickly learned that there was an exam that I would schools now accept the GRE and other graduate tests to help have to take after graduation and that passing the exam was a assess the ability of candidates to be successful in law school necessary precondition to practicing law no matter how well I and on the bar exam, the LSAT is the premier test that has performed in law school. To me this seemed odd, so I started for decades been a reliable predictor of a student’s ability to reading and learned that the bar exam was intended to ensure perform well academically during the first year of law school. minimum competency and protect the public. That rationale Consequently, it is a very useful tool that helps faculty admis- made the bar exam seem even more strange because it basi- sion committees determine who to admit to law school. None- cally meant that the high court in each jurisdiction did not theless, the speededness4 of the LSAT hides from view the stu- trust law schools to prepare all of their graduates for law prac- dents who have the mental capacity to solve logic problems and tice. The bar exam was the final “trap door” aimed at weeding comprehend complex reading without being rushed to the ex- out the folks who graduated law school but cannot be trusted treme while doing it.5 For years I have wanted to see the LSAC to represent the public. offer a non-speeded version of the LSAT which could be taken While researching the bar exam I learned that some juris- as a follow-up to the standard speeded version of the test. The dictions had historically admitted people to the bar by allow- median LSAT score for African-American students nationwide ing them to “read the law.” This was an apprenticeship model is about a 144 in any given year. The median score for all LSAT of admission to the bar offered in lieu of formal education and test takers is about a 152. As a law school dean, I look at the was used at a time when nearly all applicants to the bar were historical data of academic performance of students at my law white men. It made me wonder why did “they” get rid of this school and see the LSAT score range where students fail to suc- path to the profession? In reading a bit more I learned that the

20 The Journal of the Kansas Bar Association diversity corner

apprenticeship model had been criticized as racially biased in our profession. Implementing these changes will require vi- because most lawyers at the time were white men who would sionary leadership at the highest levels of our profession. What only take a white man as an apprentice. Hence, replacing the is encouraging about these proposals is that there now appears biased apprenticeship model with a bar exam has been argued to be an openness to institutional change. The challenge is to to be a more inclusive approach to bar admission that allows translate our aspiration for a more diverse and inclusive profes- anyone to apply for admission. But I’m left wondering, why sion into action, and I stand ready to do my part. not have both paths to admission for law school graduates? A post-graduate apprenticeship practicing under the supervi- sion of a seasoned licensed lawyer for a one-year term would About the Author probably prepare a law school graduate for practice more than Carla D. Pratt is Dean and Professor of Law at a two-day bar exam. At the conclusion of the apprenticeship, Washburn University School of Law. She is co- the supervising lawyer would have to certify under oath that author of the book, The End of the Pipeline: A the apprentice has the requisite knowledge and skills neces- Journey of Recognition for African Americans Entering the Legal Profession, which reports the sary to provide competent representation to members of the findings of a qualitative study of African American public, and is therefore recommended for membership to the attorneys and challenges the assumption that bar. We now have a profession with lawyers who are women blacks entering the profession today have a post- and people of color who stand ready, willing and able to take racial colorblind journey. on a post-graduate apprentice in law. Moreover, in this mod- [email protected] ern era of the profession, most of our white male colleagues would also be willing to serve as a formal mentor to a woman or a person of color seeking to be trained in the practice of law. Why then is the bar exam the only pathway to the profes- 1. Brad Smith, General Counsel & Executive Vice President, Legal & sion? The more pathways to bar admission that we create, the Corporate Affairs, Microsoft, Raising the Bar: Exploring the Diversity Gap more inclusive our profession will become. within the Legal Profession, (Dec. 10, 2013), https://docs.microsoft.com/ en-us/archive/blogs/microsoft_on_the_issues/raising-the-bar-exploring- Toward that goal of greater diversity and inclusion, we the-diversity-gap-within-the-legal-profession (2013). ELIZABETH CHAM- should consider a third pathway to the profession. With the BLISS, ABA COMM’N ON RACIAL AND ETHNIC DIVERSITY IN THE LEGAL recent pandemic making it extremely difficult to administer PROFESSION, MILES TO GO: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION 6 (2005). a bar exam in a humane and equitable manner, a few jurisdic- 2. CARLA PRATT, THE END OF THE PIPELINE: A JOURNEY OF REC- tions have turned to diploma privilege as a means of admit- OGNITION FOR AFRICAN-AMERICANS ENTERING THE LEGAL PROFESSION ting graduates to the bar. If state high courts do not trust law (2012). schools to prepare graduates for practice, there is a reason that 3. California typically has one of the lower pass rates in the country is so. Law schools need to look inward to the education that and only a third of white first-time test takers from ABA approved law schools passed the exam. See Cheryl Miller, How Law Schools Fared on we provide to students. If we look closely, we might see that the February 2020 Bar Exam, THE RECORDER (June 12, 2020, 3:10 PM), only a small percentage of our students get the intense clinical https://www.law.com/therecorder/2020/06/12/how-law-schools-fared- training where they learn how to apply classroom learning and on-the-february-2020-bar-exam/ actually practice law. Perhaps the high courts in states could 4. Speededness refers to the situation where the time limits on a stan- partner with law schools in the state to create a curriculum that dardized test intentionally preclude a substantial numbers of test takers from fully considering all test items. For more on speededness, see, Ying offers diploma admission to students who complete a specified Lu et. al, Validity Issues in Test Speededness, 26 EDUCATIONAL MEASURE- rigorous curriculum. That curriculum could require hands-on MENT ISSUES AND PRACTICE 29 (Nov. 2007) https://www.researchgate. practical clinical experience with real clients, and some amount net/publication/230026430_Validity_Issues_in_Test_Speededness of coursework focused on the law of the state where the stu- 5. Malcolm Gladwell recently reported his experience with taking dent will practice. State high courts could impose a minimum the LSAT and how strange and difficult he found the speeded nature of the test. See Malcolm Gladwell, PUZZLE RUSH, REVISIONIST HIS- law school GPA for diploma privilege so that students who do TORY (2016), https://podcasts.apple.com/us/podcast/revisionist-history/ not meet the minimum threshold would have to take and pass id1119389968?i=1000442142499 and Malcolm Gladwell, THE TORTOISE the bar exam or successfully complete an apprenticeship. With AND THE HARE, REVISIONIST HISTORY (2016), https://podcasts.apple. three pathways to the profession, we create diversity in the way com/us/podcast/revisionist-history/id1119389968?i=1000442923261. that people can become lawyers which will create diversity in 6. Intentional use of “their” as a singular gender-neutral pronoun in recognition that gender is a spectrum and not a binary concept. See, Pub- the people who become lawyers while still ensuring the compe- lication Manual of the American Psychological Association (7th ed.). APA tency needed to protect the public.7 advocates for the singular use of “they” because it is inclusive of all people These institutional changes to the pipeline to the profession and avoids making assumptions about gender. 7. Under each of the three pathways, applicants to the bar would con- are possible if we as members of the profession want to effec- tinue to be required to pass the character and fitness assessment to ensure tuate real change and achieve greater diversity and inclusion that the public is adequately protected.

www.ksbar.org | July/August 2020 21 The 2020 Department for Children and Families Series: BABIES IN THE RIVER by Shanelle Dupree

There is a story of a village that has a peculiar problem Before the woman ventured upstream to stop the per- of babies being found in the river. The townspeople are son who was throwing children in the river, she noticed frantically rescuing the babies from tragedy. Everyone something. She asked a townsperson, “Why are most of who visits and lives in the town spends all their time the babies in the river black and brown?” Startled by the dramatically saving these vulnerable babies. The situa- question, the townsperson shrugged their shoulders and tion is simply terrible. The townspeople are tired and al- said, “It’s just the way things are.” ways discontent, nevertheless they continue to work hard to keep the babies safe. One day, an outsider comes to the A child welfare system that produces equal experiences and village. She stares at the villagers and then she stares at outcomes for all Kansas families regardless of race, ethnicity, the river and says nothing. The townspeople ask, “Don’t and socioeconomic status will help all Kansans. Racial dis- you care about the babies? Come into the river and help parities and disproportionality and their effect on child wel- us!” She looks at them and says, “No—I won’t be joining fare are areas for improvement within our system as acknowl- you. I’m going to travel upstream and stop the person edged by countless government agencies and public policy who keeps throwing children in the river.” institutions studying the issue and recommending various solutions.2 Black and brown children being over-represented he federal government enacted legislation called Family in the child welfare system is not a Kansas problem, it is hap- First Prevention Services (FFPS). Family First Preven- pening nationwide.3 tion Services makes sweeping changes to the child wel- The world is engaged in an ethical reckoning of how sys- fareT system.1 Kansas is one of the first states to take advantage tems embedded in the foundation of our nation affect people of FFPS and serves as a leader in “traveling upstream” and pro- of color, specifically African Americans. The consciousness viding preventative services for children and families. Preven- of the world was jolted into action by the public slaying of tion is key as noted in the story above. We can impact families George Floyd and countless other Black lives snuffed out too by providing needed services to safely keep children connected soon. Although much attention is currently focused on the with their families. However, there is more to the story. criminal justice system, the child welfare system has parallel

22 The Journal of the Kansas Bar Association dcfs series: babies in the river

outcomes. Black and Native American children are twice as found 4.9 percent of white children will experience foster care likely to end up in foster care compared to white children.4 placement before their eighteenth birthday, compared to 15.4 The removal of a child from a home is an extremely traumatic percent of Native American children and 11 percent of Black experience, even when necessary. The effects of removals on children.11 communities of color deserve a rigorous examination so we 2. When children of color, specifically African American can authentically answer the important question: Why are and Native American children and their families, become in- there more black and brown babies in the river? volved in the child welfare system, they experience worse out- As the agency embarks upon the amazing opportunities comes than Caucasian children and families.12 They have less of being proactive versus reactive, we must have courageous placement stability, lower rates of permanency, they remain conversations to maximize its potential. Understanding how in the system longer, and their mental and physical health and why racial disparities matter within the child welfare sys- needs are poorly addressed. tem and how it relates to prevention services will be the pur- pose of this article. What is a racial disparity? Why is race so hard to talk about? The unequal outcomes of one racial or ethnic group as com- pared to outcomes for another racial/ethnic group.13 It’s probably because of the complicated history America has with race and its lasting effects.5 No person alive today What is racial disproportionality? participated in the inhumane practices of slavery or forced The underrepresentation or overrepresentation of a racial or assimilation, yet this does not change the structural effects ethnic group compared to its percentage in the total popula- which are still evident. The enslavement of Africans and the tion.14 forced removal and assimilation of Native Americans were not just unfortunate events which occurred in our history, Family First Prevention Services addressing racial they were nationwide practices, codified by the law,6 en- disparities and disproportionality grained in the fabric of the economy, which in turn infiltrated FFPS serves children who are at imminent risk of removal our systems. Their effects were disastrous. Millions of newly who can safely remain at home with services. It serves par- free African Americans and displaced Indigenous Ameri- ents, caregivers, pregnant and parenting youth in foster care. cans had no land, no resources and limited education.7 At Because of FFPS, we now have providers across the state who the same time, systems and laws were enacted which directly can offer mental health services, substance use disorder treat- impacted generational wealth and the ability to own land and ment, parent skill-building, and kinship navigator programs pass on financial benefits for future generations.8 These effects before a child enters foster care. However, if we do not pay at- are seen through redlining which impacts housing, subpar tention to the families we are serving and monitor the data at educational opportunities which impacts employment op- various decision points throughout the process, we will con- tions,9 and limited health care choices which leads to lower tinue to have negative outcomes for families of color. life expectancy rates. According to the Indian Health Service, a division of Health and Human Services, “The American Equitably implementing FFPS alone will not address the Indian and Alaska Native people have long experienced lower racial disparity and disproportionality problem that is preva- health status when compared with other Americans. Lower lent across the nation. It will require additional efforts in con- life expectancy and the disproportionate disease burden ex- junction with Family First services. Kansas is not shrugging ist perhaps because of inadequate education, disproportionate its shoulders as the townsperson did above and saying, “It’s poverty, discrimination in the delivery of health services, and just the way things are.” cultural differences.”10 Structured Decision Making® (SDM) and Signs of Why should we discuss race as it relates to outcomes Safety® (SOS) in the child welfare system? Families that come to our attention will now receive equal It is widely recognized that race plays a role in how and why assessments because Kansas is using SDM in the Protection some children and families become involved in the child wel- Reporting Center (PRC). When the agency first receives a fare system. To highly summarize the concern and findings: report of suspected abuse or neglect through the PRC, we will have a concrete and consistent manner to screen in versus 1. African American and Native American children are screen out a report of abuse or neglect. This will allow us to consistently overrepresented in the child welfare system. Ac- make clear safety and risk assessments in an unbiased fashion. cording to the Center for the Study of Social Policy, African Additionally, if the report is assigned for follow up contact, American children are 14 percent of the child population, but Child Protection Specialist workers can use SDM to accu- they make up 23 percent of children in foster care. One study

www.ksbar.org | July/August 2020 23 dcfs series: babies in the river How can we help you

rately access risk versus safety. SOS can be used to authenti- 1. Family First Prevention Services Act, as part of Division E in the cally engage all families equitably. We can then determine Bipartisan Budget Act of 2018 (H.R. 1892). whether we can offer services that will support the family and 2. Child Welfare Information Gateway, Children’s Bureau/ACYF/ serve your clients? safely keep them together, or recommend removal from the ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare.” https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, home. (last visited June 28th, 2020). 3. Disproportionality in the Child Welfare System, Casey Family Pro- If your clients have legal needs that you are unable to serve, we’d appreciate the Kansas Strong grams, (https://www.ncsl.org/Portals/1/documents/cyf/fostercarecolor. Kansas Strong is the name of the federal grant awarded to pdf, last visited June 28th, 2020) 4. U.S. Government Accounting Office. “African American Children opportunity to assist you. As the “lawyer’s lawyer,” we respect your relationship the KU School of Social Welfare by the U.S. Department of in Foster Care: Additional HHS Assistance Needed to Help States Re- Health and Human Services. KU School of Social Welfare duce the Proportion in Care.” July 2007. Available at: https://www.gao. with the client. We’ll keep you informed while offering responsive and practical researchers are collaborating with DCF, KVC Kansas, Saint gov/new.items/d07816.pdf. (last visited June 29th, 2020). Francis Ministries, TFI Family Services, Inc., DCCCA and 5. See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857). legal solutions to help you take care of your client. the Kansas Court Improvement Program. One of the areas 6. Plessy v. Ferguson, 163 U.S. 537 (1896). 7. See a summary of the outlined issues http://www.peripherycenter. the grant will address is racial disproportionality and dispari- org/culture/redlining-race-inequality, (last visited June 28th, 2020). ties for children ages 0-5 in Wyandotte County, Kan. The 8. The Color of Law: A Forgotten History of How Our Government Serving and assisting KBA members in these technical assistance is provided by an expert with the Center Segregated America, by Richard Rothstein (2019). for the Study of Social Policy. “Kansas Strong for Children 9. Consider a race neutral policy such as the G.I. Bill enacted for practice areas: and Families proposes to serve three target populations: chil- WWII veterans returning home. The implementation of this new bill was extremely skewed in favor of white veterans and seriously impeded dren and families involved with in-home services, foster care black veterans from securing home loans and affordable education. See Bankruptcy & Creditors’ Intellectual Property and adoption. In all three populations, the partners plan to a 2006 article in the Journal of Blacks in Higher Education, How the GI Bill Shunted Blacks into Vocational Training (2006). Rights focus on improving outcomes for African-American youths Labor & Employment Law because they are disproportionately represented in the Kansas 10. Indian Health Service, the Federal Health Program for American foster care system, and for children who have high risk factors, Indians and Alaska Natives; see factsheet on disparities, https://www.ihs. Complex Litigation, gov/newsroom/factsheets/disparities/ (last visited June 29th, 2020). Mergers & Acquisitions including age, removal because of parental substance abuse, 11. Children’s Bureau. “The AFCARS Report.” For data on race of Arbitration & Mediation neglect or disability.” This collaborative work across agencies is child population in 2016, see KidsCount. “Child Population by Race.” Native American Law exactly the type of partnerships we must form to address sys- Available at: https://datacenter. kidscount.org/data/tables/103-child- Construction temic barriers for families of color in the child welfare system. population-by-race#detailed/1/any/fal se/870,573,869,36,868,867,133, 38,35,18/68,69,67,12,70,66,71,72/423,424. For an analysis of the over- Professional Malpractice Team Decision Making (TDM) representation of African American children specifically,see U.S. Govern- Cybersecurity/Data Privacy ment Accounting Office. “African American Children in Foster Care: Defense TDM is a process which involves important people in the Additional HHS Assistance Needed to Help States Reduce the Propor- Environmental Law child’s life when a safety threat suggests a child may need tion in Care.” July 2007. Available at: https://www.gao.gov/new.items/ d07816.pdf. Supply Chain Management to be separated from parents or caregivers. A TDM meeting 12. Minoff, Elisa. “Entangled Roots: The Role of Race in Policies that ERISA/Executive presents an opportunity to engage an entire team of people Separate Families.” Center for the Study of Social Policy, October 2018. Taxation when making a safety decision regarding the child’s place- Available at: https://cssp.org/resource/entangled-roots (last visited June Compensation 29th, 2020). ment. Because TDM is a facilitated meeting, it brings the Tax-Exempt/ agency, parents, community members and grassroot organi- 13. Child Welfare Information Gateway, Children’s Bureau/ACYF/ Franchise Law ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare.” Not-for-Profit Law zations to the table. TDM is effectively family group decision https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, making which shows remarkable promise towards greater pg. 2, (last visited June 28th, 2020). Governmental Affairs community trust and awareness, less time in foster care and 14. Child Welfare Information Gateway, Children’s Bureau/ACYF/ Trusts and Estates increased kinship placements. ACF/HHS. “Racial Disproportionality and Disparity in Child Welfare” Healthcare/ https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf, Water Rights Kansas is working towards answering the question, “How pg. 2, (last visited June 28th, 2020). Long-Term Care can children and families have equal access to services and Wind/Solar, Oil & Gas equitable experiences while involved in our system?” To About the Author Immigration frame the question another way, how can we reduce the flow Shanelle Dupree is the Kansas City Regional Energy of babies in the water and notice which ones are being thrown Director of the Department for Children and in at a disproportionate rate with disparate outcomes? We’ve Families. Before her appointment to this role, Shanelle was the Kansas state director for a child- taken many steps as an agency to address these questions. We placing agency, served as a Guardian ad Litem, all must continue to intentionally address the systemic barri- represented parents and children in CINC and ers faced by families of color in the child welfare system. This juvenile court, and enjoyed her time teaching a child welfare class for parents whose children were will only strengthen DCF’s resolve as we interact with our in state custody. She graduated from Washburn Law and married her communities and continue to build trust. n law school sweetheart, Mark Dupree. They pastor a local church in Wyandotte County and have 4 beautiful, active children. Kevin J. Arnel, Managing Partner, [email protected], 316.267.6371. [email protected]

24 The Journal of the Kansas Bar Association KANSAS CITY TOPEKA WICHITA FOULSTON.COM How can we help you serve your clients?

If your clients have legal needs that you are unable to serve, we’d appreciate the opportunity to assist you. As the “lawyer’s lawyer,” we respect your relationship with the client. We’ll keep you informed while offering responsive and practical legal solutions to help you take care of your client.

Serving and assisting KBA members in these practice areas:

Bankruptcy & Creditors’ Intellectual Property Rights Labor & Employment Law Complex Litigation, Mergers & Acquisitions Arbitration & Mediation Native American Law Construction Professional Malpractice Cybersecurity/Data Privacy Defense Environmental Law Supply Chain Management ERISA/Executive Taxation Compensation Tax-Exempt/ Franchise Law Not-for-Profit Law Governmental Affairs Trusts and Estates Healthcare/ Water Rights Long-Term Care Wind/Solar, Oil & Gas Immigration Energy

Kevin J. Arnel, Managing Partner, [email protected], 316.267.6371.

KANSAS CITY TOPEKA WICHITA www.ksbar.orgFOULSTON.COM | July/August 2020 25 cigarette and tobacco sale and use case: city home rule prevails

Cigarette and Tobacco Sale and Use Case: City Home Rule Prevails

by Mike Heim

26 The Journal of the Kansas Bar Association cigarette and tobacco sale and use case: city home rule prevails

moking can be hazardous to your health. Smoking is also a crime under state law if you are under 18 years of age, but in at least 25 cities and counties in this state, the lawful age has been raised to 21.1 Why this disparity?2 The answer is theS home rule power of cities and counties. A uniform state law3 applies to persons under 18 and makes it a crime, a class B misdemeanor, for any person: 1. to sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age; 2. to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products if the person is under 18 years of age; or 3. to possess or attempt to possess cigarettes, electronic cigarettes or tobacco prod- ucts if the person is under 18 years of age.4 How can at least 25 cities and counties change the application of a criminal statute that applies statewide? The Kansas Supreme Court examined this question in DWAG- FYS Manufacturing., Inc., d/b/a The Vapebar Topeka, and Puffs ‘n’ Stuff, L.L.C. v. City of Topeka5 (hereinafter “Vapebar”). The court affirmed the fact that cities have broad home rule powers when it upheld the city of Topeka’s “ordinary” home rule that a per- son must be at least 21 years of age for the purchase or possession, sale or distribution of cigarettes, electronic cigarettes and other tobacco products or liquid nicotine. Home rule allows a city (or a county6) to impose a different standard locally for the sale of cigarettes and other tobacco products than that imposed by a uniform state law even when all other provisions of the state law apply statewide. The Vapebar court reaffirmed that a new era in city-state relations was inaugurated in Kansas on July 1, 1961, the effective date of a city home rule constitutional amendment approved by vot- ers at the November 1960 general election. Since that date, cities can look directly to the Kansas Constitution for the source of their powers7 and are no longer dependent upon specific enabling acts of the legislature.8 In other words, Dillon’s Rule is dead in regard to cities and counties.9 City Home Rule: Constitutional Basis The key to the broad scope of city home rule powers is found in the following provi- sions of Article 12 §5 of the Kansas Constitution: (i) “Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions . . .”10

www.ksbar.org | July/August 2020 27 cigarette and tobacco sale and use case: city home rule prevails

(ii) “Cities shall exercise such determinations by ordi- When “Ordinary” Ordinances May Be Used nance passed by the governing body with referendums only Vapebar in such cases as prescribed by the legislature subject only As posed in , there are four basic questions that to enactments of the legislature of statewide concern appli- need to be asked in order to determine whether an ordinary cable uniformly to all cities, to other enactments applicable ordinance may be used to exercise home rule authority: (1) uniformly to all cities...”11 Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is (iii) “Any city may by charter ordinance elect in the man- a uniform law, does it preempt further action by cities? (4) If ner prescribed in this section that the whole or any part of there is a uniform state law but there has been no preemption, any enactment of the legislature applying to such city, other does the local regulation conflict with the uniform law?20 The than enactments of statewide concern applicable uniformly first two questions were not in play in Vapebar because the to all cities, other enactments applicable uniformly to all parties agreed that both the state statute and the city ordi- cities, and enactments prescribing limits of indebtedness, nance governed the same subject—the regulation of tobacco shall not apply to such city.”12 products—and the state law was a uniform law applicable to (iv) “Powers and authority granted cities pursuant to this all cities. section shall be liberally construed for the purpose of giving 13 I. IS THERE A STATE LAW THAT to cities the largest measure of self-government.” GOVERNS THE SUBJECT? The apparent redundancy in points (ii) and (iii) above sim- ply clarify that the legislature can only bind cities by the pas- An ordinary ordinance may be used to regulate conduct sage of uniform laws that apply to all cities in the exact same where there is no state law on the subject as illustrated by the way regardless of whether the law deals with a statewide con- following Kansas cases. While not all attempts to regulate cern or to other uniform enactments. conduct were upheld, it was not because of a lack of home rule authority but, rather, because the regulations were faulty for Certain general characteristics of the city home rule some other reason. amendment are that it applies to all cities regardless of their size. Further, the home rule amendment is self-executing in that there is no requirement that the legislature enact any law implementing it, nor are cities required to hold an election, to adopt a charter, constitution or some type of ordinance declaring their intent to exercise home rule powers. This latter feature, according to one authority, makes the Kansas home rule provisions one of the more liberal grants of home rule power in the country.14

How City Home Rule Powers are Exercised Cities exercise their home rule powers by either “ordinary” ordinances or charter ordinances.15 The use of the term “or- dinary” ordinance was coined after the passage of the con- stitutional amendment to distinguish ordinances passed un- der home rule authority from charter ordinances and from In Delight Wholesale Co. v. City of Overland Park,21 the other ordinances enacted by cities under specific legislative court voided a city ordinary ordinance that prohibited all enabling acts.16 huckstering and peddling on city streets. The acknowledged An “ordinary” ordinance is the most common way home purpose of the ordinance was for the protection of children rule powers are used by cities since it gives cities the power who would run into the street and surround the confectionery to initiate legislation by ordinance without relying on an vehicles. In Kansas, however, a city can regulate but cannot enabling statute. “Ordinary” ordinances are subject to the absolutely prohibit legitimate business enterprises. The court same formalities and other requirements that are contained concluded that the prohibition was arbitrary and unreason- in K.S.A. 12-3001 et seq. that apply to other ordinances.17 able—an inappropriate use of police power.22 Charter ordinances have constitutional formalities that are An anti-litter ordinance making it unlawful to throw a described in more detail later.18 A city that attempts to exer- weekly “shopper” onto private property except with the con- cise home rule powers through a resolution rather than an or- sent of the owner or occupant after the publisher had been dinance does not meet the constitutional requirements noted notified not to deliver the paper was upheld in City of Fredo- above and, as a result, any such resolution would be invalid.19 nia v. Chanute Tribune.23 The court found that the delivery of

28 The Journal of the Kansas Bar Association cigarette and tobacco sale and use case: city home rule prevails

a shopper paper, after the publisher had received notice not to An enactment, then, is all sections of a single bill enacted do so, converted the paper into litter. by the Kansas Legislature. Every section of a bill must apply The regulation of searchlights used for advertising purposes uniformly to all cities if the bill is to be a uniform enactment. under a zoning ordinance requiring a special use permit was Doctrine of In Pari Materia and Uniform Enactments: the issue in Robert L. Rieke Bldg. Co. v. City of Overland Park.24 In upholding the ordinance, the court rejected arguments Clafin v. Walsh,33 is the home rule case most frequently that the ordinance denied equal protection and infringed on cited regarding the doctrine of in pari materia. In Claflin, commercial speech rights under the First Amendment. the court upheld a Kansas City charter ordinance exempting An Overland Park ordinance prohibited the sale of drug the city from K.S.A. 73-407 and providing substitute provi- paraphernalia unless those items were kept in a part of the sions transferring management and control of the Soldiers’ business closed to minors. The ordinance was upheld against and Sailors’ Memorial Building from a board of trustees to constitutional challenges of overbreadth, vagueness and in- the city commissioners. The issue was whether K.S.A. 73-407 fringement on commercial speech rights under the First was “applicable uniformly to all cities” and, therefore, not Amendment in the case of Cardarella v. City of Overland subject to charter ordinance. The court found that the statute Park.25 was not uniformly applicable to all cities because it permitted three exceptions in its application to various cities. Moreover, Nude dancing regulations were reviewed in City of Wichi- the court noted that another statute, K.S.A. 73-427, that was 26 ta v. Wallace, where the court found that a city ordinance part of a separate enactment, authorized control of memori- regulating erotic dance studios was unconstitutionally vague. als by certain city governing bodies. In determining whether Another city ordinance banning nude dancing and establish- the legislature intended to have a statute apply “uniformly ing other regulations of drinking establishments was partially to all cities,” the court concluded that all statutes relating to 27 upheld in DPR, Inc. v. City of Pittsburg. The court upheld the same subject, although enacted at different times, are in the part of the ordinance that required the use of such items pari materia and should be construed together: “In order for as pasties and G-strings as being well within the power of a a statute to be applicable uniformly to all cities there must be city acting under the Twenty-First Amendment to the United no exceptions.”34 States Constitution. III. DOES THE UNIFORM LAW PREEMPT City ordinances regulating the ownership of pit bull dogs FURTHER ACTION BY CITIES? were upheld in Hearn v. City of Overland Park,28 and in State v. Lee.29 The court in City of Topeka v. Mayer30 also upheld a The issue of state legislative preemption arises when the leg- city ordinance that prohibited a dog owner from permitting islature has enacted a uniform state law. If the area of law has a dog to attack or bite any person upon the owner’s premises. not been clearly preempted by the legislature, local action is The court said the word “permit” made the ordinance broad permitted. The courts, however, have in the past flirted with but not necessarily vague. the idea that legislative preemption can be implied by the na- ture of the legislation itself rather than by a clear statement II. IF THERE IS A STATE LAW, IS IT UNIFORMLY in the law.35 APPLICABLE TO ALL CITIES? The Vapebar case specifically rejected the doctrine of im- The clearest statement by a court concerning what consti- plied legislative preemption. The appellees argued that the tutes a uniform enactment applicable to all cities is found in legislature’s enactment of a “comprehensive scheme” of regu- the seminal city home rule case of City of Junction City v. lation was sufficient to clearly manifest an intent to preempt Griffin.31 The Griffin court determined that the entire Kansas the field. The court disagreed. The court noted that it had Code of Procedure for Municipal Courts (K.S.A. 12-4101 already rejected the idea that the legislature’s adoption of a through 12-4707) did not apply uniformly to all cities since comprehensive scheme can establish a clear intent to preempt one section of that act, K.S.A. 12-4105, required municipal the field.36 judges in cities of the first class to be attorneys but did not The legislature, with some frequency, has preempted city require the same of municipal judges in cities of the second or home rule by passage of a uniform law that contains clear third class. The court noted that this section was one of the preemptive language--both of which are normally required. sections included in 1973 Kan. Sess. Laws, ch. 61, and was Some uniform laws, however, do not need any preemptive clearly one of the sections comprising the legislative enact- language since the law simply prohibits some action by a ment. The court stated: city or county. The primary areas where the legislature has “The division into chapter, article and sections in the Kan- preempted local action are in the levy of taxes, excises, fees, sas Statutes Annotated does not have the effect of making charges, and other exactions, in licensing and other regula- separate enactments of a single bill passed by the Legislature of the State of Kansas.”32

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tory activities, weapons control and gaming. Representative examples where the legislature has clearly stated its desire to preempt local action and where the legislature apparently has also enacted a uniform law include the following. 1. Pesticide Law – K.S.A. 2-2480 prohibits any city or county or other political subdivision from enacting or enforc- ing any law, ordinance, rule or regulation “in conflict” with, in addition to, or supplemental to the Kansas pesticide law and expressly invalidates any such law. 2. Income Tax – K.S.A. 12-140 provides that no city shall have power to levy and collect taxes on income from whatever source derived. which in part, states: 3. Wages Regulation – K.S.A. 12-16,130 et seq. prohibits cities, counties and other local governments from enacting any local laws requiring private employers to provide wages “(a) The legislature finds as a matter of public policy and certain other benefits at a higher level than required by and fact that it is necessary to provide statewide uni- state or federal law. form standards for issuing licenses to carry concealed handguns for self-defense and finds it necessary to oc- 4. Campaign Canvassing – K.S.A. 25-2712 provides that cupy the field of regulation of the bearing of concealed no city or county shall regulate or prohibit canvassing, poll- handguns for self-defense to ensure that no honest, law- ing, soliciting or otherwise approaching private residences for abiding person who qualifies under the provisions of the purpose of distributing campaign literature or campaign- this act is subjectively or arbitrarily denied the person’s ing for a candidate for an elected office. rights. No city, county or other political subdivision 5. Alcoholic Liquor, Beer – K.S.A. 41-208 vests in the of this state shall regulate, restrict or prohibit the car- state the exclusive control of regulating the distribution, sale, rying of concealed handguns by individuals except as possession, transportation and traffic in alcoholic liquor, and provided in K.S.A. 2016 Supp. 21-6301, 21-6302, 21- the manufacture of beer, but permits any city to prohibit by 6304, 21-6309, 75-7c10 or 75-7c20, and amendments ordinance what is prohibited by state law as long as the mini- thereto, or K.S.A. 21-4218(f), prior to its repeal. Any mum and maximum penalties for violation are the same. existing or future law, ordinance, rule, regulation or resolution enacted by any city, county or other political Lottery – 6. K.S.A. 74-8770 prohibits the levy of any subdivision of this state that regulates, restricts or pro- taxes, fees or charges by cities, counties, or other municipali- hibits the carrying of concealed handguns by individu- ties regarding lottery gaming facilities revenues or electronic als except as provided in K.S.A. 2016 Supp. 21-6301, gaming revenues from racetrack gaming. 21-6302, 21-6304, 21-6309, 75-7c10 or 75-7c20, and 7. Motor Fuel Tax – K.S.A. 79-3424 prohibits municipal amendments thereto, or K.S.A. 21-4218(f), prior to its corporations and other political subdivisions from imposing repeal, shall be null and void.40 any tax upon, or measured by, the sale, receipt, distribution, or use of motor vehicle fuel, or any excise, license, privilege or IV. IF THE STATE LAW IS UNIFORM AND DOES occupation tax upon the business of manufacturing, using, NOT PREEMPT LOCAL ACTION, DOES THE selling or delivering motor vehicle fuels.37 LOCAL REGULATION CONFLICT WITH THE UNIFORM LAW? 8. Weapons – A number of state laws restrict or preempt local governments in their regulation of weapons—both fire- Unless there is a uniform law applicable to all cities that arms and knives. The Personal and Family Protection Act38 in includes language expressly prohibiting local legislation, then conjunction with several criminal statutes establish the right the focus is on the local legislation and whether there is a of persons 21 years of age or older who otherwise may law- conflict between it and the state law. Stated another way, if fully possess a firearm to carry a firearm openly. Further, a it has been determined that there is no clear legislative intent handgun may be carried openly or concealed by such persons. to preempt all local action, then the question is whether the In addition, there are laws that prohibit the use of state ap- local provisions conflict with state law. propriated moneys for any type of gun control and the use of The Vapebar case utilized the frequently cited test found in 39 tax moneys for firearms buyback programs. Junction City v. Lee41 to determine whether a conflict exists. Clear and unmistakable preemptive language is found Briefly stated, does the local law permit or license that which in the Personal and Family Protection Act, K.S.A. 75-7c17, the state law forbids or prohibit that which the state statutes

30 The Journal of the Kansas Bar Association cigarette and tobacco sale and use case: city home rule prevails

authorize? If so, there is a conflict. When both a local law and as a felony and municipal courts only have jurisdiction over the statute are prohibitory and the local law goes further in misdemeanor crimes. Conflicts with state law also precluded its prohibition but not counter to the state prohibition, there use of third and fourth DUI convictions of a defendant in is no conflict. municipal court since that court lacked jurisdiction for those 52 Vapebar is one of the best examples of a city’s use of an “or- cases that were considered felonies. dinary” home rule ordinance to supplement a uniform state 3. In Moore v. City of Lawrence,53 the court found that a law. The city ordinance simply supplemented the state law by Lawrence ordinance requiring submission of plats to the city increasing the minimum lawful age for the purchase, posses- governing body for approval of public dedications of ease- sion and sale of tobacco products from 18 to 21 years of age.42 ments and public rights-of-way conflicted with the state law which provided only for plat approval by the planning com- Examples of other cases finding no conflict between mission. The court found that an amendment by the legisla- the state and local law: ture in 1965 repealing a provision giving governing bodies 1. If the local law is parallel or identical to the state law, authority to accept or reject land dedicated for public use was there is no conflict. See City of Garden City v. Miller43 where evidence of the conflict. a local DUI ordinance was upheld. City Charter Ordinance Procedure 2. If the local law supplements or adds to the state law, When thinking about home rule power and how it is ex- there is no conflict. See Hutchinson Human Relations Com- ercised, most people believe it must be exercised by charter mission v. Midland Credit Management, Inc.,44 where a local ordinance. Not true, but charter ordinances are an extremely civil rights commission was validated, and State et rel. Frank- important way to exercise city home rule power. lin v. City of Topeka,45 which upheld a city antidiscrimination ordinance and its application to the Kansas Department of Procedures for passage of city charter ordinances are me- Human Resources, a state agency. Similarly, a Wichita ordi- ticulously set out in the home rule amendment. Article 12, nance extending the city’s driving under the influence (DUI) §5(c)(2) of the Kansas Constitution provides that a charter ordinance to cover operating a bicycle while under the influ- ordinance shall be so titled and shall designate specifically the ence was also upheld in City of Wichita v. Hackett.46 There the legislative enactment made inapplicable to the city. It requires court noted that state law did not expressly authorize riding a a 2/3 vote of the members-elect of the governing body of the bicycle under the influence of alcohol—the state law merely city.54 The mayor was considered part of the governing body failed to proscribe it. of the City of Topeka in reference to the number of votes needed to pass a charter ordinance.55 3. When a local law provides for standards of performance that are higher than those set by state law, there is no conflict. Publication of the charter ordinance is required once each The most recent example is found in Vapebar. More stringent week for two consecutive weeks in the official city newspaper local closing hours were upheld in Leavenworth Club Owners or, if none, then in a newspaper of general circulation. A 60- Association v. Atchison.47 More stringent local environmental day waiting period is mandated after the final publication to regulations were upheld in Johnson County Water District No. allow for a protest petition by 10 percent of those who voted 1 v. City of Kansas City.48 Likewise, City of Wichita v. Gasgall49 at the last regular city election. Election procedures also are upheld an ordinance that prohibited parking in or blocking set out in detail if a protest petition is filed and must include access to a designated handicapped parking space, access the wording for the ballot. The governing body may submit ramp or access area. The covering of access areas expanded on any charter ordinance to a referendum without a petition. both federal and state laws covering this subject. The charter ordinance becomes effective upon approval of a majority of the electorate voting thereon or after the expira- Examples of cases finding that a conflict precludes a tion of the 60-day protest petition period. city ordinance: Various Attorneys General have issued opinions on the fail- 1. In State v. Jenkins,50 the court held that a Wichita theft ure to follow requirements for adopting a charter ordinance. ordinance making theft of property valued at less than $1,000 While a city governing body is not required to submit a char- a misdemeanor conflicted with state law that made theft of ter ordinance to a vote if a petition is filed, the charter ordi- property of less than $1,000 a severity level 9, nonperson felo- nance is rendered ineffective without an election following ny if committed by a person who had been convicted of theft the filing of a valid protest petition.56 Failure to file the peti- previously two or more times. tion with the city clerk precludes holding an election.57 2. In City of Junction City v. Cadoret,51 the defendant was Attorney General Stephan approved using the Mail Ballot convicted in municipal court with a DUI as a third time of- Election Act, K.S.A. 25-431 et seq., to submit the issue of fender. A third time DUI offense under state law was defined the adoption of a county charter resolution to an election.58

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The same rule should apply to cities. A governing body may 1. Existing laws on city incorporation, boundary changes, abandon a proposed charter ordinance after a petition is filed merger and consolidation (Article 12, §5(a); simply by failure to call the election. There is also a require- 2. nonuniform laws where the legislature has established ment that charter ordinances be maintained in a book by the not to exceed four classes of cities for the levy of taxes, excises, city clerk and a certified copy be filed with the secretary of fees, charges and other exactions (Article 12, § 5(b); and state.59 Failure to file a copy of the charter ordinance with the secretary of state’s office within the 60-day period, however, 3. enactments prescribing limits of indebtedness (Art. 12, has no effect on the validity of the charter ordinance.60 §5(c)(1). These particular limits provide exceptions to the general rule that the legislature may bind cities only by the enactment of a uniform state law on a subject.

City Boundary and City Status Adjustments – A Special Rule The home rule amendment, Article 12, §5(a) of the Kansas Constitution provides: “The Legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, that City Charter Ordinance Amendment or Repeal existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect Article 12, §5(c)(4) of the Kansas Constitution provides until superseded by general law and such existing laws shall that each charter ordinance enacted shall control and pre- not be subject to charter ordinance.” vail over any prior or subsequent act of the governing body of the city and may be repealed or amended only by charter It is generally recognized that this language reserves to the ordinance or by enactments of the legislature applicable to all legislature the power to enact laws relating to city incorpora- cities. tions and other boundary matters. 61 Bigs v. City of Wichita held that a repeal of a non-uniform Four Classes of Cities for Tax Purposes provision in the Club and Drinking Establishment Act was sufficient to cause the repeal of a city charter ordinance that Cities are granted the power to levy taxes, excises, fees, provided for a higher liquor license fee than the statute allowed. charges and other exactions by the home rule amendment, Article 12, §5(b) of the Kansas Constitution. The legislature, The court in State ex rel Tomasic v. Unified Government of however, may restrict this power by establishing not to exceed Wyandotte County/Kansas City, Kansas62 addressed the issue four classes of cities. These classes are not classes for general of whether the form of government established by charter or- government purposes: cities of the first,64 second65 and third dinance for Kansas City, Kansas, had been properly changed class.66 Rather, these are constitutional classes for purposes of as a result of the consolidation of the city and county. The imposing revenue limitations or prohibitions.67 court held that the city’s attempt through Charter Ordinance No. 114 to repeal only certain sections of Charter Ordinances The only example to date where the legislature classified Nos. 84 and 90, the sections that related to the city’s prior cities for the purpose of imposing limits upon or prohibiting form of local government, was proper. taxes has been in the area of local retailers’ sales taxes.68 In Edgington v. City of Overland Park,63 the court approved The city home rule amendment, Article 12, §5, when de- a charter ordinance which amended one section of a previ- scribing the use of charter ordinances does not require or even ous charter ordinance but did not specify the state statute mention the use of such ordinances in reference to the four which was made inapplicable. The court said repeating the classes of cities that the legislature may create under Article state statute being made inapplicable was not necessary in the 12, §5(b), to impose limits of cities’ taxing powers. It seems second charter ordinance since it was cited in the first charter logical, however, to assume that if the legislature exceeds its ordinance. constitutional authority by establishing more than four class- es of cities for tax excises, fees, charges, and other exaction When A City Charter Ordinance May Not Be Used purposes, cities should not be bound by such laws. One of two alternatives seem appropriate: Several subsections of Article 5, §12 of the Kansas Constitu- tion limit the use of charter ordinances. These limits include:

32 The Journal of the Kansas Bar Association cigarette and tobacco sale and use case: city home rule prevails

1. The law is simply a nullity and has no impact on a city’s ter ordinances when imposing any home rule tax, excise, fee, power to decide the tax issue in question; or charge or other exaction for revenue purposes. Charter or- 2. The law is treated as a non-uniform enactment and is dinance procedures described earlier include protest petition binding on a city unless it passes a charter ordinance to ex- and election procedures also. empt itself from the law. The court, in Ramcharan-Maharajh v. Gilliland,75 inter- The latter option seems preferable in upholding the integ- preted Article 12 §5(b) of the Kansas Constitution to allow rity of state legislative enactments while at the same time pre- referendums only in such cases as prescribed by the legisla- serving the city home rule authority and the constitutional ture. The court said that Osage City was without power to mandate for liberal construction of this power.69 order a referendum on the issue of whether to continue to spend tax dollars on a rails-to-trails project. A petition had Kansas City Renaissance Festival Corp. v. City of Bonner been presented to the city requesting an election. The city 70 Springs held that a city’s ordinary home rule resolution es- initiative and referendum statute, K.S.A. 12-3013, was not tablishing an amusements admission tax was invalid thus in- mentioned in the opinion. dicating a charter ordinance was necessary. The court rejected the city’s argument (the first option noted above) that the city Conclusion was not bound by any tax limiting legislation that was not 76 uniformly applicable to all cities or at least uniformly appli- In my 2005 home rule article, I closed with the statement cable to cities within one of the four classes permitted under that “time will tell whether the Court has developed two con- Article 12 §5. flicting lines of rationale for deciding home rule cases.” Vapebar eliminated the possibility of continuing two lines of thought Debt Limitations on implied legislative preemption—one embracing the concept and one rejecting it—and chose the latter. n Cities are subject to all enactments of the legislature pre- scribing limits of indebtedness. Uniformity is not required and modification by charter ordinance is prohibited.71 The court has had little opportunity to construe what is meant by the term “enactments prescribing limits of indebtedness.” In City of Wichita v. Kansas Taxpayer Network, Inc.,72 the court upheld a charter ordinance which, among other things, ex- empted the city from a statutory requirement for a vote on general obligation bonds issued for sewer system improve- ments. The court noted the nonuniform statute specifically provided that the bonds “shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation. . . .” The court held that the exemption from the About the Author election requirement did not violate Article 12, §5(b) and (5) Mike Heim has worked for the Kansas (c)(1) relating to the prohibition of opting out of limits of in- Legislature for over 45 years and is debtedness. currently an attorney with the Revisor of Statutes Office. He staffs local In Crummett, “City Home Rule in Kansas,” 9 Washburn government, elections, and federal and L.J. 1, 14 (1969), the discussion focused solely on bonded state affairs committees of the Kansas debt limits with the comment that bonded debt limits are not Legislature. He has taught municipal law comprehensive, are full of exceptions, but are still binding on as an adjunct professor at the Washburn cities.73 This assumption that the scope of the language covers University School of Law for 35 years. only bonded debt limits has been carried forward by the at- Heim graduated from Washburn Law 74 School and has a Masters Degree in torney general and others. Public Administration from the University of Kansas. He is a member of the KBA and of the City Attorneys Elections and Home Rule Association of Kansas. He authored Kansas Local Government Law, 6th edition, 2018 and the earlier editions of the book, as well The legislature is empowered to prescribe elections when as several law review articles. He has presented on a number of cities exercise home rule powers by ordinance pursuant to Ar- continuing legal education topics and has served as an expert ticle 12, § 5(b) of the Kansas Constitution. As an example witness on municipal law issues. Mike Heim was chosen to receive of the constitutional provision, note the enactment of K.S.A. the KBA’s Distinguished Government Service Award for 2020. 12-137, 12-138 and 12-138a. These statutes require that cit- [email protected] ies follow procedures nearly identical to the passage of char-

www.ksbar.org | July/August 2020 33 cigarette and tobacco sale and use case: city home rule prevails

1. https://www.tobaccofreekids.org › sales_21 › states_localities_ 18. See Kan. Const., Art. 12, §5(c). MLSA_21 19. See Op. Att’y Gen. 64 (1983) 2. Some surprising results can occur regarding the sale or use of tobacco 20. Vapebar, 309 Kan. at 1056-57, citing Heim, Home Rule Power for products. For example, a person must be 21 years to have a tobacco prod- Cities and Counties in Kansas, 66 J.K.B.A. 26, 32 (1997). uct sold to them or to buy these products within the city of Topeka and the 21. 203 Kan. 99, 453 P.2d 82 (1969). unincorporated areas of Shawnee County. You only need to be 18 years of 22. See Heim, Kansas Local Government Law (6th ed. 2018) §§ 3.05- age for these same transactions to be legal if you are within the city limits 3.15 for a more thorough discussion of cities and police power. of Auburn and Silver Lake, both of which are located within Shawnee 23. 7 Kan. App. 2d 65, 67, 638 P.2d 347 (1981). County. All this may be moot now because of a new federal law. See note 4. 24. 232 Kan. 634, 657, 657 P.2d 1121 (1983). 3. See KSA 2018 Supp. 79-3321(l)-(n) and KSA 2018 Supp.79-3322 25. 228 Kan. 698, 620 P.2d 1122 (1980). (b) and (c). 26. 246 Kan. 253, 788 P.2d 270 (1990). 4. Pub. L. No.116-94, Div. N, Title I, §603(a), 133 Stat. 3123 (codi- 27. 24 Kan. App. 2d 703, 953 P.2d 231 (1998). fied at 21 U.S.C. §387f(d)(5)), was signed by the President on December 28. 244 Kan. 638, 772 P.2d 758 (1989). 20, 2019, raising the federal minimum age for sale of tobacco products 29. 45 Kan. App. 2d 1001,257 P.3d 799 (2011). from 18 to 21 years. Note: It is unclear whether the federal law is being 30. 16 Kan. App. 2d 567, 826 P.2d 527 (1992). enforced within cities and counties that have not raised the smoking ban 31. 227 Kan. 332, 607 P.2d 459 (1980). age to 21 since the state law remains at 18. 32. Id. at 335-36. 5. Vapebar, 309 Kan. 1336, 443 P3d 1052 (2019). 33. 212 Kan. 1, 509 P.2d 1130 (1973). 6. The home rule powers of counties, which are statutory and similar 34. Id at. 9. to the constitutional home rule powers of cities, are not as extensive and 35. Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982) has secure as cities. The differences between city and county home rule powers been the fulcrum of several major problems with the interpretation of both are fully explored in Heim, Home Rule Power for the Cities and Counties in city and county home rule powers. The court held that a permissive or Kansas, 66 J.K.B.A. 26 (1997). enabling law (i.e., a law authorizing, but not requiring, a city or county to 7. Vapebar, 309 Kan. at 1340. act) was not uniform since not all cities chose to utilize the statutory plan- 8. One way to understand more fully the scope of home rule power of ning and zoning laws. However, because the legislature intended the law cities is to review the scope of powers of the cities of the first, second and to be uniform for those cities choosing to utilize the statutory scheme, the third class which were contained in General Statutes of Kansas, Corrick, court declared the law to be uniform. The Moore court, in effect, endorsed 1949 in chapters 13, 14 and 15 and compare those earlier chapters with the doctrine of implied legislative preemption and, in the process, blurred their current versions in Kansas Statutes Annotated. Much of what was in two separate questions: Is the law uniformly applicable to all cities, and the General Statutes of Kansas has been repealed under the rationale that if so, has the legislature clearly preempted supplemental action by cities. these statutes were not needed with the advent of home rule. See also Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990), and a more 9. Dillon’s Rule, although formulated by the courts for cities, is a rule detailed discussion of implied legislative preemption in Heim, Home Rule: that reflects the general dependency of all local governments upon state A Primer, 74 J.K.B.A. 26, 35-36 (2005). legislatures absent a home rule grant of authority. Dillon’s Rule, in part, 36. Vapebar, 309 Kan. at 1342-43. The court explained the “‘[b]road states: language in Blevins unsettled the principle’ of requiring a clearly manifest- “It is a general and undisputed proposition of law that a mu- ed legislative intent by statute to preempt the field.” The court restricted nicipal corporation possesses and can exercise the following powers, Blevins to its facts and disapproved any indication in prior unclear lan- and no others: First, those granted in express words; second, those guage in other cases that the court was adopting the doctrine of implied necessarily or fairly implied in or incident to the powers expressly preemption. granted; third, those essential to the accomplishment of the de- 37. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. clared objects and purposes of the corporation—not simply con- 421, 845 P.2d 57 (1992), wherein the court invalidated a fuel flowage fee venient, but indispensable. Any fair, reasonable, substantial doubt imposed by the City of Newton and Harvey County in violation of this concerning the existence of power is resolved by the courts against statutory prohibition. the corporation, and the power is denied....” See Dillon, Municipal 38. K.S.A. 75-7c01-75-7c23. See also K.S.A. 12-16,124(a) and 12- Corporations, Sec. 237 (5th ed. 1911). 16,134, which provide very broad prohibitions and preemptions of city or 10. Kan. Const., Art. 12, §5(b). county regulation of firearms/ammunition and knives respectively. 11. Kan. Const., Art. 12, §5(b). 39. K.S.A. 12-16,124b prohibits the use of tax proceeds to fund fire- 12. Kan. Const., Art. 12, §5(c)(1). arm buyback programs. 13. Kan. Const., Art. 12 §5(d). 40. The statement of legislative preemption is clear enough in K.S.A. 14. Clark, State Control of Local Government In Kansas, Special Legisla- 75-7c17(a), but compare KSA 75-7c20 (k)(6)’s exemption from its re- tion and Home Rule, 20 Kan. L. Rev. 631, 656 (1972). quirements for: 15. Kan. Const., Art. 12, §5(b) and (c). “any building owned or leased by the authority created under the uni- 16. Ordinary ordinances are those referred to in Article 12, §5(b), versity of Kansas hospital authority act, any building located within the where it provides that “...cities shall exercise such determination (home health care district, as defined in the unified government of Wyandotte rule) by ordinance passed by the governing body with referendums only in county and Kansas City, Kansas City-wide master plan, Rosedale master such cases as prescribed by the legislature...” According to one commenta- plan and traffic study or similar master plan or comprehensive planning tor, Clark, “State Control of Local Government in Kansas: Special Legislation or zoning document approved by the unified government of Wyandotte and Home Rule,” 20 Kan. L. Rev. 631 at 658, the above quoted language county and Kansas City, Kansas in effect on January 12, 2017.” is the most significant aspect of the home rule amendment since it gives The exemption raises the possibility of home rule action by charter or- Kansas cities the power to initiate legislation by ordinance without having dinance and charter resolution respectively for both cities and counties. to rely on enabling statutes. Clark’s term for this power and procedure is 41. 216 Kan. 495, 532 P.2d 1292 (1975). “affirmative home rule.” 42. Vapebar, 309 Kan. at 1346. 17. K.S.A. 12-3001 et seq. requires, among other things, consideration 43. 181 Kan. 360, 311 P.2d 306 (1957). of ordinances at a public meeting, an ordaining clause, no more than one 44. 213 Kan. 305, 517 P.2d 158 (1973). subject, passage by a majority elect of the governing body and publication 45. 266 Kan. 385 969 P.2d 852 (1998). in the official city newspaper. 46. 275 Kan. 848, 69 P3d 621 (2003).

34 The Journal of the Kansas Bar Association cigarette and tobacco sale and use case: city home rule prevails

47. 208 Kan. 318, 492 P.2d 183 (1971). es; class B cities are those cities that have authority to levy a local sales tax 48. 255 Kan. 183, 871 P.2d 1256 (1994). for health care services; class C cities are all cities (Wichita) with a popula- 49. 257 Kan. 631, 894 P.2d 876 (1995). tion of more than 290,000 located in a county with more than 350,000; 50. 295 Kan. 431, 284 P.3d 1037 (2012). and class D cities are all cities located in Cowley, Ellis, Ellsworth, Finney, 51. 263 Kan. 164, 946 P.2d 1356 (1997). Harper, Johnson, Labette, Lyon, Montgomery, Osage, Reno, Woodson, 52. State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006). or Wyandotte counties and cities (Manhattan) located in both Riley and 53. 232 Kan. 353 (see also note 35, supra). Pottawatomie counties. Other sections of the local sales tax law arguably 54. See Op. Att’y. Gen. 18 (2005), finding the mayor was considered created additional classes of cities. The legislature in 2006, recodified the part of the governing body of the City of Topeka in reference to the num- local retailers’ sales tax law and repealed K.S.A. 12-188 with the stated ber of votes needed to pass a charter ordinance. purpose of eliminating the multiple classes of cities. Prior to its repeal, the 55. Id. court of appeals in Home Builders Association v. City of Overland Park, 22 56. Op. Att’y Gen. 103 (1994). Kan. App. 2d 649, 668, 921 P.2d 234 (1996), found the local sales tax law 57. Op. Att’y Gen. 80 (1994). was not uniform because it contained more than four classes of cities and 58. Op. Att’y Gen. 49 (1986). therefore was subject to charter ordinance by a city. 59. Kan. Const. Art. 12, §5(c)(3). 69. See Home Builders Association v. City of Overland Parks, 22 Kan. 60. Op. Att’y Gen. 65 (1999). App. 2d 649, 668, 921 P.2d 234 (1996). 61. 271 Kan. 455, 23 P.3d 855 (2001). 70. 269 Kan. 670, 8 P.3d 701 (2000). 62. 264 Kan. 293, 955 P.2d 1136 (1998). 71. Kan. Const., Art. 12, § 5(b) and (c). 63. 15 Kan. App. 2d 721, 727-28, 815 P.2d 1116 (1991). 72. 255 Kan. 534, 874 P.2d. 667 (1994). 64. See K.S.A. 13-101. 73. See, e.g., K.S.A. 10-308. 65. See K.S.A. 14-101. 74. See 64 Am. Jur. 2d, § 6 Public Securities and Obligations for a discus- 66. See K.S.A. 15-101. sion of debt and bonded indebtedness “liability.” 67. See Martin, Home Rule For Kansas Cities, 10 Kan. L. Rev. 50, 505 75. 48 Kan. App. 2d 137, 286 P.3d 216 (2012). (1962). 76. 74 J.K.B.A. at 38. 68. K.S.A. 12-188 attempted to establish four classes of cities for local retailers’ sales tax purposes. These classes included the following: class A cities are all cities that have the authority to levy and collect local sales tax-

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www.ksbar.org | July/August 2020 35 Kansas Child Support 2020: Seeing the future of child support with open eyes by Bethany Roberts and Casey E. Forsyth

n every divorce, parentage, and support action, the calculation of child support has the potential to become an intensely litigated and highly emotional issue. In an area of the law where emotions can overwhelm practical considerations, the Ichild support guidelines assist families seeking predictability and fairness in the fi- nancial side of supporting their children. Effective January 1, 2020, the Kansas Child Support Guidelines changed significantly. This article highlights the most significant changes included in the 2020 Guidelines and their practical impact. In every case, the parties and courts involved must use the Kansas Child Support Guidelines when calculating and ordering child support.1 These guidelines must ad- here to the requirements set at the federal level while also meeting the approval of the Kansas Supreme Court. To maintain compliance with federal regulations, Kansas must review its child support guidelines at least every four years and include specific substantive provisions.2 The 2020 Kansas Child Support Guidelines changed significantly. Based on new requirements within the federal regulations, the Kansas guidelines include for the first time a consideration of a child support payor’s basic subsistence needs, the payor’s ability to pay support, and a reversal on how courts treat a parent’s incarceration in establishing or modifying child support.3 The updated guidelines include Kansas- specific changes regarding Social Security benefits, equal parenting time, and spousal maintenance, while also including mathematical and technical changes to parenting time adjustments, due process notice, and child support practice forms. Attorneys may fall victim to costly errors if they are not familiar and equipped to utilize these substantive and procedural changes to their clients’ advantage. Federal Review and Reform The guidelines must meet not only the approval of the Kansas Supreme Court, but also comply with federal regulations. The federal agency that oversees state child support programs is the Office of Child Support Enforcement (OCSE), which is an office of the Administration for Children and Families (ACF) within the Department of Health and Human Services.4 In response to an executive order on regulatory improvements, OCSE issued its proposed changes to the nation’s child support programs. The resulting rule, “Flex- ibility, Efficiency, and Modernization in Child Support Enforcement Programs,” -in cluded several departures from the previous requirements. The regulation took effect in January 2017 and included deadlines for mandatory compliance based on each state’s last four-year review of child support guidelines.5 With Kansas’s last manda- tory four-year review of its child support guidelines completed in 2016, the 2020 Kansas amendments must comply with the 2017 federal requirements.6

36 The Journal of the Kansas Bar Association Federal Child Support Plan Requirements and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers Before 2017, the federal regulations on child support guide- willing to hire the payor, prevailing earnings level in the lo- lines required each state to create a child support plan with cal community, and other relevant background factors in the the following three requirements: 1) consideration of a payor’s case.”18 income and earnings; 2) a basis in descriptive and numeric criteria that resulted in a computation of child support obliga- While every child support calculation is necessarily case- tions; and 3) consideration of the children’s health insurance specific, this provision increases the level of detail necessary needs.7 to impute income and places an increased emphasis on fact gathering and presentation of evidence.19 It is not enough to While the new regulation keeps those requirements, it ex- assume universally that each parent is able to obtain full time pands beyond these basic considerations. First, the regula- employment. The addition of these factors requires that at- tion requires a closer examination of a payor’s financial cir- torneys and courts take a careful look at the qualities of the cumstances by introducing the concept of the payor’s ability parents and of their community. to pay.8 This necessitates not only the consideration of the payor’s earnings and income, but also the payor’s basic needs The final requirement instituted at the federal level is aimed for living.9 This is accomplished through a mandated low- at the effect that incarceration has on a payor of child support. income analysis.10 The regulation leaves open to the states The new rule states that the court may not treat a payor’s in- carceration as voluntary unemployment in the establishment how to implement this through either a self-support reserve 20 analysis or through another method determined by the state. or modification of a child support order. OCSE determined that any guideline provision to the contrary was effectively a The emergence of ability to pay considerations stems from ban on the payor’s right to modify his or her child support research linking an ability to pay with an increase in the abil- 11 order upon showing a substantial change in circumstance, ity to collect child support obligations. Lack of investiga- which is in violation of the federal law requiring review and tion into a payor’s ability to pay often results in the creation modification of child support orders.21 of unrealistic child support orders, which leads to, “unpaid support, uncollectible debt, reduced work effort, and un- 2020 Kansas Child Support Guidelines derground employment,” especially for low-income payors.12 When child support orders are based on evidence of the pay- In Kansas, the Supreme Court adopts child support guide- lines based on the recommendations of the Kansas Child or’s actual income, and his or her ability to pay, rather than an 22 imputed and possibly erroneous wage, the payor is more likely Support Guidelines Advisory Committee. This thirteen- to pay support to benefit the family.13 member committee consists of attorneys, judges, parent rep- resentatives, and child support experts. After meeting for over The goal of a low-income consideration is to allow a payor a year to review the federal regulations and discuss proposed parent sufficient income to support himself or herself while changes to the Guidelines, the Advisory Committee released 14 also continuing employment. At the time of publication of its Proposed Child Support Amendments in June 2019.23 OCSE’s final rule, all but five states had already instituted These proposals were available to the public for comment some type of low-income or pay reserve adjustments in their until August 9, 2019, at which time they returned to the ad- 15 child support guidelines. The OCSE’s emphasis on ability visory committee for revision. The Supreme Court reviewed to pay stems from the practical effects of an inaccurate child the final version, which it approved by administrative order.24 support order for low-income payors. While both parents are responsible for supporting their children, the OCSE’s posi- The following changes highlight the most important tion is that without consideration of the payor’s basic sub- changes to the Kansas Child Support Guidelines, which be- sistence needs, he or she will be less likely to maintain child came effective on January 1, 2020. support payments and may leave traditional employment to Ability to Earn seek off the grid or illegal methods of earning, to the detri- ment of the entire family.16 One of the most striking changes in the child support guidelines is the additional burden placed on litigants and A second federal change is the requirements placed on im- the court to determine the appropriate amount when imput- putation of income. When a court imputes a payor’s income ing income to either parent. at a different income than is reflected in the evidence of the payor’s actual wages, the rule requires that the guidelines in- In many cases, the court, whether based on evidence or clude consideration of the payor’s specific circumstances.17 lack of wage information, imputes a payor or payee’s income These factors include, to the extent known, the payor’s “as- at a wage different from what he or she is actually earning. sets, residence, employment and earnings history, job skills, Under previous versions of the guidelines, the court could educational attainment, literacy, age, health, criminal record assume the payor or payee was capable of earning at least the

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federal minimum wage without further evidence.25 The party The 2020 guidelines also address a parent’s deliberate un- opposing this assumption was required to present substantial deremployment. Where the 2016 guidelines included a pro- justification.26 Especially in the establishment of a new child vision that the parent must be deliberately underemployed support order for low-income families, imputation of the specifically “for the purpose of avoiding child support,” the minimum wage income became a starting point or baseline new guidelines remove this phrase.33 This lessens the burden calculation from which to modify in the future. for those seeking to have the other parent held to his or her However, a large body of growing research shows that a potential earnings. payor’s likelihood of paying child support as ordered is closely How courts choose to exercise this expanded discretion in related to the court’s consideration of the payor’s income and the imputation of income remains to be seen. The new ability his or her ability to pay.27 To this end, the 2020 guidelines to earn consideration allows attorneys and self-represented lit- remove the assumption that a party is able to earn at least the igants to make plausible arguments on personal matters such federal minimum wage and now allow judicial discretion to as an individual’s literacy, criminal record, and other employ- impute income in “appropriate circumstances.”28 ment barriers, that were previously well outside the scope of Under the 2020 guidelines, if the court is going to impute child support. The ability to earn factors take a deeper dive income to either party, the court must take into consideration into the individual characteristics of the parties and requires the unique circumstances of the parent and the community, more from the courts. 29 whether at the federal minimum wage or otherwise. This Deviations from the Rebuttable Presumption Amount includes consideration of: and Ability to Pay Calculation • the parents’ assets; While the use of the guidelines is mandatory, Kansas case- • residence; law has long held that a court may deviate from the guidelines 34 • employment and earnings history; if the deviation is justified by written findings. A new sec- tion on deviations from the guideline amount includes this • job skills; directive to make written justifications when deviating and • educational attainment; include why the deviation is in the child’s best interest.35 It • literacy; also includes the new ability to pay calculation. If the Court desires to deviate from the presumed amount, it must con- • age; sider a payor’s basic subsistence needs.36 • health; Under this provision, a court must consider the payor’s abil- • criminal record and other employment barriers; ity to meet his or her basic needs by comparing the payor’s child support income and the national poverty guidelines.37 • record of seeking work, as well as the local job market, The guidelines also grant the court the discretionary power the availability employers willing to hire the parent; to consider basic subsistence needs of the payee parent and • prevailing earnings level in the local community; and children.38 • other relevant background factors in the case.30 To review a payor’s ability to pay, the court must become The court must also make written findings in support of familiar with the federal poverty guidelines for a household any imputation of income.31 of one, which is data maintained online from the U.S. De- partment of Health and Human Services.39 First, a child sup- On its face, this new requirement could place a significant port worksheet is completed. Next, the payor’s child support burden on a parent who seeks to establish or modify a child income, as previously calculated, is lessened by the monthly support order by establishing payor’s income, when that par- poverty amount to generate the “income available for sup- ent has little or no contact or information about the other port.” If this amount is greater than the support owed by the parent. A payee may not know the payor’s current address, payor parent, the lesser amount will be owed by the payor not to mention the details of the payor’s job search efforts parent. If the income available for support is less than the or the prevailing earnings in the payor’s current local com- child support owed, the court then has discretion to set a munity. However, the guidelines only direct the court to con- 32 lower child support obligation based on the best interest of sider these considerations “to the extent known.” Subject to the child.40 The Kansas Child Support Guidelines Advisory time and financial resources, a prepared litigant will present Committee considered a provision that found if the child as much available information as possible to the court to assist support income (Line D.1) is less than the federal poverty in its determination of income. This may require investiga- guidelines for a household of one, the presumptive child sup- tion into local job markets, national wage averages, or testi- port obligation is $0 per month, absent written findings made mony regarding a parent’s work history or trade. by the court setting a child support obligation.41 Following

38 The Journal of the Kansas Bar Association kansas child support 2020

the public comment period and This change may result in an the public response, the commit- influx of motions to modify child tee elected to remove this language support by incarcerated individu- from the version sent to the Kansas als. The courts will have the added Supreme Court. complication of how to facilitate Unlike some requests for child these individuals’ court appear- support adjustments that require ances and their ability to present written notice to the opposing par- testimony and evidence subject to ty, as discussed below, the ability cross-examination. to pay calculation is not optional. Prior Notice of Requested The 2020 guidelines do not in- Child Support Adjustments clude a requirement that the payor affirmatively request this consider- One change in the 2020 guide- ation in order to deviate from the lines comes from a Kansas Court presumptive amount.42 of Appeals decision addressing specific pleading requirements. Incarceration Following In re Marriage of Fuller, The 2020 guidelines alter a previously well-settled issue in the 2020 guidelines add the requirement that a party request- Kansas child support law: the effect of a payor parent’s incarcera- ing any adjustment to the calculation of their child support tion on his or her child support obligation. Previously, incarcera- order must do so in writing prior to the hearing on that is- 49 In Fuller, a parent’s out of state move did not provide tion alone was insufficient to justify a modification or suspension sue. sufficient due process notice of his request for a long-distance of a previous child support order.43 The fact that a parent became incarcerated did not meet the requisite change of circumstance parenting time adjustment on a motion to modify child sup- 50 The court held that parties must make all requests for for modification or suspension of the obligation.44 port. child support adjustments in writing, prior to the hearing.51 The 2016 guidelines reflected this categorical approach to Neither the guidelines, nor the Fuller case, specify where or incarceration. The guidelines previously disallowed incarcera- how parents must give this notice. A party requesting an ad- tion as an excuse to the imputation of full time work at the justment could do so by marking an adjustment on a domestic federal minimum wage. That meant a payor parent who was relations affidavit, or within the body of the motion, or even incarcerated was frequently imputed at federal minimum through the inclusion of an adjustment on a proposed child wage or a previous wage, despite their current inability to support worksheet, if the requesting party provides these to work at that level. This led to incarcerated payor parents ac- the opposing party before the hearing. cruing large child support arrearages. The previous guidelines also denied incarceration as a material change to modify child Equal (no longer nearly equal) Parenting Time 45 support when loss of employment was due to incarceration. Parents on mostly amicable terms may seek to create a Under the 2020 guidelines, a payor’s incarceration will be shared parenting time arrangement in which the time spent relevant and possibly sufficient to modify his or her existing with each parent qualifies them for a special calculation un- order of support. The language previously disqualifying in- der the guidelines, significantly reducing or eliminating ei- carceration as substantial justification for the inability to work ther parent’s obligation to pay child support. In its previous the federal minimum wage has been completely removed.46 version, the guidelines allowed parents who shared the chil- Further, the 2020 guidelines add new language, indicating dren’s time on an equal or “nearly equal” basis to utilize the that incarceration alone may not be treated as voluntary un- shared expense formula or the equal parenting time formula employment.47 The court may now consider the factors and in calculating child support.52 These discretionary formulas surrounding circumstances of the payor’s incarceration and result in the significant decrease of child support payable ability to pay, as well as any other equitable considerations in where both parents share residential custody of the children setting the payor’s income.48 and, therefore, share some of the costs associated with having This change allows the parties to present evidence of the a child in their household. incarcerated party’s criminal history, arrest, and sentence The shared expense formula works best for highly coopera- length, making these factors relevant. It also allows incar- tive parents who are willing to have ongoing communication cerated individuals the chance, for the first time, to present and abide by a detailed plan of how they will pay the chil- evidence on his or her employability and ability to pay while dren’s direct expenses. Under the 2016 guidelines, the court incarcerated. Previously, the discussions regarding criminal had to determine that the children, in fact, spent time with acts by the parties had no bearing on child support. each parent on an equal or nearly equal basis.53

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The equal parenting time formula, on the other hand, al- lowed the parents to pay for direct expenses of the children without the necessity of a detailed shared expense plan or re- quiring the exchange of receipts.54 In the previous guidelines, the equal parenting time formula required a finding that the parents share the children’s time on an equal or nearly equal basis.55 To calculate the adjustment to support using this for- mula, the court completes a computation based on whether each parent retains clothing in their own home and which parent is paying direct expenses.56 While the previous guidelines’ treatment of shared residen- tial custody included parties who share the children’s time on either an equal or a “nearly equal” basis, the 2020 guidelines remove the “nearly equal” parenting time arrangements from consideration.57 This significant change puts the benefits of the equal parenting time and shared expense formulas out of reach for parties that share their children’s time on only a nearly, and not exactly, equal basis. To obtain this financial benefit and reduction in child support, parties may resort to negotiating and arguing over days and even hours of parent- ing time in order to reach an equal parenting time schedule. The parties may focus on the calculation of equal sharing of parenting time as opposed to a plan that is child centered and focused on the best interest of the child. Without the cushion plemental Security Income (SSI) is a needs-based program of “or nearly equal” time, parties may look to parenting time based on an individual’s finances and disability.60 With 10.4 adjustments. million individuals receiving monthly SSDI, the 2020 guide- lines add necessary clarification to how to account for these Parenting Time Adjustments payments when calculating child support.61 First, the 2020 Another available method of adjusting child support is the guidelines verify that SSDI and Social Security Retirement 62 parenting time adjustment. Under this section, the court may benefits are included in a party’s gross income. adjust the payor’s child support obligation based on the per- The 2020 guidelines also explain how to include a child’s centage of time a child spends in the payor’s household. The dependent or auxiliary benefits in the calculation of child previous guidelines allowed adjustments reducing a payor’s support.63 When a disabled parent qualifies for SSDI pay- support by five percent, 10 percent, and 15 percent; the new ments, there may also be a monthly benefit available to his or guidelines double these adjustments to 10 percent, 20 per- her dependents, known as an auxiliary or dependent benefit. cent, and 30 percent.58 The Social Security Administration makes this payment di- Under the previous guidelines, a party whose children re- rectly to the child, through the child’s payee. The payments sided with him or her for 49% of their year would be able to do not pass through the Kansas Payment Center. While the utilize the shared expense or equal parenting time formulas, monthly benefits to the child are not included as income to resulting in very low or zero child support orders.59 Under the the payee parent if he or she receives the money as payee for new version, a payor in the identical situation cannot access the child, the child’s monthly benefit is entered as a credit on those parenting time adjustments but would be entitled to a the payor’s side of the child support worksheet, resulting in a standard reduction in support of 30 percent. Even though reduction of the payor’s child support obligation.64 the time spent with the “payor” is the same, the difference in These additions are in line with the Kansas Supreme child support payable could be drastically different. Court’s decision in Andler, where the Court held that SSDI Social Security Income and Dependent Benefits dependent payments for a child are to be applied as a credit toward a payor’s child support obligation, only to the extent Another consideration that may reduce the overall child of the monthly support amount.65 The added language pro- support obligation arises when a parent receives Social Secu- vides a uniform approach to where to input this information rity Disability benefits. Social Security Disability Insurance on the child support worksheet, and incorporates the control- (SSDI) is a benefit based on what an individual paid into the ling case law on this issue in the widely available guidelines. Social Security System when he or she was able to work; Sup-

40 The Journal of the Kansas Bar Association kansas child support 2020

While it is possible that the child will have two SSDI-quali- guidelines incorporate the changes in IRS regulations regard- fying parents, and thus would be eligible for auxiliary benefits ing spousal maintenance as it relates to child support. due to either parent’s disability record, the new guidelines The TCJA brought changes to IRS regulations on the taxa- only state that the court has the authority to make findings 66 tion of spousal maintenance. Historically, the individual pay- on how these benefits will be applied to child support. ing spousal maintenance could deduct from his or her income Another financial consideration pertains to the application the amount of spousal maintenance paid, and the burden fell of lump sum payments from the Social Security Administra- on the receiving spouse to pay taxes on the spousal mainte- tion. When a parent qualifies for SSDI benefits and his or her nance received.74 Under the previous child support guidelines, child qualifies for dependent benefits, often the child receives this was accounted for by subtracting the amount of spousal a lump sum in the amount the child would have received in maintenance paid from the payor’s income, and adding the dependent benefits for the months the parent was determined amount of spousal maintenance received (not including ar- to be disabled. The new guidelines follow the Kansas Court rearage payments) to the payee’s income.75 of Appeals decision of In the Marriage of Taber, in determin- Changes accompanying the TCJA modify the tax results of ing that this lump sum can be credited only as to the payor’s paying and receiving spousal maintenance. The TCJA elimi- arrearages existing from the same months that the lump sum 67 nates the spousal maintenance deduction for the payor for award covered and nothing in excess of those months. any divorce entered after December 31, 2018; the payee is Importantly, the new guidelines place a mandatory require- no longer required to include these spousal maintenance pay- ment on the payee parent to notify all parties and the court ments in his or her income.76 The 2020 guidelines account within thirty days of receiving a lump sum payment; the for this change with a new calculation. For orders entered court may issue sanctions in the event a payee parent fails to before the TCJA deadline, December 31, 2018, the amounts provide this notice.68 paid and received in spousal maintenance remains as in previ- ous guidelines: it is subtracted from the payor’s income and Unreimbursed Medical Expenses added to the payee’s income.77 For orders entered under the While previous guidelines remained silent on the issue, the TCJA, after December 31, 2018, the payor parent’s income 2020 guidelines mandate a specific mechanism for the ex- is calculated by taking the total maintenance awarded, and change and demand for reimbursement of medical expenses increasing it by the payor parent’s federal and state marginal 78 that are not covered by the parties’ health insurance.69 Using tax rates. This amount is subtracted from the payor parent’s the 30/30 method, a parent requesting reimbursement from income. The payee parent’s income is calculated by taking the the other parent for his or her portion of uninsured medical total amount of maintenance awarded, increasing it by the bills must present a copy of the bill to the other parent within payee’s federal and state marginal tax rates, and adding this 79 30 days of receipt with proof of payment; then, the party re- amount to the payee’s income. The parties, by agreement, ceiving the request has 30 days to pay his or her share of the may use an average tax rate of 25% instead of the marginal 80 amount.70 If the requested party does not pay, the court may tax rate calculation. impose sanctions including attorney fees or the entirety of the Forms and Schedules uninsured balance.71 Can parties opt out of this procedure by agreement? While Along with the significant substantive edits, the 2020 courts evaluate separation agreements as contracts, including guidelines include changes in the forms and child support ascertaining the parties’ intent, all child support obligations tables which are included in the guideline appendices. The in divorce actions must comply with the relevant statutes and Child Support Schedules are tables that calculate a per child use the child support guidelines.72 Because parents cannot re- support amount based on national economic data regarding duce or terminate the child support belonging to the child, family expenditures based on the income of the parents, the number of children in the family, and the age of the chil- they cannot completely do away with reimbursement of med- 81 ical expenses by agreement.73 However, it may be possible dren. The 2020 guidelines adjust these amounts based on that an agreed upon alternative method for exchanging and updated data from the committee’s economist. The results are reimbursing uncovered medical bills that does not result in increases for the younger age bracket groups (0-5 years old the reduction or termination of support flowing to the child and 6-11 years old) in lower income levels, and child support would be upheld by the court as in the child’s best interests. reductions for middle and high income levels. These changes narrow the difference in the child support payable among the Spousal Maintenance age brackets. One of the biggest recent changes in family law stemmed The guidelines also update a required technical form. In from the Tax Cuts and Jobs Act of 2017 (TCJA). The 2020 matters involving child support, a party must file a domestic relations affidavit (DRA).82 A DRA may be in a “long-form”

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or “short-form,” depending on at what point and in what kind specific decisions. While this may decrease the predictability of action the child support issue is taken up. Parties may now of child support orders, it may increase the collectability of use the short-form DRA in establishing initial support orders child support for the benefit of the supported children.n in parentage and child support actions as well as post-judg- ment motions to establish and modify child support.83 The 2020 guidelines have expanded this document to five pages of About the Authors inquiries on a party’s household composition, child support orders, education, compensation and job history, disability, Bethany Roberts is a partner with Barber Emerson, L.C. in Lawrence, Kan. Ms. Roberts child care and health insurance. If fully and accurately com- was previously a District Court Judge, Pro Tem in pleted by both parties, this information will significantly aid Douglas County handling Child in Need of Care, in the court’s evaluation of the parties’ ability to earn. Juvenile Offender and child support cases. Ms. Roberts also previously was the managing attorney All forms and appendices, including a new fillable Shared with Kansas Legal Services in Topeka, Kansas. Ms. Parenting Plan, are available at the Kansas Judicial Branch Roberts is a proud graduate from law school at website.84 the University of Kansas (Go Jayhawks!). Prior to law school, Ms. Roberts was a special education teacher. Conclusion [email protected] The Kansas Child Support Guidelines are mandatory rules used by parents, attorneys, and judges to calculate child sup- port. Changes effective January 1, 2020 include significant Casey E. Forsyth is an associate attorney at departures from previous practice. It is essential that practic- Barber Emerson, L.C. in Lawrence, Kansas where her practice concentrates on family law. Prior to ing family law attorneys both new and seasoned be familiar joining Barber Emerson, she spent several years with these changes to avoid costly mistakes and sanctions. as an attorney for the State of Kansas Department These changes, some mandated from the federal government, for Children and Families’ Child Support Services, impose new considerations regarding a payor’s ability to earn focusing on parentage and child support matters. and incarcerated parents. The 2020 guidelines expand judi- [email protected] cial discretion on many fronts, leading to increasingly fact-

1. K.S.A. 2018 Supp. 23-3002(a). 17. 45 C.F.R. 302.56(c)(iii) (2017). 2. 45 C.F.R. § 302.56(e) (2017). 18. Id. 3. 45 C.F.R. § 302.56(c)(1) (2017); Kansas Supreme Court Adminis- 19. 81 FR at 93520. trative Order No. 307 (effective October 9, 2019). 20. 45 C.F.R. 302.56(c)(3) (2017). 4. “About the Office of Child Support Enforcement,” https://www.acf. 21. 81 FR at 93526. hhs.gov/css/about. 22. K.S.A. 2018 Supp. 20-165; Kansas Supreme Court Administrative 5. Flexibility, Efficiency, and Modernization in Child Support Enforce- Order No. 307 (2019), at endnote 1. ment Programs, 81 FR 93492, at 93520 (December 20, 2016). 23. “Updates to Kansas child support guidelines open for public com- 6. See Kansas Supreme Court Administrative Order No. 287 (effective ment” News Release, June 26, 2019. August 19, 2016). 24. Administrative Order No. 307, supra note 22. 7. 45 CFR § 302.56 (effective July 20, 2008). 25. Kansas Child Support Guidelines [hereinafter KCSG] § II.F.1.a. 8. 45 CFR § 302.56(c)(1) (2017). (2016). 9. Id. 26. Id. 10. Id. 27. 81 FR 93516, No. 244; HHS Office of Inspector General, The Es- 11. The Establishment of Child Support Orders for Low Income Non- tablishment of Child Support Orders for Low-Income Non-payees, OEI– payees, Department of Health and Human Services, Office of Inspector 05–99–00390, (2000), available at: http://oig.hhs.gov/oei/reports/oei-05- General, https://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf (2000); 99-00390.pdf; Meyer, Daniel, R. Yoonsook Ha, and Mei-Chen Hu, ‘‘Do Flexibility, Efficiency, and Modernization in Child Support Enforcement High Child Support Orders Discourage Child Support Payments?’’ Social Programs, 81 FR 93492, at 93520 (December 20, 2016). Service Review, (2008), 82(1): 93–118; Huang, Chien-Chung, Ronald 12. Flexibility, Efficiency, and Modernization in Child Support En- B. Mincy, and Irwin Garfinkel, ‘‘Child Support Obligations and Low- forcement Programs, 81 FR 93492-01. Income Fathers’’ Journal of Marriage and Family, (2005), 67(5): 1213–25. 13. Id. at 93,519 to 93,520. 28. KCSG § II.F.1 (2019). 14. Id. 29. Id. 15. Id., citing Venohr, Jane, ‘‘Child Support Guidelines and Guidelines 30. Id. Reviews: State Differences and Common Issues,’’ Family Law Quarterly, 31. Id. 47(3), Fall 2013, pages 327–52, available at: http://static1.squarespace. 32. Id. com/static/5154a075e4b08f050dc20996/t/54e34dd2e4b04c0eab578456 33. Id. at § II.F.1.e (2016); § II.F.1.e, (2019). /1424182738603/3fall13_venohr.pdf. 34. In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 16. Flexibility, Efficiency, and Modernization in Child Support En- (1998).; In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1091, 176 P.3d forcement Programs, 81 FR 93492-01, at 93519. 965, 972 (2008).

42 The Journal of the Kansas Bar Association kansas child support 2020

35. KCSG § IV.F (2019). 61. See Social Security, Office of Retirement and Disability Policy, An- 36. KCSG § IV.F.2 (2019). nual Statistical Supplement, 2018, available at https://www.ssa.gov/poli- 37. Id. cy/docs/statcomps/supplement/2018/highlights.html, retrieved 10/9/19. 38. Id. 62. KCSG § II.D (2019). 39. “U.S. Federal Poverty Guidelines Used to Determine Financial Eli- 63. KCSG § II.I (2019). gibility for Certain Federal Programs; HHS Poverty Guidelines for 2019.” 64. Id. available at https://aspe.hhs.gov/poverty-guidelines. 65. Andler v. Andler, 217 Kan. 538, 538, 538 P.2d 649, 650 (1975). 40. KCSG § IV.F.2 (2019). 66. KCSG § II.I (2019). 41. KCSG § IV.F.2 (released June 2019, not adopted). 67. KCSG § II.I.b. (2019). In re Marriage of Taber, 47 Kan. App. 2d 42. KCSG § IV.F.2 (2019) (stating that the court “must take into con- 841, 841, 280 P.3d 234, 234 (2012). sideration the basic subsistence needs of the noncustodial parent”). 68. KCSG § II.I.b.1. (2019). 43. Thurmond, supra note 34, 265 Kan. at 729–30; KCSG §§ II.F.1.a; 69. KCSG § IV.D.4.b. (2019). V.B.5 (2016). 70. Id. 44. Id. 71. Id. 45. KCSG §§ II.F.1.a; V.B.5 (2016). 72. In re Marriage of Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25 46. KCSG § II.F.1.a (2019). (2008); K.S.A. 2018 Supp. 23-3001 et seq.; K.S.A. 2018 Supp. 20-165. 47. KCSG § II.F.1.f (2019). 73. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970). 48. Id. 74. Tax Cuts and Jobs Act of 2017 [hereinafter TCJA], 26 U.S.C.A. § 49. In re Marriage of Fuller, 52 Kan. App. 2d 721, 371 P.3d 964 (2016); 215, I.R.C. § 215 [§ 215. Repealed. Pub.L. 115-97, Title I, § 11051(a), KCSG § IV.E. (2019). Dec. 22, 2017, 131 Stat. 2089]; 26 U.S.C.A. § 71, I.R.C. § 71 [§ 71. 50. Id. Repealed. Pub.L. 115-97, Title I, § 11051(b)(1)(B), Dec. 22, 2017, 131 51. Id. Stat. 2089]. 52. KCSG § III.B.7. (2016). 75. KCSG § IV.C.3-4 (2016). 53. KSCG § III.B.7.a. (2016). 76. TCJA § 11051(c) (2017). 54. KSCG § III.B.7.b. (2016). 77. KCSG §IV.C.3.(a), IV.C.4(a) (2019). 55. Id. 78. Id. §IV.C.3.(b), IV.C.4(b) (2019). 56. Id. 79. Id. 57. KCSG § III.B.7. (2016); KCSG § III.B.7. (2019). 80. Id. at §IV.C.3.(c)(2019). 58. KCSG § IV.E.2.b. (2016); KCSG § IV.E.2.b. (2019). 81. Id. § II.C. (2019) 59. Id. 82. Kan. S.C. Rule 139. 60. Social Security, 2019 Red Book, available at https://www.ssa.gov/ 83. KCSG Appendix IV (2019). redbook/eng/overview-disability.htm. 84. Kansas Child Support Guidelines, https://www.kscourts.org/ About-the-Courts/Programs/Child-Support-Guidelines.

Bankruptcy & Insolvency CLE Series CLE Webinars - All Online

July 28th, Noon Bankruptcy Chapter 12: Things to Consider when Representing the Distressed Agricultural Borrower Presenters: Tom Barnes & Wes Smith July 30th, Noon Unexpired Leases & Executory Contracts in Bankrupcty Presenters: Tom Gilman & Eric Johnson July 31st, Noon A Chapter 7 Overview with Specific Issues Presenters: Patricia Hamilton & Darcy Williamson

More dates in the series coming soon! See our website for more details.

REGISTER TODAY ONLINE - www.ksbar.org/cle

Questions? Contact Amanda Wright, CLE Director [email protected] (785) 861-8815

www.ksbar.org | July/August 2020 43 The Kansas Fellows of the American College of Trial Lawyers are proud to announce the induction of the following Fellows into the College:

James Bartimus (2017) Leawood, Kansas Daniel Diepenbrock (2019) Liberal, Kansas Arthur Chalmers (2019) Topeka, Kansas Thomas Warner, Jr. (2019) Wichita, Kansas Melanie Morgan (2020) Olathe, Kansas Holly Dyer (2020) Wichita, Kansas

The American College of Trial Lawyers is a professional association of lawyers skilled and experienced in the trial of cases and dedicated to improving the standards of legal practice, the administration of justice and the ethics, civility, and collegiality of the trial profession.

Invitation to the Fellowship is extended to experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of 15 years trial experience before they can be considered for Fellowship and membership in the College cannot exceed 1% of the total lawyer population of any State or Province.

The Kansas Fellows of the College Mikel Stout David Rebein James Eisenbrandt Jay Fowler Steven C. Day Brian Wright Donald Hoffman Gerald Green Amy Lemley Lee Woodard Todd N Thompson Richard Hite Max Foust James Frickleton Robin Fowler Gerald Morris Hon. Gerald Rushfelt Thomas Wagstaff J. Eugene Balloun Darrell Warta Robert Howard Kerry McQueen Gene Sharp Donald Vasos Craig Shultz Paul Morrison Wendel Toth Thomas Bath Kirk Goza Craig Kennedy Bruce Keplinger Richard Dearth Fred Spigarelli Dan Monnat Ronald Wurtz James Duncan Leigh Hudson Scott Logan Jeffery D. Morris Craig West Hon. Donald Bostwick Roger Stanton Aubrey Linville C. Stanley Nelson Randy Rathbun Pedro Irigonegaray Hon. Joseph Johnson Honorable Ed Larson Jerry Palmer H.W. Fanning Wayne Stratton Richard Honeyman Jack Focht Don Gribble II M. Warren McCamish Arden Bradshaw Mark Bennett

44 TheCongratulate Journal of the Kansas Bar Associationand welcome our new members to the Fellowship. To Register: www.ksbar.org/CLE Summer CLE

Meet your cle requirements online! Tuesday, July 21 – Noon – Oil & Gas Series: Liens & Litigation: A Guide to Oil Field Collections Wednesday July 22 – Noon – Kansas Legislative Update Thursday, July 23 – Noon – Oil & Gas Series: Basic Bankruptcy for Operators and Producers Monday, July 27 – Noon – Oil & Gas Series: Advocating Ethically Tuesday, July 28 – Noon – Bankruptcy Series: Chapter 12: Things to Consider When Representing the Distressed Agricultural Borrower Wednesday, July 29 – Noon – Legal Ethics is No Laughing Matter Thursday, July 30 – Noon – Bankruptcy Series: Unexpired Leases & Executory Contracts in Bankruptcy Friday, July 31 – Noon – Bankruptcy Series: Chapter 7 Overview with Specific Issues Thursday, August 6 – Noon – Brown Bag Ethics (Replay) Wednesday, August 12 – Noon – The Lawyer’s Guide to Ethical Business Development Thursday, August 13 – Noon – Take it to the Limit: The Extent of an Employer’s Duty to Reasonably Accommodate Under the Americans With Disabilities Act (and in the time of Covid-19) Wednesday, August 19 – Noon - If You Can’t Say Something Nice, Shut Up! The Ethical Imperative for Civility August 20 & 21 – Annual Meeting (full of CLE!) Wednesday, August 26 – Noon – Overcoming Procrastination: How to Kick the Habit Wednesday August 26 – Noon - The Truth, The Whole Truth and Nothing But the Truth: The Ethical Imperative for Honesty in Law Practice Wednesday, September 9 – Noon - Design Patent Nuts & Bolts: Incorporating Industrial Design Protection into Your Patent Portfolio Thursday, September 17 – Noon – Brown Bag Ethics Replay Monday, September 21 – Noon – Legislative & Caselaw Institute (FIRST HALF Replay – 4 cr.) Monday, September 28 – Noon – Legislative & Caselaw Institute (SECOND HALF Replay – 4 cr.)

“ON DEMAND” CLE: www.ksbar.org/cle-on-demand Legislative & Caselaw Institute (8 cr.) Brown Bag Ethics (2 cr.) Expert Views on Hot US Patent Law Topics (2 cr.) Ethics for Good XXI (2 cr.) Staying Ethical During a Pandemic (1 cr.) Perspectives on New Dispute Resolution Methods in Domestic Cases in Kansas (1 cr.) How to Lose an Appeal in One Simple Brief (1 cr.) More coming soon! DO YOU HAVE A TRUCK ACCIDENT CASE TO REFER? REBEIN BROTHERS TRIAL LAWYERS We are handling serious truck injury cases across the 810 W. Frontview state, many of which come from other lawyers like Dodge City, KS 67801 you. Our unique location in Western Kansas has 620.339.4105 positioned us to develop an expertise in truck accident cases, as well as other catastrophic injury [email protected] cases. We hope you’ll think of us the next time you www.rbr3.com

Referrals are easy, just send me an email or give me a call. I’m also looking to recommend lawyers to our clients for practice areas we don’t serve. Let’s help each other!- -DAVID J. REBEIN “Authorized by Law:” Ex Parte Contact with Government Officials Represented by Counsel by J. Nick Badgerow

ackground. Generally, lawyers are prohibited from in the matter may not communicate about it with him communicating about a matter with persons who are directly but must go through his lawyer.3 known to be represented by another lawyer in the B The salutary purpose of this rule is to preserve the attor- matter. On the other hand, lawyers, like other citizens, oc- casionally have a need to speak with individuals employed ney-client relationship, and to ensure that one lawyer (with by federal, state or local governments or government agen- presumed superior knowledge of the law and a likely ulterior cies about matters of importance to those citizens. These two motive) does not take advantage of the other (perhaps trust- principles collide when a lawyer attempts to communicate ing and unwary) person who has engaged counsel to represent with a government official without the presence or permis- him/her in a matter.4 sion of the government’s lawyer. The purpose of this article is to explore this conflict, reach- [T]he purpose and the spirit of Rule 4.2 . . . is to pre- ing the conclusion that the right to redress grievances estab- vent lawyers from taking advantage of laypersons and to lished in both the United States and Kansas Constitutions “preserve the integrity of the lawyer-client relationship.” usually trumps the government lawyer’s right to object to di- Annotated Model Rules of Professional Conduct 392 rect, ex parte communication by a lawyer with a government (3d. ed.1996).5 official on policy matters, even if that official happens to be represented by another lawyer in the matter. The purpose of Rule 4.2 is to protect the represented in- dividual “from the supposed imbalance of legal skill and Rule 4.2, KRPC.1 This Rule of Professional Conduct acumen between the lawyer and the party litigant.”6 provides: Similarly, the Minnesota Supreme Court has observed: Transactions with Persons other than Clients: Com- munication with Person Represented by Counsel. In The purpose of Rule 4.2 is to “protect[ ] a person who representing a client, a lawyer shall not communicate has chosen to be represented by a lawyer in a matter about the subject of the representation with a person against possible overreaching by other lawyers who are the lawyer knows to be represented by another lawyer participating in the matter,” including against “interfer- in the matter, unless the lawyer has the consent of the ence by those lawyers with the client-lawyer relation- other lawyer or is authorized to do so by law or a court ship.” Minn. R. Prof. Conduct 4.2 cmt. 1.[ ]7 The rule order.2 is also intended to “protect[ ] the right of counsel to be present during any communication between the coun- This rule generally prohibits contact by a lawyer with an- sel’s client and opposing counsel.” State v. Miller, 600 other lawyer’s client about a matter on which the second law- N.W.2d 457, 464 (Minn. 1999). [W]e have referred to yer represents the client. the language of Rule 4.2 as “plain and unambiguous,” 8 Rule 4.2 codifies the no-contact or anticontact rule. If State v. Clark, 738 N.W.2d 316, 339 (Minn. 2007). . . a person is represented in a matter, lawyers for others

www.ksbar.org | July/August 2020 47 authorized by law

This rule is not designed just for the protection of clients. Corporate counsel’s assertion of blanket representation of the corporation and all its corporate employees is No attorney wants her client to be discussing matters bluster. It is inappropriate. First, a unilateral declara- regarding legal strategy or settlement with another at- tion by a corporation’s counsel that he or she represents torney without her being present. Nor does any attor- all current and former employees does not make it so. ney want her client to discuss with another attorney Second, such blanket representation of a corporation the merits or demerits of the client’s position without and all its current and former employees would in many being present, since such discussions may affect the cli- instances be fraught with impermissible conflicts of in- ent’s resolve in prosecuting or defending the litigation terest for the corporate lawyer.12 or the client’s confidence in his attorney. See, e.g., Pratt v. National Railroad Passenger Corporation, 54 F. Supp. “In the Matter.” Second, under Rule 4.2, the person must 2d 78, 79 (D. Mass. 1999) (Young, J.) (“Historically, be known to be represented by another lawyer “in the mat- [Rule 4.2] is justified by the need to preserve the me- ter.” In fact, the term “matter” is used no less than 16 times diating role of counsel on behalf of their clients and to in just this one Rule and its Official Comments. Just because protect clients by overreaching by counsel for adverse a lawyer knows that a government or agency generally has interests”); Rockland Trust Company v. Computer Associ- counsel does not mean the lawyer knows that the government ates International, Inc., 1999 WL 95722 at *5 (D. Mass. or agency is represented by counsel “in the matter.” 1999) (Collings, M.J.); Hanntz v. Shiley, Inc., 766 F. Supp. 258, 265 (D.N.J. 1991).9 By prohibiting communication about the subject mat- ter of the representation, the Rule contemplates that the “Knows to be Represented by Another Lawyer.” First, matter is defined and specific, such that the communi- the lawyer must “know” the other person to be contacted is cating lawyer can be placed on notice of the subject of represented by another lawyer. representation. Thus, if the representation is focused on a given matter, such as one involving past conduct, and The prohibition on communications with a represented the communicating lawyer is aware of this representa- person only applies in circumstances where the lawyer tion, she may not communicate with the represented knows that the person is in fact represented in the mat- person absent consent of the representing lawyer. . . .13 ter to be discussed. This means that the lawyer has ac- tual knowledge of the fact of the representation; but But even if the communicating lawyer “knows” that the such actual knowledge may be inferred from the cir- government, agency, or official is represented by another law- cumstances. See Rule 1.0(g).10 yer, even in the specific matter at issue, may the communicat- ing lawyer proceed with the contact? Even if the communicating lawyer “knows” that a gov- Direct Party to Party Communication. As an aside, and ernment generally has counsel, the lawyer must have actual to be clear, irrespective of Rule 4.2 (which is applicable to knowledge that the particular government agency being con- the conduct of lawyers), any non-lawyer citizen has the right tacted specifically is represented by that counsel or some other to communicate with any government official directly, even lawyer. about pending litigation, because non-lawyer parties are al- ways free to communicate with each other without the pres- In reaching this conclusion, I am relying, in part, upon ence or involvement of lawyers, whether or not one of the the commentary and history of Rule 4.2 of the Model parties is a government entity and whether or not the parties Rules of Professional Conduct, a rule that was taken are in litigation against one another. As one court has clearly virtually verbatim from DR 7-104 (see, 2 G. Hazard Jr., observed: “[A]ll parties may communicate unreservedly with The Law of Lawyering, § 4.2:101). By their terms, both each other.”14 The Annotated Model Rules states: “Rule 4.2 rules prohibit contact with a represented party where does not restrict the parties from communicating with each the attorney actually “knows” of a representation. Nei- other, whether or not they have their own lawyers.”15 ther rule expressly forbids such contact, however, where The federal district court in Kansas has observed: the attorney “reasonably should know” that the witness was represented (see, Model Rule 4.2; DR 7-104[a]).11 . . . “there is nothing in the disciplinary rules which The mere fact that a lawyer generally represents the govern- restrict a client’s right to act independently in initiating ment does not make him/her counsel to each and every per- communications with the other side, or which requires son employed by the government, in each and every matter. that lawyers prevent or attempt to discourage such con- duct.”, 148 F.R.D. 68, 83 (S.D.N.Y.1993) (citing New

48 The Journal of the Kansas Bar Association authorized by law

York City Bar Association Formal Opinion No.1991-2, Right to Redress Grievances—Kansas Constitution. at 5-6); Annotated Model Rules of Professional Con- The Kansas State Constitution similarly enshrines the prin- duct 392 (Center for Professional Responsibility, Amer- ciple that “The people have the right . . . to petition the gov- ican Bar Ass’n, 3d ed.1996) (counsel is not obligated ernment, or any department thereof, for the redress of griev- to “dissuade” his client from communicating with the ances.”27 This right is coextensive with the right afforded by opposing party). The text of and comment to Rule 4.2 the federal constitution.28 also support this conclusion. See Kan. S. Ct. Rule 226 Thus, there is the highest authority, under both the federal at Rule 4.2 and Rule 4.2 cmt. (“parties to a matter may 16 and state constitutions, for any citizen to petition his/her gov- communicate directly with each other”). ernment in order to redress grievances. So, under any circumstances—whether or not litigation is “Authorized by Law.” As noted above, even where the par- involved, and whether or not one of the parties happens to be ty is “known” to be represented by counsel “in the matter,” a governmental agent or agency—parties are always free to Rule 4.2 contains an express exception for communications communicate directly with each other. which are “authorized by law.”29 Lawyers are free to advise clients of this principle,17 and The Comments to Rule 4.2 describe the major “authorized they need not discourage clients from availing themselves of by law” exception, being the right of any member of the pub- it by communicating directly with an opposing party.18 In- lic, including a lawyer, to communicate with government em- deed, lawyers may advise clients generally on the type of in- ployees, exercising the right to petition the government for formation needed.19 On the other hand, lawyers should not the redress of grievances. script the communication for their clients.20 This is because Rule 8.4(a), KRPC makes it misconduct for a lawyer to “in- Communications authorized by law include, for exam- duce” another person to take actions which would violate the ple, the right of a party to a controversy with a govern- KRPC, or to violate the KRPC “through the acts of anoth- ment agency to speak with government officials about er.”21 The Comments to this Rule add: the matter. . . . Communications authorized by law may include communications by a lawyer on behalf of a cli- Lawyers are subject to discipline when they . . . know- ent who is exercising a constitutional or other legal right ingly assist or induce another to [violate the Rules] or to communicate with the government.30 do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.22 The Kansas Bar Ethics Advisory Opinion Committee has addressed this specific issue, and has specifically and unequiv- But the Comment concludes (consistent with the discus- ocally affirmed a lawyer’s right to communicate with govern- sion above), that “[p]aragraph (a), however, does not prohibit ment officials directly, without government counsel present: a lawyer from advising a client concerning action the client is legally entitled to take.”23 Contacts by attorneys with government agencies have Right to Redress Grievances—United States Constitu- been held to be “authorized by law.” The rules of profes- tion. In the United States of America, the right to petition sional conduct state that a lawyer having independent the government for the redress of grievances is guaranteed justification for communicating with the other party is by the First Amendment to the United States Constitution, permitted to do so. Communications authorized by law which specifically prohibits Congress from abridging “the include, for example, the right of a party to a controver- right of the people...to petition the Government for a redress sy with a government agency to speak with government of grievances.”24 officials about the matter. . . . The “authorized by law” exception under Rule 4.2 includes those contacts made The First Amendment, applicable to the States by rea- by a lawyer with a public or governmental body. That is son of the Fourteenth (Edwards v. South Carolina, 372 because a citizen must always have access to his or her U.S. 229, 235), provides that Congress shall make no government, and because the First Amendment trumps law . . . abridging . . . the right of the people peaceably any other considerations and concerns. When a govern- to assemble, and to petition the Government for a re- mental agency is the represented party, the Comment to dress of grievances.25 Rule 4.2 recognizes that a party may “speak with gov- ernmental officials about the matter.” The First Amend- The right of citizens to petition their government in order ment right of petition brings such communications to redress their grievances is a basic one. The United States within the “authorized by law” exception to Rule 4.2. Supreme Court has observed, “The right of citizens to peti- See American Canoe Ass’n, Inc. v. City of St. Albans, 18 F. tion their government for the redress of grievances is funda- Supp. 2d 620 (S.D. W.Va. 1998)(when citizens are liti- mental to our constitutional structure.”26 gating against government agencies, direct contacts be-

www.ksbar.org | July/August 2020 49 authorized by law

tween agency officials and plaintiff’s counsel regarding In another opinion the Utah Committee has reiterated: the matter in controversy are authorized by law as long as the formalities of the particular citizen-access stat- The right to petition one’s government “is implicit in ute allowing direct communications are met; however, ‘[t]he very idea of government, republican in form.’” plaintiff’s counsel is required to prepare an inventory of Individuals therefore have the right to communicate any materials received from agencies under freedom of their will to the government and elected officials, and information statutes); Camden v. State of Maryland, 910 may do so through legal counsel so that their voice will F. Supp. 1115 (D. Md. 1996)(“Insofar as a party’s right be effective. While First Amendment rights can be lim- to speak with government officials about a controversy ited when a state enacts a rule that is narrowly tailored is concerned, Rule 4.2 has been uniformly interpreted to achieve a compelling state interest, “a state may not, to be inapplicable”). . . under the guise of prohibiting professional misconduct ignore constitutional rights.”34 ABA, Annotated Model Rules of Professional Conduct 411 (1999). If government counsel wishes to make sure s/he is included in every communication with government employees, it is Another treatise makes the same observation: The an- incumbent upon him/her to make sure that those employ- ticommunication rule [Rule 4.2] is subject to certain ees are aware of that desire, and to include counsel in meet- exceptions. Communication is permitted when autho- ings or communications with members of the public. Given rized by law, for example, a communication pursuant the constitutional right of any person, including a lawyer, to to court rule or court order. In our society, open access communicate with a governmental agency, there would be no to government is a fundamental value, so the rule al- violation of Rule 4.2 for the lawyer to do so without investi- lows lawyers to communicate directly with government gating whether the agency has counsel “in the matter,” and officials even when those officials are represented by whether that counsel wishes to intervene. counsel. One of Petitioners’ arguments centers around a per- Crystal, An Introduction to Professional Responsibility, 31 ception that, under the U. S. or Utah Constitutions, Aspen Law and Business Publishing 275 (1998). government lawyers have a right to have the same rules Addressing constitutional concerns, the Kansas Ethics Ad- apply to them as to non-governmental lawyers. At first visory Committee continued: glance, this argument has a superficial ring of plausibil- ity to it, but it misses the point of whose interests are at [A] lawyer for a private party may seek ex parte inter- stake in this issue. The important interest here is that of views with relevant government officials. If the normal the public, not of the lawyers. In the Committee’s judg- bar of Rule 4.2 were applied stringently, the govern- ment, it is more important to minimize the difficulties ment’s lawyer could veto discussions between private and obstacles that face private parties dealing with the parties and government officials, which is questionable government and its officials than it is to provide govern- policy, and might raise questions under the “petition for ment agencies and officials with an insulating layer of redress of grievances” clause of the First Amendment.32 attorneys.35 The Utah Bar Ethics Opinion Committee has stated this Policy Versus Litigation. Some cases and authorities dif- principle with equal force: ferentiate between communications with a government offi- cial about policy matters (which are uniformly permitted) and Because the Utah and United States Constitutions communications about pending litigation or claims, unrelat- guarantee all private citizens access to government, all ed to policy matters (which are not). At the very least, direct communications about policy matters are permitted, even communication, whether oral or in writing, with em- 36 ployees or officials of a government agency under any where Rule 4.2, KRPC, would otherwise prohibit them. circumstances are permitted. Thus, a lawyer represent- Thus, when there is pending litigation, some authorities ing a government office or department may not prevent would prohibit a lawyer’s direct communication with a repre- his non-government counterpart from contacting any sented government official about the specific matter involved employee of the government office or department out- in the litigation, despite the “authorized by law” exception in side the presence of the government attorney, whether Rule 4.2, KRPC. As an ABA Formal Opinion states: or not the communication involves a matter in litiga- 33 tion. In situations where the right to petition has no apparent applicability, either because of the position and author-

50 The Journal of the Kansas Bar Association authorized by law

ity of the officials sought to be contacted or because pending litigation or that the matter has been referred of the purpose of the proposed communication, Rule to agency counsel and (b) about his representation of a 4.2 prohibits communication without prior consent of private party in that litigation.39 government counsel.37 The Comments to Rule 4.2 confirm this view: The Alaska Bar Ethics Opinion Committee states the same This Rule does not prohibit communication with a party, principle: or an employee or agent of a party, concerning matters out- side the representation. For example, the existence of a con- [I]t is the Committee’s opinion that Rule 4.2 and the troversy between a government agency and a private party, interpreting Comment do not authorize an attorney to or between two organizations, does not prohibit a lawyer for advocate a clients’ position relating to pending litiga- either from communicating with nonlawyer representatives tion directly to the governing officer or body of a public of the other regarding a separate matter.40 agency without the consent of the opposing counsel. . . . The committee believes the first amendment right of a Conclusion. In most instances, Rule 4.2, KRPC, provides citizen to petition the government does not “authorize” valuable protection against one lawyer taking advantage of attorneys to directly communicate with the governing a party represented by another lawyer. However, the consti- body of an agency on the citizen’s behalf regarding a tutional right of every citizen to redress actual or perceived matter in litigation. This position is supported by Wal- grievances caused by governmental action necessitates the ters v. National Assoc. of Radiation Survivors, 574 U.S. precedence of that constitutional right over the protection 337, 105 S. Ct. 3180 (1985).38 provided by Rule 4.2. Thus, any lawyer should be free to communicate with any governmental employee or official Similarly, the Utah Ethics Opinion quoted above clarifies: about any matter of interest to the lawyer, whether or not the government employee or official happens to be represented by However, if counsel for a private party contacts a gov- another lawyer in the matter, at least on matters unrelated to ernment employee about pending litigation, counsel pending litigation between the lawyer’s client and the govern- n must inform the government employee (a) about the ment.

1. Kansas Rules of Professional Conduct (“KRPC”), Rule 226, Rules of About the Author the Kansas Supreme Court. 2. Rule 4.2, KRPC. J. Nick Badgerow, now retired, was a partner 3. ABA, Annotated Model Rules of Professional Conduct, Eighth Ed., with Spencer Fane LLP in Overland Park, Kansas. 440 (2015), citing, inter alia, Polycast Tech. Corp. v. Uniroyal, Inc., 129 A trial lawyer for 44 years, his practice focused F.R.D. 621 (S.D. N.Y. 1990) and Messing, Rudavsky & Weliky, P.C. v. Presi- on representing and consulting with lawyers and dent and Fellows of Harvard College, 764 N.E.2d 825 (Mass. 2002)(rule judges on professional responsibility and ethics “protects clients from other people’s lawyers”). issues. He was a member of the Kansas Judicial 4. In re Hodge, 307 Kan. 170, 206, 407 P.3d 613 (2017)(“The respon- Council (23 years); a member of the Kansas State dent directly communicated with the principals of CLS advising them to Board of Discipline for Attorneys (16 years); chairman of the KBA ignore their attorney’s specific advice”). See also, In re Hillbrant, 286 Kan. Ethics Advisory Opinion Committee (9 years); and chairman of 280, 288, 182 P.3d 1253(2008). the Johnson County (Kansas) Bar Ethics and Grievance Committee 5. In the Matter of Application for Disciplinary Action Against Hoffman, (30 years). Nick was also chairman of the Kansas Bar Ethics 2000 2003 ND 161, 670 N.W.2d 500, 504 (2003). See also, People v. Santiago, Commission and the Ethics 20/20 Commission. He was the editor 384 Ill. App. 3d 784, 793, 895 N. E. 2d 989, (Ill. App. 2008)(“[T]he pur- and a co-author of the KBA Ethics Handbook, Third Edition (2015). pose of Rule 4.2 is to foster public confidence in the legal profession and to protect clients from being tricked by an opposing lawyer into giving away [email protected] his case. Op. 384 Ill. App. 3d at 788, 324 Ill.Dec. at 277, 895 N.E.2d at 992”); In re Syfert, 550 N. E. 2d 1306, 1307 (Ind.1990) (When attorneys, 12. Ohio Ethics Opinion BCGD 2005-03 (2005). in violation of Rule 4.2, contact opposing parties who are represented by 13. Nebraska Ethics Opinion ETH 09-03 (2009). counsel, they undermine the representative adversarial system). 14. In re Disciplinary Proceeding against Haley, 156 Wn.2d 324, 337, 6. Minnesota v. Clark, 738 N.W.2d 316, 338 (Minn. 2007). 126 P.3d 1262 (Wash. 2006). 7. See also, Rule 4.2, KRPC, Comment [1] (same). 15. ABA, Annotated Model Rules of Professional Conduct, 8th ed., 8. In re Charges of Unprofessional Conduct in Panel File No. 41755, 912 443 (2015). N.W.2d 224, 229 (Minn. 2018). 16. Holdren v. General Motors Corp., 13 F. Supp. 2d 1192, 1195 (D. 9. Edwards v. Massachusetts Bay Transportation Authority, 2000-MBAR- Kan. 1998)(holding further, “Because the language of Rule 4.2 does not 293, 2000 WL 1786326 (Mass. December 7, 2000). prohibit party-to-party contact, and expressly applies only to conduct by 10. Rule 4.2, KRPC, Comment [8]. attorneys, that portion of the comment concerning parties communicat- 11. Schmidt v. State, 695 N.Y.S.2d 225, 232, 181 Misc. 2d 499 (N.Y. ing directly with each other is consistent with Rule 4.2.”). Ct. Claims 1999). 17. ABA Formal Ethics Op. 92-362 (1992). See also, ABA Formal Eth-

www.ksbar.org | July/August 2020 51 authorized by law

ics Op. 11-461 (2011) (lawyer may assist client in communicating with 32. Id., quoting 2 Hazard & Hodes, The Law of Lawyering, Fourth Edi- represented opposing party, so long as it does not result in overreaching tion, §38.3, p. 38-16 (2011 Supp.), and citing, inter alia, American Canoe by the lawyer). Ass’n, Inc. v. City of St. Albans, 18 F. Supp. 2d 620 (S.D. W.Va. 1998) 18. Tex. Ethics Op. 613 (2001). (Rule 4.2 is not violated by counsel for one party contacting governmental 19. Va. Ethics Op. 1870 (2013). employees directly, without government attorneys present, even where the 20. See, Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. contacting counsel’s client is in litigation with the governmental agency). 1998)(showing client how to draft affidavit to be presented to represented 33. Utah State Bar Ethics Advisory Opinion No. 115 (1993). See also, opposing party for execution); In re Pyle, 278 Kan. 230, 91 P.3d 1222 Connecticut Ethics Opinion Informal 87-15 (1988)(school board em- (2013)(preparation of affidavit and “encouraging” client to present it to ployees). represented opposing party). 34. Utah State Bar Ethics Advisory Opinion 113 (1991). 21. Rule 8.4(a), KRPC. 35. Utah State Bar Ethics Advisory Opinion Committee Opinion 22. Rule 8.4(a), KRPC, Comment [1]. 115R (1994). 23. Id. 36. ABA Formal Op. 97-408 (1997)(communication may address pol- 24. Constitution of the United States, First Amendment. icy issue, including settlement, rather than the specific facts of the case). 25. Adderly v. Florida, 385 U.S. 39, 48, 87 S. Ct. 242 (1966). See also, Ill. Ethics Op. 13-09 (2009)(communication with government 26. United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 1207, 35 official about policy matters by counsel permitted, despite pendency of L.E.2d 379 (1973). See also, Rendelman v. State, 175 Md. App. 422, 441, appeal in tax assessment matter). 927 A.2d 468 (2007). 37. ABA Op. 97-408, supra. See also, United States v. Sierra Pacific In- 27. Kansas Constitution, Bill of Rights, § 3. See also, Flynn v. The Broth- dustries, 759 F. Supp. 2d 1206, (E. D. Cal. 2010). erhood of Railroad Trainmen, 111 Kan. 415, 419, 207 P. 829 (1922)(“Our 38. Alaska Bar Ethics Opinion 94-1 (1994). See also, Illinois State Bar state constitution provides that ‘The people have the right . . . to petition Ethics Opinion 92-3 (1992)(“It would therefore be improper for the in- the government, or any department thereof, for the redress of grievances.’ quiring attorney to communicate directly with represented employees of (Bill of Rights, § 3)”). the city regarding the litigation”); Florida Bar Ethics Op. 87-2 (1987). 28. Brown v. Wichita State University, 217 Kan. 279, 297, 540 P.2d 66, 39. Utah State Bar Ethics Advisory Opinion No. 115, supra note 33 (1975), vacated on other grounds, 547 P.2d 1015 (1976). (1993); Montana Bar Ethics Opinion 940430 (1994). 29. “Rule 4.2 does not prohibit direct contact with a represented party 40. Rule 4.2, KRPC, Comment [4] (emphasis added). See also, Stone where the party’s lawyer consents or the contact is authorized by law.” v. City of Kiowa, 950 P.2d 1305 (1997)(communication with represented Wilkerson v. Brown, 26 Kan. App. 2d 831, 835, 995 P.2d 393 (1999). party about other matters permitted); United States v. Ford, 176 F.3d 376 30. Rule 4.2, KRPC, Comments [4] and [5]. (6th Cir. 1999)(communication about matters unrelated to criminal case 31. Kansas Ethics Advisory Opinion 00-06 (2000)(emphasis added) permitted); Grievance Committee v. Simels, 48 F.3d 640 (2nd Cir. 1995). (footnotes omitted).

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52 The Journal of the Kansas Bar Association 2020 Legislative Overview by Joseph N. Molina III

he 2020 Kansas Legislature was truly historic. It con- Emergency Management Act (KEMA) after she vetoed Sen- tained 687 individual bills, five vetoes, denial of two ate Sub for HB 2054. executive reorganization plans, a rejected Court of During the Special Session, the Legislature was able to AppealsT nominee and three COVID-19 response bills— the negotiate with the Governor’s office on a variety of COV- first of which was found to be unconstitutional by the Kansas ID-related items. The compromise resulted in HB 2016, the Supreme Court. The legislature held a 60-day regular session Omnibus Governmental Response to the 2020 COVID-19 producing only nine bills, a 24-hour straight Sine Die ses- pandemic. sion that produced eight bills and a two-day Special Session culminating in a single bill. This Legislative Overview will HB 2016 allowed the Governor to appropriate CARES touch on many of these approved measures and discuss some Relief Funding with oversight from the State Finance Coun- that failed to hit the mark. It will take the issues in reverse cil. It further amended the Kansas Emergency Management order and summarize the most pressing legislation of 2020: Act by limiting the Governor’s authority to close schools and the Kansas response to COVID-19. businesses. Those types of closings will be locally controlled through school boards and county commissions. HB 2016 Special Session also provides immunity for healthcare providers and busi- nesses. This immunity extends to product liability claims. The Kansas Legislature completed its 24th Special Ses- Adult care facilities can claim an affirmative defense. The bill sion—only the third this century—in a mere 48 hours. Gov. creates the COVID-19 Contact Tracing Privacy Act which Kelly called this Special Session to deal with the Kansas

www.ksbar.org | July/August 2020 53 legislative overview

protects the private information of individuals who may have been exposed to the virus. HB 2016 further requires that during a COVID-19 state of disaster, healthcare workers will work with first responders to share information indicat- ing when and where a person resides who tested positive or is under quarantine. The bill also extends the use of video conferencing authority for the courts and validates notarial acts performed during the pandemic. The bill contains other provisions related to healthcare audits, tele-medicine, unem- ployment benefits and the sale of alcohol. All told, HB 2016 contains 11 distinct provisions dealing with nine areas of law that can appropriate over $1.2 billion dollars. It is a massive piece of legislation.

Sine Die tection Act, extends certain income and privilege The Kansas Legislature adjourned Sine Die at 8:00 a.m. on tax filing and payment deadlines, authorizes county Friday, May 22nd. The legislative day lasted a full 24 hours, treasurers to accept partial payments and establish having started at 8am on May 21st. Normally, Sine Die is a payment plans for all property taxes, and provides for quiet and routine affair; this year, COVID-19 made it any- county discretion in handling de minimis property thing but normal. tax penalty charges. As previously stated, the largest bill was the COVID bundle The legislature passed eight bills in the 24-hour Sine Die incorporated in Conference Committee Report (CCR) for session. Governor Kelly vetoed four of those measures, in- HB 2054. That bill included provisions dealing with CARES cluding the COVID-19 response bill (HB 2054); the edu- funding, Emergency Management Act oversight, liability cation bill that contained the Promise Scholarship Act (HB protections for healthcare, businesses and products, extension 2510); the Kansas Economic Recovery Loan Deposit Pro- of executive orders till 2021 and nursing home oversight. The gram (HB 2619); and the Notice and Hearing Requirements KBA was most interested in the extension of the executive for Property Evaluation (HB 2702). orders for remote notaries and use of audio visual, both of HB 2034 dealing with restitution orders, HB 2137 con- which were added to the CCR. The KBA was opposed the cerning Kansas Open Records exemptions, HB 2246 amend- immunity protections added to the bill. Gov. Kelly ultimately ing agencies duties for KU Med and KDHE, and HB 2585 vetoed HB 2054. dealing with utility rates were signed into law. CCR for HB 2054 was not the only issued worked on the Regular Session last day of the session. The legislature debated and passed three other conference committee reports. They include: The Kansas Legislature reached First Adjournment on • CCR for HB 2246 bundles changes to the Kansas March 19th. The session ended with a truncated state budget Insurance Department, KDHE, KU MED Cancer and the passage of an emergency resolution, neither of which Fund and the bonding authority for Wichita State. was foreseen at the start of the session. The legislature focused its final days on COVID-19 response and passed a series of • CCR for HB 2510 which amends the provision of bills aimed at COVID-19. free ACT exams for Kansas high school students, concurrent and dual enrollment for high school stu- • SB 27 extends unemployment eligibility for workers dents, and the authority of healing arts school clinics filing claims January 1, 2020 and later. to provide healing arts services. The bill would also • SB 142 expands the waiver authority for meeting require the creation of a foster care report card and education requirements (e.g., hours of attendance). would establish the Kansas Promise Scholarship Act. • SB 102 grants the Judicial Branch authority to ex- The bill would also authorize the sale by Kansas State tend statutory deadlines, time limitations on court University of land in Saline County. proceedings and authorizes video conferencing. CCR for HB 2702 • establishes new notice and public The most significant piece of COVID-19 legislation was hearing requirements for certain taxing subdivisions, HCR 5025, Governor’s Emergency Powers prohibits certain real property valuation increases, and provides a one-time delay in the deadline for The State of Kansas took the lead on the COVID-19 pre- payment of property taxes, enacts the Taxpayer Pro- cautionary front. Kansas was the first in the country to close public schools. Other states followed suit after that and large

54 The Journal of the Kansas Bar Association legislative overview

states including California and New York instituted even battle between these two issues with a real possibility for an more restrictive measures. agreement on both. However, even the best laid plans can be The governor imposed several additional restrictions to help upset. Both issues will be election fodder, and both will likely reduce the spread of Covid-19 including: return in 2021. • Non-essential state employees were furloughed for The senate passed a constitutional amendment reversing two weeks starting Monday, March 23. the state Supreme Court ruling that found that the right to an abortion is protected by the state constitution. However, • Mass gatherings likely to draw 10 or more people the Kansas House was unable to command the 84 required were prohibited. votes, and the legislation stalled. In direct response, senate • Evictions and foreclosures were temporarily restrict- leadership bottled up Medicaid Expansion in a senate com- ed until May 1, 2020. mittee and blocked it from coming to the floor. A possible compromise was thwarted when COVID became the imme- • Bars, restaurants and related businesses were closed diate issue. for dine-in services; take-out only. • Utility disconnects were suspended. Those restrictions were just the beginning, and it was un- derstood that more restrictions could be implemented. The governor allowed the hospitality industry to take out $20,000 in short term loans at no interest for up to six months. The governor had the authority to offer these types of pro- grams because the legislature passed HCR 5025. HCR 5025 granted the governor additional emergency powers, while it placed certain limitations and awarded oversight on that authority by the Legislative Coordinating Council. The gov- ernor has emergency powers by statute to deal with natural disasters and other kinds of situations that are more generally foreseeable. HCR 5025 prevented the governor from enacting restrictions on the sale of firearms and ammunition and pro- hibited the governor from confiscating or otherwise taking control of the assets and accounts of local governments. HCR 5025 was ultimately challenged by the governor’s office when the LCC struck down her executive order per- Tort Reform Measures taining to religious gatherings of more than 10 people. That litigation resulted in a finding that HCR 5025 improperly Contingency fees provided the LCC authority to review the governor’s actions. The legislature decided against forwarding contingency fee The legislature passed two other large bills while dealing legislation proposed this session, opting to focus on COVID with the pandemic: the state budget and the Eisenhower immunity language. Each of the bills dealing with contingen- Transportation Plan. cy fees and legal representation failed to progress in the Sen- ate. That means they were considered dead for the remainder The legislature approved a $19.9 billion budget for fiscal of the session. year 2021, which begins July 1. The budget is about $1.2 billion more than the budget for the current fiscal year. The As a reminder, those bills included: budget is now underwater by some $600 million for FY2021. SB 444 – Public Litigation Coordination Act to restrict A rescission bill would not be a surprise next session. certain contracts by public entities for legal services on a con- The legislature passed a new 10-year, $10 billion transpor- tingency fee basis tation plan that includes money for major highway projects, SB 445 – Defining and prohibiting certain deceptive public transportation, rail, aviation, broadband and driver’s lawsuit advertising practices and restricting the use or dis- education. Some shovel- ready projects have already broken closure of protected health information to solicit individuals ground. for legal services. Before COVID, Medicaid expansion and abortion were the SB 446 – Enacting limitations on contingency fee agree- most pressing issues. The 2020 session was geared up for a ments in certain civil actions

www.ksbar.org | July/August 2020 55 legislative overview

SB 447 – Providing for joint liability for costs and sanc- With the significant downturn in the Kansas economy, the tions in third-party funded litigation, requiring certain stay-at-home order and numerous layoffs, it was difficult to discovery disclosures and requiring payment of certain costs be optimistic that additional state funds would be allocated for nonparty subpoenas. to the judicial branch for raises. HB 2461 – Public Litigation Coordination Act was in- Judicial selection: A proposed constitutional amendment troduced by the KSAG office to require that public entities allowing the senate to confirm the governor’s nominations get approval before entering contingency fee contracts. This to the Kansas Supreme Court didn’t see action this year, al- bill also failed to move forward in the legislative process but though at one point in 2019, it appeared to have enough votes will be discussed in 2021. to pass in the Kansas Senate. HB 2673 – Original Jurisdiction over Medical Malprac- HB 2591 – Allowing legislators to remain in a closed tice was introduced by Rep. Fred Patton (R-Topeka) on behalf courtroom –was introduced by Rep. Michael Capps (R- of Speaker Pro Tem Blaine Finch (R-Ottawa). The bill would Wichita). The bill would allow legislators of either chamber give the Kansas Supreme Court original jurisdiction over med- to observe the proceedings in a closed courtroom. That bill ical malpractice cases with a claim of noneconomic loss. infringed on a judge’s authority over his courtroom. It was stricken from the calendar after the legislative turnaround Judicial Branch deadline on Feb. 27th. SB 403 – Withdrawal of Court of Appeals Nominee was introduced by Sen. Eric Rucker (R-Topeka) to clarify statutory language setting forth the conditions under which a nominee for the Kansas Court of Appeals may withdraw from consideration. The proposed language stated: (2) The governor may withdraw an appointment from consideration by the senate at any time before the senate consents to such appointment by serving written notice of such withdrawal on the secretary of the senate in accordance with K.S.A. 60-303, and amendments thereto. That bill was stricken from the cal- endar post Feb. 27th. KBA Legislation Family Law The Kansas Supreme Court acted quickly to protect liti- SB 157 – Presumptive Shared Parenting was introduced gants, lawyers and staff. On March 18, 2020, the Supreme by the National Parent Organization which operates out of Court released Administrative Order 2020-PR-016 directing Arizona and champions fathers’ rights. The goal of the legisla- all district and appellate courts to cease all but emergency op- tion was to create a presumption that shared parenting was in erations until further order. The Supreme Court anticipated the best interest of a child. The bill would require that parent- the order to remain in effect for at least two weeks, at which ing be divided 50/50 when a petition for divorce is filed. The time it was to be reevaluated. The Court has also issued ad- bill was strongly supported in the Kansas Senate. It passed ditional orders including: 39-1. Sen. Dinah Sykes (R-Leawood) was the lone NO vote. The Kansas House was more skeptical of the bill’s intentions. 03-16-20: 2020-PR-015: Restrictions to mitigate COV- The House Judiciary Committee held a hearing with over ID-19 spread 200 pieces of testimony. The KBA played a significant role in 03-12-20: 2020-PR-013: Kansas judicial branch policy on opposing SB 157, organizing family law experts, law profes- pandemic disease. sors, civic groups and other associations. The House Judiciary Earlier in the session, Chief Justice Marla Luckert and sev- Committee did not vote on the bill, but all indications were eral other OJA employees had testified about the need for an that the vote would have been negative, and the bill would additional $18.3 million to fund increases for staff and judges have failed. and to add a few more judges to cover high-filing areas. The HB 2533 – Uniform Family Law Arbitration Act was in- General Government Budget Committee approved this re- troduced by the KBA with Prof. Linda Elrod speaking on its quest as did the House Appropriations committee. However, behalf. The bill would allow arbitration to be used in certain the Senate Ways & Means Committee decided to hold off on family law actions, such as divorce. Family Law Arbitration its debate of the judicial budget until the Veto Session. The is voluntary. The House Judiciary Committee recommended legislature did pass 2.5 percent raise for all state employees. HB 2533 favorably for passage but it failed to receive a vote by

56 The Journal of the Kansas Bar Association legislative overview

the committee of the whole. Leadership was afraid that Rep. Legislative Resources Ward would attempt to amend the bill to include teacher due process, which caused the bill to fall below the line. At that The Kansas Legislative Research Department has published point, the bill was dead for the session. A possible strategy its first 2020 Summary of Kansas Legislature. The following would be to use this bill next session as an alternative to any links provide information on bills passed into law: presumptive shared parenting proposals. Family arbitration http://www.kslegresearch.org/KLRD-web/Publications/ could be a way for divorcing couples to negotiate custody SummaryofLegislation/PreliminarySummaries/2020-pre- without altering the “best interest of the child” standard. liminary-summary.pdf SB 404 – Terminating Parent Rights was introduced by http://www.kslegresearch.org/KLRD-web/Publications/ the Kansas Judicial Council to create a cause of action to ter- SummaryofLegislation/PreliminarySummaries/2020-pre- minate the parental rights when a child is conceived as the liminary-summary-supp-I.pdf result of a sexual assault. The bill passed 40-0. It moved on to the house where it waited in vain for a hearing. Special Session Corporate Law http://www.kslegislature.org/li_2016s/documents/info_ks_ spec_session_ro.pdf HB 240 – Quorum Requirements for Certain Corpora- http://www.kslegresearch.org/KLRD-web/Publications/ tions was introduced by Rep. Boog Highberger (D-Lawrence) SummaryofLegislation/2020_Special_summary_of_legisla- to assist the Merc Co-Op in amending its corporate charter. tion.pdf The bill lowered the quorum requirement to 10 percent which would mean fewer voting members would be required to be 2021 Budget Info present to change the corporate by-laws. The KBA’s Corpo- rate Law Section led by Bill Matthews and Bill Quick, were http://www.kslegresearch.org/KLRD-web/Publications/ concerned that the proposition set a dangerous precedent BudgetBookFY21/FY2021_ABS.pdf and requested that a sunset provision be added. Highberger agreed, but the bill was unable to pass before the legislature adjourned. SB 424 – Corporate Code Clean-Up was introduced by the Kansas Secretary of State’s office to clean-up the code -af ter several laws passed in 2019. This would allow the KSSOS to use new technology in business filings. The KBA was able to beat back an amendment which would have added d/b/a and fictitious names to business filings which would have LEGAL INTERPRETERS conflicted with federal and state trademark laws. The amend- ed version of SB 424 passed the senate. The new regulations SIGN LANGUAGE & 100+ would have also helped with online filings. It should have FOREIGN LANGUAGES been a priority in the Veto Session. The KSSOS asked that the new laws be delayed until 2022 but due to COVID-19, expedited rules and regs would surely have resulted, had SB ON-SITE • OVER THE PHONE 424 been approved. n DOCUMENT TRANSLATION

About the Author Interpreters & Translators for courts, depositions, and client meetings Joseph N. Molina III serves as the director of legislative services for the Kansas Bar Association. Prior to joining the KBA, he was chief legal counsel for the Topeka Metropolitan Transit Authority and served as assistant attorney Contact Kim Chao general, acting as chief of the Kansas No-Call Act. Molina earned a B.A. in political science, 913.491.1444 philosophy, and economics from Eastern Oregon University and a J.D. from Washburn University [email protected] School of Law. www.TranslationPerfect.com [email protected]

www.ksbar.org | July/August 2020 57 THE 3rd Annual KBA Photo Contest

THEME: CINEMA! Requirements: Categories: • Open to KBA member attorneys only Film Noir - Black and white photos,dark, • Photos must have been taken in the 2020 moody, bleak...people or places.... calendar year Drama/Documentary - Photos that tell a • MUST be submitted in digital, hi-resolution compelling story, a riveting history, a burning issue format (300 dpi or better) Romance - a romantic place or loving gesture • Photographers MUST complete personal info between pairs of people, animals, fish, birds sheet AND sign and submit a release for photos submitted. Comedy - an incongruous sign, an • A maximum of one photo per category may be anachronism in time or place...anything that would entered make you laugh • Photographer will determine the category in Action - anyone or anything in motion - make which each photo will be judged. us FEEL the motion with your photo

All 58photos The Journal mustof the Kansas be Bar Associationsubmitted by the end of the day on October 12th! substance and style

I Want to Talk About Me1 by Emily Grant myselfMEI hen I was in first grade, a classmate would par- the brief.” When there is a double subject, the pronoun comes ticipate in show-and-tell with a story that started second: “Michelle and I drafted the brief.” Not “I and Mi- “my brother and me went…” Every time, I would chelle drafted the brief.” And like my first grade classmate was Wraise my hand and politely point out to the teacher and my frequently reminded,4 “me” is not an appropriate pronoun for classmate that he should have said “my brother and I went.”2 the subject of a sentence, even in cases where there is a double Now, far (far) beyond first grade, the rich irony is that I subject. You would not say, for example “Michelle and me consistently misuse personal pronouns in one distinct setting: drafted the brief,” any more than you would say “me drafted “Mom gave it to my brother and I,” I say every time, when it the brief.” should be “to my brother and me.” I know my use is incor- Objective case personal pronouns (me, us, you, him, her, rect, but I can’t shake the notion that “my brother and me” it)—These pronouns are objects, either direct or indirect ob- just feels wrong. jects of a verb or objects of a prepositional phrase. “Carl gave No more. I have read and internalized the rules for using me the assignment.” “Carl gave the assignment to me.” If personal pronouns, including the often-confusing “myself.” I there’s a double object, the pronoun and the other object can am reformed, and I share these rules with you so that you can go in any order: “Carl gave the assignment to Stacy and me” make it through show-and-tell without the pig-tailed girl in or “Carl gave the assignment to me and Stacy.” the front row3 calling you out on your pronouns. Reflexive case personal pronouns (myself, ourselves, your- Nominative case personal pronouns (I, we, you, he, she, self, himself, herself, itself)—These pronouns are never sub- it)—These pronouns serve as the subject of a verb. “I drafted jects of a sentence; they can only be objects, but they are ob-

www.ksbar.org | July/August 2020 59 substance and style

jects that refer back to the subject. So you would use these About the Author pronouns when the person of the pronoun is also the subject Emily Grant teaches Legal Analysis, Research, of the sentence: “The foreperson chose to speak for herself.” and Writing at Washburn University School of In that sentence, “herself” refers to the jury foreperson, who Law. She wrote this bio herself so that you can is also the subject of the sentence. Or “I was proud of myself read it yourself. Please reach out to herself her if for that brilliant cross-examination.” you have questions or comments. Reflexive pronouns can also be used for emphasis or to add [email protected] intensity to a sentence. “I will do it myself.” Or “Opposing counsel wanted to speak to the judge himself.” In both of these sentences, the reflexive pronoun could be omitted and the sentence would remain grammatically correct, so the use of the pronoun merely adds emphasis. 1. The next line of Toby Keith’s song “I Wanna Talk about Me” is Lastly, reflexive pronouns can be the object of a preposition, “Want to talk about I.” File that away as an example of improper personal again if the object is the same as the subject of the sentence: pronoun use. Read on to find out why. “He mailed the letter to himself.” This does not hold true, 2. I didn’t have very many friends that year. however, for prepositions of place: “She placed her purse be- 3. Of course I was in the front row. side her” and not “beside herself.” Or “I like the water pitcher 4. I’m so sorry, Brian! 5. For additional reading, check out these websites: near me” and not “near myself.” https://www.dailywritingtips.com/me-myself-and-i/ Final Suggestions5 https://www.quickanddirtytips.com/education/grammar/myself https://www.instructionalsolutions.com/blog/me-myself-and-i- • If you’re trying to decide which pronoun to use, read grammar only the subject, verb, and pronoun to check the sen- tence. “Co-counsel and I sat at the table.” You would check that with “I sat,” and not “me sat” or “myself sat.” Or “Please give the paper to Randy and me” could be checked with “give paper to me” and not “to I” or “to myself.” • Don’t treat “myself” as a fancier, more astute-sounding version of me. It’s not. “Me” is perfectly acceptable and often grammatically correct. Don’t try to add in extra “myself”s because you think it makes you sound sophis- ticated. • “I” is the subject; “me” is an object; “myself” is only when you are also the subject of the sentence. n

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60 The Journal of the Kansas Bar Association a nostalgic touch

What are you doing to fight for social justice? by Matt Keenan

t was on Thursday, March 12 when our third son, Robert Politics percolated to the surface. We engaged on politi- David rolled his rental car into the city limits around 9:00 cians and the direction of our country. Robert was more than p.m. It was a two-day drive from Brooklyn, where he had willing to engage in a point-counter point reminiscent of the Ilived the past two years. He arrived with a slight fever, and his early years of 60 Minutes. When his cup overflowed from old mother dispatched him to the basement for two weeks, where timer wisdom, he dropped, “OK Boomer,” and left the room. the microwave, WIFI and cable were readily available. But everything changed on May 25th. He recovered, and later received a positive antibody test. It would be a modest understatement to say that on May His unexpected arrival followed by Kansas City’s stay-at- 25th, the lighter tone of topics took a different turn. The home order offered the opportunity for engagement. As the events that began in Minneapolis and then swept across the walls shrank, and he came up from the dungeon, we had globe spoke loudly how much progress remains ahead of us many robust discussions. Some were light. Like when it came when it comes to so many things—but particularly in regard to cinema. I channeled Ben Mankiewicz of Turner Classic to racial equality and justice for all. Movies and gave introductions and running commentary My viewpoint, while relevant, seems insufficient to capture to “Cool Hand Luke,” “Lawrence of Arabia,” “The Way We this moment. Two of my law partners, Buffy Mims, in the Were,” and to the greatest comedy ever made—”It’s a Mad, DC office and John Lewis, Jr., who practices in our Atlanta Mad, Mad, Mad World.” office, and who chair our firm’s Diversity and Inclusion -com He took them in and offered his own favorites like “The mittee, sent around a firm-wide e-mail on June 5th that is Count of Monte Cristo.” worth quoting here, in part:

www.ksbar.org | July/August 2020 61 a nostalgic touch

“We must raise collective awareness of the factors that brought us to this place, and consider how we can use the lessons of this sad but inevitable period in our his- tory to root out inequities in our own profession and firm. Racism is, indeed, America’s original sin. As a society, we are now, in a sense, paying the wages of that sin. Sadly, it seems that our country, in the words of Dr. King, still fails to live out the true meaning of its creed, “that we hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” We are all asking ourselves these questions—what am I do- ing? What more can I do? And when? Our profession is uniquely capable of helping to bring jus- There is no institution better equipped to help you find a tice to our communities. Our law school libraries are full of toddler, teen, mother or father in your city who is desperate treatises describing historic and ground-breaking legal cases for a fighter like you to represent them than Kansas Legal Ser- righting wrongs and guaranteeing equality. None perhaps are vices (KLS), with 33 attorneys in 11 offices—Topeka, Dodge, more historic than Brown vs. Topeka Board of Education, with Emporia, Hays, KCKS, Hutchinson, Manhattan, Pittsburg, its own K.U. connection in the late Paul Wilson. Salina, Seneca and Wichita. Every day they ensure that “Jus- The opportunities I have received over the years to represent tice for All” is not just a meaningless refrain. pro bono clients have offered only modest blows at the ineq- These days, Executive Director Marilyn Harp’s phones uities in my own community. The first client I met was over are ringing nonstop with clients needing an attorney. They thirty years ago, when Dave Waxse handed me a file and said, contact KLS about a variety of concerns—evictions, protec- “This is your new client—she is coming in this afternoon.” tion order hearings and debt collection matters. You can get The relationship I forged with that single parent struggling to trained in just hours and start taking new clients. juggle twenty different balls was a true gift and changed my Others support pro bono in other ways. They open their professional priorities forever. We remain friends today. checkbooks. KLS started a new campaign—“We Are Legal Kansas attorneys have a proud legacy of representing the Aid”— in Wichita. That campaign raised $20,000 a year for poor and disadvantaged. The leadership in this area was 3 years, with 11 firms, representing 237 lawyers, making a shown to me by my early mentors—Dave Waxse, Gene Bal- per-attorney commitment to the effort. loun, Ron Bodinson, Tim O’Brien, and my dad, to name a Twelve Wichita firms have contributed, including Bever few. Dye, Fleeson, Gooing, Foulston, Hinkle Law Firm, Martin The Kansas Bar has other leaders who have done amazing Pringle, Hutton & Hutton, Klenda Austerman, Graybill & things. Some of these leaders were part of my discussions with Hazelwood, Hite Fanning, Triplett Wolf, and the law firm of my son. I mentioned to him Kansas City attorney Cheryl Pi- Edward Robinson. late and her work to help free Darryl Burton—a man who Call Legal Aid of Kansas, or donate. Do it now. You are spent 24 years in prison for a crime he did not commit, con- needed: (785) 233-2068. Marilyn Harp; [email protected]. victed of capital murder in the City of St. Louis in less than an hour, in a case without physical evidence and motive. It Each one of us has the unique opportunity to shape change took eight years of legal work from a team—two lawyers, in our own communities. Will we? n three investigators—to win Darryl’s release and exoneration.

Kansas Legal Aid is fighting for social justice About the Author Former Attorney General Janet Reno once said: “The im- Matthew Keenan has practiced with Shook, portance of our profession to create justice is not a refrain. It Hardy & Bacon LLP, Kansas City, Mo., since 1985. has meaning. I think lawyers who engage in pro bono service to protect those who cannot help themselves are truly the he- [email protected] roes and the heroines of the legal profession.” So I ask you this question: Do you currently represent a pro bono client?

62 The Journal of the Kansas Bar Association substance and style

Hi, Dear, Good Morning? Email Salutations in the 2020s by Gillian Chadwick

he simple matter of how to begin an email has become with its own mores, rather than simply an electronic letter. an unexpected source of controversy in recent years. As Lawyers who began their careers with a typewriter may feel a profession, lawyers no longer have a shared norm to differently. Another discrepancy appears to be geographic. Un- relyT upon when beginning our most common form of written surprisingly, I see “Dear” more often in Kansans than I did in communication. Such shared norms are important because they the mid-Atlantic. This is unsurprising because I have found the help us convey and interpret our intentions towards one another. stereotype to be largely true— Kansans are more polite. “Dear” remains the gold standard in letter writing and is So what’s a lawyer to do? still preferred by many emailers. However, “Dear” has not 1. First, let’s all cut each other some slack! It is impor- translated to email for many lawyers. Some find it overly for- tant to recognize that customs and expectations around email mal, stilted, or even off-putting. To my surprise, an oppos- communication vary widely and no one standard exists. As- ing counsel recently said he found my use of the salutation sume the human being on the other side of the computer “Dear” condescending. screen is doing their best to navigate this unlikely minefield Strong feelings exist on the other side of the “Dear” divide without causing offense. Lawyering is hard enough without as well. I know lawyers who take genuine offense to emails having to fret about our email salutations (or lack thereof). that do not begin with “Dear.” They see the lack of formality 2. Similarly, avoid reading into it too much. Remem- as a lack of courtesy and believe the decline of “Dear” is a loss ber email tone is difficult to interpret. Between that and the for professionalism in the field. breadth of customs and expectations, you are unlikely to ac- In the context of email, “Dear” is not as common as it once curately guess the intent behind someone’s use of a particular was. Unfortunately, no clear alternative has emerged to take salutation. Assume good faith and focus on the substance of its place. Less formal options include “Hi” or “Hello,” which the email, rather than the salutation. are used more and more. That approach leaves an awkward 3. Consider mirroring the approach of the person you are choice between the proper syntax “Hi, [Name],” and the in- emailing, particularly if they take a more formal approach correct but more streamlined “Hi [Name],” neither of which than you. If you notice someone using “Dear,” you can dem- looks quite right. “Good morning/afternoon” can work, but onstrate respect by following suit. it has lawyers checking the clock before they press send; and “Good evening” sounds like it should be followed by “… and 4. If you choose to skip salutations in the workplace, do welcome to my email.” On the other hand, “Good afternoon” it carefully and only in casual conversation with friendly col- after 5:00 p.m. can carry a passive-aggressive twinge as it sug- leagues and coworkers. “Good morning/afternoon” or a name- gests the recipient must still be working since it is merely the only approach will work in most professional contexts. How- afternoon. ever, when in doubt, your best bet is to fall back on the old standard, “Dear.” Although not universally embraced, it is still A more direct, and increasingly common approach is to use the least likely to cause offense. (But remember point #1 and be the recipient’s name without a preceding salutation. Propo- gracious to those who choose a different approach!) n nents of this approach see it as professional and business-like. Detractors find it grating and impolite. Minimalists take it a About the Author step further by diving straight into the email body, skipping Gillian Chadwick is an Associate Professor at the salutation line altogether. These salutation skippers argue Washburn University School of Law, where she there is no need when every email begins, like a memo, with serves as Director of the Washburn Law Clinic and To, From, Date, and Re lines. While the point is well taken, Associate Director of the Children and Family Law this approach is abrupt to many readers and truly jarring to Center. Professor Chadwick teaches Immigration “Dear” fans. Law and Litigation Clinic, in which she supervises students representing low-income children, parents Part of this dissonance seems to be generational. Digital na- and victims of abuse in a variety of contexts. tives may be more likely to perceive email as a unique medium [email protected]

www.ksbar.org | July/August 2020 63 law practice management tips and tricks

The Court During Crisis

by Larry Zimmerman

he impact of the novel coronavirus COVID-19 con- March. The court’s website, kscourts.org, features a promi- tinues to be felt throughout Kansas by courts, law- nent link at the page header to COVID-19 response that yers, and citizens, introducing significant challenges provides quick access to key issues like deadlines, statutes of toT maintaining access to justice. Lawyers and the courts can limitation, and administrative orders related to court func- utilize the lessons learned so far to harden the justice system tions during pandemic. against further health impacts of the virus, resultant econom- Some opine that the website resource should be supple- ic disruptions, and other as yet unknown challenges lurking mented with a regularly scheduled press conference or, at in our future. the very least, recorded statements available for media use Throughout the current crisis, I have had opportunity to and distribution. Just as the governor and legislative leaders meet with lawyers, litigants, judges, and court personnel are addressing citizens and constituents, the third branch of across the state as we have each struggled in our own ways government can be similarly accessible and interactive. Com- to protect litigants and citizens, maintain practices, and open munication targeted at a non-legal audience is also recom- the courts for business. Certain themes emerge from each of mended as vital outreach to citizens. Such press conferences those conversations which underline the basics of a robust re- or communications would not need to be as regular as the sponse to emergency. other branches but should accompany issuance of significant orders released to adapt to evolving circumstances. Communication Order Release Schedule The Kansas Supreme Court is front and center in address- ing any statewide emergency like COVID-19. The court, in The kscourts.org website lists 26 administrative orders is- coordination with the legislature and governor, acted imme- sued by the Supreme Court related to COVID-19 from diately and decisively to address the growing crisis back in March 12 through June 16. Those orders dropped on every

64 The Journal of the Kansas Bar Association law practice management tips and tricks

day of the week and appear always to have always been re- leased at or near 5:00 PM. Sometimes orders trickled out one at a time over the course of a week and other times a large dump of five to six orders would hit in a single day. Process- ing the orders became a huge challenge for parties, lawyers, judges, and court personnel and the unpredictability of their release was consistently problematic. Establishing a specific day of the week as an administra- tive order release day would improve the transmission and circulation of those orders. Just as the public knows to tune in on a weekly basis for statewide updates on COVID-19, a single date of release for court orders can help establish some predictability in an unpredictable time. Reviewing each of the orders, there appears to only be one in particular at the beginning of the crisis which was tied to an external event that drives release (2020-PR-16 related to suspended dead- Standardization/Unification lines and operations). The implementation of a uniform electronic filing system Community Involvement throughout the state and the bare bones beginnings of a new uniform case management system has contributed substan- In recent years, many of the Supreme Court’s administra- tially to keeping the courts accessible to citizens of Kansas. tive orders represent the outcome of committees established The decision-makers and court staff who have pushed for to gather, compile, and present options for addressing various these tools and worked tirelessly to implement them deserve access to justice issues. In fact, two of the orders issued dur- applause. ing the COVID-19 crisis have formed such committees – the Ad Hoc Virtual Court Proceedings Committee (2020-CM- It is important to add to those efforts the lessons learned so 059) and the Ad Hoc Jury Task Force (2020-CM-050). These far about using remote access, remote court sites, video con- types of committees are generally comprised of a variety of ferencing, and simple forms and instructions to make the ju- stakeholders including, optimally, practicing lawyers. diciary available to all citizens in a timely, affordable, and re- liable manner regardless of emergency circumstances. While Order 2020-PR-016 is an example of why this is important. each district court represents its community and should be The order outlined essential services of the courts and imme- responsive therein, broader standardization of tools available diately upon issuance, some courts interpreted it to mean that will make that representation and involvement easier. The filings related to non-essential activities should be rejected. timeline should be sped up as much as possible to prepare for That misunderstanding was ultimately addressed two weeks further disruption later this year and to allow a “new normal” later in 2020-PR-032 but greater participation in the original which makes the courts more accessible—more efficiently— order’s drafting by practicing lawyers and clerks might have to more citizens. n anticipated the issue. Help Center Because the orders issued during the pandemic are largely unprecedented in scope and outcome, interpreting them as About the Author the Supreme Court intends is important. The ad hoc manner Larry N. Zimmerman is a partner at Zimmerman in which the issues addressed in 2020-PR-016 and 2020-PR- & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology 032 and non-essential filings ultimately resulted in a course at Washburn University School of Law. He is correction and new order. However, a more clearly outlined one of the founding members of the KBA Law help center can streamline communication and reduce unin- Practice Management Committee. tended consequences. All stakeholders – judges, clerks, law- yers, and the public – have indicated in conversation that hav- ing someone to call with definitive authority would improve access to justice and minimize unexpected and undesirable consequences. [email protected]

www.ksbar.org | July/August 2020 65 law students’ corner

Traveling Down an Unpaved Road: My Experience as a First-Generation College Graduate

by John Goodyear

t was one of those conversations I never expected to have. unique to them, there are a number of central obstacles faced Sitting in my boss’s office discussing my future career by many within the group, if not all. Perhaps the most com- plans, I opened up about something that I had been feel- mon among those is a lack of resources—not just financial Iing since the beginning of my law school experience: imposter resources, although that is a major component. Notably, first- syndrome. That feeling that you don’t belong and the fear generation graduates often lack the social and professional that you will soon be exposed as a fraud. Of course, I am not connections possessed by their law school classmates and unique in feeling this. Many law students do. It stems from peers. The lack of connections often equates to a lack of expo- any number of insecurities. For me, it was rooted in my status sure to the profession. as a first-generation college graduate. As I discussed my own doubts with my supervisor, I talked I come from a working-class family in southeast Kansas. about feeling like I was somehow falling behind for this exact While neither of my parents has a degree, I was raised in a reason. It seemed as if I was the only one among my class- household that valued and put an emphasis on education. My mates at that point who had neither a parent nor close family folks pushed me to do my best in school and told me that friend in the field, helping to guide my steps. Of course, this education was a password that could open almost any door. was not the case, even though there were many within my I was eight years old when my dad first talked to me about class that were better connected. Rather, it was a symptom college. He made it abundantly clear that I would be going, of my imposter syndrome. I needed to learn that the connec- and while he supported me with everything he had, I would tions made after you decide to pursue a legal career are just as have to figure out how to pay for it myself. For some, that may important and valid as those made before the leap. seem like a pretty young age to have that weighty of a con- Another challenge faced by those first-generation college versation, but for many first-generation students, it’s reality. graduates embarking on law school is a lack of readiness for While the experiences of first-generation students vary the adjustments that must be made to be successful in the from person to person and are colored by the circumstances study of law. Anyone who has been through the law school

66 The Journal of the Kansas Bar Association law students’ corner

experience knows that a significant amount of time is spent mentor in your life. Having people in your corner that you reconstructing and refining the way that you read, learn and can lean on for advice is crucial to your success; but they can- think. To be successful, you must learn to “think like a law- not help you with a problem if you don’t talk about it. yer.” This was a novel concept for me and many others with The more we incorporate people with differing life experi- limited exposure to the field. Putting myself through college ences into our practice, the better equipped we are to serve and finding the way on my own was a source of immense our clients and advocate on their behalf. In spite of (or per- pride for me. Then being told that my approach to problem haps because of) the challenges that they face, first-generation solving in the past was not going to work in law school or the graduates often have a different set of experiences and per- legal profession was a tough pill to swallow. I had found the spectives that otherwise may not be represented in your of- way without the map, but now I was being told that my way fice. I know now that, while it made the road more difficult was not going to work anymore. I could not help but feel a bit at times, my experience as a first-generation college graduate defeated. While deconstructing thought processes is not easy has helped to make me a better advocate; and while imposter- for anyone as they embark on their legal careers, it is made syndrome never goes away completely, there is a place for me more difficult when you do not see it coming. and people like me in the legal profession. n How then can first-generation graduates meet these chal- About the Author lenges and combat imposter syndrome? I think the most im- portant thing is to realize that you are not alone. I was not John Goodyear works as a staff attorney for the the only first-generation college graduate in my law school League of Kansas Municipalities in Topeka, Kansas. class. Far from it. Seek out those with similar experiences He is a 2019 graduate of Washburn University School of Law and holds an undergraduate and and doubts and open up—not to wallow or to find common master’s degree from the University of Kansas. John misery, but to build a system of support. Imposter syndrome is a lifelong resident of Kansas and is committed is easier to deal with when you realize you are not the only to using his education and experiences to try to person that feels it. I would also suggest talking about your improve the lives of all Kansans. doubts and fears with someone you consider to be a leader or

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www.ksbar.org | July/August 2020 67 law students’ corner

Respecting the Role of Dissent: A Call to Law Students

by Desiree’ Smith

ithin the first week of law school, students are as- our current society. Dissenters have been the base of the legal signed at least one dissenting opinion to read. Law profession for a long time. Without people believing in the students quickly learn that for every majority deci- role of dissent, we wouldn’t have cases like Brown v. Board of Wsion, there is also a dissenting opinion. Frequently, the dis- Education. We wouldn’t have female attorneys. We wouldn’t senting opinion is as important if not more important than have important pieces of the civil rights movement. Although the majority opinion. The entire basis of the legal profession is we look back on those cases now and realize that the majority that reasonable people can disagree, will disagree and should wasn’t always right, that is much harder to see in the present disagree. moment. Recently, our world has not been a place where reason- Law students, and academia as a whole, have the oppor- able people can disagree. A quick look at recent Facebook tunity to shape the future of this profession. Students who posts, news articles, email threads and blog posts show that disagree with the majority can quickly be pushed aside by our world has become very divided. The “majority” takes a their peers and colleagues, dismissed as being on the wrong stance, and that stance becomes right while everyone else’s side, and ultimately “canceled” for their opinion. Students are perspective becomes wrong. We refer to this trend as “can- frequently warned that publicly disagreeing with the majority cel culture.” Cancel culture perpetuates the idea that if you may permanently impact their future career options. How- disagree, you get shut down. We see people losing their jobs ever, if there is anything our profession knows well, it’s that over opinions and some speakers having their events literally the majority isn’t always right. canceled because their message isn’t popular. It has become In this moment, law students have an opportunity to en- common place to remove the opinions we disagree with. We courage and respect dissent. However, it’s not a one-sided remove “friends” from our Facebook feeds, and we don’t lis- task. Law students must be taught, and must practice respect ten to news we disagree with. When people do entertain or for the role of dissent, even when they whole-heartedly dis- agree with a dissenting opinion, they are often characterized agree with the dissenters. Law students must learn to recog- as heartless, ignorant and a list of other descriptors that are nize that their point of view is not the only one that matters. not worth repeating. As a profession, we need to reflect on the role dissenters have It’s in this moment that law students, and every member played in the progress we’ve already achieved, and the prog- of this profession, have an important and unique role to play ress we will achieve in the future. in shaping society and overcoming the division that plagues

68 The Journal of the Kansas Bar Association law students’ corner

The profession is at a crossroads, but I don’t believe the senting opinion”—an opinion published everywhere that the legacy of respecting dissent is disappearing anytime soon. majority decision is published. As law students, it’s our time As a law student, I see my peers working towards this goal to embrace, respect and encourage the role of dissent; and I of respecting the value of each other’s points of dissent. Law believe we are up to the challenge! n students are engaging in productive conversations with each other and with the communities that surround them. Aca- demia is playing a vital role in the shaping of our society. About the Author Lawyers are playing a vital role in the shaping of our society. Desiree’ Smith is a law student as Washburn Dissent is playing a role in the shaping of our society. University School of Law. She is currently a I’m proud to be a part of a profession that believes reason- summer associate at Joseph, Hollander, & Craft and will be beginning her 3L year in August. able people can disagree, and that the disagreement benefits Desiree’ is a Notes Editor for the Washburn Law society when treated with the respect it deserves. I’m proud to Journal, the Vice-President of the Washburn be in a place where I get to engage with the law in new and Student Bar Association, a competitor on the changing times. I’m proud to have peers, professors, faculty, Jessup International Moot Court team, and former and the staff who recognize the importance of this moment. Co-Director of the Children and Family Law Center. Outside of law school, Desiree’ enjoys I call upon law students and the legal profession as a whole discussing politics with her friends, participating to continue the legacy of dissent and learn to appreciate the in trivia and board game nights, and spending value of listening to those who you disagree with the most. time with her friends and family. We are above “cancel culture.” We don’t eliminate the voices we disagree with; we give them a platform called “the dis- [email protected]

Get your CLE credits online with the KBA New Orders from the Office of Judicial Administration mean attorneys have until September 30, 2020 to complete 12 CLE Credits (including 2 hours of Ethics) for the 2019-2020 compliance year. Any attorney who cannot meet the June 30 deadline will be granted an automatic extension. All credits may be earned online. You can complete ALL of your hours online! Don’t procrastinate. Check out our online CLEs today! www.ksbar.org/CLE

www.ksbar.org | July/August 2020 69 Members in the News

N E W S !!!

NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service. If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: [email protected]

New Positions College of Law. He earned his Juris Doctor from Washburn University School of Law after graduating from the Univer- Jake Holly has joined the Foulston Siefkin LLP office in sity of Kansas with a B.S. in Accounting. Before law school, Topeka. Holly will be on the firm’s Northeast Kansas Trans- Underwood, a CPA, was a senior insurance auditor with actional team, counseling clients in the areas of business, cor- PricewaterhouseCoopers, LLP, in its KCMO office. porate, administrative, estate planning and real estate law. He earned his Juris Doctor from Washburn University School of Notables Law and is a member of the American, Kansas, and Topeka Justice Carol A. Beier announced that she will retire from Bar Associations. the Kansas Supreme Court effective Sept. 18, 2020. Beier Lauren G. Hughes has become a partner in the firm of has served on the court since September 2003; before that, Wise & Reber, L.C., in McPherson. Lauren is a Texas na- she served on the Kansas Court of Appeals for over three tive. She received her B.A. from the University of Kansas years. Beier was appointed to the Supreme Court by former and graduated with her Juris Doctor from the University of Governor Kathleen Sebelius. She was previously a partner at Kansas School of Law. She is licensed to practice in Kan- Foulston & Siefkin of Wichita and taught at the University sas state and federal courts and is a member of the Kansas of Kansas School of Law. and McPherson Bar Associations. Lauren was recently named The Kansas Supreme Court appointed an Ad Hoc Jury Outstanding Young Lawyer by the Kansas Bar Association Task Force to analyze issues courts will face when jury op- and practices in the areas of estate planning, trust and estate erations resume in district courts across the state. District administration, and business law. Judge Amy Hanley of the 7th Judicial District will chair the Margaret “Maggie” E. Robertson joined Hinkle Law task force. Other members of the task force include: District Firm LLC in Wichita as an attorney. Her practice focuses Judge Steven Ebberts, District Judge Lori Bolton Flem- on business formation and planning, estate planning, asset ing, Chief Judge Laura Lewis, District Judge Christopher protection and trust services. She also provides counsel on Smith, Mary Kay Howe (court reporter), Paul Brothers (at- business succession planning, equity agreements and con- torney), Terrence Campbell (attorney), Jeffrey Dazey (attor- tracts. Maggie is a graduate of Kansas State University and ney), James Howell (attorney), Kate McKinney (attorney), Washburn University School of Law. She is a member of the Christopher McMullin (attorney) and Dionne Scherff (at- KBA, the Oklahoma Bar Assn., and the OKC Bar Assn. She torney). The panel met weekly in June and started meeting is admitted to practice in Kansas and Oklahoma. biweekly in July. Elias Underwood joined Foulston Siefkin LLP in Wichita Shannon S. Krysl was inducted into the Wichita Business as an associate attorney. He is a member of the transactional Journal’s HR Professionals Hall of Fame in February. Krysl practice group where he advises corporate clients in the area retired as Chief Human Resources Officer in July 2020 from of tax law. Underwood received a Master of Laws (LL.M.) the Wichita Public Schools after 15 years of service. in Taxation from the University of Florida Fredric G. Levin

70 The Journal of the Kansas Bar Association Obituaries

W. Robert “Bob” Alderson Jr. ( 6/24/1939 - 6/5/2020) dress in KU or Royals gear. A digital Celebration of Life was posted to the Brennan-Mathena website later that week. Robert “Bob” Alderson Jr., 80, of Topeka, passed away at the House at Midland Care on Friday, June 5, 2020 from a In lieu of flowers, memorial contributions may be made in cerebral hemorrhage. his memory to the First Christian Church of Topeka, Dis- ciples Center at Camp Tawakoni or to the Topeka Jazz Work- He was born in Kansas City, Missouri on June 24, 1939 the shop and sent in care of Brennan-Mathena Funeral Home, son of W. Robert and Ellen Frances (Hedges) Alderson. 800 SW 6th Ave., Topeka, Kansas 66603. He received his undergraduate degree from Kansas Univer- Online condolences and fond memories may be left at sity in Political Science where he attended on a track scholar- www.brennanmathenafh.com. ship. Bob received his Juris Doctorate from Washburn Uni- versity School of Law. Bob was an attorney and a partner in Kurt Leslie James (1/11/1952 – 6/3/2020) the Alderson Law Firm. He was a member of the Topeka Bar Association as their President, member of the Topeka Law- Kurt Leslie James passed peacefully at his home in Topeka, yers Club, Transportation Lawyers Association and several Kansas on June 3, 2020. His untimely passing was a shock to other professional organizations. He was a Past President of all who knew him. Kurt was born on January 11, 1952 in To- the Transportation Lawyers Association and currently Presi- peka, Kansas to Howard and Helen James. Kurt is survived dent of the Topeka Bar Association. He was also a member by his two sons, Dylan James, (29) and Daniel James, (27) his of the House of Ushers Tycoon Club and served as its Trea- mother, Helen James, and his four (4) siblings, Karen Camp- surer. He was also a member of the Kansas Oral History Proj- bell, Tim James, Chris James, and Terry James, and many ect. Bob held several positions in State government. He was nieces and nephews. Kurt is also survived by his loving fiancé, First Deputy Attorney General under Bob Stephan, General Maria Noriega, of San Luis Obispo, California. Counsel for the Kansas Corporation Commission, and Secre- Kurt graduated from Topeka West High in 1969 and was tary of Administration under Governor Bennett. proud to serve his country as a medic in the United States He was active in all aspects of the First Christian Church. Air Force. After a stretch of time living in New York City, He served as a Board Chair, Elder Chair, served as the Chris- he returned to Topeka, Kansas where he worked full time tian Church of Kansas legal counsel and was a Camp Coun- at Goodyear Tire Co. in a supervisory role, while paying his selor for the Disciples Center at Camp Tawakoni. way through law school at Washburn University School of Law. He graduated and passed the Kansas Bar Exam in 1996. Bob enjoyed Jazz music and was active with the Topeka Over the course of his legal career, Kurt offered his guidance Jazz Workshop. He was a season ticket holder for KU and and energy to many individuals in Shawnee and the various was an avid fan of both football and basketball in good times surrounding counties in Northeast Kansas. and bad, and also was a Royals supporter. He enjoyed vaca- tioning with his family, working out with friends at Wood Throughout his life, Kurt loved showing dogs and the dog Valley (now Genesis), attending the Topeka Civic Theatre, show life, with his favorite breed being the Standard Poodle. and playing golf. Kurt met the love of his life, Maria, at a dog show in 2012. He loved life and was never one to turn down adventure or He married Ruth (Hoagland) Alderson in Prairie Village, walk away from a challenge. Kurt loved his sons, Dylan and Kansas on November 13, 1971. She survives. He is also sur- Daniel, Maria, his many friends, his family, and most of all vived by two daughters; B.J. Mays and her husband Brian, he loved gathering together with and cooking for them. He and Stephanie Switzky and her husband Drew and two was an avid golfer, animal lover, a great storyteller, a gambling granddaughters, Brynna and Brooklyn Mays all of Topeka; man, and one that loved the theater, art, the blues, live music, three brothers, Alan Alderson and wife Gail of Topeka, Rusty fine food and traveling. He will be missed by many. Alderson and wife Berna of Cedar Park, TX, Ross Reninger of Roeland Park, KS, step-mom Peggy Alderson of Overland SAVE THE DATE :There will be a celebration of life and Park, KS and his devoted dogs, Abby and Zeva. a golf tournament on September 12, 2020 at Western Hills Golf Course. More details to follow. The family greeted friends at a carside visitation in the parking lot of First Christian Church (1880 Gage Blvd) on Thursday, June 11. Those able to attend were encouraged to

www.ksbar.org | July/August 2020 71 Howard “Michael” Nichols (12/20/1946 – 5/9/2020) Carl Wayne Shewmaker (2/17/1928 – 5/5/2020) Howard “Michael” Nichols, 73, Wichita, KS passed away It is with deep and abiding grief that we announce the Saturday, May 9, 2020 at his home. Mike was born on De- death of Carl Wayne Shewmaker, while in Bellingham, WA. cember 20, 1946 in Paxton, IL, the son of Howard and Betty His smile lit up so very many lives, in very many places, and Sue (Kirksey) Nichols. his memory remains a source of comfort, strength, and joy. Mike was a noble, humble, caring man with a great sense Born to James Carl and Genevieve Julia (Papp) Shewmaker of humor who lived life by example. Mike was laughing and on February 17th, 1928, Carl passed away peacefully on May caring for his wife and family until the end. 5th, 2020. He was predeceased by his beloved wife, Emily He was a graduate of the University of Kansas with a JD M. Shewmaker, and his brother, Dwight Shewmaker. He law degree. He was an attorney and owned his own law firm. is survived by sister Genevieve (Shewmaker ) Duncan, and daughters Judith Marie Shewmaker Pine (son-in-law George He married the love of his life Diane Marie Born on May A. Pine), and Edith A. (Shewmaker) Brown (son-in-law Todd 16th 1981 in Lawrence, KS. He is survived by his loving Brown) grandchildren Deanna Honafius, Michael W. Brown wife Diane, 3 sons: Jeff Phillips (wife Samantha and chil- and Steven T. Brown (partner Sophie Marie Pope), Elizabeth dren Jayden and Ryder Phillips of Galena, KS), Chris Phillips M. Pine, Carl A. Pine, and great-grandchildren Davin Hon- (wife Cydney and children Lincoln and Charlie Phillips of afius, Christian Brown and Claire Brown. Wichita, KS), John Nichols of Austin, TX, and sister Patricia Petterson of Topeka, KS. Carl was born in St. Joseph’s hospital in St. Louis, Mo and spent most of his childhood in rural Kansas, moving to Long The family suggests memorials in his name to The Ameri- Beach, CA for his senior year of high school. Upon gradua- can Cancer Society and may be sent in care of Warren-McEl- tion from Long Beach Polytech he joined U.S. Army, serv- wain Mortuary, 120 W. 13th Street, Lawrence, KS 66044. ing in Austria and Japan during the post-WWII occupation. After mustering out, he attended Georgetown University on David E. Shay (11/9/1962 – 5/11/2020) the GI Bill, earning a B.A. and a J.D. While living in Wash- David E. Shay, Esq., 57, passed away suddenly at his home ington D.C., he worked for the Army Map Service. He came Monday, May 11, 2020. Dave was born November 9, 1962 home to Kansas to practice law, and it was there that he met in Scranton, PA. to Howard E. and Arlene J. Shay, who pre- and married Emily M. Kemesies, originally of New York. ceded him in death. Carl practiced law in Eureka, KS until 2011 (he used to say He was a graduate of Cameron R1 High School in Camer- that he had to keep practicing as he was not yet perfect). He on, MO. He earned his BS in Journalism from the University got his private pilot’s license in the 1970s, and regularly flew of Kansas in 1984. He then went on to earn his Juris Doctor small single-engine planes throughout the region. Also in the from the University of Kansas in 1988, where he was a mem- 1970s he and Emily purchased some property they dubbed ber of Law Review and Order of the Coif. He was sworn into “Slate Creek Ranch”, which made it possible for him to have the Missouri Bar Association in 1988. He was a Shareholder a small herd of beef cattle whose care and feeding kept him at Seigfreid Bingham, PC over the past 20 plus years. active and outdoors, giving opportunities for visiting daugh- ters and grandchildren to help out with winter feeding during David was a coach and mentor to many young men through the holidays. In Eureka, he was an active member of Kiwanis, Kansas City Football and Cheerleading Club for more than the Midian Temple Shrine and the Jaycees, serving as an of- 20 years. This was a source of great joy for him. ficer in all of these organizations at one point. He was also a Left to mourn his passing are his loving wife of 35 years, dedicated and determined Kansas Democrat, and a member Kym Shay; Sons: Daniel Shay and wife Nicole, Mission, KS; of Christ Lutheran Church of Eureka. He was a founding Andrew Shay, Overland Park, KS; and Matthew Shay and member of the Board of Great Plains Diabetes, and an active wife Taryn, Salina, KS; Grandsons Jackson Shay and Kings- member of the Kansas Bar Association and the American Bar lin Johnson; Brother Bill Shay and wife Gail, Rocky Hill, CT; Association, with 50+ years of active membership. Sisters Peggy Elliott, Oak Grove, MO; and Suzanne Shay, St. On retirement, he and Emily sold the ranch and moved to Joseph, MO: Mother-in-law, Sharon Grow, Prairie Village, the Kansas Masonic Home in Wichita. After Emily passed KS; Coaching partner Reggie Foster; many nieces and neph- away in 2012, Carl spent much of his time in Bellingham, ews, great nieces and nephews, bonus kids, cousins, aunts, WA, home to his daughter Judy and her family. While in uncles, and friends. Dave will be greatly missed by all who Bellingham he attended the Bellingham Unitarian Fellow- knew him. ship and was an engaged member of the Black Lives Matter Memorial contributions may be made to the David E. Shay Ministry Action Team. memorial scholarship through Kansas City Football and Memorial services will be scheduled when large gatherings Cheerleading Club. Donate by clicking here are again an option. Scheduling remains uncertain due to the Private Family Services will be at 10:30 AM, Tuesday, May COVID-19 pandemic. An online Guest Book has been cre- 19, 2020 at the Porter Funeral Home, Lenexa, KS. Burial will ated at the Tributes site maintained by Mt Baker Cremation be at the Resurrection Cemetery. Condolences may be ex- Society. pressed at: www.porterfuneralhome.com Arrangements: Por- In lieu of flowers, donations to causes near to Carl’s heart ter Funeral Homes & Crematory, 8535 Monrovia, Lenexa, are welcome. These would include those organizations that KS (913) 438-6444) work on behalf of workers, social justice, and the good of the human community. 72 The Journal of the Kansas Bar Association Appellate Decisions

All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest deci- sions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at [email protected] or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org Kansas State Supreme Court

allowing the trust to be consistent with Jill’s original intent. Civil The reformation is affirmed. STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415 TRUSTS IN RE ST. CLAIR TRUST REFORMATION SEDGWICK DISTRICT COURT—AFFIRMED PUBLIC DUTY—TORTS NO. 120,050—JUNE 5, 2020 MONTGOMERY V. SALEH FACTS: Jill St. Clair executed a trust agreement in Sep- SHAWNEE DISTRICT COURT—COURT OF APPEALS IS tember 2003. St. Clair’s husband, William, was named a life AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART, beneficiary of the trust’s income. Upon his death, the trust’s REVERSED IN PART income would be distributed to Jill and William’s children NO. 112,518—JUNE 26, 2020 and grandchildren, with the principal eventually being dis- FACTS: Trooper Saleh initiated a traffic stop when he was tributed to the grandchildren or their estates. William had informed that a passenger in the vehicle had a knife and was previously created his own trust with an identical distribution acting erratically. The driver rapidly accelerated and drove scheme. Both trusts were funded with identical amounts, and recklessly, running stop signs and red lights while his speed both trusts were prepared by the same attorney. Mr. David- reached near 100 miles per hour. Saleh decided to stop pur- son drafted the trusts to make sure that the trust assets were suit, but not before the driver ran a red light and hit a pickup not included in either William or Jill’s taxable estates. At the truck, injuring Montgomery and another individual named time the trust was executed, Jill believed it contained the nec- Bennett. The plaintiffs filed separate petitions alleging that essary provisions for the trust assets to be excluded from both Saleh was negligent and that the State was liable for his ac- taxable estates. Unfortunately, the trust contained a draft- tions. The State moved for summary judgment, arguing that ing error which resulted in the trusts becoming reciprocal, even if the plaintiffs could prove negligence there was no duty with the assets of Jill’s trust being included in William’s estate owed by Saleh under the public duty doctrine. The district upon his demise, and vice versa. The trust as written did not court granted the motion, rejecting application of both the accurately express Jill’s intent. In order to correct the drafting public duty doctrine and Kansas Tort Claims Act immunity. error, Jill and her trustee petitioned the district court for an But the district court ruled the plaintiffs failed to proffer evi- order reforming Jill’s trust to include provisions which would dence sufficient to support a finding of causation in fact. The prevent the trusts from becoming reciprocal. The proposed Court of Appeals affirmed the district court’s findings on- im amendment was served on all beneficiaries, with no objec- munity and the public duty doctrine but remanded the case tion. The district court ordered that the trust be reformed to for further action on proof of causation. The Supreme Court correct the scrivener’s error. granted Trooper Saleh and the State’s petition for review. ISSUE: (1) Whether trust should have been reformed ISSUES: (1) Application of the public duty doctrine; (2) breach; (3) causation; (4) immunity HELD: The district court’s decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, HELD: The plain language of K.S.A. 8-1506 required and the case was transferred from the Kansas Court of Ap- emergency vehicle drivers to “drive with due regard for the peals. The record on appeal shows that Jill and the trustee safety of all persons.” This language shows that the legislature demonstrated by clear and convincing evidence that Jill’s in- did not intend to exempt emergency vehicle drivers from the tent in creating and funding the trust was adversely affected consequences of reckless conduct. This statute imposes a spe- by a drafting error, making it necessary to reform the trust. cific duty on law enforcement and individuals may sue if they Reformation destroys the economic symmetry of the trusts, believe this duty has been breached. In order to prevail, the

www.ksbar.org | July/August 2020 73 appellate decisions

plaintiffs must prove that Saleh acted with reckless disregard Questions that must be answered on remand include whether for the safety of others. The evidence presented to the district Hammond’s injury was foreseeable and whether the VFW court showed there is a material issue of fact as to whether breached its duty to Hammond. Saleh exhibited reckless disregard when continuing to pursue STATUTES: No statutes cited. the fleeing driver. Law enforcement’s conduct during a pur- suit can be the legal cause of a third party’s injuries. Given the evidence presented to the district court, a jury could have CONTRACTS found that the driver knew he was being pursued by Saleh. RUSSELL V. TREANOR INVESTMENTS Because there is a statutory duty created by K.S.A. 8-1506(d), DOUGLAS DISTRICT COURT—COURT OF APPEALS IS the discretionary function exception does not apply to Saleh’s AFFIRMED, DISTRICT COURT IS AFFIRMED pursuit of the fleeing driver. NO. 117,973—JUNE 26, 2020 FACTS: In 1997, the owner of two adjacent properties ex- DISSENT: (Rosen, J., joined by Stegall, J., and Green, J., ecuted and recorded an Operation and Easement Agreement. assigned) Justice Rosen would reverse the Court of Appeals The OEA restricted the building size and prohibited either and affirm the district court’s grant of summary judgment, property from being used as a regular grocery store. The OEA holding that the plaintiffs failed to establish a prima facie case allowed for amendment if all of the current owners agreed in that Saleh breached his duty of care under K.S.A. 8-1506. writing, and the OEA was amended to alter the original site STATUTE: K.S.A. 8-1506, -1506(d), 75-6101(b), -6103(a), plan. The amendment allowed for the creation of a multi-unit -6104, -6104(e), -6104(n) buildings with condominiums and retail space; Russell pur- chased a unit in the building in 2010. Treanor Investments purchased part of the property covered by the OEA in 2015, TORTS with hopes to amend the OEA and enlarge the property foot- HAMMOND V. SAN LO LEYTE VFW POST #7515 print to encompass a grocery store. Russell filed suit, claim- CLOUD DISTRICT COURT—COURT OF APPEALS IS AF- FIRMED, ing the OEA could not be amended without condominium DISTRICT COURT IS REVERSED, CASE REMANDED owner consent. The parties filed competing motions for NO. 118,698—JULY 2, 2020 summary judgment and the district court agreed with Tre- FACTS: Jeffrey Hammond and his wife went to the San anor, finding that it had been designated as the responsible Lo Leyte VFW Post #7515. While at the VFW, Hammond owner, who had authority to act on behalf of other owners. encountered Travis Blackwood. The two men argued and The Court of Appeals affirmed, finding that the OEA and Blackwood allegedly threatened to beat up Hammond in the its amendments were clear and unambiguous in allowing the bathroom. Hammond disengaged and returned to his table. responsible owner to act on others’ behalf. Russell’s petition Shortly thereafter, the manager of the VFW told Hammond for review was granted. that he needed to leave immediately and that he was banned ISSUES: (1) Authority to amend the OEA; (2) can amend- from the club. The manager was backed up by Blackwood and ment materially change the character of the real estate his friends, who helped escort Hammond from the bar. As HELD: The language of the OEA is plain and unambigu- soon as the manager went back inside the bar, Blackwood and ous, and it allows for the designation of a responsible owner his friends physically assaulted Hammond. Hammond sued to act on others’ behalf. This language existed before Rus- the VFW, but the district court granted summary judgment sell purchased his condominium. Nothing in the language in favor of the VFW. The court of appeals reversed, finding prevents the responsible owner from further amending the that summary judgment was inappropriate. The VFW’s peti- OEA to alter size and use restrictions. Russell failed to raise tion for review was granted. a genuine issue of material fact about whether the proposed ISSUE: (1) Whether VFW owed a duty to Hammond changes to the property would cause a material change in HELD: Kansas generally follows the Restatement (Second) circumstances. of Torts § 344 regarding the scope of liability of owner/opera- STATUTES: No statutes cited. tors of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the cir- Criminal cumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut ATTORNEYS AND CLIENTS—CRIMINAL PROCEDURE— off analysis of whether an attack such as the one Hammond MOTIONS—SENTENCING STATE V. ADAMS suffered was foreseeable. The VFW owed Hammond a duty SEDGWICK DISTRICT COURT—AFFIRMED to protect him from the dangerous acts of other bar patrons. NO. 120,475—JUNE 12, 2020

74 The Journal of the Kansas Bar Association appellate decisions

FACTS: District court allowed Adams to dismiss his ap- 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 pointed attorney and to proceed pro se at trial, resulting in (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford plea agreement for guilty plea to criminal charges including failed to establish the district court imposed an illegal sen- premeditated first-degree murder. His request for reappoint- tence for purposes of K.S.A. 22-3504. ment of attorney for sentencing was granted. Sentence was STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), imposed, which included a hard 50 sentence, following the -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 plea agreement. Adams later filed motion to withdraw plea Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, stating he was prepared to offer evidence from Iowa and Kan- -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., sas departments of corrections of his unmedicated schizo- -4711(e) (Furse 1995) phrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JU- an unmedicated mental health diagnosis, or have Adams un- RIES—VERDICTS dergo a mental health evaluation. District court held prelimi- STATE V. BROWN nary hearing with new appointed counsel and denied both COWLEY DISTRICT COURT—AFFIRMED; COURT OF motions. Adams appealed. APPEALS—REVERSED NO. 115,817—JUNE 5, 2020 ISSUES: (1) Post-sentence motion to withdraw plea; (2) in- FACTS: State charged Brown with attempted second- effective assistance of counsel at sentencing degree intentional murder. District court instructed jury HELD: District court properly concluded there was no on that charge and the lesser offense of attempted voluntary manifest injustice because even if Adams had been allowed manslaughter. Verdict form returned by the jury, however, to present evidence regarding his previous mental health sta- found “the defendant guilty of the lesser offense of attempted tus, that diagnosis was not dispositive and the overall record involuntary manslaughter as set forth in Instruction No. 7,” would still conclusively show he was entitled to no relief. an instruction that referred to the correct crime of attempt- ed voluntary manslaughter. This verdict inconsistency was Under totality of circumstances, appointed counsel’s deci- not caught until sentencing, well after jury was discharged. sion to forego a mental health evaluation of Adams does not District court sentenced Brown for the instructed crime, at- constitute deficient representation when record shows Adams tempted voluntary manslaughter. Brown appealed. In unpub- was sufficiently engaged in a rational, thoughtful, knowing lished opinion, Court of appeals reversed and remanded for a way throughout the proceeding. There were no red flags in new trial on that count, holding the written language of the the record to suggest appointed counsel should have investi- verdict controlled and district court was powerless to deviate gated Adams’s mental health. Adams’s reliance on “duty to from its literal meaning. Panel in a strikingly similar case held investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced. the district court could reasonably interpret the verdict in STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 22- light of the record. State v. Rice, (2011)(unpublished opinion). 3301(1), 60-1507 State’s petition for review granted to resolve this panel split. ISSUE: Ambiguous verdict APPEALS—CONSTITUTIONAL LAW—CRIMINAL PRO- HELD: Based on Kansas caselaw and persuasive decisions CEDURE—MOTIONS—SENTENCING—STATUTES from other jurisdictions, general approach in Rice is correct. STATE V. BRADFORD Lower court’s decision is reversed with caution. An ambigu- DICKINSON DISTRICT COURT—AFFIRMED NO. 120,683—JULY 2, 2020 ous verdict can be reasonably interpreted in light of the FACTS: Bradford’s conviction on charges of capital mur- charging document, jury instructions, and record as a whole der, aggravated robbery, aggravated burglary, and felony theft to determine and give effect to jury’s intent. When such in- resulted in 2003 resentencing for capital murder and the grid tent is clear, a mistaken description of the crime of conviction crimes. District court denied Bradford’s 2018 motion to cor- contained in the verdict form may be discarded as surplus- rect an illegal sentence in which Bradford challenged his hard age when the verdict form also refers to the correct charge by 40 sentence for capital murder. On appeal he argued for first pointing back to the charging document or the jury instruc- time that the original and resentencing courts improperly tion. The strong presumption in favor of the literal text of the classified his prior Missouri burglary convictions as person jury verdict as the surest guide to jury’s intentions can only felonies, citing State v. Wetrich, 307 Kan. 552 (2018). be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a ISSUE: (1) Motion to correct an illegal sentence reasonable doubt that portions of the verdict text are inconsis- HELD: Bryant’s arguments fail because his sentence was tent with that intent. An appellate court’s review of a district not illegal when imposed. Under State v. Murdock, 309 Kan. court’s application of the surplusage rule is de novo. In this

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case, district court did not err when it discarded the “in-“ of Dinkel negates the voluntary act requirement of rape of a prefix from the verdict form as mere surplusage. child under 14. Jurisdiction retained while case is remanded STATUTE: K.S.A. 22-3421 to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement. CRIMINAL PROCEDURE—MOTIONS—SENTENCING STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), STATE V. COTT -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3) JOHNSON DISTRICT COURT—AFFIRMED NO. 120,075—MAY 29, 2020 FACTS: Cott was convicted on guilty plea to two counts CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— of premeditated murder. Hard 50 sentence imposed. Nine PREEMPTION—STATUTES months later, he filed pro se motion to withdraw his guilty STATE V. GARCIA plea, arguing in part the alleged lack of help from defense JOHNSON DISTRICT COURT—AFFIRMED; COURT OF counsel, and the coercive effect of Cott’s mother urging him APPEALS—AFFIRMED to enter into plea agreement to avoid death penalty, left him NO. 112,502—JUNE 12, 2020 feeling he had no choice. He further claimed that no one ex- FACTS: Kansas Supreme Court reversed Garcia’s jury con- plained that hard 50 sentence would not be eligible for good viction for identity theft, holding prosecution based on the time credit. District court made specific findings in holding use of his W-4 form was preempted by the Immigration and that manifest injustice did not warrant voiding the plea agree- Reform and Control Act (IRCA). State v. Garcia, 306 Kan. ment. Cott appealed. 1113 (2017). State filed writ of certiorari in this and com- panion cases. United States Supreme Court reversed and re- ISSUE: Post-sentencing motion to withdraw plea manded the state supreme court’s judgment, holding state law HELD: District court did not abuse its discretion by de- prosecutions were not preempted by the IRCA. nying Cott’s motion to withdraw plea. Cott failed to dem- ISSUE: (1) Preemption—Immigration Reform and Con- onstrate his mother’s pressure deprived him of the ability to trol Act of 1986 make his own decisions. He also failed to demonstrate that district court’s findings were arbitrary or unreasonable, or HELD: Consistent with Kansas v. Garcia, 589 U.S. __ based on any error of law or fact. (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides STATUTES: K.S.A. 2019 Supp. 21-5419(c), 22-3210, on employment forms, with the exception of the I-9 form, is -3210(d)(2); K.S.A. 21-4636 not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district CRIMINAL LAW—CRIMINAL PROCEDURE— court’s failure to give unanimity instruction was clearly er- EVIDENCE—STATUTES roneous, was improvidently granted. These issues are not ad- STATE V. DINKEL dressed on the merits. SALINE DISTRICT COURT—REMANDED WITH STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp. DIRECTIONS; COURT OF APPEALS—REVERSED NO. 113,705—JUNE 12, 2020 21-6107 FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims APPEALS—CONSTITUTIONAL LAW—CRIMINAL related to her defense that K.H. had raped and then black- LAW—CRIMINAL PROCEDURE—EVIDENCE mailed her into continuing sexual encounters. Dinkel argued STATE V. GEORGE the district court’s exclusion of this evidence violated eviden- FINNEY DISTRICT COURT—AFFIRMED tiary rules and her constitutional right to present a defense. NO. 120,190—JUNE 26, 2020 Court of appeals affirmed in unpublished opinion, conclud- FACTS: George convicted of first-degree murder, attempt- ing the rape of a child has no mental culpability requirement ed distribution of a controlled substance, attempted aggravat- thus Dinkel’s intent was irrelevant. Review granted. ed robbery, aggravated assault, and criminal possession of a firearm. He appealed claiming: (1) his convictions were mul- ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence rel- tiplicitous, arguing three of his convictions “folded” into one evant to voluntary act requirement another and became a single offense; (2) prosecutorial error HELD: Court of Appeals erred in concluding that whether during cross-examination of a witness by commenting on the K.H. forced the sexual encounter was irrelevant. As defined in witness’ credibility; (3) trial court erred by allowing a witness K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 to invoke Fifth Amendment and refuse to testify where the requires a voluntary act on the part of the defendant. Dinkel’s witness had been convicted and sentenced but his appeal was claim that she was forcibly raped is relevant since the rape

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still pending; and (4) cumulative error denied him a fair trial. privileged communication with Dr. Steffen; (2) there was in- ISSUES: (1) Multiplicity; (2) prosecutorial error; (3) invo- sufficient evidence that Gibson’s action was knowingly done cation of Fifth Amendment; (4) cumulative error and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullifica- HELD: George’s convictions are not multiplicitous. Ele- tion power; and (4) cumulative error denied him a fair trial. ments of each of three crimes arising from the same conduct He also claimed the sentencing court improperly imposed but grounded in three different statutes are examined, find- lifetime postrelease supervision instead of lifetime parole. ing: attempted aggravated robbery and aggravated assault are not multiplicitous; attempted distribution or possession with ISSUES: (1) Psychologist-client privilege waiver; (2) suffi- intent to distribute a controlled substance and attempted ag- ciency of the evidence; (3) jury instruction—burden of proof; gravated robbery are not multiplicitous; and attempted dis- (4) cumulative error, (5) sentencing tribution or possession with intent to distribute a controlled HELD: District court did not err by allowing Dr. Steffen substance is not multiplicitous with aggravated assault. to testify to Gibson’s statement made during the interview. George failed to preserve his evidentiary claim and can- As to privilege issue, K.S.A. 74-5323(a)(communications not evade the contemporaneous objection requirement de- with licensed psychologist) applies to this case, not K.S.A. manded by K.S.A. 60-404 by reframing the issue as one of 65-5810(a)-(b)(communications with licensed professional prosecutorial error. Defense counsel objected to the State’s counselors). As to waiver, Gibson’s reliance on State v. Foster, cross-examination question as going “beyond the scope” of 259 Kan. 198 (1996), is flawed and Foster is distinguished. direct examination, but did not argue any grounds relating to District court’s ruling based on K.S.A. 60-437 is not chal- impeachment or character evidence. This was insufficient for lenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60- appellate review of the issue now claimed. 426a(a), raised for first time on appeal, was not preserved. Error resulting from district court’s exclusion of a witness’ Totality of Gibson’s statements combined with other cir- testimony, if any, was harmless. Court declines to decide cumstantial evidence was sufficient to establish the required whether a plea of nolo contendere waives the privilege against mental state element that Gibson’s action was knowingly done self-incrimination after sentencing but before the conclusion and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3). of direct appeals. Even if error is assumed in this case, the As held in State v. Patterson, 311 Kan. 59 (2020), it is not a error is harmless because the substance of this witness’ prof- misstatement of law to tell a jury “If you have no reasonable fered testimony was entirely presented at trial through the doubt as to the truth of each of the claims required to be testimony of a detective. proved by the State, you should find the defendant guilty.” Cumulative error doctrine does not apply in case having No trial errors found for application of the cumulative er- only one assumed error. ror doctrine. STATUTES: K.S.A. 2019 Supp. 21-5301, -5301(a), District court had no authority to order a term of lifetime -5412(a), -5412(b)(1), -5420, -5420(a), -5420(b), -5705(a) postrelase supervision along with an off-grid, indeterminate (1), -5705(d)(3)(C), 22-3601(b)(4), 60-261; K.S.A. 60-404, life sentence. That portion of Gibson’s sentence is vacated. -422(c) STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), APPEALS—CRIMINAL PROCEDURE—EVIDENCE—JURY 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74- INSTRUCTIONS—STATUTES 5323, -5323(a) STATE V. GIBSON RILEY DISTRICT COURT—AFFIRMED IN PART, VACAT- ED IN PART CONSTITUTIONAL LAW—EVIDENCE—MOTIONS NO. 119,993—JULY 2, 2020 STATE V. GLOVER FACTS: State charged Gibson with first-degree felony DOUGLAS DISTRICT COURT—REVERSED; COURT OF APPEALS—AFFIRMED murder and child abuse. A defense-hired psychologist (Dr. NO. 116,446—JUNE 12, 2020 Steffen) interviewed Gibson and gave his report to a defense FACTS: District court granted Glover’s motion to sup- pathologist and to the State. Based on K.S.A. 60-437(b), dis- press evidence obtained during a traffic stop, finding the- of trict court held there was a knowing and voluntary waiver of ficer lacked reasonable suspicion of illegal activity when he privilege and allowed Dr. Steffen to testify about a statement stopped the truck in violation of Fourth Amendment. Court Gibson made during the interview. Jury convicted Gibson of appeals reversed. State v. Glover, 54 Kan. App. 2d 377 as charged. Sentence imposed included hard 25 sentence for (2017). Kansas Supreme Court reversed and affirmed the dis- felony murder, consecutive 34-month prison term for child trict court’s suppression ruling. 308 Kan. 590 (2018). State’s abuse, and lifetime postrelease supervision. On appeal Gibson writ of certiorari granted. claimed: (1) trial court erroneously held that Gibson waived a

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ISSUE: (1) Fourth Amendment—traffic stop driving with excessive blood or breath alcohol concentration, HELD: Consistent with Kansas v. Glover, 589 U.S. __ and driving while incapable of safely operating a vehicle be- (2020), an investigative traffic stop made after running cause of alcohol impairment. First trial ended when court de- a vehicle’s license plate and learning the registered owner’s clared a mistrial without objection from State or Kornelson driver’s license has been revoked is reasonable under the when jury reported a deadlock on the DUI charge. Second Fourth Amendment if the officer lacks information negating jury convicted Kornelson on both DUI theories and on an an inference that the owner is driving the vehicle. Here, the open container charge. On appeal, Kornelson claimed for first stipulated facts reveal no information known by the deputy time that the second trial violated his right against double sufficient to rebut that reasonable inference. Kansas Supreme jeopardy because the record did not reflect a “manifest neces- Court’s judgment is vacated and case is remanded to district sity” for the mistrial. He also claimed the jury instruction on court for further proceedings. State’s burden of proof improperly discouraged jury from ex- ercising its nullification power. Court of appeals affirmed in STATUTES: None unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the CRIMINAL PROCEDURE—EVIDENCE—MOTIONS mistrial. Review granted. STATE V. HACHMEISTER ISSUES: (1) Double jeopardy; (2) jury instruction—bur- SHAWNEE DISTRICT COURT—AFFIRMED den of proof NO. 114,796—JUNE 5, 2020 FACTS: Hachmeister was convicted of premeditated mur- HELD: The second trial did not violate Kornelson’s double der for killing his mother. On appeal he claimed the district jeopardy rights. If a district court declares a jury deadlocked court abused its discretion by admitting evidence under and orders a mistrial when the defendant does not object or K.S.A. 60-455 of mother thinking that Hachmeister had sto- consent to the mistrial, a retrial should be permitted only len her wedding ring, and of child pornography found on when there was a manifest necessity for the court’s action. Hachmeister’s computer and the charges associated with that Contrary holding in State v. Graham, 277 Kan. 121 (2004), possession. He also claimed eight instances of error during is overruled. Given the circumstances in this case, coupled prosecutor’s closing argument. with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the ISSUES: (1) K.S.A. 60-455 evidence; (2) prosecutorial error determination that the jury was deadlocked under the mani- HELD: No error in district court’s admission of the 60-455 fest necessity standard. evidence. Probative value of the wedding ring evidence sub- As held in State v. Patterson, 311 Kan. 59 (2020), it is not stantially outweighed any prejudice where the confrontation a misstatement of law to tell a jury “If you have no reason- surrounding the missing wedding ring was key evidence of able doubt as to the truth of each of the claims required to motive. And evidence of child pornography on Hachmeister’s be proved by the State, you should find the defendant guilty. computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), letters written by the “real killer.” -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b) Each allegation of prosecutorial error is examined find- ing only one error. Prosecutor’s comment that victim “could APPEALS—APPELLATE PROCEDURE—CRIMINAL PRO- breathe just fine” exceeded the prosecutor’s ability to draw CEDURE—MOTIONS—SENTENCING inferences from the evidence. This error was harmless in light STATE V. MAYES of the trial as a whole and the overwhelming evidence against JOHNSON DISTRICT COURT COURT OF APPEALS—DISMISSAL OF APPEAL IS Hachmeister.. AFFIRMED STATUTES: K.S.A. 2019 Supp. 60-455(b) NO. 115,006—JUNE 19, 2020 FACTS: Mayes appealed from district court’s denial of Mayes’ motion to correct an illegal sentence. State moved to CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— dismiss the appeal as moot because Mayes had been released DOUBLE JEOPARDY—JURY INSTRUCTIONS—TRIALS from prison. Court of Appeals in unpublished motion grant- STATE V. KORNELSON RENO DISTRICT COURT—AFFIRMED; ed State’s motion and dismissed the appeal without reaching COURT OF APPEALS—AFFIRMED merits of Mayes’ illegal sentence claim. Mayes’s petition for NO. 118,091—JULY 2, 2020 review granted. In his petition, he argued in part his appeal FACTS: State charged Kornelson in part with felony driv- was not moot because a corrected criminal history score will ing under the influence (DUI), under alternative theories of affect when he can legally possess a firearm.

78 The Journal of the Kansas Bar Association appellate decisions

ISSUE: (1) Mootness doctrine—expiration of sentence ISSUES: (1) Jury instructions—voluntary intoxication; (2) HELD: Court of appeals erroneously applied sweeping gruesome photographs; (3) cumulative error bright-line rule rejected in State v. Roat, 311 Kan. __ (this day HELD: District court did not err in denying Morris’ re- decided), but dismissal of the appeal is affirmed. Mayes failed quest for a voluntary intoxication instruction. While the re- to preserve below his argument that his appeal was not moot quested instruction would have been a legally available de- because a decision regarding whether his sentence was illegal fense to Morris’ first-degree murder charge and conviction, will affect when he can legally possess a firearm. such an instruction was factually inappropriate because insuf- STATUTE: K.S.A. 2010 Supp. 21-3701, -3716 ficient evidence supported that defense in this case. District court did not abuse its discretion in admitting pho- tographs of victim’s body. Because Morris’ argument clearly CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— fails on the merits, no need to determine State’s argument PREEMPTION—STATUTES that Morris failed to properly preserve this issue by failing to STATE V. MORALES JOHNSON DISTRICT COURT—AFFIRMED; COURT OF lodge a specific objection to the 12 photographs admitted. A APPEALS—AFFIRMED few of the admitted photographs may have been repetitive, NO. 111,904—JUNE 12 2020 and many may have been gruesome, but they were relevant FACTS: Kansas Supreme Court reversed Morales’ con- and admissible to show the manner and violent nature of vic- victions for identity theft and making a false information, tim’s death and to corroborate testimonies of witnesses hav- holding prosecution based on use of a Social Security number ing credibility issues. belonging to another person for employment was preempted No error supports Morris’ claim of cumulative error, and by the Immigration and Reform and Control Act (IRCA). evidence against Morris was overwhelming. State v. Morales, 306 Kan. 1100 (2017). State filed writ of cer- STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; tiorari in this and companion cases. United States Supreme K.S.A. 60-401(b), -404, -445 Court reversed and remanded the state supreme court’s judg- ment, holding state law prosecutions were not preempted by the IRCA. APPEALS—ATTORNEYS AND CLIENTS—CONSTITU- ISSUE: (1) Preemption—Immigration Reform and Con- TIONAL LAW—CRIMINAL PROCEDURE—JURISDIC- trol Act of 1986 TION—MOTIONS—SENTENCING STATE V. ROAT HELD: Consistent with Kansas v. Garcia, 589 U.S. __ SEDGWICK DISTRICT COURT (2020), a Kansas prosecution for identity theft or making COURT OF APPEALS—DISMISSAL OF APPEAL IS AF- false information based on information a defendant provides FIRMED on employment forms, with the exception of the I-9 form, is NO. 113,531—JUNE 19, 2020 not preempted by the IRCA. Review of whether there was FACTS: Roat was sentenced in 2009 and 2012 using crimi- sufficient evidence of intent to defraud was improvidently nal history that classified his 1984 Kansas burglary convic- granted. This issue is not addressed on the merits. tion as a person felony. Alleging classification error in light of State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, STATUTE: 8 U.S.C. § 1324a(b)(5) 301 Kan. 1018 (2015), Roat filed motion to correct an ille- gal sentence, and appealed the district court’s denial of relief. CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUC- While appeal was pending, State filed notice that Roat had TIONS satisfied both the prison and post-release supervision provi- STATE V. MORRIS sions of his sentences. Court of appeals then ordered Roat to SEDGWICK DISTRICT COURT—AFFIRMED show cause why the appeal should not be dismissed as moot. NO. 119,911—MAY 15, 2020 Roat argued his sentence could impact future sentences, and FACTS: Jury convicted Morris of charges including both he might want to pursue a legal malpractice claim against trial first-degree premeditated murder and alternative charge of attorney for not raising Murdock and Dickey issues at sentenc- first-degree felony murder, aggravated kidnapping, and ag- ing. Court of Appeals dismissed the appeal in unpublished gravated battery. On appeal, he claimed district court erred in opinion, holding the expiration of Roat’s sentence meant the refusing to give a requested instruction on voluntary intoxi- outcome of the appeal would have no effect on his sentence in cation, and in admitting gruesome photographs of victim’s this case. Roat’s petition for review granted. partially decomposed body that had been exposed to damage ISSUE: (1) Mootness doctrine—expiration of sentence from animals. Morris also claimed cumulative error denied him a fair trial. HELD: Historical basis and application of the mootness doctrine is examined, including Kansas cases approaching

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mootness as jurisdictional or as discretional policy-based, “hard 25” sentences for the eight off-grid offenses, followed and the constitutional, jurisdictional concept of mootness in by 100 months in prison for criminal sodomy. Court also federal cases. Consideration of mootness as a prudential doc- ordered lifetime parole for the off-grid offenses and lifetime trine is held to be the better approach. Bright line rule that postrelease supervision for the on-grid offense. On appeal renders a sentencing appeal necessarily moot if the sentence Satchell claimed in part the district should not have allowed is completed is rejected. Instead, a determination of moot- the 60-455 evidence because it was unduly prejudicial, and ness must include an analysis of whether an appellate judg- argued he should not have been given lifetime postrelease su- ment on the merits would have meaningful consequences for pervision. In unpublished opinion, Court of appeals rejected any purpose, including future implications. In this case, State both claims. Review granted established a prima facie showing of mootness by demon- ISSUES: (1) K.S.A. 60-455 evidence; (2) sentencing strating that Roat had fully completed the terms and condi- tions of his sentence, but Roat failed to demonstrate a vital or HELD: District court did not abuse its discretion by ad- substantial right requiring a judgment in this appeal. A legal mitting evidence of the 2010 allegations. The 2010 evidence, malpractice claim cannot be grounded on an attorney’s fail- if true, would be relevant. At issue is whether the probative ure to make arguments for a change in the law, even if such value of this evidence was substantially outweighed by the a change later takes place, and mere stigma or “rightness” is risk of unfair prejudice. Factors in State v. Boysaw, 309 Kan. insufficient to justify continuing to exercise jurisdiction over 526 (2019), to be considered in determining probative value an appeal. Panel’s summary dismissal of the appeal without and undue prejudice are analyzed on facts in this case. In application of well-established principle in State v. Montgom- balancing those factors, the district court can exclude oth- ery, 295 Kan. 837 (2012), and no reference to Roat’s asserted erwise admissible relevant evidence if its probative value is collateral rights, was erroneous but it arrived at the correct “substantially outweighed” by the risk of undue prejudice. conclusion. Judgment of court of appeals is affirmed, subject Court acknowledges criticism of past decisions that have left to identified reservations. Court notes the 2019 amendment out the term “substantially,” but finds the proper test has been of K.S.A. 22-3504 does not directly invoke or demonstrate applied despite the occasional shorthand references. Here, the mootness of motions, such as Roat’s, that were filed before risks of undue prejudice did not substantially outweigh the the amendment. high probative value of the 2010 evidence. CONCURRENCE (Biles, J.): Concurs in the result based District court erred by ordering lifetime postrelease super- on rationale stated in State v. Tracy, 311 Kan. __ (this day vision. Under K.S.A. 2016 Supp. 21-6819, in effect at the time decided). of Satchell’s offenses, the proper post release supervision term is lifetime parole when the district court imposed consecutive CONCURRENCE (Stegall, J.): Joins Justice Biles’ con- on-grid and off-grid sentences. The lifetime postrelease super- currence, but states disagreement with portion of majority vision portion of Satchell’s sentence is vacated. opinion that appear to abandon or weaken the constitutional requirement that Kansas courts decide only cases and contro- STATUTES: K.S.A. 2019 Supp. 60-455(d); K.S.A. 2016 versies. Suggests standing (rather than mootness) is the better Supp. 21-6627, -6819, -6819(b)(2), 22-3717, -3717(d)(1)(G), legal doctrine for future courts to focus on. -3717(u); K.S.A. 60-406, -407(f), -445 STATUTES: K.S.A. 2019 Supp. 22-3504(a), -3504(d), 60- 2102(a); K.S.A. 2018 Supp. 21-6813, -6814; K.S.A. 22-3504 APPEALS—APPELLATE PROCEDURE—ATTORNEYS AND CLIENTS—MOTIONS STATE V. SYKES CRIMINAL PROCEDURE—EVIDENCE—SENTENCING— SEDGWICK DISTRICT COURT STATUTES COURT OF APPEALS—DISMISSAL OF APPEAL IS STATE V. SATCHELL AFFIRMED SEDGWICK DISTRICT COURT—AFFIRMED IN PART NO. 113,903—JUNE 19, 2020 AND VACATED IN PART FACTS: Sykes appealed the district court’s denial of his COURT OF APPEALS—AFFIRMED IN PART AND motion to correct an illegal sentence based on calculation of REVERSED IN PART Sykes’s criminal history. State moved to dismiss the appeal as NO. 116,151—JUNE 26, 2020 moot because Sykes had completed his sentence. Sykes filed FACTS: Satchell charged with 2014 sexual offenses involv- no response. Court of appeals granted State’s motion and dis- ing two children. To show his propensity to sexually abuse missed the appeal. Sykes petitioned for review, arguing his children, State was allowed to present evidence under K.S.A. appeal was not moot because a hypothetical future sentencing 2019 Supp. 60-455(d) about Satchell’s 2010 abuse of three court might take judicial notice of Sykes’s criminal history other children under similar circumstances. Jury convicted score, and a successful appeal might preserve a legal malprac- Satchell on all counts. Sentencing court ordered consecutive tice claim against his trial counsel.

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ISSUE: (1) Mootness doctrine—expiration of sentence HELD: Under circumstances in this case, district court HELD: Panel erred to the extent it considered Sykes’ claim abused its discretion by ordering an indigent criminal de- moot based solely on the completion of his sentence, but dis- fendant sentenced to life in prison without possibility of pa- missal of the appeal is affirmed because Sykes failed to chal- role to pay restitution even while recognizing the restitution lenge the State’s motion for involuntary dismissal of the case would not be paid. State v. Holt, 305 Kan. 839 (2017), State as moot. v. Shank, 304 Kan. 89 (2016), and State v. Alcala, 301 Kan. 832 (2015), are distinguished. Restitution is the rule, and un- STATUTES: None workability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Resti- APPEALS - ATTORNEYS AND CLIENTS - CRIMINAL PRO- tution order is reversed. CEDURE - MOTIONS - SENTENCING STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1) STATE V. TRACY SEDGWICK DISTRICT COURT COURT OF APPEALS - DISMISSAL OF APPEAL IS APPEALS—CRIMINAL PROCEDURE—MOTIONS— AFFIRMED POSTCONVICTION RELIEF—SENTENCING NO. 113,763 - JUNE 19, 2020 STATE V. WARD FACTS: District court revoked Tracy’s probation and de- FRANKLIN DISTRICT COURT nied motion to correct an illegal sentence in which Tracy COURT OF APPEALS—DISMISSAL OF APPEAL IS challenged the classification of his 1974 Colorado burglary REVERSED, CASE REMANDED conviction as a person offense. In unpublished opinion Court NO. 116,545—JUNE 19, 2020 of Appeals held the Colorado conviction was properly classi- FACTS: Ward filed motion to correct an illegal sentence, fied. Tracy’s petition for review granted but held in abeyance and under K.S.A. 60-1507 to allege district court erred pending resolution of other appeals with related issues. After when it revoked Ward’s probation and imposed the underly- Tracy fully served his prison sentence and applicable period ing sentence. District court summarily denied the motion. of postrelease supervision, State argued Tracy’s appeal was Noting that Ward had completed his sentence, Court of ap- moot. peals ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. ISSUE: (1) Mootness doctrine—expiration of sentence 837 (2012). In response Ward argued in part that a finding HELD: The appeal is moot. No merit to Tracy’s speculative he violated the terms of his probation could be used to deny claim that a future sentencing court will feel obligated to fol- him probation or subject him to a future upward departure low the panel’s uncorrected ruling and again classify the 1974 sentence. Panel dismissed the appeal as moot in an unpub- Colorado conviction as a person felony. By failing to provide lished opinion. Ward’s petition for review of panel’s dismissal any detail about what he might assert as a basis for the al- granted. leged legal malpractice he might want to file, Tracy waived ISSUE: (1) Mootness Doctrine—expiration of sentence this argument. And under current Kansas caselaw, no merit to Tracy’s claim that the uncorrected panel’s decision could HELD: Ward correctly distinguishes Montgomery because have an impact on other defendants in other cases. he challenges the probation revocation, not just the sanction. Case is remanded to Court of Appeals to reconsider under CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and guidance provided in State v. Roat, 311 Kan. __ (this day Malone, J.): Concurs in the result based on rationale ex- decided), the arguments Ward presented in his response to pressed in State v. Roat, 311 Kan. __ (this day decided). the show cause order. STATUTE: K.S.A. 2019 Supp. 21-6813, -6814(c) DISSENT (Biles, J.)(joined by Luckert, C.J. and Stegall, J.): Dissents from remand order based on rationale expressed CRIMINAL PROCEDURE—RESTITUTION—SENTENCING in State v. Tracy, 311 Kan. __ (this day decided). Case should STATE V. TUCKER be dismissed. WYANDOTTE DISTRICT COURT—REVERSED STATUTE: K.S.A. 60-1507 NO. 119,242—JUNE 12, 2020 FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District APPEALS—CRIMINAL PROCEDURE —EVIDENCE — court ordered payment of $5,000 in restitution without an SENTENCING explicit order for payment during Tucker’s incarceration, and STATE V. YAZELL acknowledged that restitution will never be paid. Tucker ap- JOHNSON DISTRICT COURT COURT OF APPEALS - DISMISSAL OF APPEAL IS pealed. REVERSED, CASE IS REMANDED ISSUE: (1) Restitution—unworkable plan NO. 116,761 - JUNE 19, 2020

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FACTS: Yazell appealed from revocation of probation fol- HELD: The reasoned approach by Kansas appellate courts lowing his out-of-state arrest. When State submitted evidence to date has been to reject basing appellate decisions on from Kansas Adult Supervised Population Electronic Reposi- KASPER and similar documentation. Because KASPER is tory (KASPER) showing Yazell had been released from cus- unreliable evidence, courts may not rely on it to make fac- tody, court of appeals ordered Yazell to show cause why the tual findings. Court of appeals erred to the extent it relied on appeal should not be dismissed as moot. In response Yazell KASPER and State’s hearsay assertions about a Corrections challenged the evidence the State submitted to the appellate employee confirming the accuracy of the KASPER report. courts to show Yazell had competed his sentence, and argued Panel’s decision is reversed and case is remanded to court of his case was not moot because a finding he violated probation appeals. could be used as evidence he is not amenable to probation in If panel on remand should again find that Yazell has com- future cases. Court of appeals summarily dismissed the ap- pleted his sentence, it should reconsider whether his case is peal as moot. Yazell’s petition for review granted. moot under guidance provided in State v. Roat, 311 Kan. __ ISSUES: (1) Appellate factual findings; (2) mootness doc- (this day decided). trine—expiration of sentence STATUTE: K.S.A. 60-409(a)

Kansas Court of Appeals

involved enough to be responsible for bills. The City appealed Civil and the Hospital cross-appealed. ISSUES: (1) Whether the driver was in custody; (2) exis- AGENCY ACTION—MEDICAL EXPENSES tence of disputed material facts UNIVERSITY OF KANSAS HOSPITAL AUTHORITY V. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN HELD: “Custody” has a broad definition. A formal arrest COUNTY, KANSAS is not always necessary to show that a person is in custody. It is WYANDOTTE DISTRICT COURT—AFFIRMED IN PART, undisputed that County deputies did not witness any crimes REVERSED IN PART, REMANDED being committed and did not participate in the chase. This NO. 120,472—JUNE 26, 2020 means it is also undisputed that the driver was not in County FACTS: After seeing a man driving without headlights and custody when medical care was sought, and the County has with a suspended license, Ottawa police engaged in a high- no obligation to contribute to the driver’s medical bills. There speed chase. Officers lost track of the vehicle, and by the time are lingering fact questions, though, about whether the driver they found it, the driver had crashed and the vehicle was fully was in the City’s custody. Specifically, there was no stipula- engulfed in flames. Rescue personnel found the driver on the tion that the driver was stopped by law enforcement, trigger- ground, suffering from severe injuries. Officers did not search ing the statutory obligation to take him into custody. Because the driver, and he was not placed under arrest, although a there is a lingering fact question, summary judgment was not hold was placed while the man was in the hospital. After his appropriate. The case must be remanded to clear up these is- release, the driver was taken to jail based on outstanding war- sues. rants that were unrelated to the police chase. After an inves- tigation, the driver was charged with felony fleeing and elud- STATUTE: K.S.A. 2019 Supp. 8-1568(b), -1568(c), 22- ing. The University of Kansas Hospital Authority filed suit 2202(d), -2202(i), -4612, -4612(a) against the City of Ottawa and the Franklin County Board of County Commissioners in an attempt to recoup some of ATTORNEY FEES—JURY TRIAL—REMEDY the man’s considerable medical bills. All parties filed motions HARDER V. ESTATE OF FOSTER for summary judgment. After considering arguments, the LEAVENWORTH DISTRICT COURT—AFFIRMED AND district court found that the driver was in the City’s custody REMANDED when medical treatment was initiated. But for the driver’s in- NO. 118,845—MAY 15, 2020 juries, he would have been arrested when the chase ended. FACTS: The case arises out of a real estate dispute between The district court granted summary judgment in the Hospi- Evelyn Harder and Ronald Foster. In 2013, a jury found Fos- tal’s favor against the City but found that the County was not ter guilty of negligent misrepresentation, intentional misrep-

82 The Journal of the Kansas Bar Association appellate decisions

resentation, and breach of contract. The real estate contract included a provision which required a party who breached Civil the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court CONTRACTS—OIL AND GAS awarded Harder fees for the initial litigation but denied her THOROUGHBRED ASSOCIATES V. KANSAS CITY ROY- motion for fees incurred while attempting to finalize the de- ALTY COMPANY cision and journal entry. After this trial, Harder filed a sec- COMANCHE DISTRICT COURT—AFFIRMED IN PART, ond suit against Foster and his children, claiming that Foster REVERSED IN PART, REMANDED fraudulently transferred all proceeds from the property sale NO. 120,068—JUNE 26, 2020 to his family members, leaving him unable to pay Harder’s FACTS: Beginning in 1997, Thoroughbred acquired oil and judgment. Foster died during this litigation. His estate paid gas leases. After it struck a big well, Thoroughbred acquired the judgment in full and the district court dismissed the ac- leases on nearby property to prevent competition. However, tion on summary judgment, finding that the payment extin- there was a 1/3 mineral interest in one of these tracts which guished any of Harder’s claims. Harder’s motion for attorney remained unleased. In an attempt to acquire that lease, Thor- fees and costs was denied. These decisions were upheld on oughbred contacted the owner, Oxy USA Inc., about selling. appeal except the panel determined the district court erred by The parties signed a lease in 1998 which allowed Thorough- denying Harder’s motions for attorney fees and expenses in bred to unitize the lease. The lease would continue for as long the 2013 case. The panel remanded the 2015 case to allow the as Thoroughbred produced oil or gas in paying quantities, district court to determine whether Harder could prove an either from the tract or from the unit as a whole. Oxy had a exception to the American rule which requires parties to bear 3/16 royalty on production from the tract. In 1999, Oxy sold their own litigation costs unless a statute or contract expressly its interest in the lease to KC Royalty. Tensions arose when authorizes such an award. The district court’s factfinding was KC Royalty believed that gas from the unit was being drained limited to Harder’s third-party claims. On remand, Harder into another unit that was not covered by KC Royalty’s lease claimed that she had a right to have a jury decide attorney fees and that KC Royalty believed that Thoroughbred owed it un- and expenses for both the 2013 and 2015 cases. The district paid royalties. After extensive litigation and another appeal court disagreed, and the Court of Appeals granted Harder’s which was heard by the Kansas Supreme Court, the parties application for an interlocutory appeal. ended up back in district court. That court ruled in favor of KC Royalty, finding that the parties agreed to unitize the Lease, that KC Royalty had waived certain conditions, and ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 that Thoroughbred was equitably estopped from enforcing case; (3) fees for 2015 case the conditions. After ruling that all liquids produced in the unit were incidental byproducts of the gas, the court conclud- ed that KC Royalty’s interest included all unit production. HELD: The right to a jury trial in a civil action is not ab- Both parties appealed. solute. It is only guaranteed if such a right existed at com- ISSUES: (1) Whether the parties included the lease in the mon law at the time the Kansas constitution was adopted in unit by modification, waiver, or estoppel; (2) award of interest 1859. There was no right to recover attorney fees at common in oil production arising from gas lease; (3) attorney fees law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so HELD: Substantial evidence supported the district court’s requiring. Kansas does recognize the third-party litigation finding that the parties modified their lease to include the exception to the American rule, but that exception did not parcel in the larger unit. This is proven by both Oxy and exist in 1859. Accordingly, there is no right under the Kansas KC Royalty accepting royalty payments. KC Royalty had the constitution to have a jury determine attorney fees and ex- unilateral power to waive conditions and allow Thorough- penses. The 2013 judgment has been satisfied in full. Harder bred to include the lease in the larger unit. All evidence shows voluntarily chose not to present her attorney fees claim to the that KC Royalty intended to modify the agreement. Because jury; her attorney expressly asked the trial court to resolve Thoroughbred represented that KC Royalty’s lease was in the matter, arguing in a pleading that the question of fees the unit for over three years, it is estopped from changing its and expenses arising out of the real estate contract was not mind now. A portion of the unit included a parcel which was a jury decision. The error Harder now claims was invited by a separate, oil-producing formation where oil production far her counsel before the district court, and she is not entitled to exceeded gas production. There was no evidence that the oil relief. The prior decision on the 2015 case is upheld. Harder and gas in this particular parcel was condensate. The district is not entitled to have a jury decide whether an exception to court improperly included this parcel in its royalty calcula- the American rule exists which would allow her to recover tions, and the case must be remanded for accurate calcula- attorney fees for third-party conduct. tions. The district court did not abuse its discretion by deny-

www.ksbar.org | July/August 2020 83 appellate decisions

ing KC Royalty’s motion for attorney fees. in the class action, disputes the method Oxy was using to cal- STATUTE: K.S.A. 55-205, -1617 culate royalties for all Class Leases. The class action petition was filed in 2017, alleging that Oxy underpaid royalties from July 2007 through April 2014. Cooper’s specific grievances ADMINISTRATIVE LAW—JURISDICTION included Oxy passing through processing fees, improperly BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE calculating volume, using the wrong price structure, and not FINNEY DISTRICT COURT—REVERSED AND paying interest on conservation fees. The district court certi- REMANDED fied Cooper’s class, and Oxy appealed that certification. NO. 12,409—JUNE 12, 2020 FACTS: Corporal Kerley arrested Brungardt for driving ISSUE: (1) Whether class was properly certified under the influence. Corporal Kerley administered a breath HELD: Gas produced from Class wells wasn’t marketable test, following the mandatory procedures for the Intoxilyzer until it was in a condition suitable for its intended market. This 9000 machine. The machine allows officers to fill out the didn’t occur until after it was processed. The district court did required forms—including the DC-27 certification form— not abuse its discretion when it found that the class petition electronically. Because his blood-alcohol level exceeded legal raised questions of law and fact that were common to all class limits, Brungardt’s driver’s license was administratively sus- members. All of the claims can be litigated class-wide without pended by the Kansas Department of Revenue. In requesting individualized evidence; this includes a dispute over whether an administrative hearing, Brungardt claimed, among other Oxy owes interest for conservation fees that were repaid to class things, that the DC-27 form was invalid because it lacked members. There are similarly no individualized issues regard- an original, non-electronic signature. Although the hearing ing Oxy’s statute of limitations defense. The district court rig- officer affirmed his suspension, the district court reversed orously analyzed the requirements for class certification and during judicial review. The court found no flaws in Corpo- correctly concluded that the class was appropriate. ral Kerley’s performance but ruled that Corporal Kerley had STATUTES: K.S.A. 2019 Supp. 60-223, -223(a), -223(b); physically signed the machine when he created his electron- K.S.A. 16-201, 55-1614, -1615 ic signature profile, before Brungardt’s test was performed. K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned FAMILY SETTLEMENT AGREEMENT that Corporal Kerley signed a blank page when he established SCHMITENDORF V. TAYLOR his signature profile. The department appealed. DOUGLAS DISTRICT COURT—AFFIRMED NO. 120,123—JUNE 19, 2020 ISSUES: (1) Jurisdiction; (2) validity of electronic signature FACTS: Schmitendorf and Taylor were both cousins of HELD: Brungardt’s petition for judicial review included Vera Park. In 1993, Park created a revocable trust, designat- his claim that the DC-27 form was invalid. Even though he ing Park as the trustee. In the event of Park’s death, Schmi- didn’t argue the exact grounds relied on by the district court tendorf was to receive 20 percent of the trust estate unless the when overturning the suspension, Brungardt gave adequate primary beneficiary predeceased Park, in which case Schmi- notice that the validity of the DC-27 was in question. This tendorf would receive all the trust estate. After the primary gave the district court jurisdiction to rule. “Signing” encom- beneficiary died, Park amended the trust so that Schmiten- passes more activity than merely writing a name, and Kansas dorf and Taylor would evenly split the trust assets. Schmiten- law recognizes electronic signatures. It is the intent of signing, dorf remained the sole trustee; in that capacity, she used trust not the physical form, which controls the effectiveness of the assets to purchase a home and made a substantial gift to a signature. Corporal Kerley followed the procedures of K.S.A. community group to establish an endowment in Park’s name. 8-1002(b) and affixed his signature when done. The district Taylor was concerned about Schmitendorf’s use of trust as- court improperly interpreted the statute and erred by revers- sets, and a protracted dispute arose over the trust, a guardian ing the suspension of Brungardt’s driver’s license. for Park, and alleged financial misappropriation. Ultimately, STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), Schmitendorf and Taylor agreed on terms for a Family Settle- -1002(f); K.S.A. 77-614(b)(6) ment Agreement. The district court approved the Family Set- tlement Agreement and appointed Schmitendorf and Taylor as co-guardians for Park. Park died in 2016 and Schmiten- CLASS ACTIONS—OIL AND GAS dorf filed a petition contesting the amendment to the trust COOPER CLARK FOUNDATION V. OXY USA, INC. which established Taylor as a co-equal beneficiary. Taylor GRANT DISTRICT COURT—AFFIRMED sought summary judgment, claiming that all Schmitendorf’s NO. 120,371—JUNE 26, 2020 claims were controlled by the Family Settlement Agreement. FACTS: This appeal involves a class-action lawsuit over The district court agreed, and Schmitendorf appealed. natural gas leases. After extracting gas, Oxy sent most of it for processing. Cooper, representing the wells included with- ISSUE: (1) Whether dispute is controlled by Family Settle- ment Agreement 84 The Journal of the Kansas Bar Association appellate decisions

HELD: Kansas law favors the settlement of disputes and Contreras had to object when district court excused Father family settlement agreements are liberally construed and from trial. District court’s Fifth Amendment ruling is not a should not be disturbed without good reason. The plain lan- judgment to which the doctrine of acquiescence applies. And guage of this Family Settlement Agreement clearly determines doctrine of judicial estoppel does not bar Contreras’ claim. the parties’ interests and their intent to settle all disputes re- District court’s Fifth Amendment determination was made lating to the distribution of trust assets. Under the plain lan- without benefit of essential documents that would have in- guage of the Family Settlement Agreement, Schmitendorf is formed its decision as to whether Father’s conviction included barred from asserting any claims for relief. the December 2012 timeframe. Panel granted Contreras’ STATUTES: K.S.A. 2019 Supp. 60-256(c)(2); K.S.A. 59- motion on appeal to take judicial notice of additional docu- 102(8) ments relevant to Father’s prior conviction, and those docu- ments support Contreras’ claim that Father did not have a privilege against self-incrimination for the December 2012 incident with K.B. District court erred in failing to compel Criminal his testimony. That error was not harmless in this case where district court found Father’s testimony was material, relevant APPEALS—APPELLATE PROCEDURE—CONSTITU- and admissible, and Father’s testimony was crucial to support TIONAL LAW—CRIMINAL LAW—EVIDENCE— Contreras’ credibility. All convictions are reversed and case is MOTIONS—STATUTES remanded for a new trial. STATE V. CONTRERAS STATUTES: K.S.A. 2019 Supp. 21-5501(b), -5504(b)(1), SCOTT DISTRICT COURT—REVERSED AND 22-3415(b)(1); K.S.A. 60-404, -405, -425, -407, -409, -412(c) REMANDED NO. 119,584—MAY 29, 2020 FACTS: Contreras charged with rape, aggravated crimi- EQUAL PROTECTION—SEX CRIMES nal sodomy, and aggravated intimidation of a child (“K.B.”). STATE V. LITTLE Defense called K.B.’s father (“Father”) to describe Father’s SEDGWICK DISTRICT COURT—AFFIRMED encounter with K.B. in December 2012. Father, who had NO. 120,214—JUNE 12, 2020 been convicted of sodomy on plea agreement for acts between FACTS: Little was convicted of multiple, high-level felo- April 2011 and March 2012, said he wanted to invoke Fifth nies, including rape and aggravated criminal sodomy. These Amendment right against self-incrimination and not testify. convictions meant that on top of his prison sentence, Little District court determined Father’s prior criminal conviction was given a lifetime term of postrelease supervision. Little ap- concerning K.B. did not extend to events occurring in De- pealed, arguing that this lifetime term of postrelease violated cember 2012, allowed Father to invoke Fifth Amendment, his right to equal protection. and excused him from the trial. Jury convicted Contreras on ISSUE: (1) Equal protection the charged crimes. He appealed, claiming in part the dis- trict court denied him a fair trial by allowing a witness who HELD: Equal protection requires that similarly situated could have bolstered Contreras’ credibility to invoke the Fifth people be treated alike. Little compares his postrelease term Amendment privilege against self-incrimination. State assert- to the shorter terms given to people who are convicted of ed the Fifth Amendment issue was not preserved for appellate other serious felonies, like murder. But sex offenders are not review because Contreras failed to object to district court’s similarly situated to people convicted of murder. Individuals decision to allow invocation of Fifth Amendment and excusal convicted of certain sex offenses have much higher rates of of Father from trial, and argued the doctrines of acquiescence recidivism, and the lifetime term of postrelease supervision or judicial estoppel should be applied. serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses. ISSUES: (1) Appeal—procedural barriers; (2) Constitu- tional right to present a defense STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G) HELD: There is no procedural bar to consideration of Con- treras’ Fifth Amendment claim. The contemporaneous objec- APPEALS—APPELLATE PROCEDURE—CONSTITU- tion requirement in K.S.A. 60-404 to admission of evidence TIONAL LAW—CRIMINAL PROCEDURE— DAMAGES— does not apply to the question of law whether a witness has a INSURANCE—RESTITUTION—SENTENCING right to assert Fifth Amendment privilege against self-incrim- STATE V. ROBINSON LYON DISTRICT COURT—AFFIRMED ination. Even if rule would generally apply, purpose of the NO. 120,903—JUNE 26, 2020 rule was met by parties’ presentation of the issue to district FACTS: Robinson pled no contest to battery of law enforce- court for its resolution. State abandoned its argument that ment officer. Sentencing included requirement that Robinson

www.ksbar.org | July/August 2020 85 appellate decisions

pay $2,648.56 in restitution to reimburse workers compensa- v. Huff, 50 Kan.App.2d 1094 (2014), rev. denied 302 Kan. tion insurance carrier that paid medical expenses of officer 1015 (2015), restitution is not punishment, but even if pun- injured as a result of the battery. Robinson appealed claiming ishment is assumed, the Kansas statutes do not violate the the statutes authorizing the district court to order restitution Sixth Amendment. Huff is consistent with cited federal and violate Section 5 of Kansas Constitution Bill of Rights by de- state court opinions, and courts have concluded that Southern priving him of right to have a civil jury determine the amount Union Co. v. United States, 567 U.S. 343 (2012), does not ex- of damages, and violate the Sixth Amendment of U. S. Con- tend Apprendi and its progeny to restitution. Kansas statutes stitution by allowing a judge to determine the amount of res- governing restitution impose neither mandatory minimum titution to be awarded the victim. He also claimed district amounts nor mandatory maximum amounts, so they do not court erred in awarding restitution to be paid to an insurance trigger concerns in Apprendi or Alleyne. carrier. State contends the constitutional issues, raised for first Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 time on appeal, were not properly preserved. Supp. 21-6607(c)(2) prohibit a district court from awarding ISSUES: (1) Unpreserved claims; (2) restitution—Section 5 restitution to an insurance carrier that has suffered damage or of Kansas Constitution Bill of Rights; (3) restitution—Sixth injury as a result of the defendant’s crime. Amendment of U.S. Constitution; (4) payment to insurance DISSENT (Leben, J.): Would vacate the restitution award carrier because Robinson had a right to have a jury determine the HELD: The issues not raised below are considered because amount of damage or loss he caused any victim of his crime. they potentially implicate a claim to the fundamental right to Text of Sixth Amendment, history, and precedent support a a trial by jury under the Kansas and United States constitu- holding that Sixth Amendment applies to restitution. Cases tions, and a decision on the merits would serve the ends of cited by the majority as rejecting the claim that Apprendi ap- justice. plies to restitution are criticized. The two Kansas restitution Robinson failed to establish that Section 5 of the Kansas statutes violate Apprendi by allowing judges to increase the Constitution Bill of Rights requires that a jury impose crimi- statutory maximum punishment for an offense beyond that nal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and authorized by the jury’s verdict or the plea agreement. Even K.S.A. 2017 Supp. 21-6607(c)(2). Criminal restitution is not if Robison had no jury-trial right under Sixth Amendment, a civil remedy and no provision in the Kansas territorial stat- he had one under Section 5 of Kansas Constitution Bill of utes mentions criminal restitution. Rights. District court’s restitution order did not violate the Sixth STATUTES: K.S.A. 2017 Supp. 21-5413(c)(3)(D), -6604, Amendment. Court of appeals panels have addressed whether -6604(b)(1), -6604(b)(2), -6607(c)(2), -6608(c)(7), -6613(a), Sixth Amendment applies to criminal restitution, and review -6613(b), 60-238, -2401, -4304(b); K.S.A. 1991 Supp. 21- of one unpublished opinion is currently pending. Under State 6607(c)(2); K.S.A. 60-430

86 The Journal of the Kansas Bar Association appellate practice reminders

Appellate Practice Reminders From the Appellate Court Clerk’s Office

Reinstatement of Deadlines and Time Limitations—Appellate Style

he most pressing issue for us at the appellate courts is the consequence of reinstating dead- lines and time limitations. The fear of the unknown is omnipresent in the pandemic cli- mate. This fear has generated daily phone calls from attorneys seeking precise and immedi- Tate interpretation of what the reinstatement will entail—enter shoulder shrug stage right. Chief Justice Marla Luckert suspended statutes of limitation and statutory time standards or deadlines effective March 19, 2020, through Administrative Order 2020-PR-016, and reiterated the suspension in Administrative Orders 2020-PR-32, 2020-PR-058 and 2020-PR-076. At the ap- pellate level, our time limitations were suspended for most cases with exceptions for expedited cases and other cases specified by the appellate courts. For the most part, sans a switch from in-person to video arguments, the appellate courts never really skipped a beat through the current stages of COVID19. At every opportunity, I told attorneys to continue to treat an appellate case just like normal. If you needed additional time, file a motion, the appellate courts understand the collateral consequences of the coronavirus. By continuing the norm, it not only gave our system a deadline, but it kept the case on the attorney’s radar as well. On June 29th, Chief Justice Marla Luckert announced the plan to reinstate statutes of limita- tion and statutory time standards or deadlines that apply to the conduct or processing of judicial proceedings. Most time requirements will be reinstated August 3. The Chief Justice announced her intention well in advance so Kansans and their attorneys would have adequate notice of her plan to reinstate deadlines and statutes of limitations that impact court proceedings. Again, the current plan is to reinstate most time requirements effective August 3, 2020, assuming all district and appellate court facilities in Kansas remain open to the public. As I pen my small monthly contribution to the KBA Journal, I realize we are living in pandemic times and the world may have completely changed in a month’s time when this goes to publication. n

The appellate clerk’s office is only a phone call (785) 296-3229 or an email [email protected] away. For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.

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88 The Journal of the Kansas Bar Association Classified Advertisements

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www.ksbar.org | July/August 2020 89 classified advertisements

Social Security Disability Services. Your Office Space Available Downtown Lawrence office space & fur- clients that are dealing with serious injuries nishings Ready to open your own prac- or illness may have a claim for Social Secu- Manhattan Office Space for Rent. Locat- tice and need office furnishings? Looking at rity disability. We have lots of experience, ed in the Colony Square office building in downtown Lawrence? Local attorney retiring. get good results, and we are ready to help downtown Manhattan. One minute from Leased corner suite on Massachusetts Street and to augment your reputation. If you have the Riley County Courthouse. The available with KSA & other books, attorney desk & questions, let’s talk. Our practice is limited space consists of two offices and an area for a credenza, computer desk, conference table & to Social Security disability. We can travel secretary/paralegal. Large reception area and chairs, receptionist desk, reception seating & anywhere in Kansas, Missouri, Nebraska or kitchen. High speed internet. Open to ei- more. Call (785) 749-2333 (or mthorpesq@ Colorado. Contact: Pat Donahue at Western ther office sharing or “Of Counsel” arrange- gmail.com). Law (785) 832-8521 or [email protected]. ment. For more information, all 785-539- 9300 or email to [email protected] Veterans Services. Do you want to better serve your veteran clients without going to Office for Lease, Corporate Woods. Ap- the trouble of dealing with the VA? I am proximately 300 sf office space available Interested in placing a a VA-accredited attorney with extensive ex- within a working law firm. Convenient lo- perience applying for various VA benefits, cation to meet with clients, with access to Classified including Improved Pension. I regularly conference rooms if needed. Comes with all consult with attorneys (and their clients) the amenities of a working law firm; wit- Ad about the various services attorneys can of- nesses, notaries, fax/copy machine, inter- fer their clients to help qualify veterans and net, phone, etc. On the top floor of a build- in the KBA Journal? their families for various VA programs. As ing with a fantastic view. Please contact soon as a client is in position to qualify, I Tim Winkler at 913-890-4428 or tim@ COST: can further assist by handling the entire ap- kcelderlaw.com. FREE for KBA Members plication to the VA for you. For more in- Overland Park- Offices for Rent. Law of- $45/three months for Non-members formation about my various consultation fices located in Old Downtown Overland and application services, please contact the Park, in remodeled historic building. In- Word count: 75-100 words Law Office of Scott W. Sexton P.A. at (785) cludes: free parking, reception area, kitch- (Editor reserves the right to edit for space.) 409-5228. en, conference room, fax, scanner, copier, phones, voicemail, and high speed internet Simply email your preferred copy to: access. The offices are in walking distance Editor@ ksbar.org of coffee shops, restaurants and retail stores. More than fifteen highly respected attor- neys in an office-sharing/networking -ar rangement. For more information contact James Shetlar at 913-648-3220. Seeking Office Space: Bilingual Immigra- tion attorney with over 10 years of experi- ence, looking to rent a conference room or office once or twice a month in Garden City, Kansas. No services needed other than a place to meet clients. We have served the immigrant community in Western Kansas for 9 years and have an ample client base. Our office is a great source of referrals for a family or criminal attorney as we only prac- tice immigration. Please reply to: erika.jura- [email protected]. WYCO Office Suite Available at 134 N. Nettleton, Bonner Springs, KS 66012. 1100-2000 sf. Waiting area, receptionist area, break room, conference room, large and small offices, private parking, ADA Ac- cessible. 1.25/sf/mo. Utilities included. For more information, call (913) 422-1620. Other Retiring due to injuries. I have a complete set of Kansas Reports and Kansas Appellate Reports—$500 OBO. Will deliver in the Topeka area. Contact Robert E. Keeshan, Esq., Topeka, KS (785) 554-6187.

90 The Journal of the Kansas Bar Association Need clients? Need increased VISIBILITY?

Lawyer Referral Service

... [LRS] is a good source for a steady flow of persons seeking assistance with the “kinds of cases I handle. The benefits of working with LRS far exceed the costs of enrollment. It is the most effective use of advertising budget I can imagine. ~ Joseph Seiwert, Snider & Seiwert LLC, Wichita ”

For more information about the KBA Lawyer Referral Service program, visit www.ksbar.org/LRS or call 785-234-5696

MEETS ABA STANDARDS FOR LAWYER REFERRAL Your trusted legal source. AMERICAN BAR ASSOCIATION www.ksbar.orgTHE RIGHT | CAL July/AugustL FOR THE RIGHT 2020 LA 91WYERTM A TRADITION OF SUCCESS

Scott E. Nutter

Matthew E. Birch

Lynn R. Johnson Victor A. Bergman David R. Morantz

OUR EXPERIENCE PAYS 816-474-0004 www.sjblaw.com We have a long history of success inside and outside 2600 Grand Boulevard, the courtroom. For over 40 years, we have maximized Suite 550 the value of cases referred to our firm and we will Kansas City, MO 64108 continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.

92 The Journal of the Kansas Bar Association The choice of a lawyer is an important decision and should not be based solely on advertisements.