Your Partner in the Profession | September/October 2020 • Vol. 89 • No. 7

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www.ksbar.org | September/October 2020 3 THE Let your VOICE 2020-21 be KBA Officers & Board of Governors Heard! JOURNAL President OF THE KANSAS BAR ASSOCIATION Charles E. Branson, [email protected] President-elect Hon. Cheryl Whelan, [email protected] 2020-21 Vice President Journal Board of Editors Nancy Morales Gonzalez, [email protected] Secretary-Treasurer Professor 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 Kate Duncan Butler (Lawrence), [email protected] Katherine E. Marples Simpson, [email protected] Boyd A. Byers (Wichita), [email protected] Immediate Past President Mitch E. Biebighauser, [email protected] Sarah Fertig, [email protected] District 1 Connie S. Hamilton (Manhattan), [email protected] Michael J. Fleming, [email protected] Lauren G. Hughes (McPherson), [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] Hon. Robert E. Nugent, Ret. (Wichita), [email protected] District 3 Professor John C. Peck (Lawrence), [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] Michael Sichter (Kansas City), [email protected] District 7 Richard D. Smith (Topeka), [email protected] William L. Townsley, III, [email protected] Katherine Tracy (Overland Park), [email protected] Hon. Jeffrey E. Goering, [email protected] [email protected] Hon. Sarah E. Warner (Lenexa), [email protected] Megan S. Monsour, Patti Van Slyke, Journal Editor & Staff Liaison, [email protected] District 8 Dell Marie Shanahan Swearer, [email protected] Issaku Yamaashi (Overland Park), [email protected] District 9 Natalie Yoza (Topeka), [email protected] Aaron L. Kite, [email protected] Journal Board of Editors The 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 Ryan Purcell, graphic designer, [email protected] Alexander P. Aguilera, [email protected] Bruce A. Ney, [email protected] John M. Shoemaker, [email protected] The Journal of the Kansas Bar Association (ISSN 0022-8486) is published At-Large Governor monthly with combined issues for July/August and November/December for a Eunice Peters, [email protected] total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at KDJA Representative additional mailing offices. The Journal of the Kansas Bar Association is published Hon. Bruce T. Gatterman, [email protected] by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, KBA Delegate to ABA House which is included in annual dues. Nonmember subscription rate is $45 a year. Natalie G. Haag, [email protected] Eric K. Rosenblad, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Rachael K. Pirner, [email protected] legal articles published in The Journal of the Kansas Bar Association. Copyright © 2017 Kansas Bar Association, Topeka, Kan. YL Delegate to ABA House Joslyn Kusiak, [email protected] For display advertising information, contact: KBF Representative Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or Scott M. Hill, [email protected] email [email protected] Executive Director of the KBA/KBF For classified advertising information contact Patti Van Slyke at (785) 234-5696 Stacey Harden, [email protected] or email [email protected]. Publication of advertisements is not to be deemed an endorsement of any Our Mission product or service advertised unless otherwise indicated. The Kansas Bar Association is dedicated to advancing the professionalism and POSTMASTER: Send address changes to The Journal of the Kansas Bar legal skills of lawyers, providing services to its members, serving the community 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 | September/October 2020 5 (800) 367-2577 www.alpsnet.com [email protected] from the executive director

Embracing the Hybrid

by Stacey Harden, Executive Director, KBA/KBF

(nearly) comprehensive list of things I knew were hy- who attended this event and were as wowed by the event as I. brid before the summer of 2020: ligers (half tiger half While virtual meetings are no longer a new thing for most of lion), cars that are battery operated and gas powered, us, a virtual meeting that is stunning in every single moment Amules (half donkey, half horse), and the mythical sphinx (half from the registration to logging in to the quality of the pre- woman, half lion). As the summer of 2020 fades, my list of sentations and presenters is not always the norm. The virtual hybrid things has grown. I now understand that school, work, annual meeting did not have the feel of a first-time virtual an- graduations and networking events are, for the foreseeable fu- nual meeting – it was a superb showcase put on by the utmost ture, going to be hybrid. of professionals, all working in hybrid environments. I am As Kansas children return to school near the Labor Day proud that those professionals are on the KBA team. Don’t holiday, teachers are formulating lesson plans to educate, and worry if you were unable to attend the KBA’s Virtual Annual students are preparing to learn in a new hybrid model that Meeting; certain portions of the event will soon be available blends in-person teaching with remote learning. Meanwhile, on demand. Check our website and social media pages for parents are attempting to maneuver this hybrid world by jug- information on how to access these on demand programs. gling not just the demands of work, but also the requirements As soon the Annual Meeting concluded, KBA staff began of their students’ school schedule, all while attempting to focusing its efforts on new and exciting membership options maintain a safe physical distance during the pandemic. To for 2021. While no one knows exactly what 2021 has in store say that it is a stressful time for many is an understatement. for us, our goal is to offer a variety of membership options and By the time this edition of the Journal goes to press, the new- bundles that will best serve our members in a rapidly evolving ness of these hybrid models will be routine. It begs the ques- hybrid world. KBA staff is currently researching and working tion: is a hybrid-world the new normal? on membership options that will not just walk-the-walk, but Similarly, the KBA staff is working diligently in a hybrid en- also talk-the-talk in the hybrid world. The KBA wants to be a vironment. Some members of the KBA staff are hard at work one-stop-shop for resources that will make practices stronger, in our office, while others work diligently from their homes. access to benefits easier, and networking more efficient. If you I could not be any prouder of the endless effort, the positive have an idea or comment, drop me or any other KBA staff attitudes, and the work product that the KBA staff contin- member an email or phone call. I am excited to speak with ues to produce. A shining example of the KBA staff’s efforts you and learn how the KBA’s dedicated team of professionals was the first-ever, completely virtual KBA Annual Meeting can help you achieve your goals while embracing the hybrid. n held in August. I hope that you were one of the many people (Not ligers, I do not recommend embracing those.)

6 The Journal of the Kansas Bar Association from the kba president

Did you miss it? by Charles E. Branson KBA President, 2020-2021

Screenshots from sessions held during the virtual 2020 KBA Annual Meeting!

id you miss it? I remember my first time voting. It was November 1988. I Over 160 of you didn’t! Our virtual annual meet- can vividly remember walking into the retirement home a few ing was held on August 20 and 21. Despite some blocks from my house and giving my name to the poll worker D and walking into the strange metal frame voting booth sur- small technical difficulties on day two, the meeting was a great success! We heard from Governor Kelly and learned the rounded by the red, white and blue striped curtains. I am state of the judiciary from Chief Justice Marla Luckert. There proud to be able to say that I have never missed a major elec- were entertaining ethics hours and fantastic training on un- tion and cannot think of many local elections where I did not conscious bias, constitutional issues in public health and a exercise the ultimate expression of freedom by casting a vote review of U.S. Supreme Court Cases. for a candidate or a proposition. A key feature of our annual meeting was the celebration of Often times I would wonder, does my vote really count? the 100th anniversary of the passage of the 19th amendment Should I take the time to get up early and head to the polls and the 150th anniversary of the 15th amendment. The fight or go on my lunch hour or even wait in line after work? Every for the right for women to vote had taken nearly 100 years now and then I see a reminder of what a vote means. During for activist and reformers to win. Despite winning the right the primary in August, one of my local races came down to to vote 50 years sooner, it took until the Voting Rights Act just three votes. This example may seem trite, but I am confi- of 1965 to remove the legal barriers to African Americans to dent there were people who were relieved that they voted and freely vote in elections. other people cursing that they did not.

www.ksbar.org | September/October 2020 7 from the kba president

There are important deadlines coming up. October 13 is About the Author the last day to register to vote in the general election. October 14 is the first day of advance voting in person and by mail. Charles E. Branson is the President of the October 27 is the deadline for voters to apply for an advance Kansas Bar Association for 2020-2021. He is ballot by mail for the general election. Mail ballots must be the Douglas County District Attorney, Before postmarked on or before Election Day and must be received running for election in 2004, Branson was in private practice in Lawrence; his practice by your county clerk by November 6. And finally, for those focused on the areas of criminal and civil that want to vote on Election Day polls are open from 7:00 litigation. A long-time active member of the am to 7:00 pm on November 3. KBA, Branson has served on the Executive Committee of the Board of Governors, has If you have any doubt whether you are registered to vote at been the KBA Representative on the Board of your current residence, you can always check your status at Trustees of the Kansas Bar Foundation, and https://myvoteinfo.voteks.org/voterview/. has also been a member of the KBA Bench-Bar Committee and the KBF Scholarship Committee. Charles and his wife Kathy have two With elections come change. You can always count on your children, Chance and Grace, and are very proud to call Lawrence membership with the Kansas Bar Association to provide you and Douglas County their home. with timely information and updates about the legislative ses- sion and changes in the law that could impact your practice [email protected] or your clients. You can also stay in the know by reading our Legislative Blog—The Advocate and by following legislation you are interested in with our bill tracking. The KBA remains your partner in the profession. n

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

KBF—It’s the Right Thing to Do by Scott Hill, KBF President

n the past two weeks, my law firm of Hite, Fanning & the comparative missions of, and the relationship between, Honeyman LLP welcomed two new recent law school the KBA and the KBF. She described the IOLTA program graduates—Brett Sitts and Evan Hathaway—as associate and what it did for numerous Kansans, including grant re- Iattorneys. For one of those attorneys (Evan), I have been as- cipients themselves as well as those who received the benefit signed the role of “Supervising Partner,” which means that I of the grant recipients’ works. The sales pitch was enough to help manage his workload, guide and mentor, and provide get me to make a pledge to the Foundation and to become a professional training and teaching to supplement what law Fellow. school teaches all of us. On a day-to-day basis, I have found Fast forward through the next 15 years, during which time that this responsibility involves substantive support focused I’ve conveyed this similar message to each new associate at my on research techniques, analysis and conclusions, and general firm (and many across the bar.) In those conversations, I’ve writing approaches and conventions. shared many of the same facts and figures as Linda once de- Last week, however, I sent Evan and Brett an email to de- scribed to me—the mission, the good work, and the impact. scribe some of our firm’s unwritten cultural expectations— But there is more to the story that I tell to Evan today—and not employee handbook issues and not items subject to any that I share with all of you non-Fellows, whether you are a repercussions, but items where participation and observance new attorney or a well-seasoned one. It gets back to “it’s the helps define who we are as a law firm. Inherently, I was de- right thing to do.” scribing things like attending firm social functions, or certain practices related to secretaries and paralegals. But I found I won’t attempt here to shift to a scholarly article, except myself heading down the path of describing my firm’s “cul- to say that the Kansas Rules of Professional Conduct address ture” of bar participation. many of our obligations for public service. See KRPC Rule 6.1-6.4. But the obligation is greater and more generalized: Let me take you back nearly 17 years to when I began my practice at Hite, Fanning. The summer of 2005 was my sec- As a public citizen, a lawyer should seek improvement ond summer as a lawyer with the firm. The annual meeting of the law, access to the legal system, the administra- was to be held in Vail, Colorado. I recall asking Linda Parks tion of justice and the quality of service rendered by the (our firm’s managing partner and bar association juggernaut) legal profession. As a member of a learned profession, whether I should attend and what I should attend. Her re- a lawyer should cultivate knowledge of the law beyond sponse was an overwhelming “yes.” As to what I should at- its use for clients, employ that knowledge in reform of tend the discussion centered primarily around the Kansas Bar the law and work to strengthen legal education. In ad- Foundation and its annual Fellows Dinner. dition, a lawyer should further the public’s understand- Linda suggested that while the Bar Foundation was my per- ing of and confidence in the rule of law and the justice sonal choice, it is something that every lawyer in our firm, and system because legal institutions in a constitutional de- every lawyer in the state, should consider doing, because it is mocracy depend on popular participation and support the “right thing to do.” In general terms, we talked through to maintain their authority. A lawyer should be mind-

www.ksbar.org | September/October 2020 9 from the kansas bar foundation president

ful of deficiencies in the administration of justice and As I read the KRPC, I think the answer is an absolute and of the fact that the poor, and sometimes persons who unequivocal “yes.” are not poor, cannot afford adequate legal assistance. I return to where I began, to my conversation with Evan: Therefore, all lawyers should devote professional time “Become a Fellow of the Kansas Bar Foundation as it is the and resources and use civic influence to ensure equal ‘right thing to do.’” As his Supervising Partner, it is my duty access to our system of justice for all those who because to set him down the right path—both in his professional of economic or social barriers cannot afford or secure training and in professional service. Being a part of the Foun- adequate legal counsel. A lawyer should aid the legal dation is a step in that right direction. n profession in pursuing these objectives and should help the bar regulate itself in the public interest. The attri- butes contained in this paragraph for lawyers’ conduct shall be an aspirational goal of all lawyers. About the Author KRPC, Preamble ¶6. Scott Hill is a partner at Hite, Fanning & Honeyman L.L.P. He concentrates his practice in The KBF’s missions is “...to serve the citizens of Kansas and banking, business transactions, business litigation the legal profession through funding charitable and educa- and real estate. Scott sits on his firm’s management tional projects that foster the welfare, honor and integrity of committee and devotes substantial time to his the legal system by improving its accessibility, equality and firm’s management and marketing efforts. Raised in Independence, Kan., he graduated from Pittsburg uniformity, by enhancing public opinion of the role of law- State University and Washburn University School of Law. Scott yers in our society.” This mission fits squarely within—if not earned his MBA at Washburn during law school. He is married to mirroring—the “aspirational goal of all lawyers” as set out Jennifer Hill of McDonald, Tinker, and has two sons (ages 11 and 7). in the above paragraph of the Kansas Rules of Professional Conduct. Is participation in the KBF the “right thing to do?” [email protected]

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10 The Journal of the Kansas Bar Association from the young lawyers section president

Know Your YLS Team—and Get Involved by Kate Marples Simpson, YLS President

he KBA YLS board is excited to continue critically to continue those programs virtually if in-person events are thinking about how to benefit our members and in- not advisable in the spring and summer. Additionally, we are crease section membership in 2020-2021. We are re- considering expanding the scope of the judicial externship questingT that the Board of Governors nominate young law- program to promote diverse placements in rural areas. yers from each district to form an advisory panel for the YLS Matt Huntsman is taking over our CLE programming, Board so that we can better serve our members throughout which will include a lunch-and-learn series. Kicking off on Kansas. If you know a young lawyer in your area who would October 9th, Professor Emily Grant will help us improve our enjoy planning local events and recruiting new members, let writing skills. On November 13, we’ll be learning from KA- me or your district Board of Governors representative know. LAP Executive Director Danielle Hall about “Getting Things We intend to expand socials and CLE offerings beyond the Done: Overcoming Stress and Managing Productivity.” In Topeka and Kansas City area to better engage and diversify the spring, we hope to host a virtual ethics trivia night with our membership in rural areas. Our section leadership is also cash prizes for the winning team and ethics CLE for all par- interested in nominating newer lawyers to other KBA boards. ticipants. We also hope to be able to offer our Sporting KC If you are interested in being nominated, or know an excep- CLE and enjoy catching a home game together. tional young lawyer who may accept a nomination, please let me know. Our publications team is developing a strategy to bring meaningful written content to our membership. If you are New board members are also innovating our existing pro- interested in contributing an article, or have ideas about how grams, adapting our programming and projects to our pri- best to publish content, please contact Morgan Geffre or marily virtual environment. Sarah Stula. Kate Butler and Crystal Ellison, our mock trial and ju- dicial externship program coordinators, are researching ways

Kate Butler Crystal Ellison Matt Huntsman Morgan Geffre Sarah Stula

www.ksbar.org | September/October 2020 11 young lawyers section president

we’re living in challenging times, I know that this group will be providing valuable content and services to our membership. I am feeling particularly hopeful about all we can accomplish and better days ahead, and hope you do too after reading all we have planned. I’m looking for- ward to working with a great board this year, and am thankful for the opportunity to contribute. n

Pablo Mose Rick Davis Mitch Josh Decker Biebighauser

Pablo Mose continues his work coordinating pro bono About the Author projects, including developing a handbook for lawyers re- Kate Marples Simpson is an associate at Stevens sponding to emergencies and disasters in Kansas. Let Pablo & Brand, L.L.P., in Lawrence. She previously know if you have ideas for other pro bono work our members clerked for the Hon. Carlos Murguia of the United could be doing in Kansas. States District Court for the District of Kansas in Kansas City, Kan., and for the Hon. K. Gary While being the ABA delegate is not as fun as it can be Sebelius for the U.S. District Court in Topeka. when we can travel, Josh Decker is still representing KBA Kate graduated from KU Law. She is president YLS members at ABA meetings. of the Federal Bar Association for the Districts of Kansas and Western Missouri, president of the Rick Davis, our president-elect, and Mitch Biebighauser, Judge Hugh Means American Inn of Court, and a immediate past president, continue to lead our group and member of the KBA Board of Publishers. In her free time, Kate enjoys contribute to our endeavors. gardening, hanging out with her husband Jon and their dog Scout, taking care of their 18 chickens, and ironman training. In writing this brief summary of the Section’s goals for this year, I noticed how often I wrote the word “hope.” While [email protected] Details coming soon!

PEOPLE PURPOSE PARTICIPATION Lawyers e KBA was formed for the following purposes: to Sections Judges uphold the constitutions of the United States and Committees Paralegals the state of Kansas; to advance the professionalism and legal skills of lawyers; to promote the interests Governance Law Proessors of the legal profession; to provide services to its Activities Law Students members; to advocate positions on law-related CLE Paralegal Students issues; to encourage public understanding of the Publications law; and to promote the e ective administration of our system of justice. 22 A MEMESH 22 12 The Journal of the Kansas Bar Association 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

“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!

www.ksbar.org | September/October 2020 13 The 2020 KBA Awards Phil Lewis Medal of Distinction

The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. The recipient need not be a member of the legal profession nor related to it, but the recipient’s service may include responsibility and honor within the legal profession. The award is only given in those years when it is determined that there is a worthy recipient.

Chief Justice (Ret.) Lawton R. Nuss Fol- His leadership was nationally featured in 2016 lowing service as a Marine Corps combat engi- in both The New Yorker magazine article titled neer and then KU law school, Nuss worked for “The Political War Against the Kansas Supreme 20 years as a trial attorney in his hometown of Court” and in a front page article of The New Salina, representing a range of plaintiffs and de- York Times. The Times noted that “Nuss . . . has fendants in all types of cases. emerged as a strong defender of judicial indepen- Nuss was appointed to the Supreme Court by dence.” His leadership of the judicial branch dur- Governor Bill Graves in August 2002, becom- ing challenging times was additionally highlighted ing the first justice in nearly 25 years to move as the cover story of The Journal, the official mag- directly from the practice of law to the Court. azine of the Kansas Leadership Center in Wichita. He began serving as Chief Justice in January 2010. For the At the invitation of their national organization, in 2019 next 10 years, he presided over the Court while it exercised Nuss presented a program to other states’ Chief Justices on general administrative authority over all courts in Kansas. “The Chief Justice’s Leadership and Policy Role.” He has This included supervising approximately 300 judges and also served, at the ABA’s request, as a panelist at several of 1500 employees and administering an annual budget of their annual meetings: first regarding attacks on judicial around $145 million. During his career he also helped de- independence, and last year on “Undermining the Courts.” cide 17,000 cases and wrote more than 300 decisions. Nuss retired in December 2019.

Professionalism Award

The Professionalism Award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession as identified by the KBA Hallmarks of the Profession.

Martha Coffman is General Counsel for the Kansas change back to the University of Kansas for her law Supreme Court Office of Judicial Administration. degree. While in law school, she participated in the She previously served as Chief Advisory Counsel to Paul E. Wilson Defender Project (now the Innocence the Kansas Corporation Commission and Director of Project) and served on the Kansas Law Review. the Kansas Court of Appeals Central Research Staff. Martha loves to travel, but will always return to Other legal experiences include serving as a research Kansas. She is a fifth generation Kansan, her ancestors attorney for Kansas Supreme Court Justice Donald having settled Douglas, Osage, Franklin, and Ford Allegrucci and as law clerk for United States District Counties. She lives in Douglas County with her Judge Earl E. O’Connor. These distinguished jurists husband, Patrick Curtiss, and their dog Finn. taught her how a decision in one case can impact the law. During the years she practiced in Lawrence, KS, Martha Having served on the KBA Awards Committee, Martha handled primarily criminal defense, family law, and whatever knows recipients previously receiving the Professionalism paid the bills. Award and is honored to be associated with them. As an attorney, she has always sought to advocate for her clients After completing her undergraduate degree at the University while treating everyone with respect and courtesy. To the of Kansas, Martha studied at the University of Pittsburgh, extent she has achieved that goal, she credits the example set PA, receiving a master’s degree in anthropology. She followed by her father, the Honorable Floyd H. Coffman. her interest in how cultures resolve conflict and adapt to

14 The Journal of the Kansas Bar Association The 2020 KBA Awards Distinguished Service Award

The Distinguished Service Award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient.

In 44 years of practice, Nick Badgerow has han- • Kansas State Board of Discipline for Attorneys dled a wide variety of lawsuits in state and federal (2000 - 2016) courts, trying more than fifty jury cases to verdict, • Chairman, Ethics 2000 Commission (2001 and representing corporations, governments, law- – 2002) yers, law firms, and judges. A partner with Spencer • Member, Kansas Supreme Court Commis- Fane LLP, he has served as a special master, media- sion on Professionalism (2010 -2013) tor and arbitrator, and has testified as an expert wit- • Chairman, Kansas Ethics 20/20 Commis- ness in more than 25 cases. Known for expertise in sion (2013) the areas of attorney ethics, professional responsi- • Chairman, KBA Ethics Advisory Opinion bility, and professional liability, Nick has published Committee (1997 - 2005) more than 70 bar journal and law review articles, • Chairman, Johnson County (Kansas) Bar As- presented nearly 200 seminars, is the editor and a co-author sociation Ethics and Grievance Committee 1989-2019). of the KBA Ethics Handbook, and is one of the authors of Nick has received the Kansas CLE Robert L. Gernon the KBA Employment Law Handbook. Nick has served in a Award (2011) and the KBA’s Outstanding Service Award number of positions, including: (1995 and 2009). • Kansas Judicial Council (1994 – 2018) In his non-professional life, Nick is an avid fox hunter, • Co-Chair, Civil Justice Reform Act Committee, United horseman, hiker, runner, reader, and is actively involved in States District Court – District of Kansas (1995 - 1998) the Boy Scouts of America. He and his wife of 44 years, • President, Earl E. O’Connor Inn of Court (1996 - 1997) Teresa, live in Prairie Village. Pillars of the Community Award The Pillars of the Community Award recognizes a Kansas lawyer with a minimum of 10 years active non-specialized, general legal practice in a predominately low-density population area of Kansas and substantial practice in small or solo law firms or local government service. Dennis Depew practiced for almost 32 years in program will provide full tuition and mandatory his hometown of Neodesha. Since May of 2015, fee scholarships for virtually all NHS graduates for Dennis has served as the Deputy Attorney General up to 120 credit hours. The program includes tradi- for Civil Litigation. He and his wife Shirley continue tional college, community college, vocational-tech- to maintain their primary residence in Neodesha be- nical programs, and other specialized training. Over cause of his civic and community involvement there. time, this program will contribute tens of millions of Son Derek is an Army JAG officer and son David is dollars to graduates of NHS. a graduate student at KU Engineering. • Secretary/Treasurer of the Griffith Family Charitable Dennis has held leadership positions in the KBA Foundation since 1989. He administers a scholarship and KBF for 15 years, serving as KBA President in program that offers all Neodesha High School gradu- 2013-14 and on numerous committees of both orga- ates a renewable scholarship to attend college, trade nizations. school or vocational-technical school. That program has award- ed over $2,000,000 in scholarships since its inception. Some of his local activities include: • Secretary of the Neodesha Community Foundation for over • 21 years on the Neodesha School Board and serving as Presi- 30 years. This group currently manages a $2,000,000+ en- dent of KASB. dowment for the benefit of Neodesha’s Main Street area. • Co-founder and president of the Neodesha High School • Managing trustee of the John C. “Bill” Reece Charitable Alumni Association Scholarship Fund since 1994, and help- Trust since 2005, making lead gift of $1,000,000 that enabled ing raise its $1,250,000 endowment. In 2019, the Fund an- the construction of the Wilson Medical Center in Neodesha. nounced the Neodesha Promise scholarship program. This www.ksbar.org | September/October 2020 15 2020 KBA Awards

Christel Marquardt Trailblazer Award

The Christel Marquardt Trailblazer Award, honors exceptional KBA members who break new ground, shatter glass ceilings or pave new paths for others to follow. The award is bestowed upon a member who has made innovative contributions to improve the legal pro- fession or our communities, exhibiting courage, leadership, professional excellence, and service to the profession in a manner that makes a substantial and positive impact on all those who follow in his or her footsteps. The Trailblazer Award will be given to a KBA member in years in which there is a worthy recipient.

Chief Justice Marla Luckert was appointed to Throughout her career, she has mentored women the Kansas Supreme Court in 2003 and became attorneys and high school students interested in legal chief justice in December 2019. She was the second careers. woman appointed to the court and is the second Luckert has served as president of the Kansas Bar woman to serve as chief justice. Association, the Kansas District Judges Association, Luckert was born in Goodland and received her and the Topeka Bar Association. She was a founding juris doctor and bachelor of arts degrees—both with member and president of the Sam A. Crow Inn of academic honors—from Washburn University. She Court, the Women Attorneys Association of Tope- served as an editor of the Washburn Law Journal ka, and the Kansas Women Attorneys Association. and received the faculty and alumni awards for best She has received distinguished service awards and student note. other awards from Washburn University, Washburn Univer- In 1980, Luckert joined Goodell, Stratton, Edmonds, and sity School of Law, and the Kansas and Topeka Bar Asso- Palmer in Topeka. There were few women in private prac- ciations; the Robert K. Weary Award from the Kansas Bar tice then, and in 1984, she was only the second woman to be Foundation; achievement awards from the Kansas and To- named a partner of the firm. peka Women Attorneys Association; the Hon. E. Newton In 1992, Luckert was appointed a judge of the 3rd Judicial Vickers Professionalism Award; and recognition by many District. In 2000, she became the first woman in Kansas to community organizations. be appointed a chief judge of a judicial district.

Courageous Judge Award

The Courageous Judge Award is given to a judge who has displayed exceptional courage in the face of adversity.

Honorable Julie A. Robinson was appointed ry’s Workplace Conduct Working Group and on the United States District Judge for the District of Kan- board of the Federal Judges Association. She chairs sas in 2001. She is the first African American ap- the Federal Judicial Center’s District Judge Bench- pointed to the federal district court in Kansas and book Committee. She is a past chair of the Court the second woman. Judge Robinson became Chief Administration and Case Management Committee Judge of her court in 2017, effectively becoming the of the Judicial Conference of the United States, a chief executive officer of the court, with responsibil- past Commissioner of the United States Supreme ity for the court’s operations and its 200 employees. Court Fellows and was involved in developing Stra- Judge Robinson was a U.S. Bankruptcy Judge tegic Plans for the federal judiciary in 2010 and 2015. from 1994 to 2001, the first female bankruptcy Locally she is the chair of the board of Healing judge in Kansas and the second African American female House of Kansas City, a faith-based recovery community, bankruptcy judge in the nation. For eleven years before that, and has served in a variety of capacities as a member of the she was an Assistant United States Attorney for the District of Church of the Resurrection United Methodist Church for 30 Kansas, litigating civil and criminal cases. years. She is also a proud alumna of KU Law School, where Judge Robinson has served the federal judiciary in a num- she served as chair of the Board of Governors, taught trial ber of capacities. She currently serves on the federal judicia- practice, and received the Distinguished Alumnus Award.

16 The Journal of the Kansas Bar Association 2020 KBA Awards

Distinguished Government Service Award

The Distinguished Government Service Award gives recognition to a Kansas judge or attorney who has demonstrated an extraordinary commitment to government service.

Following graduation from St. Benedict’s College the Research Department. He began teaching mu- (now Benedictine College) with a degree in English nicipal law as an adjunct professor at the law school literature and a timeout for the Marine Corps Re- in 1985 and has taught the class almost every year serve, Mike Heim was employed as a news reporter since. He began co-teaching the class with a friend, with the Topeka Capital-Journal. During his nearly Don Moler, in the late 1990s. He used his notes for three years as a reporter, he earned a master’s degree the local government law class as a basis for author- in public administration from the University of Kan- ing Kansas Local Government Law, a legal treatise, sas and joined the Kansas Army National Guard, first published in 1991 by the Kansas Bar Association eventually becoming an artillery officer/general’s and now in its sixth edition published by the League aide. of Kansas Municipalities. He has authored several He was employed by the Kansas Legislative Research De- law review articles, participated in a number of CLE partment where he worked for 34 years until he joined the programs and acted as a legal consultant and an expert wit- Revisor of Statutes office in 2006 where he currently works. ness on occasion. He has staffed multiple legislative committees while working He has been married to Linda for over 52 years; they have for the Kansas Legislature but has always staffed the local six children and 10 soon to be 11 grandchildren. government committees. He obtained a law degree, magna cum laude, from Washburn University School of Law in 1982 while working full-time for

Outstanding Young Lawyer Award

The Outstanding Young Lawyer Award is given annually to recognize the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA.

Lauren G. Hughes is a member of the Wise & Lauren practices in the areas of estate planning, Reber, L.C. law firm in McPherson, Kansas. She is a estate and trust administration, and business law. Texas native, having grown up in League City, Tex- She is currently Secretary/Treasurer of the KBA’s as. She received her Bachelor of Arts in both English Young Lawyers Section. Lauren previously served as and American Studies from the University of Kan- Co-Chair of the YLS Publication Committee, where sas in 2013 and her law degree from the University she helped spearhead the inaugural YLS Issue of the of Kansas School of Law in 2016. KBA Journal (Vol. 88, No. 9). She also serves as Co- While at KU Law, Lauren served as a Staff Edi- Chair for the Kansas Women Attorney’s Associa- tor for the Kansas Journal of Law & Public Policy tion Annual Conference. Lauren is a member of the and served on the Editorial Board as a Staff Articles McPherson, Wichita and Kansas Bar Associations. Editor. Lauren was elected as a Graduate Student Senator for She is also a member of the Kansas and Wichita Women At- KU’s Student Senate, volunteered with the Volunteer Income torneys Associations. Tax Assistance (VITA) Program, and served as a Gradu- Active locally, Lauren serves on the Board of Directors for ate Teaching Assistant for the undergraduate Business Law the McPherson County YMCA, the McPherson Public Li- course. brary, and is president-elect of the McPherson Chamber of Commerce.

www.ksbar.org | September/October 2020 17 2020 KBA Awards Diversity Award

The Diversity Award recognizes an individual who has shown a continued commitment to diversity; a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct, as well as by the development and implementation of diversity policies and strategic plans.

Deena Hyson Bailey, Senior Employment & La- her Board of Directors work with Dress for Success, bor Counsel at Cargill was nominated for the Di- Harbor House Women’s Shelter, Wichita Family versity Award for commitment to cultivate a diverse, Crisis Center (current President), to serving Wichita inclusive environment and promote the work of law- Women Attorneys Association (past President) and yers who are female, people of color, or LGBTQ. Kansas Women Attorneys Association (past Presi- Cargill, an agriculture company at heart, strives to dent), she has demonstrated a commitment to de- “intentionally drive change to create a more diverse veloping and ensuring opportunities for women. and inclusive environment that reflects the world Deena has received the Louise Maddox Attorney we feed.” Because a diversity commitment must be of Achievement Award from the WWAA and the practical, not just aspirational, Cargill Law tracks Jennie Mitchell Kellogg Attorney of Achievement not only the number of diverse lawyers assigned to its work, Award from the KWAA. To help women lawyers connect but also the time and substance of the work they perform. in formal or informal mentoring relationships, she created Deena starts all matter assignments with a discussion of as- a Mentoring Toolkit for KWAA. She also serves pro bono signing substantive work for diverse lawyers, including the at the Sedgwick County Protection from Abuse docket with development of diverse associates. Kansas Legal Services. Deena and her husband Rick have Deena was recognized for her long commitment to wom- three children, nine grandkids, several wonderful pets and en’s issues. From her work on Cargill’s Women’s Council, to they foster cats for a local rescue.

Outstanding Service Awards

The Outstanding Service Awards recognize service that significantly advances the administration of justice or the goals of the legal profession and/or the KBA.

Diana Carlin Pierron is professor emerita of of Kids Voting Kansas and Kids Voting USA. As vice communication and former associate provost at chair of the Kennedy Center’s President’s Advisory Saint Louis University. She was a professor of com- Committee on the Arts, she brought theatre produc- munication studies at the University of Kansas for tions to over 8000 Kansas students. She currently 24 years and dean of the graduate school and inter- serves as secretary of the Governing Board of Sister national programs for seven. Dr. Carlin served on Cities Lawrence which supports student exchanges to the advisory board for the Commission on Presi- Germany, Japan, and Greece and chairs club, district, dential Debates from 1987-2000 and created their and world Optimist oratorical contests. She is also DebateWatch voter education program which is 24 an active Rotarian. KU has recognized her with the years old. She advised several new democracies on Steeples Award for Service to the People of Kansas. developing political debates. Diana served as chair

Pat Donahue grew up in Emporia and lives in engineer. He is an alumni of Kansas Legal Services. Lawrence. He earned BA and MS at ESU (chemis- Pat writes and gives presentations on Social Security, try and physical science) and his JD from the Uni- veterans law, elder law and non-profit organizations. versity of Kansas (1979). He is admitted to practice He is the former chair (the first chair) of the KBA in Kansas and Colorado and their federal courts. He Elder Law Committee and the KBA Access to Justice is admitted to the Court of Appeals for Veteran’s Committee. He has served many years on the KBA Claims and to the US Supreme Court. He has over CLE Committee. He is a past recipient of the KBA 30 years of experience representing Social Security Outstanding Service Award (1984). Pat has served disability claimants, veterans, and senior citizens on boards of a number of non-profit and civic or- throughout the US. Pat started law school when he ganizations and he is a long-time active Boy Scout was 33 years old after serving as a soldier, teacher and Boeing leader. He served as an officer in the Marines in Vietnam.

18 The Journal of the Kansas Bar Association 2020 KBA Awards

Outstanding Service Awards (cont’d)

Hon. Kellie E. Hogan was sworn in as Sedgwick crimination, employment discrimination and hous- County District Court Judge on April 24, 2020. A ing discrimination. Wichita native, Judge Hogan earned her B.A. and Judge Hogan is proud of her professional service Juris Doctor degrees from the University of Kansas. through which she developed Regional Continuing Earlier in her career, Judge Hogan was the Assis- Legal Education for juvenile court attorneys, trained tant Managing Attorney at Kansas Legal Services. new CASA volunteers on the role of the guardian ad Her primary practice focused in the areas of Child litem, recruited and supervised law student volun- in Need of Care, Juvenile Offender, Guardianship, teers, mentored high school students, and authored and Adoption. Hogan regularly served as a mediator the Child in Need of Care chapter of the Kansas Bar in cases involving complaints filed with the Kansas Association Annual Survey of Kansas Law. Human Rights Commission alleging civil rights dis-

Karin Kirk was born and raised in Wichita and Sedgwick County Law Center, LLC and the Wesley attended Wichita State University. She began her E. Brown American Inn of Court. career in the legal community with the law firm During her career, Karin received a Wichita Bar of Foulston Siefkin LLP. She joined the staff of Association Distinguished Service Award and Presi- the Wichita Bar Association in 1986 and served in dent’s Award and has been chosen to receive the several different positions before being appointed 2020 Liberty Bell Award from the Wichita Bar As- executive director in 1998. In addition to being ex- sociation Young Lawyers Section. She is an Honor- ecutive director of the Wichita Bar Association, she ary Lifetime Member of the Kansas Bar Association. also served as executive director of the Wichita Bar Foundation, the Sedgwick County Law Library, the Karin has just recently retired.

William J. “Bill” Rich worked for two years tion to comparative analysis of the Hong Kong Bill with the Wichita Legal Aid Society, joined the of Rights, with ongoing work that includes annual Washburn faculty in 1977, and retired in June as the updates to his Modern Constitutional Law treatise. James R. Ahrens Professor of Constitutional Law. Other activities have included 19 years of work as For most of his 43 years at Washburn his teaching appointed counsel representing inmates challeng- responsibilities focused on constitutional law, ju- ing conditions in Kansas prisons, and more recent risprudence, and related courses. He also served as work with students from both Washburn and Free Associate Dean for Academic Affairs, Acting Dean University of Tbilisi drafting amicus briefs for the and Interim Dean. Primary scholarship topics have Constitutional Court of Georgia. ranged from prison reform and school desegrega-

Amanda Stanley is General Counsel at the League updated numerous publications relied on by cities. of Kansas Municipalities. Upon graduating from Amanda has served the Kansas judicial branch by The University of Kansas School of Law in 2014, serving on two Judicial Council panels. She is the she began her legal career as a clerk to Judge Kim current president of the State League Department of Schroeder. She then joined the League of Munici- the International Municipal Lawyers Association palities as a staff attorney and was soon promoted to Amanda has chaired the KBA Diversity Commit- General Counsel. Amanda has worked on countless tee for two years and has written numerous articles pieces of legislation to help cities. She has travelled for the KBA Journal. the state teaching classes for local officials, written an amicus brief for the Kansas Supreme Court, and

www.ksbar.org | September/October 2020 19 2020 KBA Awards

Pro Bono Awards

The Pro Bono Awards recognize lawyers or law firms that deliver direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations who primarily provide other services to the poor; Pro Bono Certificates are awarded to lawyers who: are not employed full time by an organization that primarily provides free legal services to the poor; with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that has no resources to employ paid counsel; have voluntarily contributed a significant portion of time to provide legal services to the poor without charge; and/or lawyers whose voluntary contributions have resulted in increased access to legal services for low– and moderate–income persons.

The Crawford County Bar Association’s goal is to help meet the professional needs of its member lawyers, advance the administration of justice, and serve the local area. The Bar has provided monthly lunches and CLE opportunities for attorneys to participate in. The Bar has become well known for its annual golf tournament and yearly banquet. A por- tion of the golf tournament proceeds help benefit the Child Exchange Center in Pittsburg, Kansas. The Bar has participated in local back-to-school drives with its members to help contribute school backpacks and supplies for local communities. Additionally, members have donated funds to purchase coats and Christmas presents for children and families. Most recently the Crawford County Bar Association and the Pittsburg Kansas Legal Service Office opened 102 expungement cases for 55 individual clients throughout 2019 for an expungement project. Ten attorneys volunteered, 31 expungements were completed and 21 are pending. Due to the work of the Bar, Pittsburg’s Mayor Dawn McNay declared February 11, 2020 as Crawford County Bar Association Day to thank participating lawyers for volunteering in the expungement drive.

The District Attorney’s Office of Wyandotte County staff are proud to earn the Pro Bono Award. D.A. Mark A. Dupree, Sr., leads an office of over 60 employees and manages a significant budget each fiscal year. D.A. Dupree and his team of employees are imple- menting strategic and visionary policies to expand the function of the Wyandotte County District Attorney’s Office. His administration has increased the felony trial conviction rate by 27%. D.A. Dupree has successfully created the first ever “Conviction Integrity Unit” in the state of Kansas, which is responsible for ensuring that convictions obtained previously still hold integrity today. His efforts for transforming the traditional manner in which District Attorney’s Offices have operated has been recognized nationally, with articles featured twice in the New York Times and interviewed on the nationally syndicated Roland Martin Show. Community involvement is the bedrock of the Dupree administration. It builds community trust, and that trust greatly assists in crime prevention and bringing justice. Mr. Dupree and his administration lead the way in speaking at schools, neighborhood watch meetings, church gatherings, and civic organizations. D.A. Dupree created the Brilliant Outstanding Leaders Determined to be the Difference (B.O.L.D.D) initiative. Assistant District Attorneys go into schools and work with high school students educating and exposing them to the legal process in a positive manner. Dupree is married to his law school sweetheart and former law partner, attorney Shanelle Dupree, and they have four beautiful and active children.

20 The Journal of the Kansas Bar Association 2020 KBA Awards

Pro Bono Certificates

Matt Ellis is Chief Counsel at Koch Companies Public Sector, LLC. Ellis along with Melissa Brown, Associate General Counsel, co-chair the companies’ Pro Bono Initiative launched in 2018. The Pro Bono Initiative’s vision is to use its legal resources to create opportunities for earned success among the least fortunate. The Initiative works with Kansas Legal Services to help improve lives—and by extension, our communities- through expungement drives and other pro bono efforts.

Joni Franklin has been practicing law in the Wichita area for 24 years. Her practice areas are primarily in artificial reproductive technology law, labor relations and workers compensation. Joni has dedicated a portion of her practice to pro bono representation on a regular basis, volunteering at the Sedgwick County Protection from Abuse Docket and Protection from Stalking Docket for over 23 years. She has volunteered as both an attorney and mediator on both of these dockets, and has worked closely with members of the public from all walks of life – but typically impoverished and underserved populations. She also leads continuing legal education presentations, providing these same pro bono ser- vices to her colleagues.

Cyd Gilman has spent almost 42 years representing indigent clients. After serving as a Legal Aid Society of Wichita lawyer for five years, she joined the Wichita Federal Public Defender Office in 1983, repre- senting indigent clients charged with federal crimes for 30 years. In 2013, she joined Foulston Siefkin in Wichita as Special Counsel, where she represents retained clients under federal criminal investigation and charges, and also accepts federal criminal appointments. Expecting to retire in the near future, she feels serving as the voice for the accused, powerless and poor has been the honor of her lifetime.

Tracy Spradlin is a partner at Spradlin Kennedy, LLC, a firm assisting those in both Missouri and Kansas with criminal and personal injury matters. Her passion for animal welfare, alongside her work as a criminal defense attorney, led her to the realization that oftentimes police budgets cannot accommodate protective gear for their service animals. Going To The Dogs is an organization that works with law enforcement on both sides of the state line to raise money for K9 bullet/stab-proof vests and equip police vehicles with necessary K9 gear. Tracy has served as legal counsel to the board, assisting with their legal formation as a non-profit and aiding their fundraising since 2014. To date, they have provided more than 20 vests to local agencies, with each vest costing approximately $1,000.00.

www.ksbar.org | September/October 2020 21 Honorary KBA Lifetime Member

Karla Whitaker

Karla Whitaker served as the Interim Executive Director of the Kansas Bar Association and Kansas Bar Foundation from January through July of 2020, returning to the Associa- tion after her work as a KBA staff member through the 1990s—as Media Relations and Marketing Director, CLE Director, and Associate Executive Director. Since her tenure at the KBA, Karla spent most of her professional career at Washburn University School of Law, serving as Director of Admissions recruiting new law students, then further at Washburn University Foundation as the Development Director for the Law School. In that role, Karla helped lead the campaign for a new law school building on campus in Topeka; construction is expected to begin next year. Karla has appreciated her time back at the KBA, with the opportunity to work again with longtime members, who are still actively involved with the Association, as well as newer lawyers who are leading the organization with new ideas and technology. No one could have foreseen the challenges awaiting the legal profession and the KBA, as the pandemic hit this spring. Karla worked with staff to establish a remote operation in mid- March and operated virtually through mid-June. At the same time, the KBA was providing valuable services to members, particularly free webinars for Kansas lawyers to provide infor- mation and resources for operating and funding their law offices in a new virtual environ- ment. The challenges continue, and Karla is pleased to help the KBA provide new online education and related resources for lawyers when they need it most. 2020 kba annual meeting

KBA’s Virtual Annual Meeting...Literally FABULOUS by Karla Whitaker

Participants in the first-ever Virtual 5K fundraiser for Kansas Bar Foundation charities.

he Kansas Bar Association celebrated its Annual Meet- ing in a very non-traditional way this year – with its From Attendees’ Evaluations— first Virtual Annual Meeting – due to safety concerns About the Unconscious Bias CLE: “Dionne was surroundingT the Coronavirus pandemic. The KBA reimag- incredible. Seriously one of the best and most engaging ined and rearranged the traditional format to focus on this CLEs I have ever taken.” historic year of celebrating voting rights as well as current and critical legal issues related to the pandemic. The two-day Court in Review on 2019 and 2020 cases and important elec- event on August 20-21, 2020, was attended by 160 registrants tion law cases. and received positive reviews. Throughout the program, Virtual Awards Presentations of From Attendees’ Evaluations— the 2020 KBA Award Recipients were featured. In addition to the eight hours of CLE, the meeting included a unique “This was the best virtual presentation I’ve attended! format in which KBA sections met. Via Zoom, all section I liked all the polls and participation!” members gathered in one “Zoom Room” then broke out into individual sessions to plan their activities for the year. The The conference celebrated the theme of “Voting Rights” and Kansas Bar Foundation sponsored a Virtual 5K during the featured programs especially relevant during an election year. Annual Meeting, with members and friends posting photos Kansas Governor Laura Kelly and Kansas Supreme Court of their “run” or related physical activity online during the Chief Justice Marla Luckert both addressed the conference meeting. The event raised nearly $1,000 for KBF charities. live from their offices. Additionally, nationally recognized The 2020 Annual Meeting was originally scheduled for election law attorneys Jason Kaune (with Nielsen Marksamer mid-June in Wichita but had to be cancelled due to the pan- in San Rafael, CA) and Jacqueline DeLeon (with the Native demic. There also had been hopes of moving the meeting to American Rights Fund in Boulder, CO) discussed legal the fall to be conducted in tandem with the Fall Judicial Con- issues arising from the administration of the 2020 election ference; however, continued health risks forced cancellation during the pandemic. The conference also recognized the of those live events as well. n 150th anniversary of the 15th Amendment and the 100th anniversary of the 19th Amendment to the U.S. Constitution From Attendees’ Evaluations— as Dr. Diana Carlin and Judge J.G. Pierron explored the relationship between the changes to suffrage that have About Jason & Jacqueline’s CLE: “I learned a lot about guaranteed access to the ballot today. the difficulties that Native American tribal members A special program on unconscious bias and how to create a and lower income people have with voting, both by more conscious legal organization was given by Kansas City mail and in person. Also, the importance of knowing consultant Dionne King. Two hours of entertaining ethical the rules and laws so that the legal community can instruction were also on the agenda, as was the U.S. Supreme help assure fair and open access and voting.”

www.ksbar.org | September/October 2020 23 a nostalgic touch

The long good-bye: packing up the final family treasure

by Matt Keenan

The solitary piece of furniture at the family home: the Kimball.

he final chapter of saying goodbye to a parent is not Dialing child services … the funeral. Nor is it sorting through the clothes and The house was finished in September 1968. The ages of the divvying up the photos, the letters—or in my Dad’s young occupants: Kate 12, Tim 10, Matt 8, Marty 7 and case,T the bottles of Pinot Noir in his wine cellar. The final act Beth 6 months. is selling your parents’ house. And if that house is where you spent all of your formative years and remained central to your That home and the adjoining attractive nuisance brought life in the years post college, then it is a home. adventures beyond anything Larry and Ramona could have probably imagined. In the early morning of May 11, 1971, So it was with a four bedroom, three-bathroom house at for instance, Tim tugged on the backyard trotline and when 3616 17th street in Great Bend. something tugged back, he climbed in the boat and hauled The story goes that Dad purchased the two-acre vacant lot a state record fish – 34 pounds 8 ounces. Something called a in 1967 from the previous owner, an insurance executive in buffalo head. A very rare species that, locals told us, flourished town. A man, it seems, who was allergic to risks. The kind in very deep waters. After weighing that fish in the Dillon’s that come with a dwelling to be constructed on a body of wa- meat department (the health inspectors were AOL), the State ter known as a sand pit. McKinney Sandpit to be precise, on Fish and Game officials placed it in a special tank and took the northwest edge of the city limits. The origin of the pit was it to their headquarters in Pratt. If you happened to attend never fully known, but dad said it was the product of large the Kansas State Fair in September 1971, and your sister got cranes digging halfway to China. scared when saw a huge creature -- yeah, that was Tim’s fish. The true depth of the pit? Not known. The creatures swim- But as time wore on, it turned out that the centerpiece of ming at the bottom? Not knowable. There were claims the our home wasn’t the sand pit or even the beauty of the sloping water would swirl and could pull down the most experienced backyard boasting fifty-year-old cottonwood trees. Instead, it swimmer. So naturally any parent wanting to build a house on was in the great room, with vaulted ceilings, expansive win- that lot with a family of five toddlers prone to misadventure? dows overlooking the lake to the north. In the northwest cor- ner of that room was a grand piano. A Kimball.

24 The Journal of the Kansas Bar Association a nostalgic touch

Mom was an accomplished pianist. In our inventory of With the ben- things my parents had kept in the basement, we recently efit of a couple found newspaper stories from Mom’s hometown newspaper YouTube videos, it in Kingman describing a solo piano concert at age 10. At KU, happened. Decon- she was a music education major, and in our town, she was structed, strapped one of a few who played the organ at St. Patrick’s for masses against the back and special occasions. wall of the truck, Mom also accompanied many singers in recitals and musi- wads of twenties cal productions at the local Junior College. She played classi- dispensed, mission cal music by ear. accomplished. Often, when we burst in the front door from school, Mom I stayed the would be playing away. One tradition was on St. Patrick’s night at the Day, we would gather around and start with “Oh Danny Holiday Inn, and Boy” and transition to “When Irish Eyes Are Smiling.” Dad began the drive would start calling his siblings (there were many, remember, back the next Irish?) and then work his way down the phone book. If your day. April 18th phone didn’t ring on March 17, your last name must fall was an overcast somewhere below L. and blustery day. The entire world Mom passed away in June 2002, but the piano never got seemed to be lonely. On trips out to see Dad, my daughter Maggie would falling apart. I-70 Ramona Keenan playing the family grand piano. sit before Dad and channel Ramona, playing “Pride and Prej- was devoid of cars udice” with an audience of three. Marty’s son, Tyler was an as far as one could see. I listened to Sirius XM’s 70’s on 7 even better pianist and occupied that bench many times. on my phone, with the parade of songs I once listened to on But when Dad passed, we decided it was time to close this Mom’s RCA radio. My wife had her intuition and called in chapter. And with the possessions divided, donated or sold, the reinforcements. That is when my phone started to ping there was only thing left in the house. with calls from the children. We talked about the shared memories of Ramona and Larry, that home, the sand pit, the The Kimball. trotlines, the fireworks, the sein nets, carp, flathead, bass and Lori and I had negotiated with my siblings for it. perch. And yes, the music. So on Friday, April 17th, I arrived at the U-Haul off I-35 Today, the Kimball has started a new chapter on the east in Lenexa. The state of the world in April was bleak. Life was side of the state as we make plans to get her back to another virtually cancelled. I surveyed my travel companion. It was Keenan home—Maggie’s. industrial. I climbed in. My knees were perched just below my nose. Hell was more comfortable. No matter. I was on a mission from Larry. Get the piano, bring it back and give it Life is like a piano; the white keys represent happiness and the company. black show sadness. But as you go through life’s journey, remem- ber that the black keys also create music. Four hours later, I opened the front door on 17th street. Author unknown Across the room was the only thing remaining. The tears streaked across my face. An accumulation of fifty years of life raced through my mind. This was it. After a couple minutes, the tears slowed and another emo- tion hit me. Panic. The notion of moving a 500-pound keep- sake from A to B became reality. Ever tried to find a piano About the Author mover in a small town during a pandemic? Didn’t think so. Matthew Keenan has practiced with Shook, Multiple calls two weeks in advance got nowhere. So Brother Hardy & Bacon LLP, Kansas City, Mo., since 1985. Tim had a plan B – he assembled a group of three ‘volunteers’ plus Tim, me and another AARP member. You have heard [email protected] of three men and a truck? This was three boys and a bad U- Haul.

www.ksbar.org | September/October 2020 25 substance and style

Accounting for Cognitive Bias in Legal Reasoning: Part 2

by Pamela Keller Cognitive Bias

n one of my previous columns, I wrote about cognitive A cognitive bias can be described as a natural tendency our bias and how to account for it in your advocacy.1 This col- brains have — or a mental shortcut our brains tend to take — umn continues with the topic of cognitive bias and how when we process and interpret information.3 Much research Ithese mental shortcuts can affect our legal reasoning. has shown that our brains routinely use mental shortcuts Our work as lawyers requires us to draw reasonable to simulate the results of logical reasoning, saving time and inferences from specific facts and the application of law to reducing cognitive load.4 The shortcuts are helpful because fact. To help students develop this skill, we teach them to they allow us to operate without expending valuable mental recognize the difference between facts, factual inferences, and resources, but if we are not careful, they can lead to flawed legal inferences and to objectively examine those inferences reasoning. to determine their reliability and strength. The process of A few cognitive biases that can operate when drawing fac- drawing factual and legal inferences eventually becomes tual and legal inferences are: second nature. Availability: Our brains make judgments about how But sometimes when a process becomes second nature, we likely something is based on how easily examples come can rely too much on instinct and past experience. When to us.5 An example is more easily “available” to our we do, cognitive biases can infect our reasoning. Studies of brain if we have encountered it more frequently or if it judges have shown that cognitive bias can affect the reason- was more memorable in some way (had more personal ing of even the most experienced and thoughtful lawyers.2 impact, for example).6 The information that is more Thus all lawyers, not just lawyers-in-training, must check available will be influenced by our direct experiences, their inferential reasoning to make sure inferences are strong exposure to information (through stories, books, mov- and sound, and to make sure cognitive biases do not lead to ies, media, culture, etc.), and individual memories.7 For unreliable conclusions. example, drug advertising that a person remembers can

26 The Journal of the Kansas Bar Association substance and style

affect that person’s perception about how prevalent an formed, irrational, or biased. This can create overcon- illness is, and a physician’s recent experience of a condi- fidence that our reasoning reflects what most others tion has been shown to increase the likelihood of the would also conclude.21 physician subsequently diagnosing the condition.8 The good news is that, as lawyers, we are already trained to Representativeness: Representativeness is a cognitive examine the strengths of our own inferences. Thus, we should shortcut that causes us to infer a specific example is be more effective than most at countering cognitive biases more representative of a larger category than it actu- and at helping ourselves and others see the flaws in reasoning. ally is or to draw inferences or estimate the likelihood The following are a few tips to check your own reasoning and of something based on its similarity to a prototype or interrupt cognitive bias. stereotype in our mind.9 The shortcut is at work when, Be open to the existence and influence of cognitive for example, a consumer infers a relatively high product biases.22 Remember that these biases are actions our quality from a generic brand because its packaging is brains take reflexively and unintentionally, so don’t be designed to resemble a more popular national brand, or defensive about having them. Approach the process of when a person infers that a very cold winter is indica- 23 10 drawing inferences with great humility. Despite our tive of the absence of global warming. The bias can best intentions, these mental shortcuts can be work- make us conclude, for example, that a man who seems ing away to provide our mind with information that is generally quiet, wears glasses, and likes soft music is skewed by our individual experiences.24 Simply being more likely a librarian than a construction worker, even open to the ways in which cognitive bias shapes your though male construction workers outnumber librar- thinking will empower you to decrease its influence.25 ians in the population 10:1.11 The effects of this short- 26 cut, like the effects of availability, will also depend on Actively doubt your own objectivity. If you actively our direct experiences and exposure to information doubt your objectivity, you will be more likely to exam- over time. ine your own inferences and determine their strength. Examine the facts and assumptions on which you Affect: This cognitive shortcut leads us to make infer- 12 base your inferences. In doing so, you will engage in ences that are consistent with our emotions (affect is deliberative thought and minimize the effects of these a psychological term for emotional response). The sys- shortcuts and your own intuitions. Pause before mak- tems in our brain responsible for rational thought do ing a quick decision or relying on a snap judgment, and not function without some input from the brain sys- search for indicia of cognitive bias.27 tems responsible for emotion.13 Thus, once we have an emotional reaction to a story or a case theory, our brains Pay attention to surprise and ask yourself why you 28 will have a tendency to draw inferences and reach re- were surprised. Surprise is your brain’s way of tell- sults consistent with those emotional reactions.14 Also, ing you that something you reflexively inferred is not 29 if left unchecked, emotions can lead us to see people we aligning with reality. Impressions formed by cognitive 30 like as having positive qualities and people we don’t like biases are challenged by real-world data every day. If as having negative qualities.15 you take a moment to pay attention to what surprised you, and ask yourself why you were surprised, you may Confirmation: Our brains favor ideas that confirm 16 identify a cognitive bias at work and interrupt it in the our existing beliefs and what we think we know. Cog- future.31 nitive science suggests that even when we create an im- pression on fairly thin evidence, we are motivated to Deliberately expose yourself to and consciously look 32 view additional information through the lens of that for counter-stereotypes or prototypes. Changing first impression.17 When we discover evidence that sup- the underlying assumptions that form the basis of un- 33 ports our desired conclusions, we more readily accept it.18 conscious bias is key to overcoming it. Be more con- When we discover information that challenges that hy- sciously aware of individuals in counter-stereotypical pothesis or impression, our brains work harder to refute roles. And pay more attention to situations or outcomes it.19 As lawyers, we are reaching tentative conclusions all that run counter to a typical pattern or “prototype” in the time, so we must acknowledge this bias can affect the your past experience. inferences we draw from subsequent information. These are not the only cognitive biases that can affect our False consensus effect: We tend to overestimate the legal reasoning, and more strategies can be employed to com- degree to which others agree with our beliefs.20 We bat them. But this information is a start. Consult the articles have a tendency to believe that we see the world around cited in the endnotes of this column if you would like to learn us objectively and that those who disagree are unin- more. n

www.ksbar.org | September/October 2020 27 substance and style 1. Substance & Style: Accounting for Cognitive Bias in your Legal Reason- in Recently Hotly Contested U.S. Supreme Court Decisions, 49 Ind. L. Rev. ing and Writing, 88 (No. 9) J. Kan. Bar Ass’n 26 (July/Aug. 2019). 397, 405-07 & n. 59 (2016) (citing Ziva Kunda, Social Cognition: Mak- 2. See Elizabeth Thornburg, Unconscious Judging, 76 Wash. & Lee L. ing Sense of People 228-232 (Mass. Inst. of Tech. Press 1999) and other Rev. 1567, 1571-72, 1615-21 & n. 253 (2019). sources). 3. These mental shortcuts are also called heuristics. See id. at 1609-13. 18. See Id. at 405 & n. 59; Wistrich, supra note 13, at 870. 4. Lawrence M. Solan, Four Reasons to Teach Psychology to Legal 19. Id. Writing Students, 22 J.L. & Pol’y 7, 7 (2013) (citing Amos Tversky & 20. Thornburg, supra note 2, at 1614-15. Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 21. Id. 185 Science 1124 (1974)). The article cites the distinguished work of 22. Arin N. Reeves, The Ineffectiveness of Efficiency: Interrupting Cogni- Daniel Kahneman, a psychologist and Princeton University professor tive Biases for Critical Thought, 54 (No. 4) Judges’ J. 34, 35-36 (Fall 2015). awarded the Nobel Prize in 2002. 23. See Thornburg, supra note 2, at 1664. 5. Thornburg, supra note 2, at 1610. 24. Id. 6. Id. 25. Reeves, supra note 22, at 35-36. 7. Id. 26. Kathleen Nalty, Strategies for Confronting Unconscious Bias, 45 8. Availability Heuristic, Behavioral Economics (July 27, 2020), https:// Colo. Law. 45, 48 (May 2016). www.behavioraleconomics.com/resources/mini-encyclopedia-of-be/avail- 27. Id. ability-heuristic/ 28. Reeves, supra note 22, at 36. 9. Thornburg, supra note 2, at 1610. 29. Id. 10. Representativeness Heuristic, Behavioral Economics (July 27, 2020), 30. Id. https://www.behavioraleconomics.com/resources/mini-encyclopedia-of- 31. Id. be/representativeness-heuristic/ 32. Nalty, supra note 26, at 48. 11. Id. 33. Id. 12. Thornburg, supra note 2, at 1612. 13. Kenneth D. Chestek, Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of Negativity Bias, 14 Legal Comm. & Rheto- About the Author ric: JALWD 1, 3-5 (2017); Wistrich et al., Heart v. Head: Do Judges Fol- low the Law or Follow Their Feelings?, 93 Tex. L. Rev. 855, 902 & n. 222 Pamela Keller is a clinical professor at the (2015). University of Kansas School of Law. She directs 14. Researchers concluded that motivated reasoning was likely at play the lawyering skills program, moot court, and when their study showed judges favored sympathetic parties over unsym- the judicial field placement. Before teaching pathetic ones. See Wistrich et al., supra note 13, at 902 & n. 222. she practiced employment law with Ice Miller 15. Thornburg, supra note 2, at 1612. in Indianapolis and clerked for the Hon. John 16. Id. at 1611-12. W. Lungstrum, U. S. District Court of Kansas. 17. See Maureen Johnson, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed [email protected] Growing Our Experience to Better Serve You Goodell Stratton Edmonds & Palmer is pleased to announce that Tracy A. Cole has joined the firm. Ms. Cole was previously a member in the Hutchinson office of Gilliland Green. Over her 30-plus-year career as a lawyer, Ms. Cole has developed an active statewide litigation practice that focuses on defending medical providers in both the courtroom and before licensing authorities. Her practice also includes Administrative Law, Civil Litigation, and Insurance and Personal Injury Defense. Ms. Cole received a B.S. with double major in Accounting and Business Administration in 1980, and her J.D. in 1989, from the University of Kansas. Tracy A. Cole

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www.ksbar.org | September/October 2020 29 Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law hile researching this article, its author encountered this grace note in an unpub- lished Kansas appellate opinion: “Apart from acquiescence, this case presents a civil procedure quagmire. Unless absolutely necessary, I don’t venture into quag- Wmires, especially civil procedure ones. In this case, it isn’t. So I won’t.”1 There are murkier legal concepts than the doctrine of acquiescence in judgments. Yet the doctrine nonetheless presents what could fairly be called a civil procedure quagmire. First, the signposts are sometimes difficult to read. (In a few cases, they have almost been swallowed up.) Second, falling in is fatal (at least to the right to appeal from a judgment). So—let us venture forth. INTRODUCTION Here is a refresher on appeal basics and appellate terminology. An appeal is the transfer of the power to decide a civil or criminal case from a lower court or other tribunal to a higher court. “The right to appeal is purely statutory[.]”2 Kansas statutes provide for appeals to Kansas’ highest court, the Kansas Supreme Court, and to its intermediate appellate court, the Kansas Court of Appeals.3 Statutes specify those types of cases in which each of Kansas’ appellate courts has jurisdiction: the lawful power to decide the case. Generally, appeals are limited to questions of law, and may be brought only when the lower tribunal has issued a judgment or other final order.4 Perhaps the most important limit on jurisdiction is the deadline (generally thirty days) for filing a notice of appeal.5 Kansas’ appellate courts have interpreted this deadline as jurisdic- tional; that is, if the notice of appeal was filed untimely, the appellate courts lack jurisdiction to hear the case.6 Theappellant is the first party to file a notice of appeal. All the other parties to the case are appellees. Appellees also become cross-appellants if they file their own notices of appeal. (Such second-or-subsequent notices of appeal in a case are “notices of cross-appeal.”)7 SUMMARY OF ARTICLE To acquiesce in a judgment means to treat it as valid and binding by accepting its benefits or its burdens. One acts inconsistently by both a) acquiescing in a judgment and b) appealing from it. The acquiescence trumps the appeal; that is, the courts dismiss the appeal of one who acts with such inconsistency. (In fact, the appellate courts hold that they have no jurisdiction to hear the appeal of the acquiescing party.) This is “the acquiescence doctrine” or, in much of this article, simply “acquiescence.” Though it can deprive an appellate court of the jurisdiction that it would otherwise have, the acquiescence doctrine is not based upon the constitutional rule that courts are to decide only “cases or controversies.” “Acquiescence” should, therefore, not be confused with “mootness.” avoiding a quagmire: acquiescence in a judgment as a bar to appeal

The acquiescence doctrine is similar or related to many payment will be “voluntary,” and the acquiescence doctrine other rules. Further, the terminology used in such cases is in- will bar the appeal. consistent; especially in older cases, the acquiescence doctrine According to some Kansas cases, the creditor’s seizing mon- was often applied without being named as such. ey from the debtor or a garnishee can constitute an appeal- Kansas’s legislature has by statute exempted certain acts barring “voluntary” payment if the judgment debtor does not from the acquiescence doctrine. fight hard enough to prevent the collection. Kansas was long thought to be much likelier to find acqui- There is also a “self-protection” exception to the doctrine escence than most states. Whether this is still true is unclear. of acquiescence. Traditionally, this exception applied to the Some of Kansas’s appellate opinions on the acquiescence actions of defeated parties who gave the judgment only such doctrine may be impossible to reconcile with one another. A “recognition” as was necessary to protect the appellant’s prop- principled reconciliation of all the Kansas acquiescence opin- erty from the effect of a judgment obtained by someone else ions would challenge the acumen of a medieval theologian, (such as a mortgage foreclosure). and is beyond this author’s powers or audacity. Whether the “self-protection” exception now extends be- Some Kansas appellate opinions have said that an acquies- yond its traditional boundaries is unclear. In 2010, one Kan- cence is simply an implied waiver, thus using language that, sas panel of the Kansas Court of Appeals held that for a judg- taken in isolation, suggests that acquiescence occurs only if ment creditor to hale the judgment debtor into court for a the appellant intended to waive the right to appeal. But that hearing in aid of execution constituted acquiescence, not self- interpretation of such language is inconsistent with many protection. Shortly thereafter, another court of appeals panel Kansas appellate opinions. That is, Kansas courts have often criticized the first and held that, when the judgment creditor found acquiescence even when the appellant timely, clearly, filed a garnishment with the self-protective goal of inducing and consistently stated the intent to hold onto the right to the appealing judgment debtor to file a bond, there was no appeal. (Acquiescence of course has the effect of an “implied acquiescence so long as the garnishment yielded no money. waiver” of the right to appeal. But this “waiver” is usually a Pre-judgment “acquiescence” is not covered waiver implied in law, to which an intent to give up appeal This article will not discuss cases in which the “acquies- rights is unnecessary.) cence” occurs before judgment, such as by failing to object There are two main common-law quasi-exceptions to the timely to the court’s admitting evidence or by complying with acquiescence doctrine: separability and coercion. In the first what would now be a non-appealable interlocutory order.8 case, the plea is “I only acquiesced in a part of the judgment that couldn’t be affected by my appeal no matter what.” In ACQUIESCENCE PRESENTS JURISDICTIONAL the second case, the plea amounts to “I did not acquiescence QUESTION in the judgment, because I was forced to ‘do’ what I ‘did’.” These could be called “quasi-exceptions” because in both “Whether a party has acquiesced involves a question of this court’s jurisdiction and is a question of law subject to unlim- cases, the litigant has not acquiesced in that judgment that is 9 being appealed. ited review.” Since the question of acquiescence is jurisdic- tional, appellate courts can and do raise it sua sponte.10 Under the doctrine of separability, if a single judgment con- cerns two or more essentially distinct matters, acquiescing in ORIGIN OF THE ACQUIESCENCE DOCTRINE the judgment about one of the matters will not destroy the Acquiescence—as name suggests, creates peace; related right to appeal from the rest of the judgment. A judgment is to finality of judgments “separable” if the appellate court could theoretically overturn the part being appealed while leaving the rest intact. Under “Webster’s New International Dictionary defines acquies- that doctrine, a plaintiff’s mere acceptance of an amount that cence as: ‘Passive compliance or satisfaction: distinguished was concededly owed to it in all events does not constitute an from avowed consent on the one hand, and, on the other, acquiescence. from opposition or open discontent.’”11 More generally, an Under the “coercion” exception, making a payment on a “acquiescence” is a choice not to dispute something that one judgment debt does not constitute acquiescence if the pay- would have had the right to dispute. ment is “involuntary.” A payment is “involuntary” if not In relation to the judgments of courts, “acquiescence” oc- making the payment would result sufficiently soon in conse- curs when a litigant does something that the courts hold to quences that are sufficiently unpleasant. The difficulty lies in constitute a binding recognition that a judgment has become deciding how unpleasant the threatened consequences must final, that is, non-appealable.12 In acquiescing in a judgment, be, and how close the threat is to becoming realized. If the the one who acquiesces gives up a right to do something (spe- threat is too remote, or is not unpleasant enough, then the cifically, filing an appeal to a higher court) that would prevent a

32 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

lower court judgment from immediately resolving the litigated cided that the parties appealing from adverse judgments had dispute. assumed inconsistent attitudes respecting them.”18 “The doctrine of acquiescence prevents a party from taking Note, however, that this is an unusual “estoppel,” which the inconsistent positions of challenging a judgment through can arise without consideration to or detrimental reliance by, an appeal and accepting the burdens or benefits of that judg- the other party.19 ment.”13 (The forbidden inconsistency is not to be confused with inconsistency in a pleading, which Kansas’ Code of Civ- It is true that [the appealing party] . . . obeyed no ex- il Procedure expressly permits.14) press command of the probate court, and he took no benefits under the judgment of that court, for it gave The acquiescence doctrine applies to both civil and crimi- 15 him none; but neither of these facts is essential to an nal cases. estoppel. It is sufficient that he yielded to the state’s The acquiescence doctrine seems to be—and is treated contention and to the judgment adverse to him and as — simply a matter of common sense undertook to obtain the land in a manner incompatible 20 Older cases treat the doctrine of acquiescence as little more with the maintenance of his former attitude. than a self-evident and reasonable expectation that litigants In connection with the acquiescence doctrine, it makes exhibit the consistency that is fundamental to rational human sense briefly to distinguish some of the many estoppel doc- behavior. trines that are related to and/or confusable with acquiescence. “‘Accepting the fruits of a judgment and thereafter ap- Quasi-estoppel pealing therefrom are totally inconsistent positions, and In a case of “quasi-estoppel, “the conscience of a court is re- the election to pursue one course is deemed an aban- pelled by the assertion of rights inconsistent with a litigant’s donment of the other.’”16 past conduct.”21 Though it perhaps could be, the “conscience Without using the term “acquiescence,” an old Kansas case of the court” is not ordinarily mentioned in acquiescence cases. states the doctrine eloquently. Judicial estoppel A party who complains of a judgment must be consistent The term “judicial estoppel” refers to statements that the in his conduct with reference to it. If he recognizes its litigant made in prior litigation. Despite the use of “judicial” validity, he will not be heard to say that it is invalid. And in the doctrine’s name, therefore, it has little to do with ac- surely there can be no clearer recognition of a judgment quiescence.22 than is shown here. He claimed title. The court found Election of remedies against his title, but decreed him money. He says there was error in decreeing him money instead of title, and In the principle behind it, the doctrine of “election of rem- then voluntarily receives the money. The two are incon- edies” has much in common with the acquiescence doctrine; in both cases, parties are barred from assuming inconsistent sistent, and, having received the money, he will not now 23 be permitted to say there was error in giving it to him.17 positions. With acquiescence, however, the inconsistency specifically consists of inconsistent attitudes taken toward a The courts, in fact, treated the acquiescence doctrine as judgment already entered in the case. so self-evident that there seems to be no “leading case” for A cloud of estoppels it. Many early cases apply the doctrine while citing no prec- edents at all. The principles of various estoppel doctrines overlap. This (perhaps) creates problems for taxonomy, but not for justice. IDENTIFYING THE ACQUIESCENCE DOCTRINE BY OTHER TERMS. In fact it is often impossible to distinguish clearly be- tween such estoppels, and the courts in many instances The courts have not always used the term “acquiescence use the term ‘acquiescence’ as covering or including all in judgment” to identify the doctrine. The most frequently the others. . . . As indicated, whether the appellees’ con- used of the (several) other terms seem to be “estoppel” and duct be designated as laches, silence, waiver or acquies- “waiver.” (“Waiver” is discussed below, especially in connec- cence, we hold they are estopped to change their posi- tion with the “self-protection” exception.) tion and disrupt the orders and decisions of the probate court in the administration of the decedent’s estate[.]24 Estoppel Kansas courts have often said that acquiescence in a judg- ACQUIESCENCE DISTINGUISHED FROM ment creates an “estoppel” that bars the appeal of the one who MOOTNESS has acquiesced. “In the [several listed Kansas] cases, which The Supreme Court of Montana has elucidated the distinc- present the question of estoppel in various ways, it was de- tion between the acquiescence and mootness doctrines.

www.ksbar.org | September/October 2020 33 avoiding a quagmire: acquiescence in a judgment as a bar to appeal

[V]oluntariness bears on the question whether the ap- of acquiescence in a judgment cuts off the right of appellate pellant has waived his or her right of appeal, but has no review[.]”34 Though Kansas opinions had indeed repeatedly bearing on the question of mootness. The fact that the held that acquiescence barred particular attempts to appeal, it appellant has voluntarily complied with the judgment was the quoted case, Paulsen v. McCormack, that was Kansas’s does not necessarily mean the appeal is moot. Likewise, first appellate opinion on acquiescence to use the vivid “savors the fact that the appellant has involuntarily complied of acquiescence” phrase. with the judgment does not necessarily mean the appeal This article’s author cannot discover where, if anywhere, is still ‘live.’ Rather, in deciding whether the appeal is the Paulsen opinion’s author found the phrase. Though the moot, the issue is ‘whether this Court can fashion effec- 25 acquiescence doctrine in some form seems to be ubiquitous, tive relief.’ in the available state and federal court acquiescence opinions The mootness doctrine “derives directly from the case-or- the “savors of acquiescence” phrase appears only in Kansas controversy limitation” on courts’ jurisdiction. “‘Any decision opinions or in reference to Kansas opinions. on the merits of a moot case or issue would be an impermis- Despite its vividness, “savors of acquiescence” at first glance sible advisory opinion.’”26 (or first taste?) lacks a clear meaning. Does the phrase imply Our state’s appellate courts have also recognized the dis- that acquiescence is to be found whenever a lawyer makes, in tinction between acquiescence and mootness. For instance, good faith, an argument that the opponent has acquiesced the Kansas Court of Appeals ruled that the judgment debtor’s (because the very raising of the question means that the savor failure to prevent the filing of a post-judgment garnishment is present to a lawyer with a sensitive-enough palate)? Does did not constitute an acquiescence, but that the payment-in- it imply that, in close cases, acquiescence should always be found? These interpretations are inconsistent with a number full of the judgment by means of the garnishment had ren- 35 dered the action moot.27 (Kansas’ appellate opinions have of Kansas cases. For instance, Younger v. Mitchell provides however sometimes implied that the relevant doctrine was striking proof that colorable arguments for finding acquies- “mootness” when they meant “acquiescence.”)28 cence are sometimes ultimately rejected. In Younger, the Kan- sas Supreme Court overruled the Kansas Court of Appeals’ KANSAS’S “DIFFERENT DRUMMER” ON sua sponte finding of acquiescence. ACQUIESCENCE This article’s author believes that the “savors of acquies- cence” phrase means that, in Kansas law, it is imperative for Kansas’s courts were long thought to be unusually rigorous litigants to act with consistency with respect to judgments, in their willingness to find that acquiescence had occurred. and that serious inconsistency merits a severe consequence Sometimes our appellate courts seemed proud of this. “Kan- (the loss of the right to appeal from the judgment). But the sas has long followed a ‘different drummer’ than the majority phrase is of little help to a lawyer who is trying to figure out of states concerning acquiescence. The choice to treat acqui- just what conduct constitutes acquiescence in a judgment escence differently than most states was knowingly and de- and what does not. “It tastes like acquiescence to me” hardly liberately made early in the case law of this state.”29 An early amounts to an argument, and it seems that litigants are en- Kansas Supreme Court case said, “In applying this [acquies- titled to a reasoned argument when something as important cence] rule less liberality of conduct has been permitted to as the right to appeal is at issue. appellants than many other courts of last resort are disposed to allow when dealing with the same subject[.]”30 With that said, it seems that, in Almack v. Steeley36 (dis- cussed below), the Kansas Court of Appeals’ decision depend- For instance, Kansas’s acquiescence law was thought harsh ed on the “savors of acquiescence” formula— that the phrase in holding (before being statutorily preempted)31 that the tipped the scales to a finding of acquiescence. Almack’s“ ac- mere payment of court costs constituted acquiescence. But tions in this case savor of acquiescence.”37 the Kansas Supreme Court rather defiantly implied that, if it were as easy to get a stay of judgment enforcement during an Recent “savors of acquiescence” cases from the Kansas appeal in other states as it was in Kansas, those states’ courts Supreme Court 32 would apply the same rule. The Kansas Supreme Court most recently used the “savors The Kansas Court of Appeals has also said recently, how- of acquiescence” phrase in the 2009 Harsch v. Miller38 case. ever, that “[o]ur Supreme Court has approached acquiescence The opinion suggested that the failure to object to an interloc- with caution,” and that “‘whether a payment is voluntary de- utory district court order had constituted acquiescence. This pends on . . . an intention on the part of the payer to waive suggestion was unnecessary to the decision. Further, the “ac- his legal rights.’”33 (This “intent to waive” is discussed below.) quiescence” in question was not acquiescence in a judgment. Kansas’s “savors of acquiescence” formula Before Harsch, the Kansas Supreme Court had most re- cently used the phrase in Tice v. Ebeling, where, once again, “Time and again it has been held that anything that savors

34 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

the putative “acquiescence” was a failure to object to a district whole judgment, for the purpose of accepting entire satis- court’s interlocutory ruling.39 faction of it by receiving money which otherwise would The most Kansas Supreme Court opinion that both used presumably still be in the possession of the appellee, the phrase “savors of acquiescence” and dismissed the appeal and, having done so, cannot be heard to deny its validity because of acquiescence is the 1982 case Matter of Hatfield.40 for the purpose of litigating the same claim again, in an attempt to increase the amount of the award. To permit “Savors of acquiescence” currently seems to be only infre- him to do this would put him in the unfair position quently used to justify dismissals of appeals. of one who has collected in advance, in part, at least, a judgment which he has not yet obtained, and which we SEPARABILITY have no right to assume he will ever obtain.45 Under the doctrine of separability, the appeal of a plain- The case ofHuet-Vaughn v. Kansas State Board of Healing tiff survives the plaintiff’s collecting money on the judgment 46 if that part of the judgment on which the plaintiff collected Arts illustrates that judges can disagree about what the sepa- money is “separable” from those portions that the plaintiff is rability doctrine means. Dr. Huet-Vaughn, the plaintiff and appealing. appellant, was a captain in the United States Army Reserve Medical Corps., She was ordered to active duty for Opera- On the separability question, one elementary distinction tion Desert Shield. She refused the order and was convicted is between contesting the judgment and contesting how the by court martial.47 The Kansas Board of Healing Arts then judgment is being collected. Even the defendant’s allowing a brought disciplinary proceedings against her, and she was default judgment on the debt to be entered does not consti- both censured and administratively fined. She paid the fine tute acquiescence in a garnishment of exempt funds to collect (upon her lawyer’s advice, she said) but appealed the censure. the judgment.41 On acquiescence grounds, the Kansas Supreme Court dis- Acquiescence in the entire judgment “is quite different from missed her appeal. “A majority of this court holds that plain- taking an appeal from a judgment which is based on separate tiff acquiesced in the judgment by paying the fine because she and distinct claims, and the claim or claims for which pay- could have posted a supersedeas bond.”48 ment has been received are no longer in controversy. Where an appeal is taken under such conditions, the appellant is not The Kansas Supreme Court reasoned, “[T]he reprimand involved in the inconsistency here present, for he has received and administrative fine...are inseparable. If plaintiff’s position only that to which he is entitled in any event.”42 is correct, both the reprimand and administrative fine would have to be reversed.”49 The implication is that the imposition By contrast, where the granting of the appeal would place of distinct punishments, of different types, is not enough to the plaintiff’s entire recovery in question, separability does create a separable judgment. If the appellant seeks an appel- not apply. late decision that would topple the entire judgment below, • “The general rule is well settled that unless there is a sep- separability does not apply. arable controversy, or unless there is some sum to which Two of the justices dissented. Justice Six (joined by Justice the appealing party is entitled in any event, he may not 43 Lockett) believed that the fine and the censure were separable accept the benefit of the decree and later appeal.” and that the court should decide Huet-Vaughn’s appeal of the • “Here the money which the plaintiff demanded and re- latter.50 ceived was not absolutely owing to him as a matter of Two hypotheticals to illustrate separability law other than by reason of the judgment below. . . . [T] he court would not be constrained as a matter of law to To illustrate separability, we postulate an automotive negli- award the plaintiff $7,500: under applicable law a lesser gence personal injury suit. In the hypothetical suit, liability is sum might be awarded.”44 uncontested, and, before trial, plaintiff Porter and defendant Dahlgren stipulate to the ultimate entry of a money judgment If the judgment is inseparable, then permitting a plaintiff to that includes the full amount of Porter’s damages for loss of collect on a judgment while pursuing an appeal seeking more property, lost income, and medical expenses. money, is not only inconsistent, it is fundamentally unfair to the defendant whose money the plaintiff has collected. The trial concerns only Porter’s claim for damages for pain and suffering. The jury awards pain and suffering damages but in an amount that Porter believes inadequate. [I]f this judgment should be reversed, it must be re- versed in its entirety, and there would remain in the pos- The district court enters judgment both for the stipulated session of the appellant money to which it had not been damages and for the pain and suffering damages awarded determined that he was entitled. He has voluntarily placed by the jury. Porter timely moves for a new trial on the sole himself in the position of admitting the validity of the grounds that the pain and suffering damages are inadequate.

www.ksbar.org | September/October 2020 35 avoiding a quagmire: acquiescence in a judgment as a bar to appeal

After the motion is denied, Porter timely files a notice of ap- have the legal duty to return the money collected on the now- peal. vacated judgment.51 Dahlgren’s insurance company then pays the entire amount Second, even if a new trial were granted only on damag- of the judgment into court. Porter withdraws an amount es, the amount of money that Palinode has already received equal to the total stipulated damages for destruction of prop- could exceed the damages awarded in the second trial. Dam- erty, lost income, and medical expenses, but leaves the re- ages for pain and suffering are unliquidated until set by a mainder of the money untouched. factfinder, and the amount is in the factfinder’s discretion.52 Since Dahlgren conceded liability for these damages, and The new jury would have no obligation to award more than their amounts are liquidated, Porter’s accepting payment of the first jury did, or even as much. these damages (and nothing more) should not bar Porter from COERCION appealing about the award for pain and suffering. This is be- cause the amount of the award that Porter accepted was a “The gist of acquiescence sufficient to cut off a right to ap- liquidated sum to which, under the stipulation, the plaintiff peal is voluntary compliance with the judgment.”53 “In order was entitled in any event. for acquiescence to cut off the right to appeal, the acceptance of the burdens or benefits of a judgment debtor must be vol- That said, this author is uncertain that, on these hypo- 54 thetical facts, no appellate court would find that Porter had untary.” acquiesced in the judgment by accepting the payment of a What is “voluntary” compliance with a judgment? substantial part of it. Let us define “voluntariness” by its opposite. Compliance To illustrate non-separability, we postulate another car with a judgment is “involuntary” if the one who has acquiesced wreck personal injury case. The accident occurred at an un- had no rational alternative but to comply with it. “For instance, controlled intersection. At trial, both liability and damages “[a] party need not risk contempt of court to avoid an accusa- are contested. The jury finds plaintiff Palinode 40 percent at tion of acquiescence,” and complying with a judgment under fault and defendant Discus 60 percent. The jury finds that such circumstances does not constitute acquiescence.55 Palinode suffered liquidated damages (property damage, lost This rule is related to the doctrine that a payment (on an income, and medical expenses) in the full amount that Pal- “unjust demand”) that was mistaken but nonetheless “volun- inode claimed. But the jury also finds that Palinode incurred tary” cannot be recovered through a lawsuit. Kansas has held pain and suffering damages of only $10,000, even though he that such a non-owed payment was “voluntary” if “[t]here was requested $100,000.00. no legal ground for apprehending any danger on the part of Palinode receives judgment on the verdict but files a mo- the plaintiff... Neither his person nor property was menaced tion for a new trial. The motion contends that the trail court by legal process.”56 Since the payment was “purely voluntary, committed reversible error by allowing allegedly unqualified it is as certain as any principle of law can be, that it could not experts for Discus to testify on the subjects of a) visibility at be recovered back. There is no pretense of fraud. There was the time of the crash and b) Palinode’s pain and suffering. no coercion, either by direct process or by the condition of 57 After the district court denies his motion for new trial, Pal- his property.” inode appeals, asking the Kansas Court of Appeals to vacate The ultimate question here is “whether the payment was the judgment and order a new trial. Palinode also obtains voluntary or truly coerced by the legal process for collection garnishment of Discus’ wages and bank accounts and an or- of judgments.”58 The difficulty is in deciding what constitutes der for hearing in aid of execution. In response to Discus’ such “coercion” as would render the alleged compliance with demand that Discus’ insurer bring this harassment to an end, a judgment “involuntary.” For instance, if the district court the insurance company pays the entire amount of the judg- has actually issued an execution order on the judgment, is ment (including costs and judgment interest) to the clerk of paying the judgment “truly coerced by the legal process”? the district court. Palinode withdraws the entire amount. “Intention to waive . . . legal rights”—is it necessary? Under these circumstances, Palinode’s appeal is barred by Some Kansas cases have said, “Whether in a given case a acquiescence in the judgment. If the court of appeals ordered payment is voluntary depends on the facts...as indicating an a new trial, as Palinode wants, the existing judgment would intention on the part of the payer to waive his legal rights.”59 be vacated, and Palinode’s right to recover anything would be Standing alone, this language could mislead; there are in fact put in jeopardy. Kansas cases in which the intent of the one who has acqui- First, since liability is contested, the new jury could find esced not to waive appeal rights was manifest, but in which that the parties were equally at fault, or that Palinode’s fault Kansas’ appellate courts have held that the acquiescence doc- was the greater. Under Kansas’s comparative fault law, Pal- trine aborted the appeal.60 An acquiescence in a judgment un- inode would then be entitled to recover nothing and would doubtedly has the effect ofan enforceable waiver of the right

36 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

to appeal. But knowing this is not helpful to a lawyer or judge thereafter challenging the validity of the judgment. The fact who is deciding whether an acquiescence has taken place. that this payment was made to the clerk and not to the sheriff, 70 Courts have often found that litigants have acquiesced even does not make it any the less an involuntary payment.” when the latter have said consistently that they intend to ap- But Kansas case law now says that, even when an execution peal and have no intent to give up their rights to appeal.61 has issued, whether payment of the judgment is voluntary While the appellate courts may give it consideration, the or involuntary depends on the totality of the circumstances. litigant’s express intent not to waive appeal rights is thus not “The issuance of an execution in Kansas is not decisive in necessarily decisive. determining whether the judgment debtor’s subsequent pay- 71 Uhlmann v. Richardson,62 a published opinion of the Kan- ment is voluntary so as to cut off his right to appeal.” For sas Court of Appeals, contains language that, in isolation, instance, in Muckey v. Baehr, “[e]ven though [an] execution could be taken to mean that there can be no acquiescence in a was in [the] hands of the sheriff at the time the judgment was paid, defendant acquiesced in judgment because he failed to judgment unless the one who has acquiesced intends to waive 72 its appeal rights. The Kansas Supreme Court has used similar protest to the clerk of the court.” language, for example in Varner v. Gulf Ins. Co.63 “Whether Failing to prevent opponent’s enforcement of judgment in a given case a payment on a judgment is voluntary depends Some Kansas cases indicate (logically) that failing to pre- on the facts of the particular case as indicating an intention 64 vent judgment enforcement cannot constitute acquiescence on the part of the payer to waive his legal rights.” if the judgment debtor does not know what the creditor is The “intention on the part of the payer to waive his legal about to do: rights” language of Varner comes ultimately from an article in Corpus Juris Secundum on “payment.”65 The quoted section of But there is one prime requirement to prove acquies- the article concerns what constitutes an irrecoverable “volun- cence. In order for acquiescence to cut off the right to tary” payment of a non-owed demand. In the context of the appeal, the acceptance of the burdens or benefits of acquiescence question, the quoted language could mislead. a judgment debtor must be voluntary . . . . After the Varner’s syllabus also says, “The mere statement of an intent district court granted the Bank summary judgment, not to waive the right to appeal does not make a payment in- Nichols filed his notice of appeal . . . Then, after the ap- voluntary.”66 The present author cannot reconcile this quoted peal had been docketed, the Bank withdrew funds from statement with Varner’s “intention to waive” language. Spe- Nichols’ account and gave him notice after the fact that cifically, he cannot see how an allegedly implied-by-conduct the funds had been withdrawn. We see no voluntary 73 “waiver” of appeal rights can overcome an unequivocal state- action by Nichols in this scenario. ment by a party that the party intends not to waive those rights. In First Nat. Bank of Omaha v. Centennial Park, LLC, In another case, not preventing their wages from being gar- nished to enforce a default judgment did not constitute acqui- it was stated, “Bank did not waive its right to declare default 74 after accepting late payment because promissory note con- escence by the judgment debtors. tained anti-waiver clause.”67 “It is entirely unreasonable to But, in contrast, the judgment debtor’s paying the entire conclude that an inference based on an assumption resting on judgment after he had been compelled to attend a hearing in a legal fiction can somehow take precedence over an express, aid of execution was held to be voluntary, and his appeal was clarifying statement by competent counsel.”68 barred. The Court of Appeals noted that no execution had 75 It thus appears that such an “implied waiver” is implied in been issued to enforce the judgment. law, rather than implied in fact. That is, the “waiver” is a legal Self-protection fiction in which an unwilling party may be compelled to play “It is generally the rule that a waiver of the right to appeal a an undesired role. judgment is not implied from measures taken by an appellant Issuance of execution in defense of and to protect a litigant’s rights or interests.”76 Early Kansas cases held that issued execution always ren- This self-protection exception to the acquiescence doctrine has generally concerned acts taken to preserve property against ders a payment involuntary. “The sheriff had the execution in 77 his hands, with power to enforce it, and under obligation to persons seeking to enforce a judgment. Such acts, it seems, do so. A payment made under such circumstances is always fall under the “coercion” exception. held to be an involuntary payment[.]”69 Can actions be considered “coerced” if, however, the judg- In another case, “such payment, having been made while an ment creditor took them in order to protect its practical ability order of sale of his real estate was in the hands of the sheriff, later to enforce a judgment in its favor? In Uhlmann v. Rich- was an involuntary payment, and did not preclude him from ardson, one Kansas Court of Appeals panel answered with a qualified “Yes.” 78

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A judgment creditor who initiates some part of the pro- leave,” ex-employee Brummer prevailed before the district cess of executing on a judgment but does not collect any court on her application for unemployment benefits. After money or sell any of the debtor’s property has not ac- filing its appeal to the Kansas Court of Appeals, the Board quiesced in the judgment. This is so even if the debtor, paid Brummer her awarded benefits. The Board pleaded that in response, posts a supersedeas bond, which protects the payment was the result of “an administrative clerical er- the judgment creditor’s ability to collect the judgment ror.” To no avail: The Board did not argue that, in paying the while the appeal is pending.”79 benefits, it had been obeying a statutory mandate or engag- ing in a permissible attempt to protect its rights; “it just says If, however, “a party actually collects money obtained it made a mistake. Nothing in Kansas caselaw suggests that through a judgment, the party who collected the funds, i.e., acquiescence turns on the absence of mistake.” The opinion the party who accepted a benefit from the judgment, loses the confirms that, despite “waiver” language in some opinions, a 80 right to appeal.” The Uhlmann panel found that in that case litigant may commit appeal-killing acquiescence even though the “dry-hole” garnishment had not constituted an acquies- it did not intend to give up its appeal rights. cence. Essential to this result is the failure of the garnishment 88 to yield any money.81 Dieker Trailer Sales & Service v. Wright. After being compelled to appear for a hearing in aid of execution, pro In Heartland Presbytery v. Presbyterian Church of Stanley, se litigant Wright paid the c. $700 judgment against him Inc., the Kansas Court of Appeals applied the self-protection (and costs) in full. The court of appeals dismissed the appeal, exception in a very different way. “Rather, we find that the ac- holding that Wright had, by paying, acquiesced in the judg- tions taken by the appellants following the filing of their no- ment. Wanting to avoid the annoyance of being hauled into tice of appeal can reasonably be classified as measures taken a hearing-in-aid was not enough to make Wright’s paying the to protect their right to continue to worship according to the judgment “involuntary.” dictates of their own consciences[.]”82 In re Marriage of Torline.89 The court of appeals rejected RECENT KANSAS CASES the ex-wife’s argument that the ex-husband’s appeal should be dismissed for acquiescence. The ex-husband had mortgaged Several recent decisions of Kansas’s appellate courts are sum- real estate after it had been awarded to him in the divorce. marized below. Some of these opinions are unpublished. But As the court of appeals acknowledged, this act could bar at even such non-precedential decisions illustrate how our appel- least part of the appeal. But “the issue becomes moot in light late courts are currently applying the acquiescence doctrine. of our conclusion that the appeal fails on the merits.” The Almack v. Steeley. A Kansas Court of Appeals panel held court thus declined to rule on a potentially meritorious argu- that the judgment creditor (whatever his goal may have been) ment that it lacked jurisdiction to decide the appeal. The case had, in obtaining a hearing in aid of execution, thereby recog- thus shows that the rule that “acquiescence destroys appellate nized the validity of the judgment and acquiesced in it.83 Ap- jurisdiction” has some flexibility; otherwise, it seems that the parently, the hearing in aid yielded no recovery.84 In Uhlmann court could never have reached the merits of the appeal with- v. Richardson, discussed above, another Kansas Court of Ap- out first deciding whether it had jurisdiction over the case. 85 peals panel disagreed with the Almack reasoning and result. Security Bank of Kansas City v. Tripwire Operations Group, The reasoning in both Uhlmann and Almack has merit. LLC.90 The appellant judgment debtor (personal guarantor Uhlmann reasons that, if a garnishment yields no funds, the Nichols) filed an appeal but not a supersedeas bond. After the judgment debtor does not receive the judgment’s benefits and appeal was filed, the judgment creditor Bank set off against that the acquiescence doctrine therefore does not apply. Al- Nichols’s account and received full payment of its judgment. mack, by contrast, reasons that one who attempts to collect The court of appeals held that Nichols’s failure to file a super- a judgment necessarily recognizes the judgment as valid and sedeas bond had not constituted acquiescence. But Nichols binding, and thereby acquiesces in it. This author will not lost anyway. The court of appeals found that the full payment suggest how the tension between the two opinions should be of the judgment had rendered the appeal moot. The appeal resolved. was dismissed. (The court of appeals remarked that, from the West Meadows Condominium Association, Inc. v. Davis.86 A record, it was clear that the Bank had the right both to get the condominium association sued a property owner for unpaid judgment and to enforce it through setoff.) fees, etc., and obtained a money judgment and foreclosure of Still Corp. v. Still.91 The court of appeals said that the re- its lien. The Kansas Court of Appeals held that, in foreclosing cord on appeal was too skimpy to allow it to find that there its lien, the association had acquiesced in the judgment and had been acquiescence. One who argues acquiescence to the that its appeal was barred. appellate court will get nowhere without providing enough Brummer v. Kansas Unemployment Security Board of Re- evidence to prove it. (Appellant Still, who was appealing from view.87 Fired by Cawker City for alleged “absence without a judgment awarding punitive damages against him, lost on the merits anyway.) 38 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

Heartland Presbytery v. Presbyterian Church of Stanley, Inc.92 STATUTORY EXCEPTIONS TO THE ACQUIESCENCE A “conservative” church congregation withdrew from its “lib- DOCTRINE eral” denomination. The inevitable battle ensued over church property. On appeal, the denomination argued that the con- Certain actions that might otherwise be held to constitute gregation (the appellant) had acquiesced in the judgment acquiescence have been immunized from the doctrine by stat- when the congregation’s trustees quit the “liberal” denomina- ute. tion and joined another denomination. The court of appeals Payment of court costs. “Payment of the costs of any ac- found no acquiescence. It believed that the trustee’s actions tion in any court in this state including, but not limited to, had been “self-protective,” that is, that they constituted an the payment of court reporter fees, shall not be considered exercise of the constitutionally protected freedom of worship. an acquiescence in the judgment or any order of the court Nonetheless, the court of appeals remarked that acquiescence so as to prevent an appeal by the person or persons paying was here a “close question.” such costs.” K.S.A. 60-2004 (enacted 1967). Until overruled City of Kingman v. Ploog.93 Ploog, the appellant, owned real by this statute, Kansas cases frequently held that a litigant’s estate in Kingman that fell afoul of the city’s property-main- payment of costs constituted acquiescence in the judgment. tenance ordinances. Criminally convicted, Ploog received Evidently, at least some court reporters had been going un- probation only on the condition that he pay the fines and paid because lawyers feared that paying the fees would fall court costs. Ploog’s payment of the fine and costs did not (ac- afoul of the acquiescence doctrine. (Despite the statute, the “paying costs = acquiescence” argument is, it seems, still oc- cording to the court of appeals) constitute an appeal-barring 95 acquiescence. “Complying with a court order imposed over a casionally made.) party’s objection does not constitute acquiescence. ...A party Eminent domain/condemnation awards. Here, it makes is not required to risk a contempt of court order to avoid an sense to mention statutes relating to eminent domain appeals. accusation of acquiescence.”94 These statutes principally concern appeals to the district court of appraisers’ awards. The statutes immunize from the acqui-

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www.ksbar.org | September/October 2020 39 avoiding a quagmire: acquiescence in a judgment as a bar to appeal

escence doctrine both a) interim payments by dissatisfied con- Arguably, filing an Uhlmann garnishment (looking for an demnors into court, and b) the withdrawal of those monies immediate bond, not immediate money) merely seeks to pre- by dissatisfied condemnees.96 (One of these statutes suggests serve the status quo (by preventing the appellant from getting that, to avoid acquiescing in the condemnation judgment, a an unfair advantage). The argument is that, if the judgment condemnee needs to get a prior court order allowing the with- creditor has no right to prod the judgment debtor to file a su- drawal. This author has found no case law on the question.)97 persedeas bond, the debtor would obtain an unfair advantage Workers compensation awards. Making legally-mandat- by appealing: That is, either the creditor would have to allow ed workers compensation payments does not constitute ac- the debtor (at least potentially) to hide or dissipate assets, or 98 the creditor (by seeking the security of a bond during the ap- quiescence in the judgment. “Commencement of an action 102 for review by the court of appeals shall not stay the payment peal) would have to give up the right to cross-appeal. There of compensation[.]” K.S.A. 44-556 (b) (irrelevant details is, however, at least equal Kansas authority that any attempt to enforce a money judgment, whatever the intent, constitutes omitted). If it is found on appeal that the order to make the 103 payments was in error, the employer and/or its insurance car- acquiescence even if the effort yields no money. rier can be reimbursed from the workers compensation fund. Has the appellant failed to post a supersedeas bond? K.S.A. 44-556(c) and (d). The failure to post a supersedeas bond can sometimes con- stitute an appeal-killing acquiescence, but sometimes not.104 (LIMITED) COMMON-LAW EXCEPTION: MAKING The reasoning of these opinions seems to depend on a) what DIVORCE-RELATED PAYMENTS notice (if any) the appellant had that the opponent would do Making or accepting payments in connection with a divorce something to enforce the judgment, b) whether the appellant case is (relatively) unlikely to constitute acquiescence. “The tried to get a stay of enforcement, and c) how easy it would general rule pertaining to acquiescence in judgments should have been (had the appellant tried) to obtain a stay (through not be strictly applied in divorce cases because of the peculiar a supersedeas bond or otherwise). situations of the parties and the equitable considerations in- Does separability apply? The separability exception to volved.”99 “[I]t is now generally held that in divorce cases the the acquiescence doctrine is established, and a lawyer should acceptance of periodic alimony payments does not preclude of course consider whether this exception applies. But Huet- an appeal based upon the insufficiency of such payments.”100 Vaughn shows that there can be disagreements even over this rule. The lawyer should remember that, even if a judgment WHAT THE LAWYER SHOULD CONSIDER IN (such as a personal injury judgment) theoretically has distin- EVALUATION guishable elements, this does not mean that the separability exception is applicable. Several factors have played a role in the courts’ acquies- cence decisions. It makes sense for a lawyer to consider these Did the “acquiescence” consist only of accepting money factors in evaluating whether an appellate court a) is likely to that was owed in any case, without regard to the outcome find that there was acquiescence or b) would ultimately find of the appeal? If the answer is “yes,” then “separability” acquiescence if an action being considered (by the client or should apply, and accepting the money should not constitute the lawyer) were actually taken. The author does not pretend an acquiescence. that this list is exhaustive. If the litigant’s appeal succeeds, will it have to give back Can it reasonably be argued that the acceptance of bur- what it has taken? dens was “involuntary”? If the alternative is losing liberty The separability exception applieswhen what is paid will not or property, taking some action does not constitute acquies- have to be paid back even if the appeal succeeds. If the separabil- 101 cence. Imminent threats of “jail or sale” render compliance ity exception does not apply, collecting on a judgment will with a judgment involuntary. generally constitute an appeal-killing acquiescence. Can it be argued that the acceptance of benefits was Was payment on the judgment made under protest? merely self-protective? The question is harder if the putative acquiescence consists of an attempt to enforce a judgment. In Protesting while paying will not necessarily succeed in Kansas, there is conflicting authority on the extent to which dodging the acquiescence doctrine, but it can hardly hurt. a judgment creditor can, without losing its own cross-appeal Was the payment tendered as full payment of the judgment? rights, take enforcement actions intended only to needle the It should hardly be necessary to say this, but to make a pay- appellant judgment debtor into posting security. Even the ment on a judgment and call it “payment in full” is to court relatively lenient Uhlmann opinion acknowledges that, if the appellate annihilation. enforcement effort (in Uhlmann, a garnishment) actually yields money to the creditor, the creditor’s cross-appeal rights How imminent was painful enforcement? Once upon a will vanish. time, it was established even in Kansas that, after an execu- tion had been issued, the judgment debtor’s payment of the 40 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

judgment was, as a matter of law, “involuntary” and could cion when it acts with the purpose of safeguarding its ability not constitute acquiescence in the judgment.105 The Kansas to get the maximum recovery on the judgment that the judg- Supreme Court then changed its mind.106 “[T]he ‘Kansas rule ment creditor itself procured. This author takes no position on . . . [now] holds that an issued execution is not decisive in whether the Kansas Supreme Court should ultimately adopt determining whether the judgment debtor’s subsequent pay- Uhlmann’s reasoning. ment is voluntary so as to cut off the right to appeal, based Has the “liberalization” of Kansas’ civil procedure had on the rule that ‘anything which savors of acquiescence in a any effect on the acquiescence doctrine? judgment cuts off the right of appeal.’”107 In 1963, Kansas adopted a new code of civil procedure, Nonetheless, it is still true that, the closer a judgment is modeled upon the Federal Rules.110 The change was thought to being enforced through a seizure of person or property, to be “liberalizing” in placing less stress upon technical rules the less likely it is that paying the judgment will be found to (for instance, rules of pleading) and increasing the emphasis constitute acquiescence. For example, if the district judge told on obtaining real justice.111 the appellant that, if the fine was not paid immediately, the appellant would instantaneously be jailed, paying the fine as This liberalization of civil procedure seems however to have ordered should not be adjudged “acquiescence.” had little or no effect upon the acquiescence doctrine. Why? Has there been detrimental reliance upon the supposed The new rules seem to have had little or no effect upon the act of acquiescence? The adverse party’s detrimental reliance nature of judgments. A judgment remains a binding resolu- on the purported “acquiescence” can be helpful in arguing for tion of a dispute. When a court renders a judgment, even dismissal of the purported appeal. if the judgment is still potentially appealable or has actually been appealed, it is still presumed that the underlying dispute Would there be “disruption of court orders and deci- will be resolved by the judgment. sions” if the appeal were allowed? “As indicated, whether the appellees’ conduct be designated as laches, silence, waiver It is highly desirable that any litigated dispute be resolved. or acquiescence, we hold they are estopped to change their The desire to resolve disputes peaceably leads directly to the position and disrupt the orders and decisions of the probate rule that, if a litigant accepts a judgment as valid and bind- court in the administration of the decedent’s estate, and their ing (by enforcing with it or complying with it), the judgment claims are unenforceable.”108 thereafter irrevocably binds the litigant. Judgment brings an end and comes at the end. How sophisticated and/or wealthy was the one who supposedly acquiesced? Kansas’s appellate courts seem less Really, truly a last word likely to find acquiescence when the one who purportedly ac- Finally, this author suggests that the fatal “inconsistency” quiesced is poor (rather than rich) or individual (rather than of acquiescence could often more precisely be described as a) corporate).109 Perhaps wealthy individuals or corporations are doing X, or asking that X be done, while b) asking the appel- thought likely to have a) good legal counsel and b) resources late court to do something that could cause X to be undone that are adequate to get judgments stayed. or even to become wrongful. Indulging in such inconsistency is a trifling with the courts, which provide an essential public LAST WORDS service, mostly at public expense, and do not have time to Are there any true exceptions to the acquiescence rule? waste. n Arguably, no litigant may appeal from a judgment in which the litigant has acquiesced. The “separability” and “coercion” exceptions are perhaps not true exceptions. In the first case, there is no acquiescence in the particular judgment appealed from. Other judgments in the case (even if all these are em- About the Author bodied in the same document) are irrelevant. In the second Casey R. Law has been privileged to work in his case, there is no acquiescence at all: The supposedly acquiesc- home town, McPherson, for Wise and Reber, ing party’s hand was forced by the urgent need to safeguard L.C. (and the firm’s previous incarnations) for property or liberty. over thirty years. He graduated from McPherson High School, McPherson College (where he This author suggests that the “self-protection” exception, as later also intermittently taught Business Law), traditionally recognized, is also not in fact a separate excep- and the University of Kansas School of Law. tion. Rather, this exception falls under “coercion”—the over- Though he has handled many appeals, he has riding need to protect liberty or property. never participated in one in which the doctrine of acquiescence in judgments was raised, The Uhlmann self-protection exception, by contrast, is whether by a litigant or by a court. difficult to bring under the “coercion” heading. It seems a stretch to hold that a judgment creditor is acting under coer- [email protected]

www.ksbar.org | September/October 2020 41 avoiding a quagmire: acquiescence in a judgment as a bar to appeal

1. Explorer, Inc. v. Duranotic Door, Inc., No. 104,560, 2011 WL 41. Younger, 245 Kan. at 207. 5833351 at 5 (Kan. Ct. App. Nov. 18, 2011) (Atcheson, concurring). 42. Allen v. Bank of Angelica, 34 F.2d 658, 659 (2d Cir. 1929). 2. Rowland v. Barb, 40 Kan. App. 2d 493, 495, 193 P.3d 499, 501 43. Spencer v. Babylon R. Co., 250 F. 24, 26 (2d Cir. 1918). (2008). 44. Wilson v. Pantasote Co, 254 F.2d 700 (2d Cir. 1958). 3. K.S.A. 60-2101. 45. Allen v. Bank, 34 F.2d at 659 (emphasis added). 4. Id. 46. Huet-Vaughn, 267 Kan. 144, 978 P.2d 896 (1999). 5. K.S.A. 60-2103(a). 47. Id. 267 Kan. at 144–45. 6. Giles v. Russell, 222 Kan. 629, syl. ¶ 3, 567 P.2d 845, 846 (1977). 48. Id. at 150. 7. K.S.A. 60-2103. 49. Id. at 147. 8. One example is “acquiescing” by filing an amended petition instead 50. Id. at 153 (Six, dissenting). of appealing from the order that sustained a demurrer to the original 51. K.S.A. 60-258a(a). pleading. See, for example, Hodge v. Freeman, 187 Kan. 650, 652-53, 359 52. Caylor v. Atchison, T. & S. F. Ry. Co., 190 Kan. 261, 264-265, 374 P.2d 845 (1961). P.2d 53 (1962). 9. Security Bank of Kansas City v. Tripwire Operations Group, LLC, 55 53. Varner v. Gulf Ins. Co., 254 Kan. 492, 494–95, 866 P.2d 1044, Kan. App. 2d 295, syl. ¶ 4, 412 P.3d 1030 (2018). 1046 (1994) quoting Younger, 245 Kan. 204, syl. ¶ 1. 10. Almack v. Steeley, 43 Kan. App. 2d 764, 768, 230 P.3d 452, 455 54. Security Bank v. Tripwire, 55 Kan. App. 2d at 300. (2010). 55. In re Metcalf Assocs.-2000, L.L.C., 42 Kan. App. 2d 412, 423–24, 11. Paul v. Western Distributing Co., 142 Kan. 816, 831, 52 P.2d 379 213 P.3d 751 (2009). (1935). 56. Phillips v. Jefferson County, 5 Kan. 412, 417 (1870). 12. Babbitt v. Corby, 13 Kan. 612, 614 (1874). In this context, a liti- 57. Id. at 417. gant can “do” something by failing to act. 58. Ray v. Sullivan, 5 Neb. App. 942, 949, 568 N.W.2d 267 (1997). 13. Security Bank v. Tripwire, 55 Kan. App. 2d at 299-300. 59. Varner, 254 Kan. at 497, 866 P.2d at 1047 (1994), quoting Young- 14. Ware v. Christenberry, 7 Kan. App. 2d 1, 5, 637 P.2d 452, 456 er, 245 Kan. 204, syl. ¶ 4. (1981), citing Beams v. Werth, 200 Kan. 532, syl. ¶ 9, 438 P.2d 957 60. State v. Conkling, 54 Kan. 108, syl., 37 P. 992 (1894). (1968); K.S.A. 60-208(d)(3). 61. “C. was found to be guilty of contempt of court, and adjudged to 15. State v. Massa, 90 Kan. 129, syl. ¶ 2, 132 P. 1182 (1913). pay a fine and costs. Under protest he paid the fine and discharged the 16. Colquette v. Crossett Lumber Co., 149 F.2d 116, 117-118 (8th Cir. judgment, stating that he reserved the right to appeal from the judgment, 1945) (internal citations omitted). which he subsequently attempted to take. Held, that his protest and res- 17. Babbitt, 13 Kan. at 614. ervation are unavailing, and that an appeal from a judgment that has been 18. Seaverns v. State, 76 Kan. 920, 921-22, 93 P. 163 (1907). executed and discharged is not permissible.” State v. Conkling, 54 Kan. 19. Old Republic Ins. Co. v. FSR Brokerage, Inc., 80 Cal. App. 4th 666, 108, syl., 37 P. 992 (1894). headnote 2, 678, 95 Cal. Rptr. 2d 583, 592 (2000). 62. 48 Kan. App. 2d 1, 287 P.3d 287 (2012). 20. Seaverns, 76 Kan. at 921-22. 63. 254 Kan. 492, 496, 866 P.2d 1044 (1994). 21. Bowen v. Lewis, 198 Kan. 706, 712-13, 426 P.2d 244 (1967) (in- 64. Id., syl. ¶ 4. ternal citation omitted). 65. 70 C.J.S. “Payment” § 134, by way of Clark v. Chipman, 212 Kan. 22. McClintock v. McCall, 214 Kan. 764, 766, 522 P.2d 343 (1974), at 264, 510 P.2d at 1263. quoting 28 Am. Jur. 2d “Estoppel and Waiver,” § 71, p. 700. 66. Varner, syl. ¶ 5. 23. Taylor v. Robertson Petroleum Co., 156 Kan. 822, syl. ¶¶ 3 and 4, 67. First Nat. Bank of Omaha v. Centennial Park, LLC, 48 Kan. App. 137 P.2d 150 (1943). 2d 714, 728-29, 303 P.3d 705 (2013), citing Riley State Bank v. Spillman, 24. Bowen, 198 Kan. at 713, 714, quoting 19 Am.Jur. “Estoppel” § 242 Kan. 696, 701, 750 P.2d 1024 (1988). 62, p. 678. 68. State v. Davis, 311 Conn. 468, 88 A.3d 445, 464 (2014) (Palmer, 25. Progressive Direct Ins. Co. v. Stuivenga, 364 Mont. 390, 408, 276 concurring). P.3d 867, 879 (2012) (internal citations omitted). 69. Auld v. Kimberlin, 7 Kan. 601 (1871). 26. Najjar v Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001), quoting 70. Kerr v. Reece, 27 Kan. 469, 472 (1882). Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). 71. Haberer v. Newman, 219 Kan. 562, 566, 549 P.2d 975 (1976). 27. Security Bank v. Tripwire, 55 Kan. App. 2d at 301. “This is in accord with the rule stated in many decisions of this court that 28. Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164, 165 (1944). “[A]n anything which savors of acquiescence in a judgment cuts off the right of appeal does not lie from a judgment which has been performed.” Round v. appeal.” Land & Power Co., 92 Kan. 894, 142 P. 292, 293 (1914). 72. Almack, 43 Kan. App. 2d at 771. 29. Huet-Vaughn, M.D. v. Kansas State Bd. of Healing Arts, 267 Kan. 73. Security Bank v. Tripwire, 55 Kan. App. 2d at 299-300. 144, 147, 978 P.2d 896 (1999). 74. Van Nguyen v. Ortiz, No. 94,884, 2007 WL 881848 (Kan. Ct. App. 30. Seaverns, 76 Kan. at 921-922, citing Babbitt, 13 Kan. 612 (1874). March 23, 2007). 31. K.S.A. 60-2004. 75. Dieker Trailer Sales & Service v. Wright, No. 88,968, 2004 WL 32. Paulsen v. McCormack, 133 Kan. 523, 1 P.2d 259, 261 (1931). 1191444 (Kan. Ct. App. May 28, 2004). 33. Van Nguyen v. Ortiz, No. 94,884, 2007 WL 881848 at 4 (Kan. 76. Bank IV Wichita, Nat. Ass'n v. Plein, 250 Kan. 701, syl. ¶ 6, 830 App. March 23, 2007), quoting Younger v. Mitchell, 245 Kan. 204, 209, P.2d 29 (1992); McDaniel v. Jones, 235 Kan. 93, 104, 679 P.2d 682 (1984), 777 P.2d 789 (1989). citing 4 C.J.S. “Appeal and Error” § 212, p. 620–21. 34. Paulsen, 1 P.2d at 261 (emphasis added). 77. Bank IV Wichita, Nat. Ass’n v. Plein, 250 Kan. at 708-09; McDaniel 35. 245 Kan. 204, 207, 777 P.2d 789 (1989). v. Jones, 235 Kan. at 104. 36. 43 Kan. App. 2d 764, 230 P.3d 452 (2010). 78. Uhlmann v. Richardson, 48 Kan. App. 2d 1, 287 P.3d 287 (2012). 37. Id. at 775 (emphasis in original). 79. Id. syl. ¶ 5. 38. Harsch v. Miller, 288 Kan. 280, 292, 200 P.3d 467 (2009). 80. Matter of Marriage of Welliver & Dickerson, No. 116,567, 2017 WL 39. Tice v. Ebeling, 238 Kan. 704, 713, 715 P.2d 397 (1986). 3822965 at 3 (Kan. Ct. App. 2017). 40. Matter of Hatfield, 231 Kan. 427, 429, 646 P.2d 481 (1982). 81. Uhlmann, 48 Kan. App. 2d at 18.

42 The Journal of the Kansas Bar Association avoiding a quagmire: acquiescence in a judgment as a bar to appeal

82. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan. when the payment of money becomes necessary to obtain the immediate App. 2d 622, 637, 390 P.3d 581 (2017). liberty of person or the possession of property.” Adrico Realty Corp. v. City 83. Almack, 43 Kan. App. 2d at 773 (2010). of New York, 250 N.Y. 29, 33, 164 N.E. 732 (1928). 84. “We believe Kansas currently falls in line with the minority of 102. Uhlmann, 48 Kan. App. 2d at 16-17. jurisdictions that have adopted a rule that prevents an appeal if the party 103. “Filing an aid in execution on a judgment constitutes acquies- takes any action inconsistent with the right of review—successful or not.” cence in that judgment.” Almack, 43 Kan. App. 2d 764, syl. ¶ 4. Almack, 43 Kan. App. 2d at 773. 104. Appeals died in this way in Vap v. Diamond Oil Producers, Inc., 9 85. Uhlmann, 48 Kan. App. 2d at 13–15. Kan. Ct. App. 2d 58, 60-61, 671 P.2d 1126 (1983) and Explorer, Inc. v. 86. No. 95,265, 2006 WL 3353773 (Kan. Ct. App. Nov. 17, 2006). Duranotic Door, Inc., No. 104,560 (Kan. App. Nov. 18, 2011). In contrast: 87. No. 114,698, 2016 WL 4585625 at 2 (Kan. Ct. App. Sept. 2, “We hold that Nichols’ failure to post a bond alone is not acquiescence 2016). according to case law.” Security Bank v. Tripwire, 55 Kan. App. 2d at 300. 88. No. 88,968, 2004 WL 1191444 (Kan. Ct. App. May 28, 2004). 105. Auld, 7 Kan. at 606. 89. No. 94,209, 2006 WL 1976551 (Kan. Ct. App. July 14, 2006). 106. Shown in, for example, Muckey v. Baehr, 158 Kan. 19, 145 P.2d 90. 55 Kan. Ct. App. 2d 295, 412 P. 3d 1030 (2018). 164 (1944), an opinion that could serve as a poster child for the tragedy 91. No. 116,910, 2017 WL 5507708 (Kan. Ct. App. Nov. 17, 2017). of incomprehensibility. 92. 53 Kan. Ct. App. 2d 622, 390 P. 3d 581 (2017). 107. Ray, 5 Neb. App. at 948, 568 N.W.2d at 271. 93. No. 114,009, 2016 WL 3659856 (Kan. Ct. App. July 8, 2016). 108. Bowen, 198 Kan. at 714. 94. Id. at 4 (internal citations omitted). 109. z Younger, 245 Kan. 204, 777 P.2d 789 (1989) (judgment debtor 95. Rosen v. Hartstein, No. 108,479, 2014 WL 278717 at 9-10 (Kan. individuals did not acquiesce in judgment by failing to post supersedeas Ct. App. January 24, 2014). bond to prevent garnishment of bank account containing their exempt 96. K.S.A. 26-507(a); K.S.A. 26-510(b). government benefits) withVap , 9 Kan. App. 2d 58, 671 P.2d 1126 (1983) 97. On the appeal, the district court may adjust the amount of com- (corporate judgment debtor acquiesced by failing to post supersedeas pensation up or down. When there are such adjustments, interest is to be bond). This author is not suggesting that either result was unjust. awarded. K.S.A. 26-511. 110. K.S.A. 60-101 et seq. 98. Martin v. Phillips, 51 Kan. App. 2d 393, 400, 347 P.3d 1033 111. “The provisions of this act shall be liberally construed, adminis- (2016). tered and employed by the court and the parties to secure the just, speedy 99. Gordon v. Gordon, 218 Kan. 686, syl. ¶ 4, 545 P.2d 328 (1976). and inexpensive determination of every action and proceeding.” K.S.A. 100. Brown v. Combined Ins. Co. of Am., 226 Kan. 223, 230, 597 P.2d 60-102. 1080 (1979) (internal citation omitted). 101. “The expression which runs through the cases is that duress exists

N EA EICE • 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.

www.ksbar.org | September/October 2020 43 washburn law clinic

Clinic in the Time of Coronavirus

by Michelle Y. Ewert

he coronavirus pandemic has led to dramatic changes Internet and technology in how the legal community operates. During the spring 2020 semester, students in the Washburn Law Shortly into the pandemic, the executive and judicial ClinicT pivoted to an almost completely online delivery of le- branches implemented changes to help promote access to jus- gal services. In the Washburn Law Clinic, students provide tice in a time when in-person contact was risky. Governor free legal services to low-income individuals, small businesses Kelly passed an executive order temporarily allowing the no- and non-profit organizations that would otherwise be unable tarization and witnessing of documents through videoconfer- to obtain counsel. The students represent clients before the ence technology.1 The courts followed suit, utilizing Zoom Shawnee County District Court, Topeka Municipal Court, to conduct hearings throughout the late spring and summer. and state and federal administrative agencies, as well as in These changes were instrumental in allowing cases to prog- transactional matters. Their representation has continued un- ress. interrupted during the pandemic. Ivan Moya, JD candidate ’21, described the clinic’s transi- Sadly, the students’ work during the pandemic has high- tion to virtual representation, saying, “With the limitation of lighted how low-income individuals in our community are face to face contact, we had to find new and innovative ways disproportionately negatively impacted by the pandemic’s to reach out to our clients and earn their trust. Having the challenges. Much attention to the plight of low-income in- opportunity to talk to them via Zoom gave us the ability to dividuals affected by the pandemic has focused on job loss, have some semblance of normalcy in un-normal times.” problems accessing unemployment benefits, and the risk of Unfortunately, many low-income individuals lack reli- eviction or foreclosure. Low-income families face many other able access to videoconferencing technology. According to negative impacts, as well. the Census Bureau, in 2018, 37 percent of U.S. households with an annual household income less than $20,000 had no

44 The Journal of the Kansas Bar Association washburn law clinic

internet subscrip- ment fees. He said, “She had been using public transporta- tion at home and tion for years to get around and run her errands. With the about 17 percent outbreak of COVID-19, she did not feel that public transpor- of households with tation was a safe option. After the court waived the license an annual house- reinstatement fees, our client was grateful to be able to get hold income be- her license back because that meant she could get her errands tween $20,000 and done without risking her health. I will never forget that be- $74,999 had no in- cause, for me, that is what the job is: helping people.” At a ternet subscription time when social distancing is a public health necessity, clinic at home; in con- students saw how lawyer assistance in helping regain access to trast, only five percent of households with an annual income transportation options is more essential than ever. of $75,000 or higher have no internet subscription at home.2 A large number of low and moderate-income individuals lack Workplace safety access to internet, whether through dial-up, broadband, cel- lular or satellite service. Daniel Beall-Hall, JD candidate ‘21, described the tech- nological challenges experienced by some clinic clients. He said, “In one of our cases, important estate planning docu- ments were delayed due to issues with the client’s internet connection and cell phone. During a pandemic, the delay of legal services could occur when those services are needed the most.” To accommodate clients with internet and technology limi- tations, clinic students and staff have notarized documents in clients’ driveways and parking lots because the clients lacked the technology to do remote notarization. Most of the clinic The pandemic has highlighted how some jobs carry more clients participated in Zoom hearings from the Washburn risk to physical safety than others. During the 2020 spring Law Clinic office because they could not participate from break, a team of clinic students went out to Garden City to home. Without counsel, these clients could not have proceed- prepare powers of attorney for parents who were concerned ed with their cases. While technology has facilitated profes- about what would happen to their children if they were de- sional and personal interactions during the pandemic, clinic tained, deported, or became incapacitated and were unable students have learned how the virtual world leaves many to care for their families. This project, done in collaboration people behind. with community health programs in Southwest Kansas, was designed to put in place short-term protections for families at Transportation risk of family separation. Transportation challenges Shortly after the clinic’s project in Garden City, COVID-19 became heightened during cases in Finney, Ford and Seward counties spiked.3 These the pandemic. Many low- communities are home to meatpacking plants, whose workers income individuals lack the are at heightened risk of illness due to the spread of corona- money to pay court fees so virus.4 Having advance directives in place became even more are unable to reinstate sus- important for these vulnerable workers. pended licenses. Without ac- Tanya Buettgenbach, JD ’20, reflected on the impact of cess to private transportation, the spring break project on the clinic clients and students. She people must often rely on said, “The Garden City trip illustrated exactly why the clinic public transportation. Unfortunately, the hours of operation exists and demonstrated the dire need people have for ser- and geographic service area of public transit are quite limited vices like a free legal clinic. We were able to provide advance in many Kansas communities. Further, the easy transmission directives that allowed parents to rest a little easier that night of coronavirus has made riding public transportation risky for knowing their families would be taken care of in the event medically vulnerable individuals. Clinic students saw first- they became sick or were separated from their children. I will hand the stress these transportation challenges caused their carry that trip and its impact with me throughout my career clients. and life.” Joseph Shelton, JD candidate ‘21, described a client In addition to agricultural workers, frontline health care whom he represented in a hearing to waive license reinstate- workers face heightened risk of exposure to COVID-19

www.ksbar.org | September/October 2020 45 washburn law clinic

though patient contact. In response, the Washburn Law for our most vulnerable community members. I am proud of Clinic implemented the Healthcare Employees Legal Pre- my students and colleagues for tackling those challenges! n paredness (HELP) Project, through which clinic students and volunteer attorneys prepared advance directives and wills for at-risk health care providers who couldn’t afford the services About the Author of private attorneys. Debi Schrock, Managing Director of Michelle Ewert is an Associate Professor of Administration for the clinic, praised the alumni who vol- Law at the Washburn University School of Law. unteered with the project. She said, “When I reached out to Previously, she worked as a legal services attorney alumni seeking attorney volunteers to assist with the HELP at non-profit organizations in Baltimore, the Central Project, I was overwhelmed by the positive response. We are Valley of California, and the greater Chicago area. If fortunate to have such great alumni who readily give their you see her on the Shunga Trail, say hello! time and talents to assist others in need.” Clinic students and volunteer attorneys have provided critical services to help people plan for incapacity during the pandemic, but unfortu- [email protected] nately the underlying safety issues in many jobs persist. Implications for justice 1. Executive Order No. 20-20, April 9, 2020. Available at https:// governor.kansas.gov/wp-content/uploads/2020/04/EO-20-20-Executed. pdf. 2. American Community Survey, Types of Computers and Internet Subscriptions, Table ID S2801. Available at https://data.census.gov/ced- sci/table?q=S2801&g=0500000US36051,36055,36117_1600000US36 63000_310M300US40380&tid=ACSST1Y2018.S2801. 3. According to the Kansas Department of Health and Environment, as of August 24, 2020, Seward County has over 1,200 reported cases, Finney County has over 1,700 reported cases and Ford County has over 2,200 reported cases, despite relatively small populations. See State Map of COVID-19 Cases by County of Residence, available at https://www. These are just a few ways the pandemic has impacted vul- coronavirus.kdheks.gov/160/COVID-19-in-Kansas. nerable individuals, including many Washburn Law Clinic 4. Corinne Boyer, Coronavirus Clusters Grow Rapidly in Three West- clients. Black and Brown people are disproportionately likely ern Kansas Meatpacking Counties, High Plains Public Radio, April 24, 2020. Available at https://www.hppr.org/post/update-coronavirus-clus- to sicken or die from coronavirus.5 Historic discrimination ters-grow-rapidly-three-western-kansas-meatpacking-counties. has led to unequal access to affordable housing, disparities in 5. Centers for Disease Control and Prevention, Health Equity Con- health care coverage, and significant income and wealth gaps siderations and Racial and Ethnic Minority Groups, July 24, 2020. Avail- based on race, all of which have negative health consequences. able at https://www.cdc.gov/coronavirus/2019-ncov/community/health- equity/race-ethnicity.html. Lawyers play a critical role in combatting these systemic injustices. As Professor Gillian Chadwick, Director of the Washburn Law Clinic, explained, “Lawyers have the skills, knowledge, and power to make real lasting change in our often-troubled legal and social systems. The Washburn Law Clinic is committed to our dual service and education mis- sion, which means we teach students how to serve their com- munities.” Lanna Allen, JD ’20, captured this spirit when describ- ing their motivation for participating in clinic, saying, “The attorneys I admire most have one thing in common: they all feel most fulfilled when offering pro bono or low bono ser- vices to community members who otherwise would have no meaningful legal remedy available to them.” Washburn Law Clinic students are doing incredible work in the community to help vulnerable clients navigate an in- creasingly challenging world. However, there is much work yet to do, both during the pandemic and beyond, to mitigate the systemic problems that make life extraordinarily difficult

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

Local Practice – New Normal by Larry Zimmerman

anaging a legal practice during the pandemic in- The Good volves three broad categories of practice manage- ment worries (so far): The best among the district courts recognized the disrup- M tion under way and worked immediately to reopen in some 1. Personal Practice Preparedness – This series of is- capacity. For my money, none performed better than Johnson sues required lawyers to react quickly to ensure firm County. survival. How do we protect our clients, our staff, and ourselves while continuing critical representa- There is an old proverb that counsels, “Dig the well be- tion and meeting payroll and expenses? What remote fore you’re thirsty.” Johnson County had done exactly that tools and strategies do we have on hand, and what by exploring video conferencing access for litigants almost a must we obtain, install and learn? decade ago. I first kicked the tires on a virtual hearing us- ing the BlueJeans app with Judge Vano back in 2014, and it 2. Supreme Court Response – The Kansas Supreme was remarkably easy to deploy and use. That advance legwork Court has been busy rolling out 29 emergency orders allowed Johnson County to “reopen” for video-conference tallying up to nearly 100 pages, changing everything hearings in April. from statutes of limitation to jury trials to court- house and remote access. This frenzied rulemaking, Johnson County’s quick response to the pandemic was also while necessary, has often confused clients, judges aided by an early realization that the pandemic was likely to and lawyers and has given just about every Kansan be a long-term issue. Decision-makers responded from the something to worry about. beginning as if they would need to develop processes, forms, and technology that would become a new normal. By con- 3. Local Rules and Application – Your firm is run- trast, several judges, clerks and court administrators in more ning (in some capacity) and clients’ needs are no lon- flat-footed districts adopted a “wait and see” approach, admit- ger confined to quarantine. Figuring out how 107 ting they thought the crisis would be short-lived. Those dis- courts in 31 judicial districts are going to react to the tricts squandered valuable time, and many are still struggling pandemic and the Supreme Court’s rules is the chal- to reopen fully to the public. lenge that cannot be delayed any longer. Finally, Johnson County appears to have involved the pub- lic early in its plans to reopen back in April. As the district

www.ksbar.org | September/October 2020 47 law practice management tips and tricks

developed plans, procedures and forms, it shared them with Ultimately, the “worst of the worst” are those courts which the bar and invited comments and concerns. It was reactive to have focused on limiting access to the courts in the hopes feedback given about its missteps and made changes. It con- the pandemic will end soon and pre-pandemic normalcy will tinues to do so months into reopening as on-going rules from return. Filing limits and hearing limits allow them to appear the Supreme Court and executive orders from the governor open while denying genuine access. That position will not last continue to alter the landscape. Johnson County’s transpar- and broader adoption of lessons learned throughout the state ency with and responsiveness to its constituents and the pub- so far will ready us for future crises and increase access to lic are commendable and vital to its successes in preparing for justice. n and responding to the pandemic. The Runners Up About the Author Once it became clear that the pandemic was not a two- Larry N. Zimmerman is a partner at Zimmerman week or even a two-month crisis, many districts worked hard & Zimmerman P.A. in Topeka and former to resume court operations with video conferencing. They adjunct professor, teaching law and technology worked within the limits of free Zoom accounts and later at Washburn University School of Law. He is tapped into licensing made available by a grant and got their one of the founding members of the KBA Law feet wet with a few hearings before opening for something Practice Management Committee. resembling business as usual. The public response has been generally positive. Litigants and lawyers alike appreciate both the reduced potential exposure to the virus and the ease of appearing in court. Accommodations for phone appearance [email protected] in Zoom hearings has helped ensure that even those without the latest technology can appear. In other words, the virus has probably done more to prompt access to justice in a few months than several years of committee meetings and reports. One hiccup with the video conferencing hearings relates to notices and instructions. The lack of uniformity is problem- atic. Though each county has landed on the same basic pro- cess, and all but Johnson County use Zoom, the instruction sheets and notices lawyers must send to litigants vary, with courts often wedded to their own forms. Prompt adoption of a standard notice and instruction set would be welcomed. LEGAL INTERPRETERS SIGN LANGUAGE & 100+ The Not-So-Hot FOREIGN LANGUAGES The most common, immediate problem presented to law- yers is the varied interpretations of the Supreme Court’s rules regarding operations during the pandemic. Continuing issues related to interpretation of suspensions of time deadlines are ON-SITE • OVER THE PHONE reported by lawyers throughout the state. DOCUMENT TRANSLATION One court reactivated its dismissal dockets in contraven- tion of Supreme Court orders and then reacted to motions Interpreters & Translators for courts, to suspend dismissal by saying hearing such motions was not depositions, and client meetings an essential service. Another court notified litigants it was resuming hearings that had been postponed early in the pan- demic response but then decided it would not allow any next actions from the hearings it set pursuant to time suspension Contact Kim Chao rules. Some courts are adopting motion processes (with re- sponse deadlines) to exempt a matter from deadlines. Others 913.491.1444 are authorizing discovery but suspending deadlines to reply [email protected] despite retaining pretrial and trial dates. The picking and choosing what is suspended and what is exempt leaves lawyers www.TranslationPerfect.com confused and litigants livid.

48 The Journal of the Kansas Bar Association Kansas Legal Services helps Kansans prevent foreclosures across the state

ansas Legal Services, in a project funded by the Kan- a major medical condition, he could no longer make his loan sas Bar Foundation, has helped dozens of Kansans payments on his home mortgage. Events happened so quickly fight or prevent foreclosure of their family homes. that it wasn’t long before the sheriff delivered court papers KKLS helped these Kansans in all parts of the state through its notifying him that the bank was going to foreclose and take eleven field offices. KLS attorneys spent over 1,600 hours in away his home. legal assistance through representation and advice, as well as Fortunately, the client connected with KLS. After meeting providing education and referrals with an attorney at KLS, he learned that he had special rights Ana Santos is pictured here with her attorney from Kan- and entitlements as a retired veteran with a VA-Loan. The sas Legal Services, Casey Johnson, after winning in Court mortgage foreclosure process was put on hold; and after some against her abusive ex-husband who filed foreclosure on her research was done by KLS—Manhattan Managing Attorney home. Ana was so grateful for Mr. Johnson’s advocacy. Paul Shipp, negotiations with the bank’s lawyer ensued. The Ana came to KLS when her ex-husband was trying to fore- client was informed of his right to seek a loan modification; close on her home. She speaks only Spanish. In the original the bank agreed. The mortgage foreclosure was dismissed and n divorce decree, Ana was granted possession of the marital he kept his home. home until her ex-husband paid her $14,500 or until it could be sold. The ex-husband never paid and Ana stayed in the home. Years later, Ana’s ex-husband filed the foreclosure case. KLS Ana Santos with attorney Casey Johnson dove head first into this case. Over KLS—Kansas City a year of litigation culminated in a trial. Mr. Johnson skill- Assistant Managing fully argued why, after years of abuse and manipulation, Ana Attorney Casey should be entitled to the property free and clear. The Court Johnson, after deemed the contract for deed void, due to the fraud used to winning a fight against induce Ana’s signature. In addition, Ana will be awarded pu- foreclosure of her nitive damages against her ex-husband, which are yet to be home. determined. Another successful foreclosure case occurred in Riley County. When a retired military veteran and police officer fell on hard times and required extended hospitalization for

www.ksbar.org | September/October 2020 49 Kansas Bar Association Fall 2020 Bankruptcy & Insolvency Virtual CLE Conference Friday, October 2, 2020 9 am - 4 pm 6.0 CLE Credits (including 1.0 Ethics)

AGENDA 9:00 am - Chapter 12: Things to Consider When Representing the Distressed Agricultural Borrower Tom Barnes (Stumbo Hanson LLP) & Wes Smith (Stevens & Brand LLP) Register Now! 10:00 am - Unexpired Leases & Executory Contracts Pricing Tom Gilman (Hinkle Law Firm LLC) & Eric Johnson (Spencer Fane LLP) KBA Member Attorney: $190 Non-Member Attorney: $220 11:00 am - A Chapter 7 Overview with Specific Issues Paralegal: $100 Patricia Hamilon (Stevens & Brand LLP) & Darcy Williamson (Williamson Law Office) Register online Noon - Lunch Break (On Your Own) www.ksbar.org/event/ 2020Bankruptcy 1:00 pm - State of the Bankruptcy Court - Judges’ Panel Chief Judge Dale Somers, Hon. Robert Berger, & Hon. Mitchell Herren

2:00 pm - Chapter 13 Updates & Tips for Practical Practice William Griffin (Chapter 13 Trustee), Laurie Williams (Chapter 13 Trustee) & January Bailey (Prelle Eron & Bailey PA)

3:00 pm - Conflicted about Conflicts (ETHICS) Andrea Chase (Spencer Fane LLP) & Nicholas Zluticky (Stinson LLP)

50 The Journal of the Kansas Bar Association iolta banks of the year Kansas Bar Association Fall 2020

Bankruptcy & Insolvency Congratulations to Virtual CLE Conference Country Club Bank and Bank of the West!

he Kansas Bar Foundation each year recognizes the banks and financial institutions that help invest in access to justice and law related education through the Kansas IOLTA Friday, October 2, 2020 (Interest on Lawyers’ Trust Accounts) program. Each year, two banks are selected as IOLTAT Banks of the Year. Country Club Bank and Bank of the West are the 2020 banks of the 9 am - 4 pm year. The Foundation appreciates collaborating with them and has especially appreciated their 6.0 CLE Credits (including 1.0 Ethics) support during COVID-19. Each year, the IOLTA program generates approximately $100,000 in remittances that provide grants to non-profits in Kansas. The Kansas IOLTA program has 105 banks and financial institutions that offer this service to attorneys. The Foundation also recognizes CoreFirst Bank & Trust as a Kansas IOLTA Prime Partner Bank. The Prime Partner Program is available to any Kansas bank that waives fees and pays supportive AGENDA interest rates. 9:00 am - Chapter 12: Things to Consider When Attorneys in Kansas have an option to participate in IOLTA. Over 4,000 attorneys have an Representing the Distressed Agricultural Borrower IOLTA. The process to have your trust account be an IOLTA is easy. Visit ksbar.org/IOLTA for details. Tom Barnes (Stumbo Hanson LLP) & Wes Smith (Stevens n & Brand LLP) Register Now! 10:00 am - Unexpired Leases & Executory Contracts Pricing Tom Gilman (Hinkle Law Firm LLC) & Eric Johnson (Spencer Fane LLP) KBA Member Attorney: $190 Non-Member Attorney: $220 11:00 am - A Chapter 7 Overview with Specific Issues Paralegal: $100 Patricia Hamilon (Stevens & Brand LLP) & Darcy Williamson (Williamson Law Office) Register online Noon - Lunch Break (On Your Own) www.ksbar.org/event/ 2020Bankruptcy 1:00 pm - State of the Bankruptcy Court - Judges’ Panel Chief Judge Dale Somers, Hon. Robert Berger, & Hon. Mitchell Herren

2:00 pm - Chapter 13 Updates & Tips for Practical Practice William Griffin (Chapter 13 Trustee), Laurie Williams (Chapter 13 Trustee) & January Bailey (Prelle Eron & Bailey PA)

Country Club Bank employees in a Chief’s arrowhead formation. 3:00 pm - Conflicted about Conflicts (ETHICS) Bank of the West employees displaying some company pride. Andrea Chase (Spencer Fane LLP) & Nicholas Zluticky (Stinson LLP)

www.ksbar.org | September/October 2020 51 law students’ corner – Washburn University Law School

How to Ensure Your Email Finds Me Well

by Emily Brandt

GraceGrace

ince March, how many emails have you received that in the form of peers and professors not judging them when started with something like: “I hope this email finds you they were late for an online class. Even though they felt un- well.” How many times did those emails find you well? deserving of grace, professors made sure the student had the SWhat could we all be doing in our lives to ensure that our information they needed to succeed rather than punishing emails are finding others well in these unprecedented times? I them for being unable to make it to a virtual class. When a think that the answer is giving each other more grace. peer found out their summer position was cancelled due to Grace is an integral part of my life—the concept of free COVID-19, several professors used their networks to try and and (sometimes) unmerited help. To me, grace is more than find alternative employment. compassion or empathy. It is an intentional act of giving aid For me, grace has come in the form of patience. I have to others, even when they may not be deserving of the help. found myself unable to focus on a singular task or needing Grace is unconditional. In these unprecedented times, we more clarification than I typically would. When I ask for could all use a little more grace. We could all stand to give more clarification and time on assignments, I have been met and receive more grace. What does giving more grace in law with patience and understanding. Though I may feel embar- school look like? rassed to ask for an extension or a reminder about a deadline, I asked a few of my peers for examples of when grace was that embarrassment quickly disappears when an extension or given to them since we started law school online in March. clarification is granted without a second thought. For one, grace was their boss allowing them to work from I think these examples resonate with a lot of law students home. They are still working from home, and the flexibility right now. We may not always feel deserving of grace, but to be able to do so has ensured the ability to continue earn- those around us are feeling the same way, so we should all do ing an income and gaining experience without the anxiety more to take care of our communities during these unique of being in an enclosed office. For another peer, grace came times. The following is a non-exhaustive list of acts of grace

52 The Journal of the Kansas Bar Association law students’ corner – Washburn University Law School that I think law students should lean into right now, specifi- I also asked my peers how they hope to see law students cally as we begin hybrid courses this fall. extend grace to one another during the fall semester. They Patience: The fall semester will look a lot different in law hope that classmates will realize that the choice their peers schools than ever before. Some courses will be fully online, are making to take classes either online or in-person is be- others a hybrid of online learning and in-person learning. Law ing made with each individual’s health and circumstances students and professors need to be patient with one another. in mind. The choice to take courses virtually does not, and Using so much technology in a classroom and balancing the should not, inhibit the ability of a classmate to participate in needs of students who are participating from home and those study groups and socials. They hope that classmates will take in the classroom will be a learning curve for all involved. Pa- more time to check-in on peers that we may not see as often tience ensures that all the parties involved in hybrid learning because they are not on campus. are given the latitude to make and correct mistakes. There was also a call for understanding that not everyone’s Empathy: Each law student faces unique challenges and situation is the same right now, and we need to act as a col- barriers to success. With the added stressors of COVID-19, lective to ensure that all students are comfortable. If taking it is critical for us to be empathetic toward one another. Peers classes remotely is what makes a law student the most com- may be struggling financially after losing their entire sum- fortable, then we need to understand that and take extra steps mer income, be immuno-compromised, be homeschooling to include those peers in study groups and other law school their children, or may be facing a whole host of other unfore- activities. Finally, we hope that our classmates know that they seen and sometimes invisible challenges to succeeding in law are not alone. We are all going to need a little more grace this school. When a group partner is having a difficult time meet- semester, and we hope that our peers will not be afraid to ing deadlines, put yourself in their shoes and try to see where reach out when they are struggling. they are coming from and why they are struggling before I hope that law students see that now is not the time for judging them. Empathy ensures that we are working with our isolation. Now, more than ever, law students need to focus on peers to succeed together. community-based learning. We should lean on one another Leniency: We all want law school to be our top priority— for support and work to ensure that we are all succeeding we want to do well and be active learners. However, this may When we give grace, we receive grace in return. So, if you not be possible for all of us all the time. We should not judge want to ensure that your email finds me well, extend grace n the priorities of our peers. Rather, we should be lenient in our whenever possible during the fall semester. expectations of others. We can only control our expectations; we cannot control the circumstances in the lives of our class- mates. It is not reasonable to assume our peers can foresee when their electricity will go out or when their babysitter will About the Author cancel last minute. Leniency ensures that the pressure of let- Emily Brandt is a current 3L at Washburn ting fellow law students down is not a hurdle to participating University School of Law. She is a lifelong in law school activities. Kansan and plans to practice in the state upon Flexibility: Online learning may not be every law student’s graduation in May 2021. Emily is currently on the executive board of the Rural Practice preference, but the reality is that online learning will be a part Organization and is a Senior Staff Writer on the of the fall semester regardless of whether classes are meeting Washburn Law Journal. She clerks for Roger in-person. Be flexible with members of your study group who Fincher, Attorney at Law, and serves as a student have opted to take their classes virtually or are uncomfortable ambassador for the law school. meeting in groups to study. Study groups can still outline and work together via platforms such as Zoom. Flexibility ensures [email protected] that all students benefit from collaborative learning.

KALAP Helps Lawyers Suffering from Depression • Addiction • Thoughts of Suicide Self-referral is an act of courage. Referring a colleague is an act of compassion. Call KALAP 24/7 785-368-8275

www.ksbar.org | September/October 2020 53 law students’ corner – University of Kansas School of Law

Taking Navy Skills from Cockpit to Classroom

by Jared Jevons

s a non-traditional law student, it is difficult not to The Skill: Compartmentalization draw on experiences from the past to inform the pres- ent. For me that has meant relying upon my Navy During law school I have often applied a tool I learned in Acareer as an F/A-18F Super Hornet Weapon Systems Offi- flight school: compartmentalization. It was useful through- cer. Colloquially known as a backseater (think: Goose from out my Navy career and has become ingrained in my think- “Topgun”). When choosing a new career, I sought features ing ever since. Compartmentalization is a skill developed in I enjoyed most in squadron life. Some of those features in- flight students to deal with mistakes during a flight. Although cluded: an ever-changing profession that maintains a high compartmentalization can be used to deal with distractions professional standard, no day ever being the same, and work- from both successes and mistakes, it is most often applied ing alongside highly motivated individuals. Although not all in the context of mistakes. That is primarily because minor skills in a Super Hornet are necessary in law school, there are mistakes can snowball into a disastrous series of mistakes, but many similarities between my Navy work environment and also because flight students make a lot of mistakes. To have law school. So, unsurprisingly, many Navy skills and mind- a successful flight it is essential for a flight school student to sets translate into law school. avoid the snowball effect of mistakes. Avoiding the snowball effect is especially challenging when faced with a fast-paced As I enter my third year of law school, one particular skill series of graded events and each separate event is crammed and one particular mindset have been helpful in navigat- with tasks. ing law school life. The skill of compartmentalizing and the mindset of being deliberately humble, approachable, and Mistakes in flight school events are problematic because credible. the emotional response to mistakes is distracting and there

54 The Journal of the Kansas Bar Association law students’ corner – University of Kansas School of Law

is no time to be distracted. For example, a flight student’s humble makes you approachable. failure to make an important radio call directing the flight A humble demeanor creates an approachable presence. Be- may cause the novice flight student to think: “Man, I really ing approachable meant being accessible to others. Making screwed up.” “Did the instructor notice?” “Will this be a re- oneself approachable meant being inviting and friendly rather fly?” As the thoughts increase inside a flight student’s head, so than closed-off and hostile. Sharing knowledge was critical too does the likelihood of failure. To combat these distracting to our success as a profession, so being approachable led to thoughts, flight instructors encourage students to compart- situations where our knowledge could be shared. Being unap- mentalize mistakes. By compartmentalizing mistakes, the proachable ran counter to our goal of sharing our knowledge. student mentally rebounds, avoids a ripple effect of mistakes, Importantly, humility and approachability only go so far in and preserves the ability to achieve pre-flight goals. passing on the craft if you are not perceived to have knowl- Struggling flight students tend to compartmentalize poorly. edge. Successful flight students compartmentalize by recognizing Demonstrating your knowledge and effectively communi- the mistake, understanding the ripple effects, correcting er- cating your knowledge creates credibility. Credibility requires rors real-time, preparing for the next task, and keeping the knowing your craft and knowing it well. Credibility is a prod- ultimate goal in mind. Flight students compartmentalize uct of preparation, dedication and study. It exists at all experi- with the understanding that chastising oneself or lamenting ence levels but when built over time it can have great impact. mistakes has limited usefulness in the midst of a graded flight The great thing about credibility is that one interaction makes event. There is time for frustration and analysis of the specific it easier to share knowledge later. mistake, but that opportunity is post-flight when time is re- served for review. However, credibility does little good if your demeanor and presence prevent engagement. Thus, passing on the craft re- Although a student’s ultimate goal in flight school is obtain- quires being humble, approachable and credible. ing wings of gold rather than a Juris Doctor, flight school is similar to law school because law school has its own fast-paced Of course, this approach is applicable beyond naval avia- events, each separately crammed with tasks. It has allowed me tion. No matter the stage of our legal careers, being humble, to cope with mistakes, move on to the next task, and keep the approachable, and credible is a useful tool when engaging ultimate goal in mind. For example, compartmentalization is with others. I’ve found it helpful as a fellow student, Dean’s a useful tool after an incoherent cold-call response or subpar Fellow, and co-worker. Hopefully, exhibiting these character- written assignment. Compartmentalizing allowed me to raise istics will mean I better represent myself, my university, my my hand again and become a better writer. It also allowed me employer and the profession. to enjoy time off and prepare for the next semester. The skills and mindsets I’ve brought from the Navy into While compartmentalization is a skill useful in challeng- law school are not always natural. They require deliberate ef- ing situations, being humble, approachable, and credible is a fort, and so they remain in the back of my mind no matter mindset employed while in the presence of others. The mind- the situation. Sometimes I’m better at accomplishing them set applies whether you’re passing someone in the hallway, than others. But I’ve found them useful and I hope others do having a one-on-one conversation or speaking to a group. as well. The Mindset: Humble, Approachable and Credible Naval aviators consider themselves professionals. One rea- son they do so is because the profession requires passing a craft onto future Naval aviators. Passing on the craft is challenging About the Author and requires deliberate effort because the operating environ- ment is constantly changing. We were students whether we Jared Jevons is a 3L from Manhattan, Kansas. He received a Bachelor of Science in Geology had 100 flight hours, or 2,000. To best pass on the craft, from the University of Kansas in 2007. Upon we sought in our interactions with others to be humble, ap- graduation he commissioned into the U.S. proachable, and credible. If we exuded those characteristics, Navy where he would go onto serve eleven we could better pass on the craft. years, fly over 2000 hours in the F/A-18F and accumulate 460 landings on an aircraft carrier. Being humble meant being modest, knowing assistance is He is currently Editor-in-Chief of the Kansas sought from those who are humble. Most people would rather Journal of Law & Public Policy, a Dean’s not engage with someone who is boastful or arrogant. Al- Fellow, Student Ambassador, and a member of though pride and self-confidence are a natural consequence the Military Law Society. of acquiring skill and gaining proficiency, humbleness can be [email protected] exuded while being proud and confident. Furthermore, being

www.ksbar.org | September/October 2020 55 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 and Best Lawyers: Ones to Watch. Thirteen were honored as “Lawyer of the Year” in specific practice areas and cities: Glenda L. Cafer joined the Law Offices of Morris Laing Wendell F. Cowan—Insurance Law (Kansas City, KS); Jer- and will practice out of the firm’s Topeka office. Her practice emy L. Graber—Corporate Law (Topeka, Kansas); Kevin J. focuses on the areas of Energy and Telecommunications Law, Arnel—Nonprofit / Charities Law, Patricia Voth Blanken- Public Utility and Regulatory Law, Commercial Law, and ship—Real Estate Law, Jeff P. DeGraffenreid—Litigation Litigation and Administrative Law. - Labor and Employment, Jay F. Fowler—Bet-the-Company Amy Cline was appointed by Gov. Laura Kelly to fill the Litigation, Wyatt A. Hoch—Construction Law, Andrew vacancy created by the retirement of the Hon. G. Joseph Pier- J. Nolan—Tax Law, David E. Rogers—Product Liability ron, Jr. on the Kansas Court of Appeals. Cline has lived in Litigation – Defendants, David M. Traster—Environmen- Wichita and was a partner with Triplett Woolf Garretson, tal Law, Stewart T. Weaver—Elder Law, Craig W. West— LLC, at the time of her appointment. Cline received her un- Personal Injury Litigation – Defendants, William R. Wood dergraduate degree from Wichita State University and earned II—Banking and Finance Law (Wichita, KS). her Juris Doctor at the University of Kansas School of Law. Fifty-six Foulston attorneys were recognized in The Best Paul Davis has joined the Topeka-based firm of Frieden & Lawyers in America in these practice areas: Forbes, LLP. Davis received a B.S. in Political Science from the University of Kansas and earned his Juris Doctor from the • Stanley G. Andeel – Corporate Law, Health Care Washburn University School of Law. He formerly served as Law, Tax Law, Trusts and Estates the Legislative and Ethics Counsel for the Kansas Bar Asso- • James M. Armstrong – Bet-the-Company Litigation, ciation and had been in private practice. His practice has been Commercial Litigation, Legal Malpractice Law - Defendants, focused in the areas of estate planning, probate, real estate, Litigation - Antitrust, Litigation - Intellectual Property, Liti- and government relations. Davis is a member of the Doug- gation - Labor and Employment, Litigation - Regulatory En- las County Bar, the KBA and the ABA, and serves as Vice forcement (SEC, Telecom, Energy), and Litigation - Securities President of Programming for the Douglas County Estate • Kevin J. Arnel – Nonprofit / Charities Law, Tax Law Planning Council. He served 12 years in the Kansas House • Gary L. Ayers – Bet-the-Company Litigation, Com- of Representatives, representing the 46th District which in- mercial Litigation, Health Care Law, Litigation - Health cludes east and central Lawrence. He was House Minority Care, Trade Secrets Law Leader for the final eight years of his service. • Brooke Bennett Aziere – Health Care Law • Donald D. Berner – Employment Law - Management, Notables Labor Law - Management, Litigation - Labor and Employment • Matthew W. Bish – Elder Law, Trusts and Estates Foulston Siefkin LLP saw 67 of its attorneys earn recogni- • Vaughn Burkholder - Employment Law - Manage- tion in the 2021 Editions of The Best Lawyers in America©

56 The Journal of the Kansas Bar Association members in the news ment, Litigation - Labor and Employment, Workers’ Com- • Forrest T. Rhodes, Jr. – Employment Law - Manage- pensation Law - Employers ment, Litigation - Labor and Employment • Boyd A. Byers – Employment Law - Management, La- • David E. Rogers – Personal Injury Litigation - Defen- bor Law - Management, Litigation - Labor and Employment dants, Product Liability Litigation - Defendants • Wendell F. Cowan – Employment Law – Manage- • Anthony F. Rupp – Commercial Litigation, Litigation ment, Insurance Law, Litigation - Labor and Employment - Municipal, Medical Malpractice Law - Defendants, Mu- • Jeff P. DeGraffenreid – Litigation - Labor and Em- nicipal Law, Personal Injury Litigation - Defendants ployment • Teresa L. Shulda – Employment Law - Management • Holly A. Dyer – Commercial Litigation, Litigation • Robert Smith – Real Estate Law - Intellectual Property, Personal Injury Litigation - Defen- • Harvey R. Sorensen – Corporate Law, Mergers and dants, Professional Malpractice Law - Defendants Acquisitions Law, Tax Law, Venture Capital Law • Tara Eberline – Employment Law - Management • Kyle J. Steadman – Insurance Law, Litigation - Insur- • Charles P. Efflandt - Environmental Law, Litigation - ance, Medical Malpractice Law - Defendants, Personal Injury Environmental Litigation - Defendants • Jack M. Epps – Business Organizations (including • Mikel L. Stout – Bet-the-Company Litigation, Com- LLCs and Partnerships), Real Estate Law mercial Litigation, Litigation - Construction, Litigation - Envi- • Jay F. Fowler – Bet-the-Company Litigation, Com- ronmental, Litigation - Intellectual Property, Litigation - Labor mercial Litigation, Litigation - Intellectual Property, Litiga- and Employment, Personal Injury Litigation - Defendants tion - Municipal, Litigation - Trusts and Estates • Matthew D. Stromberg – Commercial Litigation • Cyd Gilman – Criminal Defense: White-Collar • Todd N. Tedesco – Commercial Litigation, Litigation • Jeremy L. Graber – Corporate Law, Tax Law, Trusts - Intellectual Property, Litigation - Labor and Employment, and Estates Litigation - Patent • Douglas L. Hanisch – Employee Benefits (ERISA) • Thomas L. Theis – Health Care Law, Mediation, Law Medical Malpractice Law - Defendants, Personal Injury Liti- • Charles R. Hay – Health Care Law gation - Defendants • Wyatt A. Hoch – Arbitration, Construction Law, Liti- • David M. Traster – Energy Law, Environmental Law, gation - Construction Law Litigation - Environmental, Water Law • Christopher M. Hurst – Tax Law • Patricia Voth Blankenship – Real Estate Law • Jeffery A. Jordan – Bet-the-Company Litigation, • Darrell L. Warta – Bet-the-Company Litigation, Commercial Litigation, Litigation - Banking and Finance, Commercial Litigation, Personal Injury Litigation - Defen- Litigation - Bankruptcy, Litigation - Construction dants, Product Liability Litigation - Defendants • Jason P. Lacey – Employee Benefits (ERISA) Law, • C. Edward Watson – Employment Law - Manage- Litigation - ERISA ment • Amy S. Lemley – Personal Injury Litigation - Defen- • Shannon D. Wead – Bankruptcy and Creditor Debt- dants, Medical Malpractice Law - Defendants or Rights / Insolvency and Reorganization Law, Litigation • William P. Matthews – Copyright Law, Trademark - Bankruptcy, Personal Injury Litigation - Defendants Law • Stewart T. Weaver – Elder Law, Trusts and Estates • Scott C. Nehrbass – Commercial Litigation, Litiga- • Craig W. West – Insurance Law, Litigation - Insur- tion - Banking and Finance, Litigation - Intellectual Prop- ance, Personal Injury Litigation - Defendants erty, Litigation - Real Estate, Personal Injury Litigation - De- • Rachel Wetta – Litigation - Insurance fendants • William R. Wood II – Banking and Finance Law, • Andrew J. Nolan – Tax Law, Corporate Law Corporate Compliance Law, Corporate Governance Law, • Michael J. Norton – Commercial Litigation, Insur- Corporate Law, Financial Services Regulation Law, Franchise ance Law, Litigation - Insurance, Personal Injury Litigation Law, Leveraged Buyouts and Private Equity Law, Mergers – Defendants and Acquisitions Law, Project Finance Law, Real Estate Law, • James D. Oliver – Appellate Practice, Bet-the-Com- Securities / Capital Markets Law pany Litigation, Commercial Litigation, Corporate Law, Liti- • Charles J. Woodin – Energy Law, Mining Law, Natu- gation - Antitrust, Litigation - Banking and Finance, Liti- ral Resources Law gation - Regulatory Enforcement (SEC, Telecom, Energy), • Issaku Yamaashi – Mergers and Acquisitions Law Litigation - Securities, Mining Law, Securities/Capital Mar- Eleven Foulston attorneys were included in the inaugural kets Law edition of Best Lawyers: Ones to Watch in these practice • Timothy P. O’Sullivan – Elder Law, Trusts and Es- areas: Lisa M. Brown—Health Care Law; Trent R. By- tates quist—Banking and Finance Law, Corporate Law; Kelsey • John C. Peck – Natural Resources Law, Water Law N. Frobisher—Bankruptcy and Creditor Debtor Rights / • James P. Rankin – Administrative / Regulatory Law, Insolvency and Reorganization Law; David R. Green— Employee Benefits (ERISA) Law, Government Relations Construction Law; Clayton J. Kaiser—Commercial Liti- Practice, Litigation - ERISA gation, Criminal Defense: White-Collar, Health Care Law; • Larry G. Rapp – Corporate Law, Equipment Finance Robert J. McFadden—Energy Law, Environmental Law; A. Law Nicole Rose—Commercial Litigation; Alex W. Schulte—

www.ksbar.org | September/October 2020 57 members in the news Health Care Law; Sarah E. Stula—Appellate Practice; Eric of Washburn University School of Law, O’Brien also holds a Turner—Appellate Practice, Commercial Litigation, Labor bachelor’s degree in history from Emporia State University. and Employment Law—Management; Amanda M. Wilw- Carol M. Park of Hays has been appointed by the Chief ert—Health Care Law Justice of the Kansas Supreme Court to serve as chair of the John Gatz of Colby was reappointed by the Kansas Su- Kansas Board of Law Examiners. Park is a partner in the law preme Court to a third four-year term on the Board for Dis- firm of Schwartz & Park, LLP. She has been a member of cipline of Attorneys for which he is chair. The board makes the Board since 2013 and served as vice chair in 2019. The up part of the process for addressing ethical complaints 10-member board is comprised of judges and lawyers; it over- against lawyers which begins in the Office of the Disciplin- sees and grades the twice-yearly bar exam and presides over ary Administrator. Three other lawyers were reappointed: hearings on bar applicants’ character and fitness to practice law. Stacy Ortega, Wichita; James Rankin, Topeka; and Lee Park was born in Dodge City, received her undergraduate de- Smithyman, Overland Park. gree from the University of Nebraska-Lincoln and obtained her Juris Doctor from Washburn University School of Law. All six attorneys at Monnat & Spurrier, Chartered have been honored by Best Lawyers in America© 2021: Alan Rupe, managing partner of Lewis Brisbois’s Kansas City & Wichita offices and vice chair of the firm’s Labor & Dan Monnat. This is Dan’s 33rd consecutive year being Employment Practice, was recognized as Best Lawyer in the honored by the publication. He was named Best in four dis- 2021 list for Civil Rights Law, Employment Law Manage- tinct practice areas: Criminal Defense–General Practice; ment, Litigation – Labor and Employment, and Litigation Criminal–White Collar; Bet-the-Company Litigation; and – Municipal. Appellate Practice. Monnat has practiced in Wichita for more than 40 years. A graduate of California State Univer- Sixteen Attorneys from Triplett Woolf Garretson, LLC, sity, Monnat holds a J.D. from Creighton University School have been honored by The Best Lawyers in America 2021©. of Law and is a graduate of Gerry Spence’s Trial Lawyer’s Jeffery C. Dahlgren is listed in the field of Real Estate College. Law; Theron E. Fry–Trusts and Estates; Thomas P. Gar- Stan Spurrier, a legal scholar who co-founded the firm retson–Corporate Law; Tyler E. Heffron–Bankruptcy and with Monnat in 1985, was recognized in the areas of: Appel- Creditor Debtor Rights/Insolvency and Reorganization Law, late Practice; Criminal Defense: General Practice; and Crimi- Commercial Litigation, and Personal Injury Litigation–De- nal Defense: White-Collar. Spurrier earned his bachelor’s de- fendants; J.T. Klaus–Public Finance Law; Lisa McPherson– gree from Wichita State University and his J.D., magna cum Health Care Law; Eric B. Metz–Employment Law – Indi- laude, from Washburn University School of Law. viduals, Employment Law – Management, Litigation – Labor and Employment; Rachael K. Pirner–Litigation – Trusts Trevor Riddle, listed for his fourth consecutive time in the and Estates, Trust and Estates; Shane A. Rosson–Employ- area of Criminal Defense–General Practice, is particularly ment Law – Management; Thomas C. Triplett–Corporate skilled in working with expert witnesses. A graduate of Okla- Law, Litigation and Controversy – Tax, Tax Law, Trusts and homa State University, Riddle earned a bachelor’s degree in Estates; James A. Walker–Bet-the-Company Litigation, philosophy, with an emphasis in the philosophy of science. He Commercial Litigation; John P. Woolf–Bet-the-Company earned his J.D. from the University of Kansas School of Law. Litigation, Commercial Litigation. Sal Intagliata earned his sixth consecutive listing in Best Ron H. Hamden was named Best Lawyers 2021© Merg- Lawyers in three individual practice areas: Criminal Defense: ers and Acquisitions Law “Lawyer of the Year” in Wichita General Practice; Criminal Defense: White-Collar; and in the fields of Mergers and Acquisitions Law and Real Estate DUI/DWI Defense. A shareholder in Monnat & Spurrier, Law. Intagliata earned his bachelor’s degree, with distinction, from the University of Kansas. He earned his J.D. from the Univer- Andrew N. Kovar received a The Best Lawyers in sity of Kansas School of Law. America©: Ones to Watch (2021 Edition) in Wichita for Banking and Finance Law, Municipal Law, and Public Matthew Gorney is an associate whose practice includes Finance Law. criminal defense, DUI defense and appellate work. He was se- lected to the Best Lawyers list in the practice area of Criminal Jeffrey D. Leonard was named Best Lawyers 2021 Liti- Defense: General Practice. Formerly a professional journalist, gation–Construction Law “Lawyer of the Year” in Wich- Gorney graduated from the University of Kansas School of ita and is listed in The Best Lawyers in America© 2021 in Law. He simultaneously earned a master’s degree in journal- Construction Law and in Litigation – Construction. ism from KU’s William Allen White School of Journalism Timothy E. McKee was named Best Lawyers 2021 Natu- and Mass Communications. He earned a bachelor’s degree ral Resources Law “Lawyer of the Year” in Wichita and from Kansas State University. was listed in the Best Lawyers in America© 2021 in the field Eli O’Brien is an associate attorney whose primary prac- of Natural Resources Law. tice includes defense of serious felony accusations, as well as DUI and DWI cases; he was honored by Best Lawyers in the practice area of Criminal Defense: White-Collar. A graduate

58 The Journal of the Kansas Bar Association Obituaries

Richard “Dick” Bond (9/18/1935 – 7/23/2020) Services, Safehome, KU Gold Medal Club, YMCA, Great- er Kansas City Community Foundation, KU Law Society Dick Bond, 84, of Overland Park, KS, died on July 23, Chair and many others. He was also a member of the Kan- 2020 of natural causes. He was born September 18, 1935 sas Bar Association and the Johnson County Bar Association to Ivy and Florine Bond. He graduated from Shawnee Mis- where he received their highest award, the Justinian Award. sion High School, KU and KU Law School. He married Sue Dick was a long time active member of Rolling Hills Pres- Sedgwick in 1958 and they have two children, Amy Bond byterian Church as a trustee, choir member, ordained elder of Fairway, KS and Mark Bond of TN. He is also survived and served on many committees. In lieu of flowers, donations by his grandchildren Spencer Davis, John “Patrick” Sokol- in his memory may be made to Rolling Hills Presbyterian off and Eden Sokoloff. He was an Eagle Scout and Order Church 9300 Nall Ave., Overland Park, KS 66207. Or, his of the Arrow. At KU, he was President of his social frater- last fundraising effort was to benefit the KU Alzheimer’s Dis- nity, President of his honorary fraternity and a member of ease Center at 3901 Rainbow Blvd., Mail Stop 3012, KC, the All Student Council. In law school, he was President of KS 66160. Online contributions may be made at www.kuen- the Student Bar Association and a member of the National dowment.org/give. Please indicate donations are for the Dick Moot Court team. After law school, he practiced law in Mis- Bond Memorial. Services are pending. Online condolences sion, Kansas and became the first City Attorney of Overland may be expressed at www.amosfamily.com (Arr. Amos Fam- Park. He became Chief of Staff for Congressman Robert ily Funeral Home 10901 Johnson Dr., Shawnee, KS 66203; Ellsworth for six years, Congressman Larry Winn, Jr. for 18 913-631-5566) years and then Congresswoman Jan Meyers. Dick was ap- pointed to the Kansas Senate in 1986 and then elected to (Ed. note: It was my privilege to serve on Dick Bond’s staff three four year terms. He served as Senate President from when he was President of the Kansas Senate. He was the consum- 1997 until 2001. As President, he was the principal catalyst mate professional, the ultimate gentleman. He was always class for the major Capital Restoration Project. He has served on personified. The world is reduced by his departure from it. Rest numerous corporate boards including five bank boards, the in peace, sir. You are missed. pVs) most recent being Bank of Blue Valley and two boards for Midwest Trust Company. His interest in education included 5 years on the Kansas Board of Regents and served one year George William “Bill” Frick (6/7/1944 – 7/5/2020) as chair. He served many years on the KU Edwards Campus George William “Bill” Frick passed away on July 5 in Palm Advisory Board and as its chair. He was the originator of the Desert, CA. He was born in Ft. Scott, KS, on June 7, 1944, Education Research Triangle that has raised millions for KU to Ethel and Phillip Frick (KU L ’36). According to family Cancer Research, KU Edwards Campus and K-State Olathe lore, Phil took one look at his newborn son and left for World Campus. He served on a KU Chancellor Search Commit- War II. Bill grew up in Ft. Scott, attended public schools and tee and a Vice-Chancellor Search Committee. From KU Law graduated valedictorian of his class. He attended the Uni- School, he received the Distinguished Alumni Award and the versity of Kansas, joined Phi Delta Theta fraternity, served James Woods Green Medallion. From the KU Alumni As- as President of the Student Union Activities and graduated sociation, he was awarded the Fred Ellsworth Medallion. He Phi Beta Kappa and With Distinction. He began law school was also awarded KU’s highest award, the Distinguished Ser- at the University of Michigan, but he returned to Kansas to vice Citation and from KU Endowment Association named marry Helen Louise Bush whom he met on the University of an Honorary Life Trustee. On the Johnson College Commu- Kansas summer language program in Spain. nity Foundation, he served as its chair and received numerous awards including Johnson Countain of the Year. He was the Bill completed law school at KU, was on Law Review, and founder of the Some Enchanted Evening annual fundraiser upon graduation, moved to Kansas City where he joined the for students’ scholarships. Dick served KVC for many years Dietrich Davis law firm. There his daughter, Caroline Jane in their capital fundraising, raising over 10 million dollars. Frick, was born. Bill had been active in a local environmental He was President of Kansas City, KS. Rotary and a member organization and decided to relocate to greater Washington to of Overland Park Rotary and a Paul Harris Fellow. He was a join the newly formed Environmental Protection Agency. Bill Board Member of KCPT, Shawnee Mission Hospital Foun- served as head of the water lawyers, then air lawyers and was dation and received the Richard Edmonds award. He was appointed General Counsel of the Agency at age 30. His son, also a Board Member of the Overland Park Chamber, KU Charles William Frick was born in Maryland. Upon leaving Medical Center Advancement Board, Youth Friends, Kan- EPA, Bill joined the startup law firm of Van Ness Feldman. sas Action for Children, United Way, United Community After a decade in the Washington area, the family returned

www.ksbar.org | September/October 2020 59 obituaries

to Kansas City to be closer to family and longtime friends and or Habitat for Humanity’s Veterans Build and may be sent for Bill to become a partner in the law firm Lathrop Koontz. in care of Prairie Rose Funeral Home, 602 E. Main St., An- After three years in Kansas City, Bill was recruited back to thony, KS 67003. Washington to serve as General Counsel of the American Pe- troleum Institute. Upon retirement from API, Bill rejoined his friends at the Van Ness Feldman law firm. He retired Hon. Fred Schuyler Jackson (8/5/1935 – 8/1/2020) to travel extensively internationally with Helen Louise, who was employed by the World Bank Group. They summered in Judge Fred Schuyler Jackson passed away Saturday, Aug. 1, their mountain home near Estes Park, CO where Bill served 2020, after a long illness. as President of the Summer Residents Association, and spent He was born Aug. 5, 1935, to Schuyler Wood Jackson and their last several winters in Palm Desert, CA. Esther Watson Jackson of Topeka. He graduated from To- Bill is survived by his wife of 53 years, Helen Louise; his peka High School, where he began dating Mary Jo McNair. daughter Caroline (Adam Brown) and grandson Will Page; They married on Aug. 17, 1957, following their graduations his son Charles William (Bethany Medford Frick) and his from Washburn University. He then attended Washburn grandchildren, Katie and Charlie; his sister Christie Reynolds University School of Law, graduating with his juris doctorate and brother, Phillip Frick of Wichita, KS, and 10 nephews in 1960. and nieces. A memorial service will be held at a later date He began his career as an assistant county attorney for but in lieu of flowers, the family suggests a contribution in Shawnee County. He joined the law firm of Stumbo & Irwin his name to one of his favorite organizations: The Univer- before establishing his own law practice. From 1966 to 1968, sity of Kansas Endowment in support of Study Abroad (P.O. he served as a U.S. Commissioner (now known as Magistrate), Box 928, Lawrence, KS 66044); his daughter’s nonprofit, the appointed by U.S. District Court Judge George Templar. Texas Archive of the Moving Image (www.texasarchive.org During his 20 years of private law practice, he also served as / 3908 Avenue B, Suite 306, Austin, TX 78751) or the Estes an adjunct professor in the Washburn School of Law, where Park Public Library (https://estesvalleylibrary.org / PO Box he taught negotiation and settlement. 1687, 335 East Elkhorn Avenue, Estes Park, CO 80517). He was sworn in as a judge of the Shawnee County Dis- trict Court on Aug. 18, 1980. During his years on the bench, John M. Gaffney Jr. (3/1/1940 – 7/6/2020) Judge Jackson presided over numerous high-profile civil and criminal cases. When he announced his retirement, The To- John M. Gaffney Jr. was born March 1, 1940 to John M. peka Capital-Journal editorial board commended Judge Jack- Gaffney and Mary Louise (Woestemeyer) Gaffney in Kansas son as “a rock-solid jurist. He is, in short, a judge’s judge.” City, Kansas. John graduated from Washington High School A scholar and a gentleman, Judge Jackson demanded deco- in Kansas City, Kansas in May 1958. On September 14, 1963, rum in his courtroom. When necessary, he could convey his John and Barbara Ann Middaugh were united in marriage in indignation with a few measured words or a steely glance. The Lawrence, Kansas. To this union, two children were born, a Capital-Journal editors wrote, “If every judge had Jackson’s daughter, Jonna, and a son, Johnny. sense and legal acumen, the state never would have passed John attended the University of Kansas, completing a sentencing guidelines that remove a lot of a judge’s discretion Bachelor’s Degree in education, attending graduate school, in criminal cases. But not every judge is Fred Jackson.” and later receiving a Juris Doctor. After becoming a lawyer in Judge Jackson retired in 1999 but continued to serve as a 1979, John and his family moved to Anthony, Kansas where senior judge until 2011. For the Kansas Supreme Court, he he joined Ronald D. Albright in the practice of law. John re- served as one of three judges on the Kansas Judicial Ethics tired in the summer of 2016. Advisory Panel from 1999 to 2019. John was a member of the Anthony Kiwanis Club, The He was a member of the Topeka Bar Association, Lawyers Harper County Bar Association, the Kansas Bar Association, Club, the Kansas Bar Association and the American Bar As- and the Kansas Honor Scholars program. sociation. For more than 40 years, he also belonged to The On July 6, 2020, John passed away at home. He was pre- Jayhawker Club, which was founded in the early 1900s as a ceded in death by his parents, his older sister Faye Wood, and men’s literary group. his grandson Gabriel Gaffney. He is survived by his wife Bar- Judge Jackson was a voracious reader and an avid outdoors- bara, his daughter Jonna, his son Johnny, his granddaughter man. He enjoyed countless hunting and fishing trips with Mackenzie, and his grandson Jack. dear friends and his son, Kent. The opening weekends of Cremation and burial have taken place. Memorials in pheasant and duck seasons were high holy days, and he espe- memory of John may be made to Wounded Warrior Project cially loved trout fishing in Colorado.

60 The Journal of the Kansas Bar Association obituaries

He was a longtime member of the Topeka Jazz Workshop 1953-55 he served as the Workers Compensation Judge of and St. David’s Episcopal Church, where he was a lay reader Northeastern Kansas and then 1955-56 he was the Work- and served several terms on the Vestry. ers Compensation Commissioner of Kansas. He had served Judge Jackson was preceded in death by his parents and his on the Kansas Governor’s Workers Compensation Advisory sister, Patricia Jackson Hanvey. He is survived by his wife, Jo; Committee. his daughter, Jennifer Jackson Sanner, and her husband, Rob- He was past president of the Kansas Trial Lawyers Asso- ert; his son, Kent, and his wife, Kali; six grandchildren, Ra- ciation, Sunflower Council of Camp Fire Girls, Lenexa Op- chel Sanner, Jackson Sanner, Claire Sanner, Schuyler Jackson, timist Club, several Shrine organizations and 1984 through Elizabeth Jackson and Paul Jackson; his niece, Katy Hanvey 1991, Recorder of Abdallah Shriners. Willard, of Spokane, Washington, and his nephew, Michael He served on the boards of the Kansas City Presbyterian Hanvey, of Sydney, Australia. Manor, The Presbyterian Manors of Mid America, the Church The family extends heartfelt thanks to the entire staff of Development Corporation of the Synod of Mid America, was Homestead of Topeka who provided extraordinary care for an Elder and former Deacon of the First Presbyterian Church Judge Jackson. In lieu of flowers, the family suggests memo- of Kansas City KS, Knox Presbyterian Church of Overland rial contributions to St. David’s Episcopal Church. Family Park, and Southminster Presbyterian Church of Prairie Vil- members will gather for a private graveside service; they hope lage. When a youth he attended the first National Boy Scouts to hold a memorial service at St. David’s when it is safe for Camp held in Washington, DC, traveling with Scouts from loved ones and friends to gather. all parts of the USA on Railroads. As an Assistant Scoutmas- To leave a special message for the family online, visit www. ter of Troop 189, Countryside Christian Church, he saw his DoveTopeka.com Judge Fred Schuyler Jackson son become an Eagle Scout. His memberships included Wyandotte High School class of 1942 Reunion Committee, a member of Wyandotte Ma- Albert “Bert” Merritt Ross (11/20/1923 – 6/3/2020) sonic Lodge No. 3, Casswell Consistory of Scottish Rite, The Oriental Band of Abdallah Temple and a former member Albert Merritt (Bert) Ross, age 96, Mission, KS, passed of Yorkrite Masons and Shriners Royal Order of Jesters; he away June 3, 2020, at home in Mission Square Indepen- served the Oriental Band and the Jesters as President. dent Living, Mission, KS. A graveside service was held Sat., June 13, at Chapel Hill Memorial Gardens, 701 N. 94th St., Albert was preceded in death by his parents, his stepmother KCKS 66112. The service was also available for those un- Betty Jones Ross, his brother Robert “Bob” Marion Ross, able to attend in person via Facebook live, a virtual memorial and Bob’s son Robert Marion Ross, Jr. He leaves his wife of service. The Family suggests remembrance gifts to Shriners’ 71+ years, four children: Harriett “Hatti” Ross of the home Children’s Hospitals, care of Abdallah Shrine, 5300 Metcalf, in Mission Square; Gretchen Ross Hill, PhD., Warrensburg, Overland Park, KS, or to Southminster Presbyterian Church, MO; Nava Ross Renaud (Chris) of Redford Township, MI; 6306 Roe Avenue, Prairie Village, KS 66208. and Dr. Albert Marshall Ross, IV (Kathy) of East Greenwich, RI, eleven grandchildren, and fourteen great grandchildren. Albert was born at home in Kansas City, KS on November 20, 1923, to Albert Mettee Ross and Marion Birch Damrell Ross. After graduating from Wyandotte High School Class of Allen L. Shelton (8/8/1943 – 8/23/2020) 1942 and a year at Kansas City, KS, Community College, he left this area in 1943 for training in the Navy V-12 program Allen L. Shelton, 77, of Oberlin, Kansas, died August 23, at Washburn University, Topeka, KS; then a semester at Har- 2020, at the University Medical Center in Omaha, Nebraska. vard School of Business becoming a Naval Supply Officer. He He was born August 8, 1943 at his Grandmother Desbien’s served in the Pacific on a Barracks Ship [APL] that transport- home in Damar, Kansas to James Milford and Stella Irene ed Soldiers and Marines to the Marshall Islands, flying home (Desbien) Shelton. He was their oldest child with brothers from Kwajalein in 1946. He enrolled in Washburn University Denis, Jim, Rodney, and Maurice arriving to complete the that fall, graduating with a Business degree in 1947 and with family. Allen grew up in Hill City where he attended grade, a Law Degree in 1949, having become a member of Phi Delta junior high and high school, graduating in the Hill City High Theta Fraternity in 1943 serving as President in the fall of School Class of 1961. 1948. He was also a member of Delta Theta Phi Legal Fra- Allen graduated from Fort Hays State College in 1965 and ternity. Albert Merritt Ross and Ora “Gretta” (Nuttle) were then entered Washburn University School of Law in Topeka. married in Topeka on December 18, 1948. Interestingly, his last two years of classes were spent in trail- Mr. Ross practiced law in Kansas City and Overland Park, ers after the June 8, 1966 Topeka tornado demolished the KS. July 5th 1949 to retirement on December 31 1995. From law school. In 1968 he received his Juris Doctor degree from

www.ksbar.org | September/October 2020 61 obituaries Need clients?

Washburn University, where he ranked fourth in his class. One year, Patti worked in Estes Park and Aspen, Colorado, Need increased Returning to his hometown, he joined Kenneth Clark’s law and Los Angeles, California. In Topeka, she was the Adult firm. After Allen became a partner the firm was known as Program Director for the YWCA, then when her sons were VISIBILITY? Clark and Shelton. A high point in his career was when he young she was a preschool teacher at the YMCA and First Lu- was hired as a special prosecutor in two high-profile murder theran Church. She worked for Kaw Valley Girl Scout Coun- cases in the 1970’s. Through the years he won many appeals cil, the Kansas Bar Association, and Washburn Law School, before the Kansas Supreme Court. Later Allen practiced law writing and editing publications and raising funds. While in both Oberlin and Smith Center. Allen was very passion- working full time, she began taking evening seminary classes ate about his work and helped an unfathomable number of in Kansas City graduating May 18, 2002, and ordained by people through his practice. He was devoted to his clients and First Christian Church (Disciples of Christ), Topeka, May 19, was “at home” in the courtroom. Allen practiced law until his 2002. She served as a student associate pastor at First Chris- death, a career which lasted 51 years. tian Church, Topeka. She was the interim pastor at First Pres- Leisure time found Allen enjoying hunting, fishing, read- byterian Church, Holton, at West Side Presbyterian Church, ing, listening to music, watching old westerns and Fox News. Lawrence, interim associate pastor at First Presbyterian, Law- Photography was another interest. He found much pleasure rence, and interim pastor at First Presbyterian, Wamego, and hiking in pastures photographing wildflowers, which he later pastor at Oakland Presbyterian Church, Topeka. She served researched. Allen was such an avid KU basketball fan and en- on several community boards and held offices in professional joyed watching all types of sports on ESPN. He always looked organizations including on national committees of ASAE, forward to taking his oldest grandson to the local high school and was a charter member and second president of IABC, basketball games. Allen’s love of learning and intelligence, Topeka. She was a member of PEO, DV chapter, Topeka. which enabled him to answer his children’s many questions, She was baptized Palm Sunday, 1958, at First Christian as well as his sense of humor, were appreciated by them. Most Church, Lyons, Kansas, and was a member of First Christian of all, Allen loved spending time with his grandkids who Church, Topeka. meant everything to him. They gave his life meaning. Patti loved and adored her husband Jim, sons, and grand- Allen was preceded in death by his parents. Survivors in- children, and they blessed her with great joy. She took plea- clude his children: Jason Shelton, Wichita, Jordan Shelton, sure in cooking for them, hiking and exploring nature and Portland, Oregon and Miranda (Tim) Gish, Oberlin; Step- the national parks. She looked after several family members. children: Monica Larson, Carl (Des) Larson, Marissa (Kane) She was given a 1937 Singer Featherweight Sewing Machine Robinson and Colby (Anna) Larson; ex-wives Kay Clark, when 13, and for the next 15 years or so she sewed most of the Wichita and Marla (Stepp) Shelton, Oberlin; brothers: Denis clothes for her sister and herself. She worked two summers as Shelton, Hill City, Jim Shelton, Hays, Rodney Shelton, Havi- a finisher in the men’s tailor shop of Henry’s, Wichita. land, and Maurice (Nancy) Shelton, Buffalo; nine grand- Her passion was words, whether reading, or writing to pro- children, other relatives and friends. Hill City always had a Lawyer Referral Service claim God’s love so more would sing “morning by morning special place in Allen’s heart. He delighted in returning as new mercies we see” and praise the Lord. She enjoyed flowers often as possible to visit family and friends who will forever and gardening particularly roses and red geraniums in blue- remember and miss him. glazed pots. ... [LRS] is a good source for a steady flow of persons seeking assistance with the She is survived by son Andrew Klotz (Rene’), and their “kinds of cases I handle. The benefits of working with LRS far exceed the costs of Patricia Ann “Patti” Slider (N/A - 6/30/2020) children Lucy and Conrad, and son Charles Klotz; sister San- dra Slider, and sister-in-law Robin and nephews Dustin and enrollment. It is the most effective use of advertising budget I can imagine. Patricia Ann “Patti” Slider, (73), died June 30 , 2020. She Matthew. She was predeceased by her husband of 33 years, ~ Joseph Seiwert, Snider & Seiwert LLC, Wichita was born to Charles and Beulah Slider of Lyons, Kansas. Her Jim Wright (2017), two brothers William (2017), and Mi- ” parents, church, and Girl Scouting were major influences chael (2020), her parents, and step-dad Ansel Tobias. She was on her life, as was high school teacher Elizabeth Ashlock, buried in the Lyons Cemetery; the family will gather for a who helped her overcome a speech impediment and encour- worship service of Witness to the Resurrection when feasible. For more information about the KBA aged her writing. She graduated from Lyons High School, Baker University, and Central Baptist Theological Seminary Lawyer Referral Service program, visit (MDIV), Shawnee Mission, KS. She also attended the Uni- versity of Kansas, where she received several extra-curricula www.ksbar.org/LRS or call 785-234-5696 honors, and St Paul School of Theology, KC, MO. She mar- ried Paul Klotz and two sons were born to them: Andrew and Charles. In 1984, she married James Wright.

MEETS ABA STANDARDS FOR LAWYER REFERRAL Your trusted legal source. AMERICAN BAR ASSOCIATION 62 The Journal of the Kansas Bar Association THE RIGHT CALL FOR THE RIGHT LAWYERTM Need clients? Need increased VISIBILITY?

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... [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

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of attorney fees and remanded the case to district court for Attorney Discipline further consideration of that issue. Father’s petition for review was granted. ORDER OF DISBARMENT ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59- IN RE SUSAN ELIZABETH VAN NOTE NO. 16,327—AUGUST 26, 2020 2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support FACTS: In 2012, the Disciplinary Administrator initiated HELD: The court declines to address the constitutional an investigation into Van Note after she was charged with issue because it was not raised before the district court or two counts of murder in Missouri. Her license was tempo- court of appeals. It is not sufficient to raise a new issue for rarily suspended while the criminal process concluded. Van the first time in a petition for review, and counsel presented Note was acquitted on criminal charges and a wrongful death inconsistent arguments to the appellate courts. There was suf- lawsuit was settled. Van Note was disbarred in Missouri in ficient evidence to support the district court’s decision that 2017. In a letter signed by Van Note on July 21, 2020, she Father failed to support the natural mother during the last six voluntarily surrendered her license to practice law in Kansas. months of her pregnancy. Father’s non-financial support was HELD: The Court accepts the surrender of Van Note’s li- minimal and of little value to the mother and his financial cense to practice law in Kansas and she is disbarred. support was inconsequential. DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father’s constitutional claim in order to serve the Civil ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The ADOPTION disparate treatment for unwed biological fathers in adoption IN RE ADOPTION OF BABY GIRL G. cases is troubling. SEDGWICK DISTRICT COURT—COURT OF APPEALS IS STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h) AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED (1) NO. 121,051—JULY 10, 2020 HABEAS CORPUS, RIGHT TO COUNSEL FACTS: Baby Girl G. was born in 2018. The day after BALBIRNIE V. STATE her birth the natural mother signed a consent to adoption FRANKLIN DISTRICT COURT— COURT OF APPEALS IS and relinquished her parental rights. In that consent form, REVERSED she named two men as possible fathers. The adoptive par- DISTRICT COURT IS REVERSED—CASE REMANDED ents filed actions in district court seeking to terminate the NO. 115,650—JULY 24, 2020 parental rights of natural mother and both men named as FACTS: Balbirnie was convicted of second-degree murder, possible fathers. A month later, Father filed a voluntary ac- and his conviction was affirmed on direct appeal. Throughout knowledgement of paternity and indicated his intent to con- that process, Balbirnie consistently proclaimed his innocence test the adoption. After an evidentiary hearing, the district and blamed the murder on one of the other people present court found that Father failed to provide meaningful support at the scene of the crime. Within one year of his conviction to natural mother during the final six months of her preg- being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in nancy. The district court also found that Father was unfit on which he claimed trial counsel was ineffective for failing to several grounds, but it elected not to use them as a basis for investigate and then introduce at trial a recording of a 911 termination. Father’s parental rights were terminated. The call at which an eyewitness named another person as the mur- court of appeals affirmed that ruling but reversed the award derer. After an evidentiary hearing, the district court found

64 The Journal of the Kansas Bar Association appellate decisions that trial counsel did not perform deficiently and even if he manner. The County was an aggrieved party, as that term is had, Balbirnie failed to establish prejudice. The Court of Ap- used in K.S.A. 74-2426(c). BOTA’s refusal to issue the full peals disagreed with the district court on the question of trial and complete written opinion was an order and is appealable counsel’s performance, finding that the failure to introduce on an interlocutory basis. The case is remanded to the court the 911 call fell below an objective standard for reasonably of appeals for further consideration of whether BOTA acted effective representation. But the panel ultimately affirmed the properly in failing to issue a full and complete opinion. Be- district court, holding that this deficient performance did not cause there has not been a final decision the court of appeals prejudice Balbirnie. The Supreme Court granted Balbirnie’s cannot yet address the merits of the County’s argument. petition for review. ISSUES: (1) Performance; (2) prejudice HELD: Balbirnie prevailed in the Court of Appeals on the Criminal issue of deficient performance and did not seek review of that decision. The State did not file a cross-petition for review -ei ther, although case law existing at the time the petition was APPELLATE PROCEDURE—CONTRACTS—CRIMINAL filed suggests such a filing was not necessary. A cursory glance PROCEDURE—EVIDENCE—MOTIONS at the Court of Appeals’ decision shows that it correctly ruled STATE V. BRAUN that trial counsel’s failure to introduce the 911 call was not ELLIS DISTRICT COURT—REVERSED AND a strategic decision was, in fact, objectively unreasonable. A REMANDED; COURT OF APPEALS—REVERSED review of the evidence in its totality shows that if the call NO. 113,762—AUGUST 28, 2020 had been introduced there was a reasonable probability the FACTS: State charged Braun with DUI under K.S.A. 2012 jury would have made a different decision. This is true even Supp. 8-1567(a)(2) for having blood alcohol content of more though there was evidence of Balbirnie’s guilt. than 0.08, and in the alternative with DUI under K.S.A. STATUTE: K.S.A. 60-420, -1507 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was un- JURISDICTION—TAXATION constitutionally coercive. District court denied the motion. IN RE EQUALIZATION APPEALS OF TARGET CORPORA- In bench trial on a conditioned stipulation of facts to be used TION for consideration of motion to suppress or as necessary to pre- BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, serve Braun’s arguments about the motion, district court con- CASE REMANDED TO THE COURT OF APPEALS victed Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). NO. 11,228 – JULY 10, 2020 Journal entry did not mention the alternative charge. Braun FACTS: Target is one of several commercial real estate appealed the district court’s denial of the motion to sup- owners in Johnson County which appeals the County’s ad press. In unpublished opinion the Court of Appeals affirmed valorem tax valuation for the 2016 tax year on seven com- Braun’s conviction. Panel found the district court should have mercial properties. After an evidentiary hearing, the Board suppressed the blood test result but that error was harmless of Tax Appeals issued a summary decision ordering lower because there was sufficient evidence in the stipulated facts values for each property. The Taxpayers promptly requested to establish that Braun committed the alternative charge of a full and complete written opinion. Five weeks later, the Tax- DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for re- payers confirmed that the County did not request a full and view granted on sole issue of whether panel erred in finding complete written opinion and subsequently withdrew their harmless error. request. The County objected, asking BOTA to issue a full ISSUE: (1) Stipulated facts in support of conviction on al- and complete written opinion regardless of the withdrawal. ternative charge The County noted that it didn’t learn of the withdrawal until HELD: Braun’s conviction is reversed. Parties can agree to it was too late to file its own request. In the alternative, the conditions that limit the circumstances where stipulated facts County asked that BOTA consider the objection as a request can be used, and a court is bound by any such conditions or for reconsideration of the summary decision. BOTA denied limitations. Here the purpose of the stipulation was solely to both requests and the County appealed. The court of appeals determine the issue of law arising from Braun’s motion to dismissed the appeal for lack of jurisdiction and the petition suppress, and also conveyed that the facts would not be bind- for review was granted. ing if an appellate court determined that a conviction based ISSUES: (1) Jurisdiction; (2) scope of review on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred HELD: The Kansas Judicial Review Act provides the exclu- by not considering and applying the conditions that limited sive means for judicial review of agency action. There is not a the binding nature of the parties’ stipulation. District court’s final order in this case because there is no full and complete judgment is reversed and case is remanded for further pro- written opinion and the Taxpayers did not seek a trial de novo ceedings related only to the alternative count of DUI under in district court. The KJRA does allow for limited review of K.S.A. 2012 Supp. 8-1567(a)(2). nonfinal agency actions if certain conditions are met. BOTA’s STATUTES: K.S.A. 2019 SUPP. 60-261; K.S.A. 2012 failure to issue a full and complete written opinion is properly SUPP. 8-1001(K), -1567(A)(2), -1567(A)(3) considered a nonfinal agency decision. K.S.A. 77-631(a) al- lows for an appeal from an agency’s failure to act in a timely www.ksbar.org | September/October 2020 65 appellate decisions

APPELLATE PROCEDURE—CRIMINAL PROCEDURE— ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL EVIDENCE PROCEDURE—MENTAL COMPETENCY STATE V. BRAZZLE STATE V. BURDEN RILEY DISTRICT COURT—AFFIRMED; COURT OF AP- SUMNER DISTRICT COURT—AFFIRMED; COURT OF PEALS—AFFIRMED APPEALS—AFFIRMED NO. 116,649—JULY 10, 2020 NO. 116,819—JULY 17, 2020 FACTS: Following car stop and subsequent discovery of FACTS: Burden was charged with possession of drugs and drugs, Brazzle was convicted of drug-related crimes including drug paraphernalia. District court found she was competent possession of methamphetamine with intent to distribute and to stand trial pursuant to a court-ordered competency exam possession of oxycodone. During trial, district court found and evaluation that found, in part, that Burden had “no sig- the State’s prior crime evidence of Brazzle’s sale of metham- nificant impairment that is psychiatric in nature.” District phetamine to undercover detective was admissible to show court also allowed Burden to represent herself, and appoint- whether Brazzle intended to distribute the methamphet- ed standby counsel. Jury convicted her on drug possession amine found in the car. On appeal, Brazzle claimed: (1) dis- charges, and acquitted on the paraphernalia charge. Burden trict court erred in admitting K.S.A. 60-455 evidence related appealed, arguing district court used an incorrect standard to the prior methamphetamine sales; (2) jury instruction on to determine whether she was competent to represent herself. possession of oxycodone did not require jury to find that he Court of appeals affirmed in unpublished opinion. Review illegally possessed the drug without a prescription; and (3) granted. insufficient evidence supported his conviction for possession ISSUE: (1) Standard for determining mental competency of oxycodone. Court of appeals affirmed, finding in part that HELD: Three distinct but related concepts are examined— Brazzle could not claim instructional error on appeal because mental competency to stand trial, the capacity to waive the he advocated for the version of the instruction given to the right to counsel, and mental competency to self-represent. In- jury. 54 Kan.App.2d 276 (2018). Review granted. diana v. Edwards, 554 U.S. 164 (2008), allows a district court ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) judge to deny a request to waive counsel if a defendant has a sufficiency of the evidence severe mental illness. But there is no error when a court does HELD: District court did not err in admitting prior crimes not appoint counsel for a defendant who wishes to exercise evidence under K.S.A. 60-455. Case law on evidence of intent the right of self-representation if there is no evidence of the for simple possession is distinguished from possession with defendant’s severe mental illness. Here, the district court did intent to distribute. If a defendant argues he or she lacked not err in allowing Burden to exercise her constitutional right the intent to distribute drugs, evidence about a prior crime of self-representation when the record does not establish that committed by the defendant may be material, especially if she suffers from a severe mental illness. evidence establishes similarities between the prior crime and STATUTE: K.S.A. 22-3301, -3301(1) the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to PROCEDURE—JURIES—MOTIONS—STATUTES distribute, and the risk for undue prejudice did not substan- STATE V. CARTER tially outweigh the probative value. SEDGWICK DISTRICT COURT—AFFIRMED By failing to argue in his petition for review why the court NO. 119,315—JULY 10, 2020 of appeals erred in its invited error analysis, Brazzle waived FACTS: State filed charges against Carter arising from any argument he might have as to why the invited error doc- Carter hitting and threatening a victim (Crowe) in November trine did not apply to his claim of instructional error. 2015, and arising from a December 2015 shooting that result- Sufficient evidence supports Brazzle’s possession of oxy- ed in the death of two other victims. District court granted codone conviction. There was circumstantial evidence that State’s motion to consolidate the charges, finding the charges oxycodone was part of Brazzle’s illicit drug inventory, and were connected. Jury convicted Carter of first-degree felony jury could infer Brazzle would not put his own prescription murder, criminal discharge of a firearm, aggravated battery, medication in same bag containing drugs that he intended and criminal threat. On appeal, he claimed district court er- to distribute. Officer’s testimony comparing the appearance roneously refused to add language to the aiding and abet- of Brazzle’s pills to an image of a pill identified as oxycodone ting instructing that “mere presence” alone does not establish on drugs.com was sufficient. Brazzle did not object to -offi mental culpability to convict under aiding and abetting, cit- cer’s testimony regarding how he identified the pills found ing State v. Llamas, 298 Kan. 246 (2013), and the “better in the car, and did not object to the pills being entered into practice” recommendation in State v. Hilt, 2999 Kan. 176 evidence. Brazzle cannot recast an evidentiary ruling as a suf- (2014), to give such language. Carter also claimed the district ficiency argument. court erred in consolidating the charges. STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 ISSUE: (1) Jury instruction—aiding and abetting; (2) mo- Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. tion to consolidate 60-404, -455 HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere pres- ence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests

66 The Journal of the Kansas Bar Association appellate decisions the instruction. While there was a modicum of evidence that search. District court denied the motion and convicted El- Carter’s requested instruction was factually appropriate, any lis in bench trial. Ellis appealed. Court of Appeals reversed, possible error in failing to give the requested instruction was holding the investigatory detention exceeded the scope of the harmless given the weight of evidence supporting Carter’s welfare check and the evidence obtained as a result should guilt. have been suppressed. 57 Kan. App. 2d 477 (2019). State’s District court’s decision to consolidate the charges is af- petition for review granted. firmed. Cases involving consolidation decisions are discussed. ISSUE: (1) Scope of welfare check; (2) attenuation doctrine In this case, Carter’s battery of Crowe precipitated the factual HELD: Under facts of the case, the officer lawfully -en setting which led to Carter’s participation in the shooting. gaged with Ellis and requested her identification. But police District court correctly found a statutory condition for con- may not lawfully extend a welfare check by running a warrant solidation was met, and did not abuse its discretion in allow- check on an individual who is the subject of the check unless ing consolidation. some other circumstances support prolonging the check and STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, converting it into a detention. Here, the officer had no rea- -3202(1), -3202(3), -3203, sonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some CRIMINAL PROCEDURE—MOTIONS—STATUTES pick up order” exceeded the scope of the safety check. Ths STATE V. EDWARDS constituted an unlawful seizure and consequent search. SHAWNEE DISTRICT COURT—AFFIRMED Application of the attenuation exception to the exclusion- NO. 120,600—JULY 17, 2020 ary rule is inappropriate on facts in this case. Factors in Strieff FACTS: Jury convicted Edwards in 1996 of first-degree are applied finding all weigh against admissibility of the drug murder, conspiracy to possess with intent to sell hallucino- evidence under the attenuation doctrine: (1) a very short pas- genic drugs, and aggravated robbery. In 2011, he filed mo- sage of time; (2) under Kansas case law the discovery of an tion for DNA testing of items found at crime scene. District outstanding warrant was not an attenuating factor in this court granted the motion in 2013, and for additional, inde- case; and (3) the clarity of Kansas law forbidding the offi- pendent DNA analysis of the evidence. District court held a cer’s illegal conduct supports a finding of flagrant official- mis 2017 hearing and found the DNA results were favorable to conduct. District court’s judgment is reversed and evidence Edwards, but denied Edwards’ motion for a new trial because seized subsequent to the initial conduct must be suppressed. the DNA evidence was “not reasonably probable to lead to a Remanded for further proceedings. jury reaching a different result.” Edwards appealed. CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. ISSUE: (1) DNA testing statute and Wilson, J.): Concurs with the result but majority ap- HELD: Even when additional DNA testing ordered un- pears to back away from the more stringent requirements in der K.S.A. 2019 Supp. 21-5212 leads to results favorable to Strief. Under Strief as outlined in State v. Tatro, 310 Kan. the defense, a district judge does not necessarily abuse his or 263 (2019), when a preexisting valid warrant is discovered, her discretion by denying a motion for new trial. As in State the only question remaining is whether the unconstitutional v. LaPointe, 309 Kan. 299 (2019), the non-DNA evidence conduct was purposeful or flagrant. Agrees with majority’s against Edwards is strong. District judge did not abuse her finding of flagrant misconduct, but would limit the analysis discretion by concluding there was no reasonable probability in these circumstances to that question only. the DNA results would have changed the original trial’s out- STATUTES: None come. District judge’s denial of Edwards’ motion for a new trial is affirmed. CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— STATUTE: K.S.A. 2019 Supp. 21-2512, -2512(f)(2) EVIDENCE—JURY INSTRUCTIONS STATE V. GREEN CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— MONTGOMERY DISTRICT COURT—AFFIRMED EVIDENCE—FOURTH AMENDMENT NO. 116,366—AUGUST 21, 2020 STATE V. ELLIS FACTS: For offenses related to the killing of Green’s ex- LYON DISTRICT COURT—REVERSED AND REMANDED; wife’s boyfriend, a jury convicted Green of first-degree pre- COURT OF APPEALS—AFFIRMED meditated murder, aggravated burglary, and arson. On appeal NO. 120,046—AUGUST 7, 2020 he claimed: (1) district judge should have instructed jury on FACTS: Police were called to check on welfare of a person defense of voluntary intoxication; (2) district judge should (Ellis) in convenience store bathroom. Ellis stated she was instructed jury on lesser included offense of voluntary man- okay and having stomach trouble. Police asked for identifi- slaughter; (3) district judge’s failure to give those two instruc- cation, held Ellis’s driver’s license to run warrant check, ar- tions deprived Green of his constitutional right to a jury trial; rested her on an outstanding probation violation warrant, and (4) the failure to instruct on voluntary manslaughter pushed found drugs and paraphernalia in subsequent search. State jury to convict on first-degree premeditated murder even if charged Ellis with drug offenses. She filed motion to sup- jurors had reasonable doubt that State had proved its case; (5) press, arguing the seizure and subsequent search exceeded the district judge erred in admitting into evidence a videotaped scope of the encounter. State argued the attenuation doctrine interrogation of Green because officers repeatedly challenged set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the his honesty and truthfulness during that interrogation; (6)

www.ksbar.org | September/October 2020 67 appellate decisions district judge erred in refusing to give cautionary instruction rated blade for protection, then dropped it when police ar- about testimony from jailhouse informants; and (7) cumula- rived. State charged him with aggravated assault, criminal tive error denied him a fair trial. possession of a weapon by a convicted felon, and criminal ISSUES: (1) Jury instruction—voluntary intoxication; (2) use of a weapon. Harris filed motion to dismiss the posses- jury instruction—voluntary manslaughter; (3) right to a jury sion charge, claiming the statutory definition in K.S.A. 2019 trial; (4) constitutional right to due process; (5) evidence— Supp. 21-6304 of a “knife” was unconstitutionally vague on videotaped statements; (6) cautionary instruction on infor- its face and as applied. District court denied the motion. Har- mant testimony; (7) cumulative error ris also sought to introduce evidence of parole officer who -ad HELD: Under facts in case, an instruction on voluntary vised him he could carry a knife less than 4 inches long, and intoxication was not factually appropriate. No evidence of similar info in Kansas Department of Corrections (KDOC) impairment that would prevent the formation of the neces- orientation and handbook. Adopting State’s position that pa- sary criminal intent. Instead, Green relies on evidence of his role officers and KDOC staff are not legally authorized to- in intoxication before and after the crime. terpret statutes, district court excluded all evidence in support District judge correctly denied Green’s request for a volun- of Harris’ mistake-of-law defense. Harris appealed, claiming tary manslaughter instruction. No evidence that the sleeping district court erred by rejecting his vagueness challenge to the victim did anything as Green entered his house that could be statute and by excluding all evidence supporting his mistake- characterized as provocation. of -fact defense. In unpublished opinion Court of Appeals District judge’s failure to instruct jury on voluntary intoxi- rejected the constitutional challenge, but reversed the trial cation and voluntary manslaughter did not violate Green’s court’s evidentiary ruling on the mistake-of-fact evidence and constitutional claim of being denied right to a jury trial where remanded for a new trial. Review granted. no evidence supported Green’s requests for those instructions. ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 21- Green’s argument for extending Beck v. Alabama, 447 U.S. 6304; (2) evidence—mistake of law defense 625 (1980), to noncapital cases is rejected. Under facts in case, HELD: Case is resolved on a facial challenge to the statute. no error under Beck’s letter or its spirit. The residual clause “or any other dangerous or deadly cutting Green’s challenge to the admission of videotaped state- instrument of like character” in K.S.A. 2019 Supp. 21-6304 ments he made during police interview, raised for the first is unconstitutionally vague because it fails to provide an ex- time on appeal, is not considered. Even if error to not redact plicit and objective standard of enforcement. Similar problem the interviewers’ comments on credibility, the error would be in City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. far from dispositive. Court finds no established exception to 540 (2013)(noise ordinance is unconstitutionally vague). This the preservation problem, and notes this case is a poster child constitutional failure began with legislative enactment that for adherence to the contemporaneous rule. impermissibly delegated legislative power to the executive and District judge did not err in denying Green’s request for a judicial branches. cautionary instruction on informant testimony. Neither jail- Because case is resolved in Harris’ favor on constitutional house informant was acting as an agent for the State when grounds, the evidentiary issue raised in State’s petition is not the informant first received incriminating information from reached. Green, and multiple witnesses and other evidence corrobo- DISSENT (Biles, J.) (joined by Rosen, J. and Green, J.): rated each informant’s testimony. K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague Cumulative error doctrine not applicable where there is no on its face or as applied to Harris. Majority imposes too strict error or only a single error. a standard on Legislature’s ability to formulate criminal laws. CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the that a voluntary intoxication instruction was not factually ap- facts, the statute is sufficiently clear to have informed Harris propriate because there was no evidence indicating Green was it was unlawful to possess his knife, and the statute is suffi- impaired at the time of the crime. Disagrees with that portion ciently clear to stave off any contention that authorities arbi- of majority’s decision to the extent it implies the presence of trarily prosecuted him for having it. Photo of Harris’ knife is any evidence, however slight, mandates the district court to attached. Majority’s reading of Farmway is criticized. instruct and skip the gatekeeping test required in the affirma- Would reverse Harris’ conviction because he is entitled to tive defense statute pursue a mistake-of-law defense. KDOC is legally authorized STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; to interpret the criminal-possession statute, and the KDOC K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, handbook could be read by Harris as containing the agency’s -455, -1507 official interpretation of the statute. Trial court’s error in not allowing Harris to pursue a mistake-of-law defense was not CONSTITUTIONAL LAW—CRIMINAL LAW— harmless in this case. EVIDENCE—STATUTES STATUTES: K.S.A. 2019 Supp. 21-5207(b)(4), -6304, STATE V. HARRIS -6304(c)(1), -6304(c)(2); K.S.A. 2018 Supp. 21-5207(b) SEDGWICK DISTRICT COURT—REVERSED AND (4); K.S.A. 2016 Supp. 21-5111(aa)(5), -5111(p)(2), 75-5217, REMANDED; COURT OF APPEALS—REVERSED -5217(a), -5217(b), -5217(c), -5217(d); K.S.A. 2012 Supp. 21- NO. 116,515—JULY 17, 2020 630; K.S.A. 21-6301, -6304, 75-5201, -5216 FACTS: Harris, a convicted felon on parole, was in an al- tercation when he opened a pocketknife with a 3.5 inch ser- 68 The Journal of the Kansas Bar Association appellate decisions CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— District court further found no manifest injustice supported JURIES—STATUTES withdrawal of the pleas, found Hill was represented by com- STATE V. HARRISON petent counsel, there was no coercion or unfair advantage JOHNSON DISTRICT COURT—AFFIRMED; taken of Hill, and his pleas were knowingly and understand- COURT OF APPEALS—AFFIRMED ingly made. Hill appealed, arguing trial court errors, includ- NO. 116,670—JULY 17, 2020 ing incorrectly analyzing the motion as one to withdraw plea FACTS: Jury convicted Harrison of various crimes com- instead of a motion to void convictions and sentence, denied mitted in 2015. During deliberation, judge discussed jury Hill due process. question with Harrison, counsel and prosecutor all present. ISSUE: (1) Due process—motion to correct illegal sentence All agreed to send jury a written response. Harrison appealed HELD: Trial judge correctly construed Hill’s various argu- on four claims of trial error, including his challenge at not ments as another effort to withdraw his pleas. Hill’s 2017 mo- being present when written response was passed to the jury tion was filed outside the one year time limitation added to by court staff. In unpublished opinion court of appeals af- K.S.A. 22-3210 in 2009, and no grounds of excusable neglect firmed the convictions, holding in part the district court vio- for his untimely filing are asserted by Hill or otherwise dem- lated Harrison’s constitutional right to be present at a critical onstrated. Hill’s motion is procedurally barred. Trial court’s stage in the proceedings by responding to the jury in writing decision is affirmed. rather than giving the answer in open court with Harrison STATUTES: K.S.A. 2019 Supp. 22-3210, -3210(a), present, but the error was harmless. Review granted limited -3210(b), -3210(d), -3210(d)(1), -3210(d)(2), -3210(e)(1), to the district court’s failure to have Harrison present when -3210(e)(2); K.S.A. 2017 Supp. 22-3210, -3210(e)(1); K.S.A. jury received the answer. 60-1507 ISSUE: (1) Response to jury’s question HELD: District court complied with both statutory and CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL constitutional requirements. 2014 revision of K.S.A. 22-3420 PROCEDURE—MOTIONS—SENTENCING—STATUTES allows judges to answer jury questions in open court or in STATE V. JUAREZ writing. K.S.A. 2019 Supp. 22-3405(a) is analyzed in light of LYON DISTRICT COURT—AFFIRMED; COURT OF AP- that revision. If a criminal trial judge responds to a jury ques- PEALS—AFFIRMED tion in writing by having court personnel deliver the response NO. 118,543—AUGUST 28, 2020 to the jury in the jury room: the delivery is not a stage of FACTS: Juarez entered plea to aggravated battery of prison the trial at which a defendant must be present under K.S.A. guard. District court found Juarez guilty but did not notify 2019 Supp. 22-3405(a); K.S.A. 2019 Supp. 22-3420(d) does him of obligation to register as a violent offender under Kan- not require a defendant’s presence when the jury receives that sas Offender Registration Act (KORA), and KORA did not response; and the defendant’s right to be present during criti- list aggravated battery as a crime that automatically required cal stages of the proceedings is not a violation under the Sixth registration. Juarez remained confined until sentencing hear- Amendment Confrontation Clause or the Due Process Clause ing six weeks later. At sentencing, district court exercised its of Fourteenth Amendment. Nothing in the record reason- discretion to require Juarez to register as a violent offender ably suggests Harrison’s presence was essential or critical to a under KORA. Juarez objected to lack of notice to register but fair and just determination of a substantial issue. Review of offered no evidence on the issue. Sentencing continued to ad- panel’s harmless error analysis is unnecessary. dress restitution. Juarez again objected to lack of notice but STATUTES: K.S.A. 2019 Supp. 22-3405(a), -3420(d); again offered no evidence and asked for no additional time K.S.A. 22-2102, -3405(1), -3420(3) to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals af- CRIMINAL PROCEDURE—MOTIONS— firmed in unpublished opinion, relying onState v. Marinelli, POSTCONVICTION RELIEF—STATUTES 307 Kan. 768 (2018). Sole issue on review is whether the no- STATE V. HILL tice provided by the district court violated Juarez’ right to due OSAGE DISTRICT COURT—AFFIRMED process. NO. 119,359—JULY 17, 2020 ISSUE: (1) Due process—notice of obligation to register as FACTS: Pursuant to amended plea agreement, Hill entered violent offender no a contest plea in 2000 to various charges including pre- HELD: Validity of the district court’s registration order is meditated first-degree murder. No direct appeal taken. Hill not challenged and is presumed valid. District court’s failure then pursued various post-conviction motions: 2004 motion to provide timely notice of Juarez’s obligation under K.S.A. under K.S.A. 60-1507; 2008 motion to withdraw his no con- 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of test pleas; 2014 and 2015 motions including new motion to procedural due process because Juarez failed to demonstrate withdraw pleas and motion to correct illegal sentence. Dis- prejudice. He neither presented additional evidence nor asked trict court denied each motion, and when appealed, the court for the opportunity to do so with respect to district court’s of appeals affirmed. Present appeal is from district court’s de- exercise of discretion to order registration, and he remained nial of Hill’s 2017 pro se “Motion to Set Aside a Void Judg- incarcerated with no responsibility to register between the ment Under Due Process of Law and K.S.A. 22-3210.” The time the district court should have provided notice and the district court construed the motion as one to withdraw pleas time it actually did so. under K.S.A. 22-3210, and denied the motion as untimely. CONCURRENCE (Biles, J.): Concurs with the result but www.ksbar.org | September/October 2020 69 appellate decisions believes Marinelli controls disposition. District court’s timing DISSENT (Biles, J.)(joined by Stegall, J.): Would find the error does not excuse the registration obligation, and Juarez constitutional error harmless under the rationale in Justice did not show any prejudice. Stegall’s dissenting opinion in Johnson, and would keep the CONCURRENCE (Stegall, J.): Concurs that Juarez’ due case to reach the instructional error claim. process rights were not violated, but does so because district DISSENT (Rosen, J.): Would find the constitutional error court’s registration order was not valid. Based on State v. harmless. While there was strong evidence supporting inten- Thomas, 307 Kan. 733 (2018), once Juarez was convicted the tional conduct in Johnson, he agreed with majority that there district court lost its opportunity to create the necessary pre- was also evidence of recklessness. Here he sees no evidence condition for a registration obligation to spring into existence of recklessness where Lindemuth simply denied making any through judicial fact-finding. When a district court does not threatening statements. make the necessary fact-finding at time of conviction - and STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), the notice is not given - no process has been denied because -5223(a), -5415(a)(1) the defendant is not an offender required to register under KORA. CRIMINAL PROCEDURE—EVIDENCE—PROSECUTORS DISSENT (Rosen, J.)(joined by Beier, J.): Would find STATE V. MARTINEZ Juarez’ due process rights were violated. Stands by his dissents SHAWNEE DISTRICT COURT—AFFIRMED in previous cases that KORA is punitive in effect, and thus NO. 119,739—JULY 24, 2020 is a consequence of Juarez’ plea. Marinelli is distinguished. FACTS: Martinez convicted of first-degree premeditated Here, Juarez plead no contest to a crime while completely murder and other crimes arising from a drive-by shooting. unaware the court would later require him to register under On appeal he claimed the prosecutor erred in closing argu- KORA, and he was never offered the opportunity to with- ments by saying “The defense has speculated about other draw that plea by demonstrating good cause (pre-sentencing peoples [sic] motives, but the State has actually presented evi- motion) instead of having to show manifest injustice (post- dence.” Martinez argues this impermissibly shifted the bur- sentencing motion. den of proof and infringed on his constitutional protection STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22- against compulsory self-incrimination. 4901 et seq., -4902(e)(1), -4902(a)(5), -4904(a)(1)(A); K.S.A. ISSUE: (1) Prosecutorial error 22-4902, -4905 HELD: Prosecutor’s statements were within the wide lati- tude allowed in closing arguments. The comments, when APPEALS—APPELLATE PROCEDURE—CRIMINAL read in context, appropriately explained how the evidence LAW—STATUTES supported the State’s theory of the case, and did not offend STATE V. LINDEMUTH Martinez’ constitutional right to a fair trial. Prosecutor did SHAWNEE DISTRICT COURT—REVERSED AND not comment on Martinez’ failure to testify or argue Marti- REMANDED; COURT OF APPEALS—AFFIRMED nez had to prove that he lacked a motive or that witnesses had NO. 116,937—AUGUST 28, 2020 a motive to lie. Prosecutor did not suggest the defense had any FACTS: Jury convicted Lindemuth of one count of crimi- burden to do something in response to the State’s evidence or nal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Ap- that Martinez needed to testify and explain his action. Nor peals reversed, holding trial court erred by rejecting proposed did the prosecutor shift the burden or comment on Marti- jury instruction on workplace defense. 55 Kan. App. 2d 419 nez’ failure to testify by pointing out the defense’s argument (2018). State sought review of panel’s decision on factual rested on an inference. appropriateness of the workplace defense instruction. Days STATUTE: K.S.A. 60-439 prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision CONSTITUTIONAL LAW—CRIMINAL LAW— in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if CRIMINAL PROCEDURE—EVIDENCE— a threat of violence is made in reckless disregard for caus- PROSECUTORS—STATUTES ing fear, is unconstitutionally overbroad. Lindemuth filed STATE V. MOORE Supreme Court Rule 6.09 letter arguing his appeal was af- RENO DISTRICT COURT—AFFIRMED fected and requesting reversal of his conviction as in Johnson. NO. 121,040—AUGUST 21, 2020 Supplemental briefing ordered. FACTS: Moore was convicted of first-degree premeditated ISSUE: (1) Change of law—constitutional error murder. The trial judge allowed State to introduce incrimi- HELD: Panel’s judgment is affirmed as right for the wrong nating statements Moore made during police interview, find- reason. Lindemuth’s conviction cannot stand after Johnson, ing Moore made no unequivocal request for counsel. Trial regardless of outcome on State’s issue for review. Like Johnson, judge also denied Moore’s request for voluntary intoxication the trial record provides no basis for court to discern wheth- instructions on first-degree premeditated murder and lesser- er jury concluded the State had proved beyond a reasonable included crime of intentional second-degree murder. On ap- doubt that Lindemuth committed criminal threat intention- peal Moore claimed: (1) district judge should have suppressed ally, and court cannot conclude the State met its burden of evidence of his incriminating statements; (2) it was error to showing the constitutional error was harmless. District court’s refuse to give voluntary intoxication instructions; (3) prosecu- judgment is reversed and case is remanded with directions. tor committed error in closing argument; and (4) cumulative error denied him a fair trial.

70 The Journal of the Kansas Bar Association appellate decisions ISSUES: (1) Motion to suppress; (2) voluntary intoxication felonies—multiplicity; (4) multiple convictions and punish- jury instruction; (3) prosecutorial error; (4) cumulative error ments; (5) jury instructions HELD: District judge did not err in denying the motion HELD: Merger doctrine applies to Patillo’s aggravated as- to suppress. Moore’s statement that “Well, I guess it’s law- sault conviction, and under facts in case, the aggravated as- yer time now then,” considered as a whole and in context, is sault merged with the homicide. If this were the only underly- ambiguous. And his statement ten minutes later that he was ing felony, the felony-murder conviction would be reversed. “done, all right,” followed by continued talking on his part Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doc- did not transform his earlier statement into an unambiguous trine does not apply to Pattillo’s convictions for aggravated invocation of right to counsel. endangering a child and discharge of a firearm at a dwell- District judge did not err in denying voluntary intoxication ing, but under facts in case, sufficient evidence supports both instructions. Even assuming such an instruction was legally underlying felonies. Sufficient circumstantial evidence that appropriate, it was not factually appropriate where there was Pattillo was aware of the risk to the seven-year-old who lived no evidence of impairment negatively affecting Moore’s abil- in the dwelling and consciously disregarded that risk. Stat- ity to form the requisite intent. utes for child endangerment and aggravated child endanger- No error found in prosecutor’s closing argument by stating ment are compared to reject Pattillo’s argument that State was that premeditation can be seen from Moore standing there required to prove he knew a child was in the house at the and pulling the trigger over and over again, and by decrying time of the shooting. No language in K.S.A. 2019 Supp. 21- the American tradition of criticizing the police. These state- 5601(b)(1) or the definition of reckless conduct requires that ments did not make an equivalent to the forbidden argument a person endangering a child must know a child is in danger. that premeditation can be formed instantaneously, and did State v. Herndon, 52 Kan. App. 2d 857 (2016), rev. denied not appeal to jurors’ passions or prejudices. Prosecutor’s re- 306 Kan. 1324 (2017), is factually distinguished. Sufficient buttal statement that Moore may have been eliminating his evidence also supports Pattillo’s conviction for criminal dis- competition was error because this unsupported speculation charge of a firearm at a dwelling, and Miller’s death occurred on Moore’s motive argued facts not in evidence. In light of during the res gestae of the acts of discharging a weapon at a overwhelming evidence against Moore, however, this error dwelling and of endangering a child. was harmless. Cumulative punishments for both criminal discharge of a Cumulative error doctrine not applicable where only a sin- firearm and felony murder violate neither the Double Jeopar- gle instance of a harmless prosecutorial error found. dy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test CONCURRENCE (Rosen, J.)(joined by Stegall, J.): in State v. Schoonover, 281 Kan. 453 (2006), is not employed Agrees that a voluntary intoxication instruction was not fac- where the legislature has expressed its intent to allow cumula- tually appropriate because there was no evidence indicating tive punishments for felony murder and those underlying fel- Moore was impaired at the time of the crime. Disagrees with onies that do not merge with the homicide, such as discharge that portion of majority’s discussion on the issue to the extent of a firearm at a dwelling. Pattillo can be sentenced for both it relies on State v. Green, __ Kan. __ (this day decided), that felony murder and the enhanced punishment for discharging finds the presence of any evidence, however slight, mandates a firearm resulting in great bodily harm. the district court to instruct and skip the gatekeeping test No merit to Pattillo’s jury instruction claims. Invited-error required in the affirmative defense statute doctrine precludes review of Patillo’s claims regarding the STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b) felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district APPEALS—CONSTITUTIONAL LAW—CRIMINAL judge’s failure to instruct jury on the lesser-included offenses LAW—CRIMINAL PROCEDURE—JURY INSTRUC- of criminal discharge or of endangering a child. TIONS—STATUTES STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b) STATE V. PATTILLO (1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S), SHAWNEE DISTRICT COURT—AFFIRMED -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), NO. 118,941—AUGUST 21, 2020 -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1) FACTS: Pattillo drove the van in which an occupant fired (A), -6308(b)(1)(B), 22-3414(3)K.S.A. 2015 Supp. 21-5402(c) shots, killing Miller and hitting the residence which was oc- (1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A) cupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening CRIMINAL LAW—CRIMINAL PROCEDURE— Miller with a gun, felony discharge of a firearm, and aggra- JURY INSTRUCTIONS—PROSECUTORS— vated endangering of a child. On appeal, Pattillo challenged SENTENCING—STATUTES whether the underlying felonies supported the felony-murder STATE V. THOMAS conviction, and whether sufficient evidence supported the CHAUTAUQUA DISTRICT COURT—AFFIRMED IN PART, convictions. He also claimed his convictions for discharge of REVERSED IN PART, VACATED IN PART, REMANDED a firearm and felony murder violated both the Double Jeop- COURT OF APPEALS—AFFIRMED IN PART, REVERSED ardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed IN PART, VACATED IN PART the trial judge erred in instructing the jury. NO. 115,990—JULY 24, 2020 ISSUES: (1) Underlying felonies—merger doctrine; (2) un- FACTS: Thomas convicted of aggravated battery, abuse of derlying felonies—sufficiency of the evidence; (3) underlying a child, and aggravated endangering of a child. On appeal he www.ksbar.org | September/October 2020 71 appellate decisions

argued: (1) district court erred by giving jury instructions CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— that allowed the jury to convict him of aggravated battery EVIDENCE— if it found he intended the conduct but not the harm; (2) JURY INSTRUCTIONS—PROSECUTORS prosecutor improperly inflamed the passions and prejudices STATE V. TIMLEY of jurors during closing argument by showing them photos SHAWNEE DISTRICT COURT—AFFIRMED NO. 120,414—AUGUST 7, 2020 of the child’s injuries and repeatedly telling them to acquit FACTS: Timley convicted of first-degree premeditated only if the jurors thought it was acceptable to inflict such murder. During trial, Timley’s cellphone records including injuries on “your child;” (3) cumulative effect of these two er- the cell towers accessed were admitted into evidence without rors denied him a fair trial; and (4) district court erroneously objection, and a detective using Per Call Measurement Data scored Thomas’ 2001 out-of-state Virginia conviction for do- (PCMD) from Sprint testified about the relative position of mestic assault and battery as a person crime. Court of Appeals Timley’s phone throughout the day of the shooting. On ap- affirmed in unpublished opinion, finding in part the aggra- peal Timley claimed: (1) prosecutor erred during opening and vated battery jury instruction was erroneous but the error was closing arguments by making statements concerning the loca- harmless, and prosecutor’s if-you-think-it’s-okay statements tion of Timley’s phone at the time of the shooting; (2) district did not encourage jurors to consider factors outside the evi- court erred in admitting the detective’s cell tower maps and dence and law. Review granted. accompanying testimony because detective lacked necessary ISSUES: (1) Jury instructions—aggravated battery; (2) expertise; (3) district court committed clear error by failing to prosecutorial error; (3) cumulative error, (4) sentencing instruct jury on intentional second-degree murder as a lesser HELD: District court’s aggravated battery instructions included offense; (4) district court’s failure to instruct jury on were erroneous. Under State v. Hobbs, 301 Kan. 203 (2015), lesser included offenses violated Timley’s right to due process; “knowingly” in elements of aggravated battery means more and (5) cumulative error denied him a fair trial. than just proving the defendant intended to engage in the un- ISSUES: (1) Prosecutorial error; (2) admission of evidence; derlying conduct, and requires State to prove the defendant (3)jury instruction on lesser included offense; (4) due process; acted when he or she was aware the conduct was reasonably (5) cumulative error certain to cause the result. HELD: Prosecutor’s remarks during closing argument did Prosecutor’s If-you-think-it’s-okay statements were error. not stretch the PCMD distance from a cell tower to Timley’s Panel’s reasons for finding that prosecutor’s statement did not phone into a certitude, and thereby did not exceed the wide encourage jurors to consider factors outside the evidence and latitude extended to prosecutors. Prosecutor’s opening state- law are examined and criticized as conflating the analysis of ment, by postulating that Timley’s phone was “exactly” at the error with whether error was harmless. As to the child abuse site of the shooting, barely avoided error, but even if error, no charge the prosecutor’s error was harmless. Thomas’ convic- possibility the prosecutor’s remark contributed to the verdict. tion on this charge is affirmed. As to the aggravated battery Under facts of the case, no expert witness was needed. The charge for which instructional error was found, the combined detective’s exhibits and accompanying testimony did not impact of these errors must be considered. require any specialized knowledge or expertise beyond that Cumulative error denied Thomas a fair trial on the aggra- which he was demonstrated to possess. vated battery charge. The erroneous jury instruction allowed District court erred in failing to sua sponte instruct jury on the jury to find guilt based on a less culpable intent than re- lesser included offense of intentional second-degree murder, quired by the statute, and State’s repeated comments urged but under facts of the case, no clear error is found. jury to convict based on emotional consideration rather than In noncapital case, a district court’s failure to sua sponte in- a reasoned and deliberate consideration of facts and law. The struct on lesser included offense does not violate a defendant’s aggravated battery conviction is reversed and case is remand- constitutional right to due process. Based on State v. Becker, ed for a new trial on this charge. 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), Assault and battery, as defined by Virginia common law, is no due process violation found in district court’s failure to is- broader than Kansas battery and could encompass behavior sue a lesser included offense instruction sua sponte. that is not a crime in Kansas. Under State v. Wetrich, 307 Cumulative error claim is rejected. Only one harmless error Kan. 552 (2018), district court incorrectly calculated Thom- found in district court’s failure to sua sponte instruct jury on as’ criminal history score and should have scored the 2001 a lesser included offense. Even if prosecutor’s opening state- Virginia conviction as a nonperson crime. Remanded for re- ment was harmless error, it bore no relation to the instruc- sentencing. tional error. STATUTES: K.S.A. 2017 Supp. 21-6811(e); K.S.A. 2015 CONCURRENCE (Biles, J.)(joined by Rosen, J. and Supp. 21-5413, -5413(b), -5413(b)(1)(A), -5413(g), -5602, Ward, S.J.): Disagrees that prosecutor’s opening statement -6811(e), 22-3414(3) was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority. STATUTES: None

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www.ksbar.org | September/October 2020 73 appellate decisions

Kansas Court of Appeals

did not dispute Chalmers’ attempt to register the judgment, Civil even though he did not comply with UIFSA requirements by including copies of the Florida support order with the fil- JURISDICTION—MUNICIPALITIES—OFFENDER ing. The district court registered the Florida order in Kan- REGISTRATION CITY OF SHAWNEE V. ADEM sas and later temporarily modified the support obligation as JOHNSON DISTRICT COURT—AFFIRMED agreed to by the parties. Burrough then filed a motion to set NO. 121,328—JULY 31, 2020 aside, claiming that she never agreed to the terms. Chalm- FACTS: Adem was convicted of sexual battery in Shawnee ers also moved for permission to amend his petition to add Municipal Court and he filed a notice of appeal to the district the required copies of the Florida support order. Burrough court. A jury convicted him as charged in district court. As countered with a motion to dismiss based on a lack of subject part of his sentence, Adem was required to register as a sex of- matter jurisdiction, arguing that the Florida support order fender under the Kansas Offender Registration Act. He now was never properly registered because Chalmers did not com- appeals that finding. ply with UIFSA requirements when registering the order. The ISSUES: (1) Appellate jurisdiction; (2) applicability of district court agreed with Burrough and vacated its modifica- KORA to municipal court convictions; tion of the support order, finding that the presence of a certi- HELD: The court has jurisdiction to consider Adem’s ap- fied copy of the Florida support order was fundamental to peal because KORA allows for appeals where registration has registering the order in Kansas. Chalmers appealed. been triggered by district court findings. KORA acts in con- ISSUES: (1) Whether objection to jurisdiction was waived; cert with, but not as part of, the Kansas Code of Criminal (2) whether substantial compliance with UIFSA is adequate Procedure or other sentencing statutes. It is its own separate HELD: Kansas only has jurisdiction to modify an out-of- act with its own regulatory purposes. Adem is correct that state child support order if that order is first registered in this there is no statute that specifically applies KORA to viola- state. It is undisputed that Chalmers failed to attach to his tions of municipal codes. But K.S.A. 22-4902(b)(7) defines registration petition two copies, including one certified copy, a sex offender as any person who has been convicted of an of his Florida order. Challenges to subject matter jurisdiction offense that is “comparable” to one specifically enumerated can be raised at any time, even outside of the 20-day window in the Act. The municipal sexual battery act is identical to contemplated by UIFSA. A Kansas court has no authority to the state statute, and Adem was properly required to register modify an out-of-state child support order until that order is under KORA. properly registered in Kansas. Litigants are not expected to STATUTES: K.S.A. 2018 Supp. 22-4902(b)(5), -4902(b) strictly comply with UIFSA requirements. But attachment of (7), -4902(t)(1); K.S.A. 2017 Supp. 22-3602, -3602(a); the Florida order was a critical component of the UIFSA reg- K.S.A. 2016 Supp. 21-5505(a); K.S.A. 22-2102, -2103; -3602, istration requirements. The failure to attach two copies of the -3610(a), 46-1211(b) order meant that Chalmers did not substantially comply with UIFSA and the order was never properly registered in Kansas, CHILD SUPPORT—JURISDICTION divesting the district court of jurisdiction to modify it. CHALMERS V. BURROUGH DISSENT: (Atcheson, J.) UIFSA’s procedural requirements SEDGWICK DISTRICT COURT—AFFIRMED should not be equated with subject matter jurisdiction. The NO. 121,108—JULY 31, 2020 district court had jurisdiction to modify Chalmers’ out-of- FACTS: A Florida district court required Chalmers to pay state child support order. Burrough child support to help care for their daughter. The STATUTE: K.S.A. 2019 Supp. 23-36,204(b), -36,205, support amount was based on Chalmers’ income as a player -36,602(a), -36,602(b), -36,603(a), -36,605, -36,606, -36,607, for the Miami Heat basketball team. Chalmers retired from 36,609, -36,610, -36,611(a) the team in 2018 and moved away from Florida. Burrough and the child are Kansas residents. After his employment DIVORCE—PARENTING TIME changed, Chalmers wanted to modify his child support obli- IN RE MARRIAGE OF DAVIS AND GARCIA-BEBEK gation. But he could not do so in Florida because he was no SEDGWICK DISTRICT COURT—AFFIRMED longer a Florida resident. In 2018, Chalmers filed a petition NO. 121,110—JULY 24, 2020 to register and modify the Florida order in Kansas under the FACTS: Davis and Garcia-Bebek divorced in 2014. They Uniform Interstate Family Support Act (UIFSA). Burrough shared joint legal custody of two minor children and Garcia-

74 The Journal of the Kansas Bar Association appellate decisions Bebek had permission to take the children to visit family in DUI—IMPLIED CONSENT his native country of Peru every other year. In 2018, Davis FISHER V. KANSAS DEPARTMENT OF REVENUE sought to be awarded sole legal custody of the children after DOUGLAS DISTRICT COURT—AFFIRMED Garcia-Bebek was charged with three federal crimes. Perhaps NO. 118,830—JULY 17, 2020 because of his legal issues, Garcia-Bebek moved back to Peru. FACTS: Officer Russell saw Fisher speeding through town. But he asked for reasonable parenting time which would in- Russell caught up with Fisher, who showed signs of impair- clude having the children visit him in Peru for up to 30 days ment including bloodshot eyes, slurred speech and an un- at a time. The district court initially ruled in Garcia-Bebek’s steady gait. Russell arrested Fisher and gave him the implied favor but was swayed to reconsider by Davis’s argument that consent advisories from the DC-70 form. Fisher refused to Garcia-Bebek’s crimes showed that he was untrustworthy, take a blood or breath test without an attorney present, so making international parental kidnapping a realistic possibil- Russell obtained a warrant to draw blood. The test confirmed ity. Garcia-Bebek appealed. that Fisher was under the influence, and his driver’s license ISSUE: (1) Parenting time outside of the United States was subsequently suspended. The suspension was affirmed HELD: The district court did not prevent Garcia-Bebek by both the Kansas Department of Revenue and the district from exercising his parenting time. It just prevented him court, which found that reasonable grounds existed to require from doing so in Peru. There was nothing to prevent Garcia- testing. Fisher appealed. Bebek from visiting the children in their home country. It is ISSUES: (1) Probable cause to arrest; (2) adequacy of im- undisputed that there is an outstanding indictment in a fed- plied consent advisory eral criminal case and a warrant for his arrest in Kansas. This HELD: Russell observed Fisher speeding and running a evidence is sufficient to support the district court’s decision red light. Russell also had slurred speech and bloodshot eyes, preventing the children from visiting Garcia-Bebek in Peru. and he smelled strongly of alcohol. Under the totality of the STATUTE: K.S.A. 2019 Supp. 23-3203(a), -3208(a) circumstances, there was substantial competent evidence to support the district court’s conclusion that Russell had rea- DUI—SEARCH AND SEIZURE sonable grounds to believe that Fisher was driving under CITY OF COLBY V. FOSTER the influence. The DC-70 form given to Fisher did not tell THOMAS DISTRICT COURT—REVERSED AND RE- him that he had a constitutional right to refuse to submit to MANDED the test. An arresting officer must substantially comply with NO. 121,373—JULY 17, 2020 statutory notice provisions. In this case, Russell substantially FACTS: A municipal court convicted Foster of DUI, and complied by providing the implied consent notices from the Foster appealed to district court. Prior to trial, Foster filed revised DC-70 form. Fisher is correct that a driver is not re- a motion to suppress evidence, including the breathalyzer quired to consent to a requested test. But the use of the word results. During a hearing on that motion, Foster discovered “requires” in the statute is not by itself unduly coercive. The that law enforcement administered the breath test before pro- text, when read in its entirety, clearly informs drivers that viding the implied consent advisories. The district court de- they have the right to refuse testing. nied the motion, holding that at the time Foster was arrested, STATUTES: K.S.A. 2016 Supp. 8-1001(a), -1001(k), there was no requirement to provide the advisories because -1020(q); K.S.A. 2014 Supp. 8-1025 Foster was given the breath test incident to arrest. Foster was convicted after a bench trial, and he appealed. DUI—EXCLUSIONARY RULE ISSUE: (1) Whether the district court erred by denying the JOHNSON V. KANSAS DEPARTMENT OF REVENUE motion to suppress COWLEY DISTRICT COURT—AFFIRMED HELD: The law in effect at the time of the criminal act NO. 119,151—JULY 17, 2020 controls. Foster was arrested on May 6, 2018, and on that FACTS: Trooper LaVelle responded to reports of a one- date the amendments to K.S.A. 8-1001 had not yet been en- vehicle accident. He waited on the scene while EMS treated acted. K.S.A. 2017 Supp. 8-1001(k) required that Foster re- Johnson, the driver. As EMS was walking Johnson to his car, ceive notice of his statutory rights. There is not substantial LaVelle noticed that Johnson was swaying as he walked. EMS evidence that Foster consented to the search and because he told LaVelle that Johnson had given the wrong birth date never received the statutory advisory, his consent could not while in the ambulance, and they noticed that he smelled have been knowing or voluntary. Similarly, Kansas law re- strongly of alcohol. LaVelle noticed the same thing, along quired that Foster be given the consent advisory even if the with bloodshot eyes. Johnson failed the field sobriety tests search of the breath test was done incidental to an arrest. It that he performed. As a result. LaVelle arrested Johnson and was not enough for the officer to deliver the implied consent gave him a copy of the DC-70 form before asking him to advisories after the breath test had been conducted. That was submit to an evidentiary breath test. Johnson agreed to the not substantial compliance. The evidence should have been breath test, which revealed that his breath alcohol level was suppressed. over the legal limit. Johnson received the DC-27 form and STATUTE: K.S.A. 2017 Supp. 8-1001(a), -1001(b), his driver’s license was suspended. The Kansas Department of -1001(k) Revenue affirmed the suspension, so Johnson sought judicial review. The district court found that the encounter between LaVelle and Johnson was appropriate, and Johnson appealed.

www.ksbar.org | September/October 2020 75 appellate decisions ISSUES: (1) Reasonable grounds to request a breath test; ATTORNEYS—CONSUMER PROTECTION (2) due process violation HERNANDEZ V. PISTOTNIK HELD: In order to request an evidentiary breath test, SEDGWICK DISTRICT COURT—AFFIRMED LaVelle needed to have reasonable grounds to believe that NO. 120,228—JULY 31, 2020 Johnson was driving under the influence and Johnson had FACTS: Yudi Hernandez was badly injured in an automo- to be under arrest, in custody, or involved in a car accident. bile accident at the age of 13. Yudi’s older sister, Mirna, helped In this case, Johnson was in an accident which damaged her family find an attorney to act on Yudi’s behalf. A family property. There was also probable cause that Johnson was friend recommended Brad Pistotnik based on Brad’s televi- driving under the influence, and the district court reviewed sion commercials. Yudi and her family had an initial consul- the evidence under the correct standard. The district court’s tation with Brian Pistotnik, and she retained the Pistotnik decision was supported by substantial competent evidence, firm to represent her. The firm obtained settlement officers for and the appellate court will not reweigh the evidence. It is policy limits from all involved parties. But Yudi’s father fired undisputed that some of the information contained in the the Pistotnik firm and hired Steven Brave to complete the implied consent advisory was later declared unconstitutional. settlement. Yudi received her settlement, but Brian sued her But criminal DUI law does not apply here—specifically, the father to recover the costs and attorney fees that were detailed exclusionary rule has no application in an administrative li- in an attorney fee lien. Yudi sued the Pistotnik firm, claiming cense proceeding. And even if it did, the good faith exception they defrauded her under the Kansas Consumer Protection would apply here. Johnson failed to prove that he suffered a Act. Brad moved for summary judgment, claiming that there violation of his procedural due process rights. And any sub- was no evidence of fraud and that Yudi was not an aggrieved stantive due process analysis must be specifically analyzed party under the KCPA. The district court granted Brad’s mo- under the Fourth Amendment. Johnson could not prove that tion, and Yudi appealed. he suffered a substantive due process injury under the Fourth ISSUES: (1) Applicability of the KCPA; (2) fraud claim; (3) Amendment. viability of discovery requests; (4) transfer of venue STATUTES: K.S.A. 2015 Supp. 8-1001, -1002(a); K.S.A. HELD: The KCPA does not define the term “aggrieved.” 77-621(a)(1), -621(c) But case law clarifies that in order to recover under the KCPA, Yudi must show that she was legally harmed and that IMPLIED CONSENT—JURISDICTION her harm was causally connected to Brad’s advertising. The SANDATE V. KANSAS DEPARTMENT OF REVENUE filing of the attorney fee lien did not harm Yudi. And Yudi JOHNSON DISTRICT COURT—AFFIRMED cannot show that she relied on any representations in Brad’s NO. 119,514—JULY 17, 2020 advertisements when hiring the firm—she was in a medical- FACTS: Officer Jordan was driving behind Sandate and ly-induced coma at the time and played no part in the deci- noticed that he was not maintaining a lane or signaling lane sion of which firm to hire. The district court correctly found changes. Jordan initiated a traffic stop and arrested Sandate, that Yudi cannot recover under the KCPA. When alleging who admitted to consuming alcohol, showed signs of impair- fraud, the circumstances constituting fraud must be stated ment, failed field sobriety tests and refused a preliminary with particularity. Yudi failed to establish that she relied, ei- breath test. Jordan gave Sandate the appropriate DC-70 form ther directly or indirectly, on any fraudulent representation when requesting the test and the appropriate DC-27 form af- by the Pistotniks. Complaints to the Kansas Disciplinary Ad- ter the refusal. The Kansas Department of Revenue affirmed ministrator are not discoverable, and the district court did the suspension, as did the district court after Sandate request- not err by refusing to require Brad or Brian to turn over such ed judicial review. Sandate appealed. documents to Yudi. And settlement agreements which Yudi ISSUES: (1) Subject matter jurisdiction; (2) substantial wanted to obtain in discovery were confidential, meaning the compliance of the DC-70 form; (3) use of the word “require” district court did not err by refusing to compel their discov- HELD: Although other panels of the court of appeals have ery. The district court did not abuse its discretion by transfer- found otherwise, the district court did have subject matter ring venue to Sedgwick County, where the defendants were jurisdiction. Any given court of appeals panel is not bound located and where all the legal work was completed. by another panel’s decision. Each panel conducts an indepen- dent analysis and comes to its own conclusion. The DC-27 STATUTES: K.S.A. 2019 Supp. 60-208(a), -209(b), -226, form has two components: notification and certification. It -2103(h); K.S.A. 50-623(b), -634(a), 60-609(a) acts like a charging document and charging documents do not bestow or confer subject matter jurisdiction and defects in a complaint do not deprive a court of power to hear the Criminal case. KDOR had jurisdiction to suspend Sandate’s driver’s license. Sandate did not properly preserve for review part of EVIDENCE—JOINDER—PRIOR CRIMES his argument. The evidence before the district court shows STATE V. BROWN that Jordan substantially complied with K.S.A. 2016 Supp. SALINE DISTRICT COURT—REVERSED AND REMANDED 8-1001(k), and Kansas has never required strict compliance. NO. 119,460—AUGUST 21, 2020 Although the DC-70 uses the word “require,” it is not coercive. STATUTES: K.S.A. 2019 Supp. 8-259, -1001(k), -1002, FACTS: In 2015 Brown was charged with three counts of -1002(a), -1020; K.S.A. 2016 Supp. 8-1001(k), -1002(a), rape and one count of aggravated indecent liberties for crimes -1002(f) involving his stepdaughter, K.N. While he was in custody,

76 The Journal of the Kansas Bar Association appellate decisions

Brown wrote both K.N. and A.N., the victim’s mother and ISSUE: (1) Revocation of probation—K.S.A. 2019 Supp. his long-time companion. The contents of the letters caused 22-3716 the State to charge him with one count each of intimidation HELD: Following the reasoning in State v. Coleman 311 of a victim and a witness. Over Brown’s objections, the in- Kan. 332 (2020), and finding unpublished Court of Appeals’ formation was consolidated for one trial. After a jury trial, opinions on the same issue persuasive, court holds the 2019 Brown was convicted of all charges except for intimidation of amendment to the intermediate sanctioning scheme at K.S.A. a victim. He appealed. 22-3716 does not apply retroactively to probation violators ISSUES: (1) Admission in evidence of prior acts of domes- whose crimes were committed before the effective date of tic violence; (2) consolidation of information for one trial; (3) the amendment. State’s reliance on State v. Tearney, 57 Kan. denials of motions for mistrial App.2d 601 (2019), is misplaced. Reversed and remanded HELD: At trial, the district court admitted evidence that for new dispositional hearing. District court must impose ei- Brown significantly damaged property at the home during ther a 120-day or 180-day prison sanction before revoking arguments with A.N. The evidence was ostensibly admitted Dominguez’ probation unless the court finds a valid statutory to prove why K.N. would be fearful to disclose the sexual ground to circumvent further intermediate sanctions. abuse, even though the evidence showed that K.N. did not STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, witness these events. There was extensive testimony at trial -3716(c), -3716(c)(1)(C), -3716(c)(10); K.S.A. 2018 Supp. about these domestic violence events. Although the prior- 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), crimes evidence was relevant and material, its probative value -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716 was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not CRIMINAL PROCEDURE—PROBATION— witness the behavior. And the State never asked K.N. at trial SENTENCING—STATUTES if her failure to report was due, at least in part, to Brown’s STATE V. DUNHAM violent tendencies. The exhaustive testimony about Brown’s SALINE DISTRICT COURT—AFFIRMED IN PART, prior crimes, the diminished probative value of the evidence, VACATED IN PART, REMANDED NO. 121081—JULY 31, 2020 and the fact that the State could have proven the same thing FACTS: While on probation for drug crime convictions in with less prejudicial evidence, results in the conclusion that two cases, Dunham committed additional crimes leading to the district court erred by admitting the evidence. This error three more cases, the last two committed while Dunham was cannot be considered harmless and the case must be remand- on felony release status. Addressing all five cases the same ed for a new trial. It is undisputed that the State established day, district court revoked probation in Cases 1 and 2 and the legal requirements to consolidate all charges. The letters imposed consecutive prison sentences in the additional three to A.N. and K.N. put Brown’s character into dispute that cases, finding Kansas law required that sentences in Cases 4 prejudiced him with the jury, all for little probative value. and 5 run consecutive to each other and consecutive to Case The district court erred by consolidating these cases for trial. 3. Dunham appealed claiming district court erred by con- There is no need to review errors in the district court’s rulings cluding it lacked discretion to impose the last three sentences on Brown’s motions for mistrial. This case has already been concurrently. He also claimed the district court abused its reversed for two new trials. discretion by revoking probation, arguing drug treatment STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, would better address his addiction. -455(a), -455(b), ISSUES: (1) Multiple sentences; (2) probation revocation APPEALS—CRIMINAL PROCEDURE—SENTENCING HELD: District court erred in finding it had no discretion STATE V. DOMINGUEZ to impose Dunham’s sentences in Cases 3, 4, and 5 consecu- SEDGWICK DISTRICT COURT—REVERSED AND tive to each other. Law related to concurrent and consecutive REMANDED sentencing in felony cases is examined including the interpre- NO. 12,618—AUGUST 28, 2020 tation of statutory language, the statutes and case law related FACTS: Dominguez sentenced in August 2017 to prison to concurrent and consecutive sentences, and the application term and granted probation for 24 months. In October 2017 of applicable statutes to facts of Dunham’s case. Dunham had district court found probation violation and imposed three- multiple sentences imposed on different cases on the same day, day quick dip jail sanction. A September 2018 warrant is- so this case is controlled by State v. Edwards, 252 Kan. 860 sued for six probation violations. At a July 10, 2019, hearing (1993), which interpreted the previous version of K.S.A. 2019 district court revoked probation, applying the July 1, 2019, Supp. 21-6606(a) as allowing a court flexibility—regardless amendment to the intermediate sanctioning scheme which of sentence ordered in any individual case such as the consec- removed the requirement for a 120-day or 180-day sanction utive prison term in Dunham’s Case 3 sentence—to run the before revocation could be ordered. Dominguez appealed, ar- sentences in multiple cases concurrently or consecutively as guing for first time that district court should have applied ei- the court finds appropriate. District court’s order running the ther the law in effect at time of her 2018 probation violations sentences consecutively is vacated and case is remanded for or the law in effect when she committed her 2017 crimes of court to use its discretion in deciding whether the sentences conviction. in Cases 4 and 5 should be consecutive to or concurrent with each other and to Case 3.

www.ksbar.org | September/October 2020 77 appellate decisions

District court did not act unreasonably by revoking Dun- nation is required in this case. Regardless of the statutory ham’s probation. Facts support the district court’s conclusion amendments to aggravated burglary, district court properly that Dunham was no longer amenable to probation. scored Lyon’s prior conviction for aggravated burglary as a STATUTES: K.S.A. 2019 Supp. 21-6601, -6604(f) person offense. (4), -6606(a), -6606(c), -6606(d), -6606(e); K.S.A. 2018 STATUTES: K.S.A. 2019 Supp. 21-5109(b), -5111(i), -6801 Supp. 22-3716(c)(8)(A); K.S.A. 2017 Supp. 21-6604(f)(4), et seq., -6804(c), -6804(p), -6809, -6810, -6811(e)(1); K.S.A. -6606(d); K.S.A. 1996 Supp. 21-4603d, -4720(a); K.S.A. 2018 Supp. 21-5414(a), 22-3716, -3716(b)(1), -3716(c)(8) 1992 Supp. 21-4608(1), -4608(3); K.S.A. 1984 Supp. 21- (A), -3716(c)(9)(B); K.S.A. 2017 Supp. 21-5807(b), -5807(b) 4608, -4608(2), -4608(4), -4608(5); K.S.A. 21-4608(a), (1), 5807(e), -6810(d), -6810(d)(8), -6810(d)(9), -6811(e)(3); -4608(c), 22- 2801, -2802, -2804 K.S.A. 2011 Supp. 21-3715(a), -5103(d), -5413, -5427(3), -6811(d)(1); K.S.A. 21-3412, -3701, -3715, -3716, -4843, 22- CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— 3716 PROBATION—SENTENCING—STATUTES STATE V. LYON CRIMINAL LAW—CRIMINAL PROCEDURE— SEDGWICK DISTRICT COURT—AFFIRMED EVIDENCE—JURIES—PROSECUTORS NO. 120,993—JULY 24, 2020 STATE V. OLSMAN FACTS: Lyon convicted on his pleas to charges of aggra- ELK DISTRICT COURT—AFFIRMED IN PART, vated battery, criminal possession of a firearm, and endanger- REVERSED IN PART, VACATED IN PART ment of a person. Pursuant to the plea agreement, district NO. 120,119—SEPTEMBER 4, 2020 court imposed dispositional departure sentence of probation FACTS: Jury convicted Olsman of kidnapping and at- with underlying prison term. District court’s calculation of tempted rape. On appeal he claimed: (1) insufficient evidence criminal history included Lyon’s 2010 Kansas aggravated supported the kidnapping conviction because confinement burglary conviction as a person felony. Probation violation of the victim was incidental and inherent in the attempted warrant issued four months later, alleging in part that Lyon rape; (2) district court erred in ruling the testimony of vic- committed the felony offense of aggravated battery/domes- tim’s sister about victim’s reputation for dishonesty was inad- tic violence. Trial judge revoked probation, finding Lyon had missible for lack of foundation; (3) district court erroneously committed misdemeanor domestic battery. On appeal, Lyon instructed jury on kidnapping; (4) in closing argument and claimed the trial court’s revocation of probation denied Lyon rebuttal prosecutor improperly commented on Olsman’s and due process because the State failed to allege he committed a victim’s credibility and inflamed passions of jury; (5) district domestic battery in the probation violation. He also claimed court erred in denying Olsman’s motion for a new trial which his 2010 Kansas conviction should have been classified as a argued in part that a deputy improperly referred to Olsman nonperson felony because the elements of the 2010 version having been in jail on a previous occasion; and (6) cumulative of aggravated burglary are broader than the elements of the error denied him a fair trial. 2017 version of the crime. ISSUES: (1) Sufficiency of the evidence—kidnapping; (2) ISSUES: (1) Due process—revocation of probation; (2) exclusion of testimony; (3) jury instruction—kidnapping; (4) sentencing—criminal history prosecutorial error; (5) motion for new trial; (6) cumulative HELD: District court did not err in revoking Lyon’s pro- error bation. The warrant’s allegation that Lyon committed aggra- HELD: Olsman’s kidnapping conviction is reversed and vated battery/domestic violence sufficiently notified him of kidnapping sentence is vacated. State v. Buggs, 219 Kan. 203 what the State intended to prove, and it is uncontested that (1976), State v. Cheers, 231 Kan. 164 (1982), and State v. substantial competent evidence supports the trial court’s find- Richmond, 250 Kan. 375 (1992), are factually distinguished ing of domestic battery. as involving takings or confinements that substantially facili- The identical-or-narrower test in State v. Wetrich, 307 Kan. tated the commission of other crimes. Unpublished Court of 552 (2018), which applies to out-of-state offenses and to Kan- Appeals case, is found to be similar to Olsman’s case. Ap- sas offenses committed prior to the1993 implementation of plying Buggs analysis, evidence in this case is insufficient to the Kansas Sentencing Guidelines Act (KSGA), does not ap- support the kidnapping conviction. ply to the scoring of Lyon’s post-KSGA Kansas conviction. District court did not err in relying on State v. Penn, 41 A post-KSGA Kansas crime is properly scored as a person Kan. App. 2d 251 (2009), for the foundational requirements offense if the crime was classified as a person offense when for admitting reputation evidence. Olsman’s argument that it was committed and when the current crime of conviction Penn was wrongly decided is unpersuasive. Under circum- was committed and when the current crime of conviction was stances in case, including lapse of five years between events committed even if the prior version of the earlier crime’s ele- that formed the basis for victim’s reputation and events lead- ments are broader than the elements of the current version. ing to trial, district court’s determination was not an abuse of Lyon’s alternative constitutional argument under Apprendi is discretion. Even if district court may have incorrectly stated not properly before the court and is not considered. Whether that victim and her sister were not of the same community, recodification and/or statutory amendments to aggravated Olsman failed burden of establishing that they were. Ols- burglary amounted to a repeal for purposes of K.S.A. 2017 man’s constitutional claim fails with no showing of error in Supp. 21-6810(d)(8) is examined, finding no such determi- district court’s evidentiary ruling.

78 The Journal of the Kansas Bar Association appellate decisions Reversal of Olsman’s kidnapping conviction renders his just because he allegedly intended to defraud a Kansas insur- jury instruction claim moot. ance policy. The law related to proximate result jurisdiction is Prosecutor’s limited and isolated closing argument state- reviewed. When determining proximate result jurisdiction, ments, in particular referring to Olsman as a “liar,” were Kansas courts may consider the negative consequences of a improper but overall nature of prosecutor’s argument was person’s out-of-state criminal acts within Kansas only if the premised in reasonable inferences fairly derivable from the statutory language of that person’s charged crime considered evidence and directed jury to reach its own conclusions. Pros- such negative consequences. Here, the State failed to analyze ecutor’s rebuttal comments were an improper appeal to jury the elements of the charged crimes. Neither the making false for sympathy toward the victim. In light of entire record, information statute, nor the fraudulent insurance act statute however, no reasonable probability these comments affected consider the negative consequences of a person’s out-of-state outcome of the trial. criminal acts in the language of the statute. Olsman fails to explain how district court’s admonishment STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, to the deputy and its curative instruction to the jury was in- -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 sufficient to cure any prejudicial effect of the deputy’s state- Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; ment. No abuse of district court’s discretion is demonstrated. K.S.A. 1994 Supp. 21-3734(a)(2) With reversal of Olsman’s kidnapping conviction, only identified errors bearing on cumulative error analysis are CRIMINAL PROCEDURE—SENTENCING—STATUTES prosecutor’s comments and deputy’s testimony. On overall STATE V. VAUGHN strength of evidence the limited prejudice from these two SEDGWICK DISTRICT COURT—AFFIRMED harmless errors did not aggregate into reversible error. NO. 121,340—AUGUST 14, 2020 CONCURRENCE and DISSENT (Warner, J.): Joins ma- FACTS: Vaughn was convicted of possession of metham- jority’s analysis of all claims but for its conclusion that Ols- phetamine with intent to distribute, a crime committed while man’s confinement of victim within his home was insufficient he was on felony bond for a previous crime. District court to support the jury’s kidnapping verdict. Jury decided wheth- imposed prison sentence to run consecutively to Vaughn’s er Olsman’s grabbing of victim’s arm and preventing her from previous sentence finding Special Rule 10 applied and re- leaving was an independently significant act, and sufficient quired consecutive sentences, and finding Vaughn failed to evidence supported its assessment. Majority ventured into show any manifest injustice. Vaughn appealed, arguing the jury’s fact-finding role by reweighing the evidence supporting district court had discretion to sentence him concurrently, Olsman’s kidnapping conviction. thus applied the wrong legal standard. State’s response in part STATUTES: K.S.A. 2019 Supp. 22-3501(1), 60-455, acknowledged error in sentencing journal entry’s citation of -460(z); K.S.A. 2015 Supp. 21-5408(a)(2), -5503(a)(1)(A); Special Rule 9 instead of Special Rule 10, to be remedied by K.S.A. 60-419, -420. -422(d), -446, -447(a), -460(z) a nunc pro tunc order. ISSUE: (1) K.S.A. 2019 Supp. 21-6606(d)—consecutive CRIMINAL LAW—INSURANCE— prison sentence JURISDICTION—STATUTES HELD: The district court had no discretion to sentence STATE V. ROZELL Vaughn concurrently. If a district court sentencing a defen- WYANDOTTE DISTRICT COURT—AFFIRMED dant for a new felony committed while on felony bond un- NO. 121,094—AUGUST 7, 2020 der K.S.A. 2019 Supp. 21-6606(d) imposes a prison sanction, FACTS: Rozell (Missouri resident) and Lopez (Wyandotte that sentence must be consecutive unless the defendant shows County, Kansas, resident) were in a car accident in Missouri. manifest injustice. Here, district court’s finding of no mani- Rozell submitted bodily injury claim on Lopez’ State Farm fest injustice is not challenged, and Vaughn’s statutory argu- insurance to a claims representative in Tennessee who dis- ments and appeal to legislative history are rejected. K.S.A. covered the Missouri hospital bill Lopez submitted had been 2019 Supp. 21-6606(d) and K.S.A. 21-6604(f)(4) are exam- altered to show a post-accident date. State charged Rozell in ined and interpreted, finding the two statutes are harmonious Wyandotte County with one count of making false informa- rather than conflicting. tion and one count of fraudulent insurance act, listing State STATUTES: K.S.A. 2019 Supp. 21-5705(a)(l), -5705(d) Farm as the victim of Rozell’s crimes. District court granted (3)(C), -6604(f)(4), -6606, -6606(a), -6606(b), -6606(c), Rozell’s motion to dismiss the charges for lack of jurisdiction. -6606(d), -6606(e), -6819(a); K.S.A. 21-4603d, -4608 State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who at- CRIMINAL PROCEDURE—EVIDENCE—JURIES—MO- tempts to defraud a Kansas insurance policy issued to a Kan- TIONS—SENTENCING sas resident, and Wyandotte County was the proper venue. STATE V. WILLIAMS ISSUE: (1) Proximate result jurisdiction SEDGWICK DISTRICT COURT—AFFIRMED IN PART, HELD: District court’s dismissal of the charges for lack REVERSED IN PART, REMANDED of jurisdiction is affirmed. Kansas does not have proximate NO. 120,768—JULY 10, 2020 result jurisdiction to prosecute Rozell for making false in- FACTS: Jury convicted Williams of rape of 13-year old girl. formation, K.S.A. 2019 Supp. 21-5824(a), or committing During trial State introduced DNA results of one of multiple a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a), swabs taken from victim. Sentencing court imposed con- current Hard-25 life sentences, but journal entry also stated

www.ksbar.org | September/October 2020 79 appellate decisions that Williams was subject to lifetime post-release supervision used their remaining peremptory challenges after Williams for each crime. Williams filed pre-sentence motion for post- approved the jury. This did not violate Kansas case law or conviction DNA testing of all swabs. District court summar- K.S.A. 22-3411a. ily denied both that motion and Williams’ post-sentencing Wording of the verdict form did not violate Williams’ pre- motion for reconsideration, stating only that the motion was sumption of innocence. Kansas Supreme Court cases have unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Wil- rejected William’s position. liams appealed claiming: (1) district court erred by allowing No errors shown for application of cumulative error doc- State to exercise a peremptory strike in the midst of jury se- trine. lection and prior to defense questioning of the jury panel; Williams’ convictions are affirmed but case is remanded to (2) verdict form which placed the line for finding the defen- district court for correction of error in the sentencing journal dant “guilty” above “not guilty” infringed the presumption entry. A sentencing court cannot order lifetime post-release of innocence; (3) cumulative effect of these two errors denied supervision when a person has been convicted of an off-grid him a fair trial; (4) journal entry of sentencing erroneously in- crime. And the journal entry erroneously recorded the effec- cluded lifetime post-release supervision; and (5) district court tive sentence announced from the bench. erred by summarily denying his motions for post-conviction Because district court did not rule on Williams’ motion un- DNA testing. til after pronouncing sentence, the motion was not “unripe.” ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cu- District court’s summary denial of the request for post-con- mulative error; (4) sentencing; (5) post-conviction motion for viction DNA testing is reversed. Case is remanded so district DNA testing court can articulate its findings and conclusions under the HELD: Timing of State’s peremptory challenge, though procedure outlined by Kansas statutes and Kansas Supreme unusual, was not improper and did not violate Williams’ Court case law. right to a fair trial. Each party voluntarily used one peremp- STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a) tory challenge before the State passed the jury for cause, and (1)-(3), -2512(c); K.S.A. 22-3411a

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80 The Journal of the Kansas Bar Association appellate practice reminders

Appellate Practice Reminders From the Appellate Court Clerk’s Office

Snow White’s Second Bite at the Apple – PFRs/Summary PFRs (Supreme Court Rules 8.03 & 8.03A)

Petition for Review. Any party aggrieved by a Court of Appeals decision can attempt to get a second bite at the apple by petitioning the Supreme Court for review under K.S.A. 20‑3018(b) and Rule 8.03. See K.S.A. 60‑2101(b) (providing Supreme Court with jurisdiction to review Court of Appeals decisions). However, the granting of review is discretionary, “not a matter of right”, and the vote of three justices is required to grant the petition. Rule 8.03(g)(2). Structurally, the petition cannot exceed 15 pages, exclusive of the appendix, cover, certificate of service, and table of contents. Don’t forget to attach a copy of the Court of Appeals’ decision to your petition. Otherwise, a petition is structurally similar to a regular brief. The petition must be filed within 30 days after the Court of Appeals decision is filed. This 30-day period is JURISDICTIONAL. That means the Supreme Court does not have jurisdiction to hear any Petition for Review filed after the 30 days expires. Obviously, the jurisdic- tional lines have been blurred a bit because of COVID-19, but it’s always a good idea to timely file PFRs. Last, the time for ruling on a petition is entirely within the Supreme Court’s discretion. Remember that the statement of the issues in a petition for review, cross-petition, or conditional cross- petition should not merely repeat the issues raised in the Court of Appeals brief; rather, the issues must be tailored to address why review is warranted. The Court will not consider issues not raised before the Court of Appeals or issues not presented or fairly included in the petition for review, cross-petition, or conditional cross-petition. Rule 8.03(b)(6)(C). Build your arguments around the non-exhaustive list of reasons the court may grant review. 8.03(b)(6)(E). Don’t forget to file a cross‑petition or conditional cross-petition no later than 30 days from the date the petition for review is filed if you need to appeal an adverse ruling by the Court of Appeals. Failure to file the cross-appeal waives review of that adverse ruling. Summary Petition for Review. A little over two years ago in the summer of 2018, the Supreme Court estab- lished the Summary Petition for Review procedure for easier resolution of certain appeals. When controlling authority is dispositive of an entire appeal or no substantial question is presented by the appeal, a party may file a summary petition for review under Rule 8.03A in lieu of a petition for review under Rule 8.03. Rule 8.03A(a). The same 30-day jurisdictional time limit applies, but the content of the summary petition is more limited. See Rule 8.03A((b)(3) & (4). Apple or Poison Appeal. The Kansas Supreme Court grants an average of 10-15 percent of the petitions that are filed each year. To paraphrase a line from the Hunger Games… “The odds are not in your favor.” How- ever, there is always a chance the Court could grant your petition.

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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82 The Journal of the Kansas Bar Association Classified Advertisements

Positions Available administering multiple account relationships tions, trial court and appellate briefs, plead- ings, probate/estate planning documents; Attorney Position Available. with revenue exceeding $1.5 Million. Apply at Arn, Mul- intrustbank.com/careers. also available to assist with legal research. lins, Unruh, Kuhn & Wilson LLP, estab- Quality work; flexible. Experience includes lished Wichita law firm seeks associate and/ Part-Time Legal Assistant. A private law litigation, wills/trusts, probate, debt collec- or lateral hire. Minimum two (2) years’ firm in Topeka has an immediate opening tion, bankruptcy, contracts, domestic. Con- experience in Civil, Family, Litigation and for a qualified Legal Assistant processing tact Paula McMullen at paulaamcmullen@ General Practice. Attractive benefits, in- gmail.com, or (913) 940-4521 to discuss. cluding health insurance, 401(k), disabil- collections. Experience in general office -ad ity/life insurance. Please forward resume, ministration required and legal office expe- Contract brief writing. Former federal law introductory letter and writing sample(s) rience is preferred. Only applicants meeting clerk and Court of Appeals staff attorney to: Kris J. Kuhn ([email protected]). specific criteria will be considered; please available to handle appeals and motions. contact for duties and requirements. Please Attorney Position Available. Young, Bo- Attorney has briefed numerous appeals in send resume and cover letter for consider- both the Kansas and federal appellate courts. gle, McCausland, Wells & Blanchard, a ation to the attn. of Alisia at info@probas- downtown Wichita law firm seeks associ- Contact me if you need a quality brief. ate or lateral hire. At least three years’ ex- colaw.com or via fax (785) 233-2384. Michael Jilka, (785) 218-2999 or email perience in civil litigation/general practice [email protected]. Wanted. and must be admitted to the Kansas Bar. Lawyer with a minimum of 3 David P. Mudrick, Mediator and Arbitrator: Equal opportunity employer. Competitive years’ experience practice in estate and busi- AV-rated, ness law with a desire to become the owner over 30 years’ experience in benefits, including health insurance. Email employment and labor cases and in civil resume, introductory letter, writing sample, of a central Kansas firm that has a very pre- and salary requirements to Paul McCaus- dictable gross revenue. The firm limits its litigation; Past President, KBA Employment land, [email protected]. practice to estate planning, probate, trust Law section (2016-18); selected numerous settlement and business planning. Please times for Best Lawyers in America © Crow & Associates, Leavenworth, We are send your resume to kslawyerrecruit2019@ (Litigation—Labor and Employment and expanding our 4-lawyer firm. Opportunity gmail.com. other Employment/Labor categories) and for attorneys in family law, personal injury Missouri-Kansas Super Lawyers ©; past or estate/probate. Send email to Mike Crow Workers Compensation Administrative selection in Ingram’s Magazine Best Lawyers at [email protected] or call (913) Law Judge. The Kansas Department of La- in Kansas City ©; approved by State of 682-0166. bor is accepting applications for a Workers Kansas as Civil Mediator and as Faculty Due Process Hearing Examiner; former Growing investment company has an Compensation Administrative Law Judge position in Topeka. Applicants are required corporate counsel in charge of litigation & opening for an in-house counsel with ex- claims, including personal injury, contract, tensive business and litigation experience; to be an attorney regularly admitted to practice law in the State of Kansas, have at and discrimination claims. Mudrick send resume to: Arbitration & Mediation, LLC (785) 554- [email protected] least 5 years’ experience as an attorney and must have at least one year of experience 1570, [email protected] INTRUST Bank N.A. seeks an individual practicing law in the area of workers com- that holds a law degree with emphasis in Es- QDRO Drafting. I am a Kansas attorney pensation. To apply, please go to www.jobs. and former pension plan administrator with tate Planning. Trust Advisor is responsible ks.gov Job ID Number 193714. for the administration and growth of com- years of experience in employee benefit law. My services are available to draft your prehensive, integrated, multigenerational high Attorney Services QDROs, communicate with the retirement level trust and wealth accounts. Uses advanced Contract brief and motion writing; re- plans, and assist with qualification of your knowledge to exercise judgment and perform search. Experienced attorney with supe- DROs or other retirement plan matters. Let responsibilities which have a significant effect rior writing skills, successful track record, me help you and your client through this on the bank. Establishes work processes for and excellent work history (small and large technically difficult process. For more infor- self and monitors progress to ensure comple- firm), available to assist on a contract basis mation call Curtis G. Barnhill at (785) 856- tion of goals as defined by their manager. This preparing dispositive motions, other mo- 1628 or email [email protected]. level requires the Trust Advisor to be capable of

www.ksbar.org | September/October 2020 83 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.

84 The Journal of the Kansas Bar Association www.ksbar.org | September/October 2020 85 86 The Journal of the Kansas Bar Association REBEIN BROTHERS TRIAL LAWYERS

We handle significant truck injury cases - A C R O S S T H E M I D W E S T -

DAVID J. REBEIN - [email protected] We PAY A 25% REFERRAL FEE* *Where ethics rules allow.

www.ksbar.org | September/October 2020 87