January 2005 • Volume 74 • No. 1 T��eJ2!!B�t!�b HOME RULE A PRIMER

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7 Who Is a Client for 4 President's Message Conflict-of-Interest Purposes? REGULARFEATURES 5 Soaring to the Clouds to ITEMS OF INTEREST 6 Young LawyersSection News Earn a Law Degree 9 Law Students' Corner 12 Members in the News 10 2005 Kansas Bar Association Awards 12 Dan's Cartoon 13 Obituaries 43 Appellate Decisions 15 Advance Notice: Elections forKBA 55 Appellate Practice Reminders Officersand Board of Governors for 2005 5 5 Classifieds 59 CLE Docket 16 What Does it Take for a Legal 18 Lawyers in the Legislature Assistantto be at the top of the Field?

56 Time to Renew! KBA Membership Reminder! You can also renew your � membership online at _ HO ME _____ -7,;��;-, www.ksbar.org ! I:I !: RULE------£"7�';;'.;;;:1: I j i ! LIi______. ---·--·--·--·--· '_i Cover photo: Chase County courthouse is 26 Home Rule: A Primer the oldest courthouse still in use in Kansas. By Mike Heim Designed by architect john G. Haskell, Lawrence, construction was completed in 1873. Photo by Susan McKaskle, KBA managing editor.

Our Mission: The Journal Board of Editors Connie Hamilton Topeka The Kansas Bar Association is dedicated ro advancing the professionalism and AsSISTANT EXECUTIVE DIRECTOR: Mark D. Hinderks Overland Park legal skills of lawyers, providing services to its members, serving the community Rene Eichem Evan lee Lawrence through advocacy of public policy issues, encouraging public understanding of MANAGING EDITOR: Susan McKaskle Michael T.Jilka Kansas City Marca F. Linenberger Carbondale the law, and promoting the effective administration of our system of justice. Diane S. Worth, CHAIR \'(lichira Hon. Tom Malone Topeka Hon. Steve Leben, VICE-CHAIR Olathe Michelle Masoner Kansas City The Journal of the Kansas Bar Association is published monrhly with combined issues Gregory L. Ash Lawrence Julene Miller Topeka for July/August and November/December for a coral of 10 issues a year. Periodical Anne L. Baker Topeka Brian J. Moline Topek" Postage Rares paid ar Topeka, Kan., and ar addiriona.l mailing offices. The Journal of Hon. Monti L. Belot \'(lichita Hon. Lawton R. Nuss Topeka the Kansas Bar Association (ISSN 0022-8486) is published by rhe Kansas Bar Terri Savely Bezek Topeka Hon. James P. O'Hara Overland Park Association, 1200 S.W. Harrison, P.O.Box 1037, Topeka, Kan. 66601-1037; Phone: Hon. Donald W. Bostwick \'(lichira Pror. John Peck Lawrence (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is Boyd Byers \'(lichira Mary D. Prewitt Topeka included in annual dues. Nonmember subscription rate is $45 a year. Nancy M. Caplinger Topeka Richard D. Ralls Kansas City POSTMASTER: Send address changes to The journal of the Kansas Bar Association, Tamara Lee Davis Dodge City Michelle D. Reinert Dodge City P.O. Box 1037, Topeka, Kan. 66601-1037. Hon. Jerry Elliott Topeka Prof. David L. Ryan Topeka Mary Feighny Topeka Richard H. Seaton Manhattan Autumn Fox Abilene Marry M. Snyder Topeka The Kansas Bar Association and the members of the Board of Editors assume no J. Lyn Entrikin Goering Topeka JeffreyA. Wietharn Topeka responsibility for any opinion or statement of fact in the substantive legal articles pub­ Dan Gronniger Topeka Martha Coffman, board liaison Topeka lished in The journal ofthe KansasBar Association. COPYRIGHT 2005 KansasBar Association,To peka, Kan. Diane S. Worth, Board ofEditors chai,person, [email protected] Susan McKaskle, managing edito,; smckaskle@ksba,:org FROM MICHAELTHE PRESIDENTP. CROW Our Best Legislative Asset - You

he KBA wants to increase its involvement with the For instance, the so-called "Marriage Amendment" to TKansas legislative process. We have very capable and the Kansas Constitution was a major issue in the 2004 experienced lawyers on the Legislative Committee, session and a hot topic during this year's elections. which is chaired by former president Jim Bush. President­ Should the KBA have taken a position? Should the elect Rich Hayse serves as the liaison for the Board of KBA have given members more updates and substan­ Governors and is actively involved with the committee. Our tive information on this issue? Given that there are two in-house legislative counsel is Jim Clark, along with KBA longstanding laws on the books in Kansas defining member Whitney Damron, who serves as our contract lob­ marriage between one man and one woman as well as a byist. In addition, our executive director, Jeffrey Alderman, recent Kansas Supreme Court case decision upholding has a great deal of legislative experience and will be consider­ the laws, the marriage amendment may not have much ably more active in the process than his predecessor. direct effect on your practice. As a KBA member and a I recently attended the Legislative Committee meeting respected member of your community, however, your held in November in To peka. A fair number of ideas were input to your legislator would be invaluable to the discussed, not only about issues for the upcoming session, process: but also how the KBA can best act as a liaison between the Legislature and our membership. (a) Under what circumstances should the Kansas The KBA has never formed a Political Action Committee Constitution be amended? (PAC) to solicit political contributions to be made to legisla­ tive candidates. The philosophy behind that decision is that (b) How does the law in Massachusetts affect our membership includes lawyers with a wide array of Kansas statutes or a Kansas Constitutional beliefs, both personal and professional, who represent clients amendment under the Full Faith and Credit with varied interests and concerns. As such, we have mem­ clause of the U.S. Constitution? bers on both sides of a number of issues. The KBA focus is broad. The KBA's concern is not your position on such a consti­ At the Legislative Committee meeting, even though PACs tutional amendment. Our concern is that you have accurate were discussed, the consensus was not to change our policy and timely information on the status of the issue, so that you at this time. We did discuss ways to more effectively connect can express your legal and personal thoughts to your legisla­ you with the legislative process: tor or even come to Topeka and testify. What are your suggestions? In mid-June of this year, while (1) Streamline our KBA legislative process so that we you are attending the CLE program on 2005 Legislative empower our staff, committees, and sections to react Highlights at the KBA annual meeting in Vail, Colo., you quickly to what is always an ever-changing and fluid might be asking: "Why did the Legislature do such and such situation while the Legislature is in session. or not do this or that?" Don't wait until it is too late. We need to hear from you so we can continue to review and (2) Get information to KBA members in a timely man­ update our policies. ner on legislative issues so that KBA members can By the way, while the Legislature is in session, there are contact their representative or sen .. You are the enough slanted non-lawyer political "legal opinions" floating KBA's best legislative asset. Due to your legal skills, around to make a jailhouse lawyer blush. It is my belief that standing, and involvement in your community, your our members can and should serve as "wise counsel" on legislator will listen to you and respect your input. many legislative issues. KBA members can give sound, unbi­ ased legal analysis to their legislators. (3) The KBA needs to keep you informed on the status You can make■ a difference. The KBA can help you make a of legislative issues that have broader implications. difference. Michael P Crow can be reached by e-mail at [email protected] or by phone at (913) 682-0166

4 -JANUARY2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION KBA MEMBER p ROFILE Soaring to the Clouds to Earn a Law Degree

By Bethoaring Warrington, high in KBA the publicationssky as a pilot coordinator is a dream for some, but "When I was flying to put myself through school, I did putting oneself through college and law school while commercial flying, flight instruction, charter flights, and I flew flying is another story. Ronald P. Pope, Topeka, first air ambulance," he said. "I also flew corpses and did some becameS a pilot, then an attorney. He put himself through training for the military on their primary training schedule for school as a pilot and now has a fam­ people coming into the military system. I ily of third generation pilots. flew a lot of military aircraft and some air "Once bitten by the flying bug, I shows." decided chat it was something I really Pope is qualified to fly single- and wanted to do in a more interactive multi-engine aircraft. manner rather than just casual fly­ Pope and his father, Lloyd, have been ing," Pope said. joined with the next generation in their Pope developed a keen interest in enthusiasm for flying. flying because he was surrounded by Pope said his children may become pilots. pilots while growing up in Kansas His son, R.J., 16, is an aspiring pilot; Ciry and New Orleans. daughter, Harley, 3, may also become a "My dad flew 32 years for TWA as pilot in another 10 years; and son, Jett, 9 a flight instructor before retiring in months, who, by his own name, may have 1988," Pope said. "He learned in the to become a pilot. Even his wife, Shawna, Army Air Corps during World War is considering becoming one. II and continued in the Air Force." Pope is still active Earning his wings at age 18 meant as a flight instruc­ flying approximately 250 hours in a tor and caught R.J., two-and-a-half month time period in who soloed three Kansas City. He would begin flying When this new little Pope entered the days after his birth­ at 4:30 a.m., flying several hours world, apparently his dad (holding him) day, how to fly. and brother R.J. knew he would grow up before going to his summer job, and wanting to be a pilot just like them. Thus "He would have then resume flying in the evenings. his name, Jett. soloed on his birth­ "During that summer, I ate at least day; however, there half of my dinners in the airplane flying from point to were thunderstorms point," he said. the whole day, so we Pope obtained his commercial pilot's license, instrument stood out on the tar­ license, and flight instructor and instrument flight instructor mac waiting for a license by the time he was 19. clearing chat never His early career as a pilot gave him the economic means to came," he said. "We earn his bachelor's degree in anthropology and sociology Ron Pope at his office at the firm of were waterlogged by from Emporia Scace Universiry in 1980 and his juris doctor­ Ralston, Pope and Diehl LLC, Topeka. the end of the day." ate from Washburn Universiry School of Law in 1983. Pope is a qualified instructor in instrument-rated commer­ "Flying opened a lot of doors for me," Pope said. "I cial flight, instrument flight, ground school, multi-engine wouldn't have attended school and then become a lawyer." flight, and turbine flight. Pope also checks pilots every six Pope is a member of Ralston, Pope and Diehl LLC in months for flight review as a 135 check pilot for commuter Topeka. For the past 12 years, he has handled primarily and charter operations. medical malpractice and produces liabiliry cases in Kansas, Though being a pilot and instructor, Pope has never Oklahoma, Missouri, and Colorado. owned his own plane. Pope always had a desire to become an attorney. Meeting "We had interests in owning planes before," he said. "Now, his former wife, Judy, who also became a pilot, in high my son and I are chinking about buying an airplane if he con­ school fueled his desire even more. Boch he and Judy went tinues on his flying career co become a commercial pilot." through undergraduate and law school together, with flying Normally, two things cannot be defined as the greatest. as a way to pay the bills for school. Eventually the two would Pope said he loves being able to practice law; it is the greatest start their own firm, Dickson and Pope, before parting ways, job in the world. Yet his love of flying can also be described but the two still remain friends. as the greatest job in the world. He said flying also happens to be extremely relaxing. ■

JANUARY2005 - S THEJOURNAL OF THE KANSASBAR ASSOCIATION Haveyou Thanked a Young LawyerLately? By Eric Kraft, KBA Young Lawyers Section president

sually my columns are aimed at the young lawyers of the Reputation, visibility, and skill are what the KBA offers state. This is fitting since I am the president of the Young through committees, sections, and CLE. So, why do so ULawyer's Section, the largest section in the Kansas Bar many of the law firms in Kansas feel as if the KBA is not an Association. This month, however, I am directing my words co important part of an associate's practice? chose of you who have "aged out" of the YLS and now, in many Although, admittedly, the YLS has failed to provide its cases, review our work, make hiring determinations, and sign our members with real, tangible benefits of participation in years paychecks. Many of you are members of the KBA (especially if past, it has not been from lack of crying. This year, the YLS you are receiving the journa�. Many of you also allow (and pay has seen an increase in participation chat has not been wit­ for) the younger attorneys in your office to be members of the nessed in the past several years. However, chis participation KBA. Bue are you really allowing cannot continue without support from the top. Although we chose members the benefits of full have chat support from the KBA Board of Governors and the participation in the KBA? Executive Committee, we also need chat from each of you. When the YLS surveyed young I would like each of you to cake a moment to consider Kansas lawyers last summer, how you respond to requests from your young attorneys to nearly half of the respondents participate in activities like the KBA YLS. Do you encourage indicated chat their employer this participation, or do you just expect it to occur? Are there does not actively support their young attorneys participating in these activities in your firm? involvement in the KBA. Two Have you expressed any appreciation for chat participation? percent of the respondents actu­ In that vein, I would like co express my sincere apprecia­ ally indicated chat their employer tion to those members of the KBA YLS who have helped either actively discouraged or make it such a worthwhile project over the course of my Eric Kraft vocally did not support their involvement. I would especially like to thank the current involvement. Only 5 percent of executive committee: Joni Franklin, Paul Davis, Rick Liby, the respondents' employers were enthusiastic about their Chris Masoner, Amy Fellows, Jennifer Crow, Lori Fleming, involvement. Although I was initially surprised about this Orlando Estes, Kyle Fleming, Traci Doering, and Chris level of apathy toward involvement in the KBA, I began Borhani. Each of you has given of your time, efforts, and tal­ comparing it to my own exper,ience. ent to make chis a YLS that we can all be proud■ of. I truly Very recently, one of the senior members of my firm let me appreciate all you do for me and for the YLS. know chat he admired me for caking on the position of presi­ dent of the KBA YLS. Whether I deserved chis accolade or not, the point is chat chis was the first time chat I had heard such a compliment from a partner responsible for my employ­ ment. The point of my realization is not to provide me with recognition. Rather, it is to enlighten each of you chat my experience is not dissimilar to that of many other young lawyers in the state. One of the distinct privileges of my position with the KBA YLS is that I am able to meet and work with a large number of very talented lawyers in the state, young, old, and in­ becween. Many of chose attorneys provide service to their profession, to the public, or to charitable causes because they enjoy it. Rarely are any held to be a champion at their office because of it. Most of the dedicated young lawyers that are involved in the KBA YLS admirably perform their duties at work and then put in a few more hours each week for their Privacy laws are getting tougher. Confidentiality and privacy protection are essential. favorite charity, to benefit a school, to give a CLE on a topic Shred-it provides the legal community with a secure document destruction and of interest, or to contribute to the KBA, all without expect­ disposal system. Their system allows staff to focus on their jobs which results in significant savings over shredding yourself. The verdict? Shred-it. ing co be paid. It is chis selflessness chat deserves to be rewarded and should be encouraged. Case Closed. Call Shred-it, the world's leading mobile paper Participation in these activities also rewards you, the shredding and recycling company. employer. Full participation in the KBA leads to an increased awareness of the legal profession; heightened visibility; net­ Call !or A FREE Eslimale working opportunities; and, ultimately, in the ability to 1-316-491-2090 meet, recruit, and serve valuable clients. After the develop­ 1-800-69-SHRED DOCWEHTDU1RUC'nON. ment of television commercials, yellow page advertisements, DON!RJGHT. ON SIT!. www.shredit.com and Internet marketing, reputation, visibility, and skill are still the bread and butter of a lawyer's success.

6 - JANUARY2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION Th inking Ethics Who is a Client fo r Conflict-of-Interest Purposes?

By Mark D. Hinderks, Stinson Morrison Hecker LLP he most common form of attorney-client relationship at issue, sharing of confidential information or legal advice in arises when a client expressly agrees to engage an connection with the original representation, and the extent Tattorney, and the attorney agrees to accept chat to which corporate formalities are maintained. Of course, it engagement. Like many things associated with the modern is also usefulif the extent of the relationship is defined at the practice of law, however, there may be additional layers of outset, e.g., when an engagement letter reflects an agreement complexity. And though the Model Rules of Professional that only the contracting entity and any others specifically Responsibility (MRPC) contain guidance concerning the referenced are to be the client(s). Finally, remember that scope of an attorney-client relationship, they expressly leave KRPC 1.7(6) concerning other material limitations on a the establishment of the relationship to other state law. This lawyer's ability to represent a client may also come into play column will briefly address a few special cases in which an in the corporate family context. attorney-client relationship may be formed in a different way Partnerships and unincorporated associations. The gen­ or in which there may be questions concerning the scope of eral rules concerning partnerships, general and limited, are the relationship. Practitioners should take away the practice­ similar to those concerning corporate family clients. See ABA point theme that it is very important (perhaps not always Formal Ethics Op. 91-361 (1991) (partnership is organiza­ dispositive) to define the extent of an attorney-client rela­ tion under MRPC 1.13, lawyer represents entity, not con­ tionship in the original engagement, so as to ensure that stituent partners in absence of additional faces); see, e.g., what may later be said to be the client's reasonable under­ Ma rguiles v. Up church, 696 P.2d 1195, 1200 (Utah 1985) standing of it is consistent with the original intent. (representation of limited partnership does not create attor­ Implied relationships. Generally, an attorney-client rela­ ney-client relationship with limited partners in absence of tionship may be implied from conduct alone, where there is additional facts). The same is true for unincorporated associ­ evidence of a confidential relationship consisting of either ations. See ABA Formal Ethics Op. 92-365 (1992) (unincor­ the giving of legal advice or the provision/acceptance of con­ porated association is MRPC 1.13 entity; lawyer does not fidential information. See, e.g., In re Adoption of Irons, 235 necessarily enter into relationship with each member of asso­ Kan. 540, 548-59 (1984) (attorney-client relationship arose ciation). In these circumstances, however, especially in the when individual sought and received legal advice from attor­ absence of clearly agreed ground rules concerning the han­ ney in a "confidential relationship," notwithstanding initial dling of confidential information of partners or members, disclaimer of intent to enter into a relationship by the attor­ the opportunity for creation of an implied attorney-client ney); Wi lson v. Wahl, 182 Kan. 549 (1955) (meetings at relationship with individual members is significant. As a gen­ which confidences were revealed gave rise to an attorney­ eral matter, confidential information received by a lawyer as client relationship). An attorney-client relationship with a part of the entity representation is not deemed confidential former client can be re-established by the giving of subse­ from other partners, see ABA Formal Ethics Op. 91-361, but quent advice and influence, even without an express agree­ circumstances may undercut the general rule. There is also a g. ment for renewed representation. E. , Alexander v. Russo, l line of cases chat suggests chat a lawyer who serves as counsel Kan. App. 2d 546, 553 (1977). for a joint venture or other common interest arrangement Corporate family client identification. Does an attorney involving a "primary client" and another may not be disqual­ or firm that represents a corporation thereby have a client ified from representing the primary client in a subsequent relationship for purposes of conflicts analysis with only that matter adverse to the other, because the nonprimary client entity or with all corporate subsidiaries, parents, sister enti­ never had an expectation of individual representation or that ties with common ownership, parents of parents, et cetera? It information furnished for purposes of the "common" repre­ depends. In defining an attorney's relationship with an orga­ sen tati on would be kept confidential fr om the primary nizational client, the Model Rules (KRPC 1.13) focus on the client. See Allegaert v. Perot, 565 F. 2d 246 (2d Cir. 1977). Of organization or entity as the client, rather than on the course, in all of these situations, clear definition of exactly entity's constituent parts. Based on this focus, ABA Formal who is (and is not) a client and the handling of confidential■ Ethics Op. 95-390 (1995) opines chat a lawyer is not prohib­ information at the outset will avoid many problems. ited fr om representing a party adverse to a corporation merely because the lawyer (or her firm) represents, in an About the Author unrelated matter, another corporation chat is a corporate par­ Ma rk Hinderks ent or affiliate. However, the opinion notes chat additional is a partner in the circumstances concerning reasonable expectations of the Overland Pa rk offi ce of Stinson Mo rrison client about the scope of the relationship extending beyond Hecker LLP, practicing business and con­ the named entity can extend an implied relationship into the struction litigation. He also serves as the corporate family. Important factors, in no particular order, firm's co-general counsel and is a frequent are the degree of ownership or affiliation, the extent of com­ sp eaker and author on matters of profe s­ mon management and/or common in-house counsel, the sional responsibility. extent of overlap in business and legal affairs of the affiliates

THEJOURNAL OF THE KANSASB AR ASSOCIATION JANUARY 2005 - 7 We're covering Kansas...

Are you, a family member, or a friend an amateur shutterbug? we are looking for photos of Kansas landmarks, landscapes, and scenes in all seasons to feature on covers of your Journal of the Kansas Bar Association.

we are working to bring you a more informative and visually appealing Journal. With your help, we can make it even better! If you or someone you know has a photo that fits the bill, why not submit it for consideration as a future cover. The shutterbugs submitting photos chosen will earn photo credit and bragging rights to all their friends and colleagues and their photos will be seen by more than 6,800 Journal readers across the state, nation, and overseas.

For more information, or to submit a photo, please contact:

David Gilham Desktop Publishing coordinator Kansas Bar Association 1200 s.w. Harrison St. P. O. Box 1037 Topeka, KS 66601 -1037 of the Kansas Bar Association (785) 234-5696 THE JOURNAL or 1200 S.W. Harrison St. • Topeka, Kansas 66612 [email protected] LAW STUDENTS' CORNER The Missing Link: The Need for Good Wr iting Programs in Law Schools By Melissa A. Moodie and Brette S. Hart, Wa shburn University School of Law

ose law schools throughout the country require a Tr aditionally, many schools have required a brief to be research and writing component for first-year law written in the second semester of the first year. Instead, we M students. However, schools differ in the degree of envision that a brief would be required in an upper-level core emphasis they place on the research and writing component. class of the student's choice. Each semester would offer brief­ Tr aditionally, the ABA requirements have allowed schools to writing opportunities in a constitutional law class, a criminal ry hire underpaid facul , adjuncts, or upper-division law stu­ law class, and a civil law class. dents to teach the core principles of written legal analysis Legal writing should continue throughout the law school and synthesis. This has led to burnout and high turnover curriculum, not just the first year. Therefore, beginning the among legal writing faculry. second year, we suggest including at least one graded writing First-year students suffer the effects when seasoned profes­ assignment in each core class. By making writing a part of sors, who develop special techniques to assist first-year stu­ doctrinal courses, students will learn the subject area better dents, are not teaching in the legal writing curriculum. since writing requires learning, understanding, and organiz­ Granted, many professors are enthusiastic about reaching ing the material. Feedback offered by professors on each stu­ legal writing, but the high rate of burnout means that first­ dent's work will facilitate writing skills beyond the first year year students learn legal writing from faculty with varying and require more in-depth study of core courses in prepara­ teaching abilities each year. Unfortunately, when law schools tion for the bar exam. Further, faculry will continue to offer undervalue the legal writing faculry, the emphasis on written specialized legal writing courses, including Writing for Law analysis and synthesis is lost in the academic structure. Thus, Practice, Pre-Trial Advocacy, and Commercial Drafting. one of the most critical parts of a competent lawyer's practice Finally, all graduating students would be required to compile ry is given the least priori in many law schools. their law school writing products in a writing portfolio to Greater resources should be spent by law schools to show prospective employers. improve the emphasis on strong legal writing skills. Students Though this is a rigorous writing curriculum, law students are not the only ones concerned with the adequacy of legal will benefit by making a smoother transition into the real­ writing programs. Judge Stephen D. Hill, Kansas Court of world legal profession. Future employers, judges, prospective Appeals, encourages greater emphasis on strong legal writing clients, and the legal community as a whole will benefitfrom skills in law schools and says, ''Attorneys, when they begin to graduates who leave law school with the ability to write practice, will write more than they speak. They will persuade clearly, objectively, and persuasively. more with the written word than they will orally. " As Hill Washburn Universiry School of Law is one of only seven observes, "Good legal writing can be read by everyone. Bad law schools in the countrythat emphasizes the importance of legal writing can only be read by judges and lawyers." Judges the legal writing curriculum by offering all legal writing pro­ and opposing counsel appreciate an argument that is direct, fe ssors tenure-track status. Further, Washburn has a director straightforward, and easily followed. of legal writing, who makes sure that all students have Justice Robert Gernon, Kansas Supreme Court, harkened opportunities to develop the writing skills they need to suc­ back to his days at the Universiry of Kansas , saying, "The ceed. Finally, Washburn is offering new classes with a focus best advice I ever got was in a writing course at KU. 'We on legal writing and is taking steps to improve its program. should always write not to be understood, but not to be mis­ Though change is occurring, more needs to be done to understood.' Nowhere does that apply more than in legal encourage and emphasize■ legal writing in law schools that writing." Greater emphasis needs to be placed on strong legal educate Kansas attorneys. writing skills, and writing should be incorporated into more doctrinal courses in law schools. The emphasis on writing About the Authors Alma, is a third-year student at Washburn should begin with the first class a law student takes and fol­ MelissaUniversity A. Schoof Mo odie, of Law. She received her B. S. in agribusiness, low them through to their last class, increasing in skill and with a minor in economics, ftom Kansas State University. She is intensiry along the way. currently employed as a Law In a perfect world there is a perfect plan for everything. clerk with Stumbo, Hanson Here is our plan for an ideal legal writing curriculum. The and Hendricks LLR Topeka. first year begins with legal research and blue-booking in the first semester. Classes are small and involve online and book Un ionviLLe, research during each class period. Research memos are - BretteMo. , is S.also Ha a rt,third-year stu­ assigned weekly, focusing on a different research skill each dent at Washburn University week. Schoof of Law. She received The second semester of the first year concentrates on legal (I to r) Brette S. Hart and Melissa A. Moodie her B.S. in business and mar­ writing and synthesis. Having already mastered research keting fr om Tr uman State skills, students can now focus on fine-tuning their writing University, KirksviLLe, Mo. Af ter graduation, she plans to join skills. Assignments this semester consist of one ungraded the firm of Harris, McCausland and Schmitt in Kansas City, research memo and three graded memos. Mo. , as a Litigation associate.

JANUARY 2005 - 9 THEJOURN AL OF THE KANSAS BAR ASSOCIATION 2005 Kansas Bar Association Awards KANSAS BAR ASSOCIATION

he KBA Awards Committee is seeking nominations for award recipients for the 2005 KBA Awards. These awards will be Tpresented at the KBA Annual Meeting in Vail, Colo., June 9-11, 2005. Below is an explanation of each award, and a nomination form can be found on page 11. The Awards Committee, chaired by Mary May, Wichita, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee's attention!

Phil Lewis Medal of Distinction: The KBA's Phil Lewis • Work by a public official that significantly advances the Medal of Distinction is reserved for individuals or organiza­ goals of the legal profession or the KBA; and/or tions in Kansas who have performed outstanding and • Service to the legal profession and the KBA over an conspicuous service at the state, national, or international extended period of time. level in administration of justice, science, the arts, govern­ Pro Bono Award: This award recognizes a lawyer or law ment, philosophy, law, or any other field offering relief or firm for the delivery of direct legal services, free of charge, to enrichment to others. the poor or, in appropriate instances, to charitable organiza­ • The recipient need not be a member of the legal tions whose primary purpose is to provide other services to profession nor related to it, but the recipient's service the poor. In addition to the Pro Bono Award, the KBA may include responsibility and honor within the legal awards a number of Pro Bono Certificates of Appreciation to profession. lawyers who meet the following criteria: • The award is only given in those years when it is • Lawyers who are not employed fu ll time by an determined that there is a worthy recipient. organization that has as its primary purpose the Distinguished Service Award: This award recognizes an provision of free legal services to the poor; individual for continuous longstanding service on behalf of • Lawyers who, with no expectation of receiving a fe e, have the legal profession or the public, rather than the successful provided direct delivery of legal services in civil or accomplishment of a single task or service. criminal matters to a client or client group that does not • The recipient must be a lawyer and must have made a have the resources to employ compensated counsel; significant contribution to the altruistic goals of the legal • Lawyers who have made a voluntary contribution of a profession or the public. significant portion of time to providing legal services to • Only one Distinguished Service Award may be given in any the poor without charge; and/or one year. However, the award is given only in those years • Lawyers whose voluntary contributions have resulted in when it is determined that there is a worthy recipient. increased access to legal services on the part of low and moderate income persons. ProfessionalismAw ard: This award recognizes an individual who has practiced law for 10 or more years who, by his or Distinguished Government Service Award: This award rec­ her conduct, honesty, integrity, and courtesy, best exempli­ ognizes a Kansas lawyer who has demonstrated an extraordi­ fies, represents, and encourages other lawyers to follow the nary commitment to government service. The recipient shall highest standards of the legal profession as identified by the be a Kansas lawyer, preferably a member of the KBA, who KBA Hallmarks of the Profession. (See page 11) has demonstrated accomplishments above and beyond those expected from persons engaged in similar government serv­ Outstanding Yo ung Lawyer: This award recognizes the ice. The award shall be given only in those years when it is efforts of a KBA Young Lawyers Section member who has determined that there is a recipient worthy of such award. rendered meritorious service to the legal profession, the com­ munity, or the KBA. Courageous Attorney Award: The KBA created a new award in 2000 to recognize a lawyer who has displayed Outstanding Service Awards: These awards are given for exceptional courage in the face of adversity, thus bringing the purpose of recognizing lawyers and judges for service to credit to the legal profession. Examples of recipients of this the legal profession and/or the KBA and for recognizing type of award in other jurisdictions include a small town nonlawyers for especially meritorious deeds or service that lawyer who defended a politically unpopular defendant and significantly advance the administration of justice or the lost most of his livelihood for the next 20 years, an African­ goals of the legal profession and/or the KBA. American criminal defense attorney who defended two • No more than six Outstanding Service Awards may be members of the white supremacist movement, and a small given m any one year. town judge who lost his position because he refused the • Recipients may be lawyers, law firms, judges, nonlawyers, town council's request to meet monetary quotas on traffic groups of individuals, or organizations. offenses. This award will be given only in those years when it Outstanding Service Awards may recognize: is determined that there is a worthy recipient. • Law-related projects involving significant contributions of time; Note: Nomination form on page 11. • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; 10 - JANUARY 2005

THEJOURNAL OF THE KANSAS BAR ASSOCIATION Hallmarks of Professionalism

1. Shows respect forthe legal system through appearance, manner, and conduct at all times; 2. Does not discuss client's affairs socially; 3. Does not blame others for the ourcome of a case; 4. Recognizes one's income is secondary to serving the best interest of the client; 5. Communicates with clients, other lawyers, and the judiciary in a timely and complete manner and is prompt for all appointments; 6. Does not engage in ex parte communication with the court; 7. Expedites the resolution of disputes through research, articulation of claims, and clarifyingthe issues; 8. Abides by commitments regardless of whether they can be enforced in a courtroom; 9. Who as a member of the judiciary should avoid speech and gestures that indicate opinions not germane to the case, require lawyers to be comprehensible in the courtroom, and discuss pending cases only when all parties are present; 10. Is always mindful of the responsibility to foster respect for the role of the lawyer in society; and 11. Demonstrates respect for all persons, regardless of gender, race, or creed.

KBAAw ards Nomination Form

Nominee's name: ------� 0 Phil Lewis Medal of Distinction 0 Distinguished Service Award 0 Outstanding Service Award 0 ProfessionalismAw ard 0 Outstanding Yo ung Lawyer Award 0 Pro Bono Award/Certificates 0 Distinguished Government Service Award 0 Courageous Attorney Award Please provide a detailed exp lanation below of why you have nominated this individual fora KEA Award.

Nominator's name: ______Address: ______

Phone: E-mail:______

Return Nomination Form by March 1,2005, to: KBA Awards Committee P.O. Box 1037 To peka, KS 66601-1037

JANUARY 2005 - 11

THEJOUR NAL OF THE KANSASBAR ASSOCIATION Members in the Ne ws

CHANGINGL. POSITIONS L. James D. Myers has joined the firm of Adam M. Crane, Crane Law Firm, has Christopher Arellano, Starla L.Borg, Norris and Keplinger LLC, Overland Park. moved to 5100 W 95th Sc., Ste. 200, Michael J. Mayans, and Adam We itzel Kathleen Marie Northey has joined the Prairie Village, KS 66207. have become associates with Foulston firm of Snell and Wilmer, Phoenix. JoAnna Derfelt has opened an officeat Siefkin LLP,Wichita. Scott C. Nehrbass David P. O'Neal has joined the staff of 1108 Military, Baxter Springs, KS 66013. is now special counsel with the firm. Kansas Medical Mutual Insurance Co. - Ryan B. Dixon, Ryan B. Dixon Law Medical Service Corp., To peka. Offices P.A., has moved to 111 S. Kansas Benjamin T. Cook has joined the firm of L. Finley Miller Cashman Schmitt and Hill Paul J. Odum has joined the firm of Ave., Olathe, KS 66061. LLP, Hiawatha. Husch and Eppenberger LLC, Kansas Geoffrey Fogus and Frederick C. David M. Cooper has joined the Ye llow City, Mo. Patton have formed a new firm Patton RoadwayR. Corp., Overland Park. Miranda K. Owens has joined the firmof and Fogus LLC, 2708 N.W. To peka Henry Cox has joined the Anderson Goodell Stratton Edmonds and Palmer, Blvd., To peka, KS 666 17. Law Group LLC, Kansas City, Mo. To peka. Ruth E. Graham has moved her office to Dan Edward Cranshaw Jr. has joined the To dd D. Powell is now on staff at rhe pres­ 3625 S.W. 29th Sc., Ste. 101, To peka, KS Kansas City, Mo., office of Lathrop and ident's officeat Fort Hays State 66614. Gage LC. University, Hays. Jacob Shelley Graybill and N. Russell Lisa Davis is now an associate of the Kathleen Ryan has joined the firm of Hazlewood have formed the firm SpigarelliK. Law Firm, Pittsburg. Stinson Morrison Hecker LLP, Kansas Graybill and Hazlewood LLC. They are Susan Ellis is now of counsel with City, Mo. located at 245 N. Waco, Farm Credit Elizabeth A. Schanou is now with the Bank Bldg., Ste. 406, Wichita, KS Foulston Conlee Schmidt and Emerson L. LLP, Wichita.L. Overland Park firm ofTelchorst and Bipes 67202-11 17. Geoffrey Fogus has joined the firmof LLC. Te rrance Huelskamp P.A. has moved his Patton and Fogus LLC, To peka. Scott J. Schneider has joined the firm of officeto Kanza Office Park, 550 N. 159th W. Rick Griffin has joined the Wichita Caches, Braden, Barbee and Associates, Sc. E, See. 104, Wichita, KS 67230. officeof Martin, Pringle, Oliver, Wa llace, Topeka. Kevin B. Johnson, Johnson Law Office, and Bauer LLP. Michelle Specht has joined the staff of the has moved to 200 W Douglas, See. 700, Patricia E. Hamilton has joined the firm of Reno County District Attorney's Office Wichita, KS 67202. Wr ight Henson Clark and Baker LLP, in Hutchinson. Timothy F. Marks has opened Marks Law To peka, as special counsel, and Allison M. Luke R. Spellmeier is now an associate Office, 4800 Rainbow Blvd., See. 200, Kenkel has joined the firmas an associate. with Newbery, Ungerer and Hicken LLP, Westwood, KS 66205. Chasity M. Helm has joined the firm of To peka. Shawna R. Miller and Joe Robert Little, Klenda Mitchell Austerman and Zuercher Edward S. Stevens has joined the firm of Miller and Little LLC, have moved to LLC, Wichita. LabOne Inc., Lenexa. 114 W Fifth St., Holton, KS 66436. Joan Optican Herman and Michael John H. Wachter is now on staff with Bryan Hurd have joined the law office of Central National Bank, Lawrence. Louis J. Wa de has become a shareholder of Hovey Williams LLP,Kansas City, Mo. (continued on page 13) Angela M. Higgins has joined the firmof McDowell Rice Smith and Buchanan K. s Rosandich Shank andL. Hamilton P.C.,Kansas City, Mo. P.C.,Kansas City, Mo. Dan' Cartoon Dan Shannon Holmberg has become an Susan Wa de has joined by associate with the firm of Gilliland and the firm of Fisher Patterson Hayes R.P.A. , Hutchinson. Sayler and Smith LLP, Ronald Hull has joined the staff of To peka. Koch Cellulose LLC, Brunswich, Ga. Shari Willis has joined the lnho Hwang has joined the Dodge City law officeof Powell Brewer office of Kansas Legal Services. and Reddick LLP,Wichita. James H. Ingraham has joined the staff of Jay Yancey has joined the Brooke Corp., Overland Park. firm of Kucak Rock LLP, Stacy A. Jeffress and Scott Raymond are Kansas City, Mo. now on staffat Blue Cross and Blue Shield of Kansas, To peka. CHANGING PLACES Timothy Keck is now with the Shawnee Saul Arceo, Bombardier County District Attorney's office,To peka. Aerospace, has a new busi­ Janis I. Knox is the newest attorneyat ness address, 2174 Scull and Rein LLC, Pratt. Sherbrooke W #6, Shawn Patrick Lautz is now on staff at the Montreal, QC H3HlZ9. Reno County Public Defender's office, Darren S. Black, Va n Hutchinson. Gilder Insurance Co., is Chris Lawson has joined the staff of now located at 1 1537 NevadaL. Mutual Insurance Co., Las Vegas. Flint Sc., Overland Park, April Martin is now with McCormick KS 66210. AdamR. and Marrin, Overland Park. Case, Moses, Zimmerman John Mettner has joined the staff of the and Wi lson P.A. has moved Kansas Adjutant General, To peka. to 900 Olive Garvey Bldg., Lance A. Miller has joined Sprint Corp., 200 Wesc Douglas, Wichita, "Yourhonor, please have it be noted Overland Park. KS 67202. that Mr. Jo nes is a hostile witness. " Charles F. Moser is now a partner with Looney, Nichols and Johnson, Oklahoma 12 Ci-Jty.AN UARY 2005

THEJO URNAL OF THE KANSAS BAR ASSOCIATION Members . . . continued OBITUARIES Moore Martin Robert L. Bishop Patrick Dennis L.C.Murphy has moved to 622 E. Douglas, Wichita, KS 67202-3504. Robert L. Bishop, 71, died Sept. 29, two months after Shelley Schiebel Pattersonhas opened the Murphy Law Firm LLC, retiring as Kansas District Judge for the 19th District. He PO. Box 10730, Gladstone, MO 64 188. has opened the firmof Shelley was born Dec. 6, 1932, in Anthony. N.Schiebel Trey Pettlon Patterson LLC, at 8600 W. 95th Sc., Ste 102, Overland He was a member of the Cowley County and Kansas bar Park, KS 66212. associations, and the Kansas District Judges Association. He Leonard Rose, MichaelIII, Law D. Offices Strong, of N.Jed Tr D.ey Reeg,Pecclon, III,Amy is now Loth was a faculty member of the National Judicial College in Allenlocated at 111 S. Kansas Ave., Olathe, KS 66061. Reno, Nev., and served as district judge in Winfield from and 1977 until his retirement in August 2004. To ny Shapirohave merged Andrew their law B. practiceProtzman with Lathrop and Gage He received his B.A. from Southwestern College, LC., 2345 Grand Blvd., See. 2500, Kansas City, MO 64 I 08. and have formedShapir o Winfield, in 1956 and his J.D. from the University of Christopherand Protzman Souders, PA., 490 1 W. 119th Sc., Ste. 204, Overland Park, Kansas School ofLaw in 1959. He was associated with the KS 66209. law firm of Janicke, Herlocker and Bishop. Arthur 0. Wilkonson IBM, is now located at 16011 College Survivors include three daughters, Amy Elizabeth Bishop, Blvd., Lenexa, KS 66219. Roselle, Ill., Angela Seis, Wichita, and Alissa Skinner, Denver; has relocated his office at 5780 E. Ida a sister, Marjorie Blair, Jeffersonville, Ohio; three grandchil­ MISCircle,CELLANEOUS Greenwood Village, CO 801 11-1554. dren; and a beloved friend, June Payne, Louisville, Ky. Bibler, Newman and Reynolds P.A. Robert Lee Roberts The new firm of has been Robert Lee Roberts, died Sept. 27 in The Villages, Fla. He formed by the consolidation of Bibler and Newman PA. and DavidJohn P.A. Calvert, Reynolds PA. They will have offices in To peka, Wichita, was born in Hastings, Neb., on July 3, 1933. and Salina. He graduated from Hastings College in 1955, then served Mark D. Hinderks,Wichita, has been appointed by the U. S. Access in the Army until 1957. He received his J.D. fr om Board to serve on its Courthouse Access Adviso1y Committee. Washburn University School of Law in 1962. Roberts was Marvin Maydew,TopekaStinson Morrison Hecker, Overland Park, has the founding partner of the law firm of Gehrt and Roberts been inducted into the American College ofTrial Lawyers. Chtd., Topeka. He was active in the Topeka and Kansas bar W. attorney and CPA with Glenn, associations. Cornish, Hanson, and Karns, has been named an honorary Hon.member Cordell of the D. American Meeks Jr. Institute, of Certified Public He is survived by his wife, Linda Hughes Roberrs, The Accountants. Villages, Fla.; a son, Sean, Minnetonka, Minn.; two daugh­ Kansas City, Kan., District Judge for ters, Reina Marcotte, Lenexa, and Meaghin Underwood, Janicethe 29th Norlin, Judicial District of Kansas, has been namedBob Stephan, as a member Summerfield, Fla.; a brother, Hank, Calumet, Ill. ; a sister, of the Board ofTrustees at William Jewell College in Liberty, Mo. Betty Hansen, Scottsdale, Ariz.; and five grandchildren. Marietta Kellogg et al., Salina, and Lenexa, have been appointed to the Governor's Domestic Violence Te rry R. Fuller Hon.Fatality Lawton Review Nuss Board. Stephen has also been appointed to the Terry R. Fuller, 51, Kinsley, died Oct. 28 in Wichita. He Board of Directors of the University of Kansas Alumni Association. Mark Skinner, has been named to the Mustang Hall of Fame was born Feb. 22, 1953, in Canadian, Texas, the son of at Salina Central High School, Salina. Raymon F. and Wanda J. Grant Fuller. Kathleen Sloan,Wa shington, D.C., has been elected as the new Te rry was a member of the Kansas Bar Association and was president of the Wo rld Federation of Hemophilia. a solo practitioner. Melissa Taylor, Olathe, has been appointed 1 Och District Judge and as District Court Trustee. Law Clerk, U.S. District Court District of Kansas, RobertKansas Wu Cinsch,ty, received the 2004 Sandra Day O'Connor Award for Professional Service from the American Inns of Court. (continued on next page) Bill Yanek, Geisen, Wu nsch and Wa tkins, Kingman, has been elected to the Kansas Humanities Council board of directors. Lawrence, has been called for a year of active duty with Note:the U.S. Army JAG Corp. Faith A.J. Maughan's In the November/December 2004 issue, name was not included as a founding partner of the firm Maughan Hitchcock LC., at 200 W. Douglas, Ste. 350, EditorsWichita, Note: KS It67202. is the poWelic apologizey of The for chis error. to include onlypersons who are members of the Ka nsas Bar Association in its Journal sectof ion.the Kansas■ Bar Association Members in the News

JANUARY 2005 - 13 THEJOURN ALOF THE KANSASBAR ASSOCIATION 0 BITUAR/£S ... CONT.

He married Jennifer L. Behrens on Sept. 28, 197 4. She Immediate survivors include two sons, Stephen, Louisville, survives. Ky. and Christopher, Andover; three granddaughters, Other survivors include two daughters, Jacqueline R. Mikaela, Melinda, and Meredith Robrahn; his longtime Butler, To peka, and Aubrey Anne Fuller, Kinsley; his mother; companion, Marie Harden, El Dorado; two brothers, Reese, two brothers, Randy and Johnny, Tu rpin, Okla.; a sister, Lake Alfred, Fla., and Forrest, Burlington; two sisters, Dana Parker, Elizabeth, Ind.; and his grandmother, Jewell La Verra Page,■ Pasadena, Texas, and Sandra Paxson, Janzen, Waco, Texas. Burlington. He was preceded in death by his father. Edward B. Robrahn Edward B. Robrahn, 81, Andover and El Dorado, died Nov. 9 at the Lakepoint Nursing Center at El Dorado, where he had been a resident. He was born Dec. 23, 1922, at Gridley, the son of Gustav and Nellie Robrahn. As a child, his family lived in the Gridley-Madison area until moving to Burlington in 1932. Associates In Dispute Resolution, LLC He graduated from Burlington High School in 1940 and ADJR. attended Washburn University, where he earned a bachelor's degree before graduating from the Washburn University Dispute Resolution Professionals School of Law. Mediation & Arbitration Services He was employed as a contract lawyer for Boeing Aircraft Choose from our panel of highly experienced mediators and in Wichita from 1951 until his retirement in 1986. arbitrators that possess many years of dispute resolution experience. He was preceded in death by three brothers, James, Marcellus, and Vance; and two sisters, Nadine Moyer and 212 S.W. 8th Ave., Suite 102 Topeka, KS 66603 LaVa nch Roberts. To ll Free (866) 357-2800 Phone (785) 357-1800 Web site: www.adrmediate.com

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14 - JANUARY2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION Advance Notice: Kansas Bar Association Districts Elections fo r

---+--verland KBA Officers Park and Board of Governors for 2005

Ir's not too early to start thinking about KBA leadership positions for the 2005-2006 leadership year.

KBA President-elect (Current - Richard F. Hayse, To peka) KBA Vice President (Current - David J. Rebein, Dodge City) KBA Secretary-Treasurer (Current -Anne Burke Miller, Manhattan)

The KBA Nominating Committee, chaired by Dan Sevart, Wichita, is seeking information about those individu­ als who are interested in serving in the positions of president-elect, vice president, and secretary-treasurer of the Kansas Bar Association. If you are interested, or know someone who should be considered, please send detailed infor­ mation to Jeffrey Alderman, KBA executive director, P.O. Box 1037, To peka, KS 66601-1037, by January 14, 2005. This information will be distributed to the Nominating Committee prior to its meeting on January 28, 2005.

BOARD OF GOVERNORS

There will be six positions on the KBA Board of Governors up for election in 2005. Candidates seeking a position on the Board of Governors must file a nominating petition - signed by at least 25 KBA members from that district - with Jeffrey Alderman by March 11, 2005. If no one files a petition by March 11, the Nominating Committee will reconvene and nominate one or more candidates for open positions on the Board of Governors. KBA districts with seats on the Board of Governors up for election in 2005 are:

• District 1: Incumbent Thomas J. Bath Jr. .i§. eligible for re-election. Johnson County • District 3: Incumbent Hon. Rawley J. "Judd" Dent is not eligible for re-election. Allen, Anderson, Bourbon, Cherokee, Crawford, Labette, Linn, Montgomery, Neosho, Wilson, and Wo odson counties • District 5: Incumbent Thomas E. Wr ight is not Ll.eligible for re-election. Shawnee County • District ?: Incumbent Mary Kathryn We bb eligible for re-election. Sedgwick County • District 8: Incumbent Tr ish Rose is not eligible for re-election. Barber, Barton, Harper, Harvey, Kingman, Pratt, Reno, Rice, and Staffo rd counties • District 12: Incumbent Michael Anthony Williams .i§. eligible for re-election. Our-of-State

For more information: Petitions for the Board of Governors can be obtained by contacting Rebecca Wo rmington at the KBA office at (785) 234-5696 or at [email protected].

If you have any questions about the KBA nominating or election process or serving as an officer or member of the Board of Governors, please contact Dan Sevart at (3 16) 269-4215 or via e-mail at [email protected] or Jeffrey Alderman at (785) 234-5696 or via e-mail at [email protected].

JANUARY2005 - 15 THEJOURN ALOF THE KANSASBAR ASSOCIATION WhatDoe s it Take for a Legal Assistant to be at the top of the Field? Cassandra Tucker, CertifiedLegal Assistant, General Electric Business Credit Services

ore and more legal clients are reviewing the creden­ Many clients now are specifically requesting the credentials tials of the paralegal support for which they are of the firm's paralegal support when they consider the firm Mbeing billed and questioning whether the rates for their business. Recognize both the clout such a designa­ applied match the quality. Beforeyou consider making adjust­ tion gives you and your practice and the achievement of your ments to the hourly rate, consider hiring a paralegal who has paralegal. achieved, through industry-accepted specialized testing, a For more information about CLA/CP, CLAS, and RP des- qualified designation as an expert in his or her field. This will ignations, visit the following We b sites: give your clients the confidence that your staff includes parale­ gal support with up-to-date experience in fe deral law and pro­ National Association of Legal Assistants: cedure, substantive law, and ethics, as well as participates in http://www.nala.org mandatory CLE classes to maintain their designations. Generally speaking, paralegals are unregulated and unli­ National Federation of Paralegal Associations: censed - for the time being. Many paralegals are taking a http://www. paralegals.org proactive step toward this impending change and consider­ ing a professional certification that represents advanced com­ About the Author petency and experience. Although testing is voluntary, expe­ rienced paralegals taking the exam stand apart from the rest Cassandra Tu cker, CLA, Olathe, received when they achieve one of the designations offered by her designation in 2002 and has been national organizations. employed at General Electric Business Credit The organizations that offer the voluntary testing are the Services since 1990. She is a current member National Association of Legal Assistants (NALA) and the of the KEA Legal Assistants Committee and National Federation of Paralegal Associations (NFPA) . Both the Heartland Association of Legal Assistants organizations have state affiliates across the country. Kansas (HA LA). affiliates include the Kansas Association of Legal Assistants (KALA) and the Heartland Association of Legal Assistants (HALA) for NALA and the Kansas Paralegal Association (KPA) for NFPA. NALA, www.nala.org, Tu lsa, Okla., was organized in 1975 and designed the Certified Legal Assistant (CLA/CP) pro­ gram in 1976 and the Certified Legal Assistant Specialist (CLAS) program in 1982. Almost 12,000 paralegal profes­ sionals nationwide have achieved the CLA/CP designation, with Kansas having 199 as of Sept. 1, 2004. NALA's two-day CLA exam covers communications; ethics; legal research; judgment and analytical ability; legal terminology; a substantive law section covering the American legal system; and four other areas chosen by the examinees, KANSAS BAR FOUNDATION including administrative law, business organizations/corpora­ tions, contracts, family law, criminal law and procedure, liti­ Robert K. We ary Award gation, and real estate. The CLAS exam offers eight specialty curriculums, including civil litigation, probate and estates, The Board of Tr ustees of the Kansas Bar Foundation and intellectual property. As of July 2004, there were more established the Robert K. We ary Award in 2000 to than 1,050 CLAS designees. recognize lawyers or law firms for their exemplary The NFPA, www.paralegals.org, Seattle, Wash., was first service and commitment to the goals of the Kansas Bar organized in 197 4 and offe rs the Paralegal Advanced Foundation. Competency Exam (PACE). Candidates who successfully complete the exam achieve the Registered Paralegal (RP) des­ Despite his objection, the Board of Trustees selected ignation. There are 11 designees currently in Kansas. Bob Weary as the initial recipient of the award in NFPA's two-tier PACE exam includes general legal issues recognition of his decades of service to his community, and ethics and may include a section for state-specific laws the Kansas Bar Foundation, and the legal profession in and specialty sections. The exam was developed in 1994 by Kansas. Tr agically, Mr. Weary passed away in early paralegal educators and a professional testing firm and is 2001. administered by the Professional Examination Service. Nominations for the Robert K. Weary Award should be submitted to Jeffrey Alderman, KBF executive director, P.O. Box 1037, To peka, KS 66601-1037, by March 31, 2005.

16 - JANUARY 2005

THEJOURN AL OF THE KANSASBAR ASSOCIATION Celebrating 70 years servic• e to the legal community ..• Since 1935, Legal Directories Publishing Company has provided the members of the legal profession with the most accurate reference directory available. That very first paperback was the just the beginning of what has become a nationwide, multi-volume staple of law offices everywhere. From one volume to five, from 125 pages to over 2,000, we have grown up alongside the profe ssion itself In 2005, we will comemorate the 70th Anniversary of that initial publication, and in the spirit of celebration, we would like to express a heartfelt thanks to all of the men and women who have supported us along the way. Legal Directories Publishing Company. We're the blue book.

Legal Directories Publishing Company * 9111 Garland Road • Dallas. TX 75218 * 1-800-44 7-5375 • Fax 214-320-4869 • www. LegalDirectories.com Sam Brownback, R, became Economic committees. Brownback chairs the Judiciary Kansas' 32nd U.S. Senator, as Subcommittee on Immigration. He is co-chair of the Senate well as the senior senator from Cancer Coalition and the Congressional Wireless Caucus Kansas in 1 997. He is now serv­ and is a member of rhe Senate High Tech Ta sk Force. ing his second full term, after Before his election to the Senate, Brownback served one being first elected to the Senate in term in the U.S. House of Representatives from the 2nd 1 996 to fill the remainder of Sen. Congressional District of Kansas. He also served as the Bob Dole's term and being re­ Kansas Secretary of Agriculture from 1 986 to 1 990 and was elected in 1 998 to his first full six­ a White House Fellow with the office of the U.S. Trade year term. Representative. A graduate of Kansas State University in Brownback serves on the 1 979, Brownback received his juris doctorate from the Judiciary, Commerce, Science University of Kansas School of Law in 1 982 and has prac­ Sen. Sam Brownback and Transportation, Foreign ticed law in both Manhattan and Topeka. Relations, and the Joint 18 - JANUARY 2005

THEJOURN AL OF THE KANSASBAR ASSOCIATION D D, represents the 3rd Congressional ennisDistrict Moore, of Kansas. He has been a U.S. Representative since 1998 and is now serving his fourth term. He serves on the Budget, Banking and Financial Services, Science, and Small Business committees. He earned his bachelor's degree R, represents the 8th Senate District in from the University of Kansas in BJohnsonarbara Allen, County. Allen is serving her second term in the 1967 and earned his juris doctor­ Kansas Senate. She was first elected in 2000, after serving 13 ate fr om Washburn University years in the Kansas House of School of Law in 1970. After Representatives. service in the Army and Army Allen, who is with the firm of Reserve, Moore served as an Perry and Co. LC. in Overland assistant attorney general for the Park, received her bachelor's state of Kansas. He entered pri­ degree fr om Mount Vernon vate practice in Johnson County College in Washington, D.C., in 1973. In 1976, Moore was and a juris doctorate from the elected as district attorney in University of Missouri-Kansas Rep. Dennis Moore Johnson County and served three City School of Law. She served terms until 1989. Ac the end of as an assistant attorney general his third term, he returned to private practice, where he was under Kansas Attorney General a partner in the firm of Erker and Moore LLC. Sen. Barbara Allen Bob Stephan from 1985 to Moore serves on the board of trustees for Johnson County 1987. Community College and is the founding member, president, She has lived in the Kansas and board member of Johnson County Safehome. He is also City area all of her life. She is vice-chairman of the a board member for the Coalition for the Prevention of Skillbuilders Fund and serves on the board of directors of the Child Abuse, the Kansas Child Abuse Prevention Council, Powell Family Foundation and TLC for Children and Court Appointed Special Advocate, and the United Families Inc. She is a trustee of the Johnson County Community Services. He is a member of the Community Community College Foundation and the Women's Public Corrections Advisory Board and is past president of the Service Network and is a past director of the Women's Kansas County and District Attorney's Association. Employment Network and Heart of America Family Services. R, represents the 1st Congressional J errDistricty Moran, of Kansas. He is now serving his R, is representing the 34th Senate District. fifth term. He serves on the House Agricultu re, TThiserry isBruce, his first term. Tr ansportation and Infrastructure, and Veterans' Affairs Terry is with the firm of Forker, Surer and Rose LLC in committees. Moran is assistant majority whip and is a mem­ Hutchinson. He graduated with a bachelor's degree in politi­ ber of the executive committee cal science from Fort Hays State of the National Republican University in 1997 and earned Congressional Committee. He his juris doctorate fr om the chairs the Rural Caucus Task University of Kansas School of Force on Telecommunications Law in 2000. and serves as co-chair of the After graduation, he worked as Congressional Beef Caucus. a prosecutor in the Reno County In 2000, Moran was elected to District Attorney's office. In a four-year term as co-chair of the December 2003, Bruce began Steering Committee of the Rural working fo r Majority Leader Health Care Coalition. He also Clay Aurand as communications serves on the Executive director. His responsibilities Rep. Jerry Moran Sen. Terry Bruce Committee of the Coronado included writing press releases Area Council of the Boy Scouts for legislators, producing sound of America and as an adjunct professor of political science at bites from legislators for local radio stations, and compiling Fort Hays State University. the weekly House Republican newsletter. Before his election to Congress, Moran served eight years He was appointed to the City of Hutchinson Human in the Kansas Scace Senate, the last two as majority leader. Relations Commission. He also taught law courses part rime While in the Kansas Legislature, he chaired the Senate at Hutchinson Community College. Bruce is currently a Judiciary Committee. Moran, who formerly practiced law in member of the City of Hutchinson Sales Tax Advisory Hays, has his undergraduate and law degrees fr om the Board. University of Kansas.

Committee appointments for the Kansas EditorsSenate and Note: House were not available at press rime. We will publish them in the February issue of the jo urnal. (continued on page 20) JANUARY 2005 - 19 THEJOU RNAL OF THE KANSAS BAR ASSOCIATION ay Emler, R, represents the 35th Senate District chat He has practiced before all Jencompasses McPherson and Rice counties, divisions of District Court, along with portions of Dickinson and Marion counties. He including domestic, civil, and was elected to his first term in 2000. probate, along with federal and Emler, who maintains a law practice in McPherson, serves municipal courts throughout as a member of the Kansas Kansas. He has worked on some Supreme Court Municipal 60,000 cases in his more than Judge Testing and Education 20-year career. Committee and che Kansas Journey and his wife, Suyapa, Judicial Council's Municipal own a small business, Sunflower Court Manual Committee, Self Storage, in Haysville. which he chairs. He is a graduate of Bethany College, Lindsborg, Sen. Phillip Journey and the University of Denver erek Schmidt, College of Law. a Republican, represents the 15th Senate For more than 30 years Emler D District, which encompasses Allen, Chautauqua, has been a resident of Lindsborg Wilson, and Woodson counties, along with portions of and rural McPherson County. Coffee and Montgomery counties. He is serving his second Sen. Jay Emler Elmer has been in private law term, having been first elected in 2000. practice for 13 years, served as municipal judge in Lindsborg Schmidt practices law in for 12 years, and spent IO years as the chief legal officer of Independence with the firm of Kansas Cellular. Scovel, Emert, Heascy and Emler has been a volunteer emergency medical technician Chubb. Prior to his election to and served as administrator of the Lindsborg Volunteer the Senate, Schmidt served as Ambulance Corps. He has served on the Lindsborg special council and legislative Community Hospital Board of Directors, has been a mem­ liaison to Gov. Bill Graves. He ber of the Kansas Emergency Medical Services Council, and was the governor's chief aide for has chaired on the Lindsborg Chapter of the McPherson agriculture, energy, and natural County March of Dimes. resources issues and worked closely on regulatory relief and avid Haley, D, represents the 4th Senate District in antitrust reform measures. DWyandotte County. He is serving his second term after Schmidt has served as an assis- being first elected in 2000 and serving the prior six Sen. Derek Schmidt tant attorney general for the years in the Kansas House of state of Kansas, where he was assigned to the Consumer Representatives. Protection Division and as a legislative assistant to former While in the House, Haley U.S. Sen. Nancy Kassebaum (R-Kansas). He also served as served on the Health and legislative director and general council to U.S. Sen. Chuck Human Services, Judiciary, and Hagel (R-Nebraska) for two years. Governmental Organizations and Schmidt is a native Kansan and earned his bachelor's Elections committees, along with degree from the University of Kansas. He graduated from the the joint committee on Health University of Leicester in the United Kingdom with a mas­ Care Reform. He previously ter's degree in international politics and earned his juris doc­ served as legislative liaison for the torate fr om the Georgetown University Law Center, Mayor/City Council of Kansas Washington, D.C. City, Mo. ohn Vratil, Haley has served on the boards a Republican, rep­ Jresents the 11th Senate Sen. David Haley of Habitat fo r Humanity, Planned Parenthood of Greater Kansas City, Tu rner House, District in Johnson County. the United Way, the Kansas Stace Historical Society, and the He is beginning his second Northeast Action Group. Haley's father, George Haley, for­ term. merly served in the Kansas Senate and is a former U.S. Vratil practices law in Ambassador to Gambia. Haley is a nephew of "Roots" Overland Park with Lathrop and author, Alex Haley. Gage LC. His practice is focused on commercial, business, appel­ hillip Journey, R, is representing the 26th Senate late, real estate, and education PDistrict. This is his first full term. He was first appointed law. in December 2003. Vratil received his undergradu- Journey graduated from Washburn University with a bach­ ate and law degrees fr om the elor's degree in business in 197 4. He earned his juris doctor­ Sen. John Vratil University of Kansas, in addition ate from the Oklahoma City University Law School in 1983. to studying at the University of South Hampton, England, He has been in private practice concentrating mainly on on a Rotary Foundation Fellowship. Vratil is a former presi­ criminal and traffic cases. dent of the Kansas Bar Association and received the 20 - JANUARY 2005

THEJOURN AL OF THE KANSASB AR ASSOCIATION Outstanding Service Award from the Johnson County Bar Prior to serving in the Legislature, Crow was a member of Association in 1984. He has been president of the Overland the Leavenworth City Planning Commission, the Board of Park Chamber of Commerce and a board member of the Zoning Appeals for 17 years, and the USD 453 Board of Shawnee Mission Medical Center Foundation. Education for 13 years. She worked as an attorney forthe Kansas Department of Revenue and the Kansas Department of Health and Environment prior to entering private law practice in 1 995. ric Carter, R, is serving his Crow served on the Kansas Esecond term in the Kansas Continuing Legal Education House fr om the 48th House Commission fr om 199 3 to District in Johnson County. 1999, appointed by the Kansas He received his undergraduate Supreme Court. She was chair­ degree fr om Harvard in 1994 man of the Commission from and studied economics at 1997 to 1999. She has presented Cambridge University. He Rep. Marti Crow continuing legal education pro­ attended the University of grams about military family law, ethics, and legislation for Miami School ofLaw from 1994 the Kansas and Leavenworth County bar associations, the to 1996 and completed his juris Kansas Tr ial Lawyers Association, and the annual meeting of doctorate at the University of the Kansas Association of County Counselors. She is the R E nc. C 111 M"1ssoun · - Kansas c·1ty · 1997 author of the Military Family Law chapter in the KBA He becameep. a memberarter of the Kansas bar in 1999. "Family Law Handbook. " She also wrote and published a He is active in various civic organizations, including the series of articles in the Kansas Governmental Journal con­ Blue Valley Board of Education Advisory Council, the cerning solid waste and landfills. Harvard Club in Kansas City, and the Overland Park Rotary. Her husband, Mike, is president of the Kansas Bar Association. at Colloton, R, is serving her first term as a Representative Pin the Kansas House from the 28th District. aul Davis, D, is serving his second term with the 46th Colloton graduated fr om the University of Wisconsin PDistrict as a representative. School of Law and has under­ Davis is a partner with the law firm of Meyer and Davis graduate degrees in chemistry LLC in Lawrence. Prior to serving with the Kansas and psychology. She worked as a Legislature, Davis was the Legislative and Ethics Counsel for research organic chemist for Eli the Kansas Bar Association for Lilly before attending law school. three and one-half years. He also She has practiced law in several previously served as assistant jurisdictions. She is a member of director for Government Affairs the New York, Massachusetts, for fo rmer Kansas Insurance Illinois, Wisconsin, and Kansas Commissioner, and current gov­ bar associations. ernor, Kathleen Sebelius. Most recently, Colloton's law Davis holds a bachelor's practice has related to school law degree in political science from and charitable foundations. For the University of Kansas and a her first 1 0 years of law practice, Rep. Pat Colloton juris doctorate from Washburn she was a litigator with a large law firm; subsequently, she University School of Law. He is has been a solo practitioner, representing clients on a wide active in the Lawrence commu- variety of issues. Colloton also co-owns a small business, a nity, serving as president of the beauty salon, in Leawood and is active in small business Rep. Paul Davis Health Care Access Clinic Board issues affecting her community. She is also active in school of Directors and vice president of the Arc of Douglas organizations, several charitable foundations, the Leawood County Board of Directors; he is also a member of the City Chamber of Commerce, and the Leawood Rotary. She has of Lawrence Housing Tr ust Fund Advisory Board. also served on the Leawood Planning Commission. Davis serves as president-elect of the Kansas Bar Association Young Lawyers Section. He also serves as chief arti Crow, D, represents the 41st District in editor of "The Affiliate," a publication of the American Bar MLeavenworth County. She is serving her fifth term after Association Young Lawyers Division. Davis previously was a being first elected in 1996. member of the American Bar Association Special Committee She is a partner in the law firm of Crow, Clothier and on Judicial Funding and has been a member of the American Bates in Leavenworth. Crow received a bachelor's degree Bar Association Young Lawyers Division Council. from Baker University and a juris doctorate from Washburn University School ofLaw. (continued on page 22) JANUARY 2005 - 21

THEJOURN AL OF THEKANSAS BAR ASSOCIATION effrey Jack, R, is serving his second term in the House of Loyd was a city commissioner for more than 10 years and J Representatives for the 7th District. served two terms as mayor of Garden City. He has been a Jack is a partner is the firm of Markham and Jack Chtd. in director of the Western State Bank and received the Area Parsons. He has a general prac­ Chamber of Commerce Award of Merit in 1992. tice with an emphasis on employment law. Jack received ean Newton, R, represents the 21st House District in his undergraduate degree from DJohnson County. He is serving his third term. Harvard in 1983 and his juris Newton practices corporate and securities law with doctorate from the University of Sonnenschein, Nath and Rosenthal in Kansas City, Mo. He Kansas School of Law in 1987. received his bachelor's degree While at KU, he completed the from the University of Kansas Army ROTC program and and a juris doctorate from New received a commission as a second York University School of Law. lieutenant in the Army Reserve in Newton has received the To m 1986. Jack is currently a major in Cochran Award fr om the Rep. JeffreyJack the Kansas Army National Guard, Missouri Bar Association in where he serves as the state recognition for outstanding Human Resources/Equal Opportunity officer. He is also community service. He is enrolled in the Command and General StaffOfficers course. cofounder of Kids for a Brighter Jack is active in his community, serving as chair of the Future, a nonprofit foundation Parsons Business Redevelopment Task Force, which took the designed to help low-income lead in rebuilding Parsons' downtown after the 2000 tornado. Rep. Dean Newton children in the Kansas City area. He also serves on the board of directors of the Parsons Rota1y Newton also founded Project Club and is the past chair of the Labette County Red Cross Smile, which is a coordinated and the Labette County Emergency Planning Committee. He effort among area domestic shelters and dentists to provide is a Youthfriend volunteer and coaches baseball. free dental care to women that require dental work as a result of domestic violence. Lance Kinzer, R, is representing the 14th House District. This is his first term. ike O'Neal, R, represents Kinzer received his bachelor's degree at Wheaton College Mthe 104th House District in Wheaton, Ill. , and his juris in Reno County. He has served doctorate at the University of the Kansas House of Kansas School of Law. After Representatives since 1984. graduating, he served four years O'Neal is a member of the on active duty as a captain with Kansas Judicial Council and the the Army JAG Corps. After leav­ National Conference of ing the military, Kinzer joined Commissioners on Uniform Schlagel, Damore and Gordon State Laws. He also serves on the LLC, Olathe, where he practices Law and Justice Committee of personal injury, labor and Rep. Mike O'Neal the National Conference of State employment, civil, contract, and Legislatures and Council of State commercial litigation. Governments. ep. ance nzer Kinzer is the former chairman O'Neal is a shareholder in the firm of Gilliland and Hayes R L Ki of the Olathe Republican Party P.A., Hutchinson. and is a member of the Olathe Noon Rotary. He was admit­ ted to the Kansas bar in 1995 and is a member of the homas C. "Tim" Owens, R, Johnson County and Kansas bar associations and the Kansas Tis serving his second term as Trial Lawyers Association. Representative for the 19th ard Loyd, House District in Overland Park. W R, represents the A graduate of Kansas State 123rd House District in University, Owens obtained his Finney County. He is now serving juris doctorate from Washburn his fourth term. University School of Law in He received his juris doctorate 1974. Upon being admitted to fr om Washburn University the bar, Owens worked for the School of Law. Loyd maintains a Office of the Kansas Attorney private practice in Garden City, Rep. Thomas "Tim" General, Employers Reinsurance C. where he has served as general Owens Corp., and the City of Overland council for the Garden City Park before becoming a partner Urban Renewal Agency, Garden in the firm of McAulay, Owens, Heyl and Kincaid. Owens City Community College, and practiced law for 10 years until he was named general coun­ Rep. Ward Loyd the USD 457 public schools. sel for the Kansas State Department of Social Rehabilitation 22 - JANUARY 2005

THEJOURN AL OF THE KANSAS BAR ASSOCIATION Services in 1988. He returned to private practice in 1991 evin Yo der, R, is serving his and is a solo practitioner in Overland Park. Ksecond term as House Representative for the 20th anice Pauls, D, represents the District. He is in private practice 102nd House District in Reno in Overland Park. JCounty. She has served the Yoder completed his under­ Kansas House of Representatives graduate studies at the since 199 1. University of Kansas in 1999 Pauls, a former district court with honors. He received his judge and prosecutor, is a gradu­ juris doctorate fr om the ate of the University of Kansas University of Kansas School of School of Law. She is now in pri­ Law in the spring of 2002. He vate practice in Hutchinson. became a member of the Kansas Rep. Kevin Yo der Pauls is a member of the Kansas bar in September 2002. Sentencing Commission and is Yoder is not a newcomer to the political world. He worked on the Law and Justice four years as a legislative aide in the Kansas Legislature for Rep. Janice Pauls Committee of the National Sen. David Adkins and state Rep. Dean Newton. Conference of Legislatures. Pauls also serves on the Kansas In 2000, Yoder was a full-time campaign coordinator for Judicial Council Juvenile Offender/ Child in Need of Care Sen. Adkins' campaign. In 2001, he worked as a special assis­ Advisory Committee. tant in the Department of Defense in the Office of Counternarcotics in Washington, D.C. He also completed a ichael J. Peterson, D, will represent the 37th House congressional internship in Washington with Rep. Jerry MDistrict. No fu rther information was available at press Moran. ■ nme.

ames "Jim" Ward, D, will be serving his second term as Representative for the 88th District. JHe has been in private practice with the firm of Ward and Batt LL C, Wichita, since 1990. He has a general practice that includes probate, real estate, juvenile, and family law. He also does pro bono work with Kansas Legal Services, representing the victims of domestic violence in �\ protection from abuse cases. . Ward received his bachelor's t degree fr om Creighton ;:>, University, Omaha, Neb. , in 1981 and his juris doctorate fr om Washburn University School of Law in 1985. . He served as an assistant dis- I - 'ii..-- trice attorney in the Sedgwick LIFE IS TO UGH Rep. James "Jim" Ward County District Attorney's office AND SO IS THE PRA CTICE OF LAW from 1985 to 1990. Ward also served on the Kansas Judicial Council Civil Law Committee from 1992 to 1994. He is a Need some stress relief? Call the completely confidential and former member of the Kansas State Senate and the Wichita City Council. anonymous Kansas Lawyers Assistance Program (K ALAP) ­ Donald L. Zemites, executive director.

Kansas Lawyers Assistance Program

Confidential 24-Hour Hotline (TOLL-FREE) 1-888-342-9080 All communications between the subject and a KALAPmember shall be privileged to the same extent as communications between attorney/client. Yo ur Confidentiality is Guaranteed.

JANUARY2005 - 23 THE JOURNAL OF THE KANSASBAR ASSOCIATION Your Lawye� Legislators!

Kansas Senate

8TH DISTRICT 35TH DISTRICT 15TH DISTRICT Sen. Barbara Allen, R-Overland Park Sen. Jay Scott Emler, R-Lindsborg Sen. Derek Schmidt, R-Independence 9851 Ash Dr. 1457 Shawnee Rd. 1303 Birdie Dr. Overland Park, KS 66207 Lindsborg, KS 67456 Independence, KS 67301 [email protected] [email protected] [email protected]

34TH DISTRICT 4TH DISTRICT 11TH DISTRICT Sen. Te rry Bruce, R-Hutchinson Sen. David Haley, D-Kansas City Sen. John Vratil, R-Leawood 129 W 2nd Ave. 936 Cleveland Ave. 9534 Lee Blvd. P.O.Box 1868 Kansas City, KS 66101 Leawood, KS 66206 Hutchinson, KS 67504 [email protected] [email protected] [email protected] 26TH DISTRICT Sen. Phil Journey, R-Haysville P.O.Box 471 Haysville, KS 67060 [email protected]

Kansas House of Representatives 48TH DISTRICT 14TH DISTRICT 102ND DISTRICT Rep. Eric Carter, R-Overland Park Rep. Lance Kinzer, R-Olathe Rep. Janice Pauls, D-Hutchinson 14340 Mackey 12459 S. Broughman 164 N. Baker Overland Park, KS 66223 Olathe, KS 66062 Hutchinson, KS 67501 [email protected] [email protected] [email protected]

28TH DISTRICT 123RD DISTRICT 37TH DISTRICT Rep. Pat Colloton, R-Leawood Rep. Ward Loyd, R-Garden City Rep. Mike Peterson, D-Kansas City 2513 W 188th St. 2203 Center St. 816 N. 9th St. Leawood, KS 66211 Garden City, KS 67846 Kansas City, KS 66 10 1 [email protected] [email protected] [email protected]

41ST DISTRICT 21ST DISTRICT 88TH DISTRICT Rep. Marti Crow, D-Leavenworth Rep. Dean Newton, R-Prairie Village Rep. Jim Ward, D-Wichita 1200 S. Broadway 8802 Cedar Dr. 3100 E. Clark Leavenworth, KS 66048 Prairie Village, KS 66207 Wichita, KS 67211 [email protected] [email protected] [email protected]

46TH DISTRICT 104TH DISTRICT 20TH DISTRICT Rep. Paul Davis, D-Lawrence Rep. Mike O'Neal, R-Hutchinson Rep. Kevin Yo der, R-Overland Park 1101 I /2 Massachusetts 8 Windemere Ct. 5817 W 100th Te rr. Lawrence, KS 66044 Hutchinson, KS 67502 Overland Park, KS 66207 [email protected] o'neal@house .state.ks.us [email protected]

19TH DISTRICT 7TH DISTRICT Rep. Thomas Owens, R-Overland Park Rep. Jeffrey Jack, R-Parsons 7804 W 100th Sr. P.O.Box 1199 Overland Park, KS 66212 Parsons, KS 67357 [email protected] [email protected] Let Your Voice Kansas Bar Association Districts verland be Heard! Park

KBA Board of Governors Representatives PRESIDENT: YO UNG LAWYERS SECTION PRESIDENT: Thomas E. Wright Michael P. Crow Eric G. Kraft (785) 232-2200 To peka (913) 682-0166 Leavenworth (913) 371 -3838 Overland Park [email protected] [email protected] [email protected] DISTRICT 6: PRESIDENT-ELECT: KOJA REPRESENTATIVE: Gabrielle M. Thompson Richard F. Hayse Hon. Patricia A. Macke Dick (785) 537-2943 Manhattan (785) 232-2662 To peka (620) 694-2972 Hutchinson [email protected] [email protected] dick@ourtown usa. net DISTRICT 7: VICE PRESIDENT: DISTRICT 1: Laura L. lee David J. Rebein Thomas J. Bath Jr. (3 16) 660-1258 Wichita (620) 227-8126 Dodge Ciry (913) 652-9800 Overland Park lice@cessnafi nance. testron. corn [email protected] [email protected] Rachael K. Pirner SECRETARY-TREASURER: Timothy M. O'Brien Anne Burke Miller (913) 451 -6060 Overland Park (3 16) 630-8100 Wichita (785) 539-6500 Manhattan [email protected] [email protected] [email protected] Steve Six Mary Kathryn "Kathy" Webb EXECUTIVE DIRECTOR: (913) 642-0600 Overland Park (316) 263-5851 Wichita Jeffrey Alderman [email protected] k\[email protected] (785) 234-5696 Topeka [email protected] DISTRICT DISTRICT 2: 8: Gerald R. Kuckelrnan Tr ish Rose IMMEDIATE PAST PRESIDENT: (913) 367-2008 Atchison (620) 663-7131 Hutchinson Daniel J. Sevart [email protected] [email protected] (3 16) 269-4215 Wichita [email protected] Jeffrey S. Southard DISTRICT 9: (816) 421-5445 Lawrence Hon. Kim R. Schroeder KBA DELEGATES TO ABA: [email protected] (620) 428-6500 Hugoton Linda S. Parks [email protected] (316) 265-7741 Wichita DISTRICT [email protected] 3: Hon. Rawley J. "Judd" Dent DISTRICT 10: (620) 330-1080 Independence Glenn R. Braun Hon. David J. Waxse chiefjudge@l 4thj udicialdisrrict-ks.org (785) 625-6919 Hays (913) 551-5434 Kansas Ciry [email protected] judge_ waxse@ksd. uscouns. gov DISTRICT 4: William A. Taylor III DISTRICT KANSAS DELEGATE TO ABA: (620) 221-1120 Winfield 11: [email protected] Melissa A. Taylor Thomas A. Hamill (913) 551-5405 Kansas Ciry (913) 491-5500 Overland Park mel [email protected] [email protected] DISTRICT 5: Martha J. Coffman DISTRICT ABA DELEGATE AT LARGE: (785) 271-3105 To peka 12: m.coffm [email protected] Michael A. Williams Hon. Christel E. Marquardt (816) 292-2000 Kansas Ciry, Mo. (785) 296-6146 Topeka [email protected] [email protected] I LEGAL ARTICLE: HOME RULE: A PRIMER

------■ ■ ■ ■ ■ , STATE LINE

L --•--·--·--·--·--·--·--·--·--·--·--·-- ■

By Michael R. Heim

Introduction he Kansas Supreme Court recently reaffirmed that cities have broad home rule powers granted directly by the people of the state of Kansas and that the constitutional home rule powers of cities shall be liberally construed to give cities the largest measure of self Tgovernment. 1 The opinion, State ex rel. Kline v. Un ified Government of Wyandotte Co unty/Kansas City, Ka nsas, 2 upheld the ability of cities to authorize the Sunday sale of alco­ holic liquor despite a state law prohibiting such sales. The clarity of the rules for interpreting home rule powers of cities (and counties) reaffirmed in Kline in March 2004 were, unfortunately, muddled in the decision of City of Topeka v. Board of Shawnee Co unty Co mmissioners,3 decided two months later. City of Topeka concerned the propriety of a county charter resolution opting out of the admittedly nonuniform plan­ ning and zoning laws for one brief moment, i.e., long enough to approve one specific plat decision. The Shawnee County charter resolution approved a subdivision plat in the three mile ring around the city of To peka, which the latter had earlier rejected. While the rejection by the Court of the county's ad hoc approach to subdivision plat approval is easy to under­ stand, the case reaffirmed certain contradictory rules regarding home rule power enunciated in earlier cases and rejected in others.

Note: Endnotes on page 39

26 - JANUARY2005 THEJOURNAL OF THEKANSAS BAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PRIMER' Kline Initially, what was at stake in earlier closing hours for private clubs hand, the same Court has announced was whether cities under home rule than state law requires,6 a local ban on that a county may not use an ordinary could exempt themselves from a state open containers of cereal malt home rule resolution to issue general statutory prohibition against the beverage,7 and a ban of nude8 dancing obligation bonds to build a highway Sunday sale of packaged liquor. in drinking establishments. On the bypass in an attempt to avoid the pro- However, in a broader sense, was the other hand, the Kansas issue of whether the Kansas Supreme Supreme Court has con­ Court would further narrow the consti­ cluded that a city may tutional home rule powers of cities by not charge a higher liquor license fe e than court decision - a path the Court had that which is provided taken in several earlier cases and in the Club and appeared to have started down in Bigs Drinking9 Establishment earnestv. City in of 200 Wichi1 withta, 4 its decision in Act. which involved a In the area of taxa­ city's ability to charge a higher liquor tion, the appellate licenseKli nefee than state law permitted. courts have ruled that The court, however, upheld the cities may enact10 Kansas City charter ordinance allowing an occupation tax, Sunday sales of liquor and, in the including an occupa­ process, overruledBigs some of the faulty tion tax covering the reasoning of the case. renting of property with WKlihatne this articleCity ofexplores Topeka is whether a tax rate based on the the and decisions square foot of living11 reflect the possibility that the Kansas area to be rented; may Supreme Court has developed two lines enact 1a2 local sales tax without a referen­ v1s10ns of a nonuniform perm1ss1ve of cases - one line that broadly inter­ dum; and may impose a platting tax13 state law that allowed for a protest peti­ prets home rule powers of cities and as a condition of fi ling a plat. tion and an election25 prior to the counties and a second line of cases nar­ However, the Kansas Supreme Court issuance of the bonds. rowly interpreting these same powers. has opined that a city may not impose Another phenomena is that cities are The battleground in these cases is an amusement admission tax by ordi­ much more likely to have their home focused on two basic interrelated ques­ nary home rule ordinance. 14 rule actions upheld by the Kansas appel­ tions: ( 1) what constitutes a uniform In the area of planning and zoning, late courts than are the26 home rule-related state enactment, and (2) when does the appellate courts have held that a actions of counties. Of 3 7 appellate state legislation pre-empt home rule city may enact a plat tax as a condition cases involving the interpretation, at least action? for plat approval 15 and may add nine to some extent of home rule powers, For the most part, Kansas appellate conditions as a part of a special use per­ about two-thirds of the cases27 have been courts have looked favorably on the mit issued to a water district. 16 On the decided favorably for cities. constitutional home rule powers of other hand, the Kansas Supreme Court This is in contrast to 11 appellate cases cities and the statutory home rule pow­ has said that a city may not use home interpreting county home rule powers of ers of counties - but not always. rule to impose a building permit which only five have28 been decided favor­ Problems have arisen, generally, as a requirement and exact a fe e on a state ably for counties. This phenomena can result of the Court not limiting its construction project, may not require be explained, in part, due to the basic dif­ 17 holding to the facts of the particular city governing body approval of 18public fe rence in city and county home rule case. Often, in these cases, the Kansas right of way dedications in plats, may authority. City home rule is granted Supreme Court has expounded rules not change the zoning classification of directly by the people, 29 whereas county for interpreting home rule cases that a specific parcel of property1 9through an home rule is granted by statute. 30 narrow home rule powers and, some­ annexation agreement, may not Unfortunately, the Kansas Supreme times, contradict other cases where approve a plat for a specific develop­ Court has developed a tendency, when more expansive rules of interpretation ment project by charter resolution, finding a county's home rule action 0 have been adopted. As a result, certain and may not impose more stringent2 improper, to establish restrictive rules decisions of the Kansas Supreme Court county environmental controls21 on con­ regarding the interpretation for both3 1 are difficult, if not impossible, to rec­ fined animal fe eding facilities. city and county home rule powers. oncile. The following are examples of As a final example, in the area of eco­ These cases, which are discussed later, cases in several subject areas that may nomic development and related issues, seem to ignore the constitutional man­ help to illustrate apparent conflicting the Kansas Supreme Court has ruled date that city home rule power must be rulings. that a city or county may condemn pri­ liberally construed to give cities32 the In the liquor control area, the appel­ vate property for economic develop­ largest measure of self-government. late courts have upheld the following ment purposes 22to be used by another23 Home rule in a nutshell means that a actions taken by cities under home private business or for a race crack, city or county no longer needs to look rule: the authorization of Sunday sales and may loan or grant24 public moneys to state law for authorization to act. In of alcoholic liquor,5 the imposition of to private businesses. On the other general, if no state law exists, a city or

JANUARY2005 - 27 THEJO URNAL OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE: HOME RULE: A PRIMER county may act using home rule power state law and by provisions of their City home rule amendment - br!<:f and enact local legislation. Further, if a state constitutions, most notably home history of Kansas home rule provmon state law does exist on a subject but rule provisions. A new era in city-state relations was does not apply uniformly to all cities or Dillon's Rule, although Dillon's Rule: inaugurated on July 1, 1961, the effec­ to all counties, a city or county may formulated by the courts for cities, is a tive dace of the City Ho-me Rule exempt itself from the nonuniform state reflection of the general dependency of Amendment approved by voters at the law by charter ordinance (city) or by all local governments upon state legisla­ November 1960 general election. Cities charter resolution (county) and provide tures absent a home rule grant of now can look directly to the Kansas substitute or additional local provisions. authority. Dillon's Rule states: Constitution, Article 12, §5, for the source of their powers - no longer It is a general and dependent upon specific enabling acts of undisputed proposi­ the Legislature. The Home Rule tion of law that a Amendment has, in effect, stood Dillon's municipal corpora­ Rule on its head by providing a direct38 tion possesses and source oflegislative power for cities. can exercise the fol­ lowing powers, and County home rule development no others: First, An article in the January 1972 issue those granted in of the Ka nsas Government Jo urnal, enti­ express words; sec­ tled "Counties Opt for Home Rule," ond, those necessar­ listed various county officials' associa­ ily or fairly implied tions that had jointly endorsed a in or incident to the policy statement recommending the powers expressly Legislature grant counties home rul_e granted; third, those with broad powers of local self-determi­ essen rial to the nation. The article noted that the pro­ accomplishment of posed legislative enactment was sub­ the declared objects stantially similar to the city home rule and purposes of the constitutional amendment and con­ In order to understand the signifi­ corporation - not simply conven­ tained a preliminary bill draft for the cance of the cases and the observations ient, but indispensable. Any fair, home rule legislation that eventually made above, it is necessary to have a reasonable, substantial doubt con­ passed in 1974. basic understanding of local govern­ cerning the existence of power is 39 ment home rule power, how this power resolved by the courts against the School districts: limited home rule is exercised, and specific fe atures of the corporation, and the power is In 2003, schools were granted Kansas versions of home rule power. denied ... These principles are of expanded administrative powers transcendent importance, and lie at referred to by some as limited home Home Rule and Local the foundation of the law of 40 Governments 35 rule powers. The limited grant of municipal corporations ... home rule powers to schools occurred as a result of several years of effort to State courts, including Kansas, fre­ Local governments in relation to expand the powers of school districts by quently cite "Dillon's Rule" as authority state government the Kansas Association of School for the principle of strict construction Boards and others.41 All local units of government must of statutory grants of power to local 36 look to the state constitution or state units of government. Kansas Home Rule - What statutes for the source of their powers, Powers Are Granted? including the power of home rule. Home Rule: both a grant of power Courts, for the most part, have rejected and a shield from state legislative the theory that local governments enjoy interference Home rule grant to cities - key any inherent right to local self-govern­ A grant of home rule power to cities, constitutional language ment. Under our system of federalism, counties, or some other local unit of The key constitutional language states are sovereign - not their local 33 government changes the rules of reflecting the broad scope of the grant governments. dependency on state legislation. Home of home rule power for Kansas cities Local governments are considered rule, in effect, reverses Dillon's Rule are the following: creatures of the state as well as subdivi­ because a local unit of government may sions of the state and as such are exercise power over its own affairs • Cities are hereby empowered to dependent upon the state for their exis­ 34 despite the lack of statutory authority. determine their local affairs and tence, structure, and scope of powers. Home rule power rooted in a state con­ government including the levying State legislatures have plenary power stitution constitutes a grant of power to of taxes, excises, fees,42 charges and over the local units of government they the local unit of government, as well as a other exactions ... create, limited only by such restrictions real limitation on state legislative 37power they have imposed upon themselves by over the local unit of government.

28 - JANUARY 2005

THEJOURNAL OF THE KANSASBAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PR/MERI • Cities shall exercise such deter­ The third bullet empowers cities to County grant of home rule exempt themselves from the provision minations by ordinance passed by The county home rule act provides of nonuniform state laws that apply to the governing body with referen­ that "the board of county commission­ them. dum only in such cases as ers may transact all county business and The fourth bullet contains the consti­ prescribed by the legislature perform all powers of local legislation tutional directive to the courts requir­ subject only to enactments of the and administration it deems appropri­ ing the home rule powers of cities be legislature of statewide concern ate ... " subject only to the limits, liberally construed to give cities the applicable uniformly to all cities, restrictions, and prohibitions listed in largest measure of self-government. to other enactments afplicable the act. The statutory grant, likewise, 4 The rule is simple - Cities can uniformlyto all cities ... contains a statement of legislative only be bound by state laws uniformly intent that the home rule powers applicable to all cities regardless of • Any city may by charter ordi­ granted to counties shall be liberally whether the subject matter of the state nance elect in the manner construed to give counties the largest law is one of statewide or local concern. 54 prescribed in this section that the measure of self-government. whole or any part of any enact­ The power to tax ment of the legislature applying County power to tax and police power Cities are granted the power to levy to such city, other than enact­ The power to tax under the county taxes, excises, fe es, charges, and other men ts of statewide concern home rule grant is not specifically men­ exactions by the Home Rule applicable uniformly to all cities, tioned but is implied in several of the Amendment. The Legislature, however, other enactments applicable taxing restrictions contained in the may restrict this power by establishing uniformly to all cities, and enact­ home rule law. Tax authority is recog­ not to exceed four classes of cities.49 men ts prescribing limits of nized directly in K.S.A. 19-117, which These classes are not classes for general indebtedness,44 shall not apply to establishes procedures for imposing taxes government purposes: cities of the first, such city. under home rule. The county statute second, and third class. Rather, these are also authorizes citizen initiative on the constitutional classes for purposes of • Powers and authority granted question of imposing a tax or other rev­ imposing revenue limitations or prohibi­ cities pursuant to this section shall 50 enue measure under home rule. The tions. The only example, to date, be liberally construed for the pur­ county home rule tax procedures are where the Legislature has classified cities pose of giving to cities the 4largest5 basically the same as those required of for the purpose of imposing limits upon measure of self-government. cities under K.S.A. 12-137 et seq. or prohibiting taxes has been in the area County home rule is self-executing in All four of the above excerpts from oflocal retailers' sales taxes.51 the same sense as city home rule. The the Kansas Constitution must be con­ Police power sidered to fully appreciate the scope of power is there for all 105 counties to use. No charter or local constitution the constitutional home rule powers of It is obvious, although not explicitly need be adopted nor any election held cities. stated in the city home rule amend­ to achieve the power, except in the case The home rule amendment applies ment, that the home rule power encom­ 55 of Johnson County. For a case involv­ to all cities regardless of their size. pass es broad police powers. Many ing counties and the exercise of home Further, the home rule amendment is statutes authorizing cities to exercise self-executing in that there is no require­ specific police powers and other local ment that the Legislature enact any law government powers were repealed fol­ implementing it, nor are cities required lowing5 2 the grant of city home rule to hold an election, adopt a charter, con­ power. The Kansas courts also have s ti tu ti on or some type of ordinance recognized that home rule power . MANAGPEOPLESEMENT LLC declaring their46 intent to exercise home includes the broadest grant of police We put IWPU.fint.WEALTH rule powers. power.53 In Cardarella v. City of Overland The seemingly redundant language Pa rk, the court upheld a city ordi­ of the second bullet above was inten­ nance placing restrictions on the sale of tionally inserted by the drafters of the drug paraphernalia by head shops: constitutional amendment to avoid a "shrinking" of city home rule power by "Thus, this court must find, as a court interpretation. The constitution whole, the restrictions imposed does not make any distinction between by ordinance RD- 1 048 bear a a matter of local concern versus a mat­ reasonable relationship to a valid ter of statewide concern in regard to exercise of the police power the uniformity of a state law.47 The granted to municipalities under the Jim Reardon J.D. CFP® concern of the drafters was to prevent home rule amendment. Advisory Services " Financialfo r Legal Professionals courts from holding nonuniform laws of statewide concern, which could potentially trump city home rule pow­ 1414 SW Ashworth Place, Topeka 785/27 1 -8097 ers by deeming a nonuniform law "of Securities and Advisory Services offered through VSR Pinancial 48 Scn•iccs.www.peop Inc .. Memberleswealthmanagem NASD/SIPC. a Rcgis1crcd lnvcstmcn1ent.com Adviser statewide concern."

JANUARY2005 - 29 THEJOU RNAL OF THE KANSASB AR ASSOCIATION I LEGAL ARTICLE: HOME RULE: A PRIMER �ule power encompassing the police City and county home rule similarities power, see Mo ody v. Board of Shawnee and differences Co unty Commissioners, where the court City and county home rule powers, upheld an elaborate count56 y regulatory despite key differences, are i m n w ys scheme for massage parlors. � � � � substantially the same. This .s1milanty was recognized by the Kansas Supreme School district expanded powers - _ limited home rule Court in its first decision interpretmg the county home rule statutes. In a 1982 The 2003 Legislature amended K.S.A. case, Missouri Pa cific Railroad v. Board of 72-8205,57 dealing with the powers of . Greeley County Commz ssz· oners, 61 t h school boards as follows: e Court concluded that "home rule power "The major distinction granted to cities ... appears to be simil�r (1) The board may transact all and parallel to [county home rule] 111 between countyhome school district business and adopt many particulars." Thus, the _Co�rt policies that the boa�d dee�s believed that "case law dealing with City rule and cityhome rule appropriate to per orm ns consti­ � _ home rule powers should be particularly tutional duty to ma111ta111, develop, 62 is the crucialfact th at helpful [here] ." . . and operate local public schools. However, 22 years later, 111 David v. Bd the countyhome rule is of Co mm'r of No rton Co unty,63 the Kansas (2) The power granted by this sub­ Supreme Court noted that the county's granted by statute section shall not be construed to reliance on city home rule cases rather relieve a board from compliance than on county home rule cases weakened whereas thecity home with state law. The power granted its argument that there was no confli�t rule is granted directly by this subsection shall not be con­ between state law and Norton County s strued to relieve any other umt of more restrictive regulations for confined by the people. Because government of its duties �nd animal fe eding operations. The Court responsibilities which are prescnbe� then cited three city home rule cases of its constitutional by law, nor to create any res�on�1- upholding more stringent local regulations origins, onlyth e voters bility on the part of a school d1�tr_1�t than state law required but indicated, to assume the duties or respons1b1h­ without explanation, that the cases did not of Ka nsas can ulti­ ties which are required of another control in the county home rule arena. unit of government. The major distinction between county matelyre peal cityhome home rule and city home rule is the cru­ (3) The board shall exercise the cial fact that the county home rule is rule after two-thirds of power granted by this subsection granted by statute whereas the city home by resolution of the board of 64 both houses of the 58 rule is granted directly by the people. education. Because of its constitutional origins, only the voters of Kansas can ultimately repeal Ka nsas Legislature Briefly, it would appear that a ch ol � � city home rule after two-thirds of both board can legislate on school d1stnct have adop ted a concur­ houses of the Kansas Legislature have business compatible with its constitu­ adopted a concurrent resolution cal ing tional duties where there is no state law � rent resolution calling for amendment or repeal or a constitu­ on the subject or where there is a state tional convention has recommended a foramend ment or law but the local school board desires to change.65 The Legislature can restrict city supplement it. However, the additional home rule powers only by enacting uni­ repeal or a constitu­ or supplemental provisior s cannot c n­ � _ ? form laws that apply in the same way to flictwith state law. There 1s no prov1s10n tional convention has all cities unless the subject matter is one for school boards to pass a charter resolu­ of the few specific areas listed in the tion to exempt themselves from prov ­ recommended a ) Home Rule Amendment, such as debt )) sions of nonuniform state laws as there 1s limitations.66 By contrast, the state ch an ge. with cities and counties. 59 Legislature has a much freer hand to The expanded powers 60of school dis­ restrict or repeal county home rule. tricts are limited and there have been no Finally, the other factor distinguishing court decisions to date regarding the city and county home rule is the numer­ interpretation of these powe1s. T e rest : � ous (34) exceptions to county home rule of this article will deal only wnh city and powers found in the statutory home rule county home rule powers. grant of power.67

(continued on page 31)

30 -JANUARY2005 THEJO URNA L OF THE KANSA S BAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PRIMER I How City and County Home Rule missive legislation exists but a city or is Exercised: "Ordinary" Ve rsus county chooses not to utilize the avail­ LocalThe supplementsecond instance to a statewher elaw cities or "Charter" Ordinances or able state legislation and instead acts counties may enact ordinary home rule Resolutions under home rule. This instance, which ordinances or resolutions is when there is different fr om the second use for is a uniform state law on the subject, City hom68e rule must be exercised by ordinary home rule ordinances/resolu­ the law does not explicitly pre-empt ordinance. City ordinances are sub­ tions, has had mixed results in the local action, the city or county wants to 82 ject to certain formalities and other appellate courts. requirements that are contained in supplement the state law and there is no conflict between the state law and K.S.A. 12-3001 et seq. A city that 74 attempts to exercise home rule powers the local addition or supplement. Doctrine of implied pre-emption through a resolution rather than an This use should also be available in rejected - clear statement of ordinance does not meet the constitu­ instances where a city or county merely legislative intent required to limit tional requirement noted above and, as wants to supplement a nonuniform homeThe ruleissue of state legislative pre-emp­ state law with added local provisions. a resul6t9, th e action of th e city is tion arises where the Legislature has invalid. Home rule power of counties In regard to the police power, this abil­ enacted a uniform state law. If the area must be exercised by the board of ity to supplement a state law with local of law has not been clearly pre-empted 0 county commissioners by resolution.7 regulations pr75edates the city home rule by the Legislature, local action is per­ The term "ordinary ordinance" was amendment. mitted. The courts, however, continue coined after the passage of the Home Examples of ordinary home rule to flirt with the idea that legislative pre­ Rule Amendment but is not specifically ordinances upheld by the Court sup­ emption can be implied by the nature plementing state laws include: City of used therein. The intent of using the 76 of the legislation itself rather than by a term is to distinguish ordinances passed Wi chita v. Hackett, where the Court clear statement in the law. Cases have upheld a Wichita ordinance extending under home rule authority, which are rejected the implied pre-emption do83c ­ not charter ordinances, from ocher ordi­ the city's driving under the influence trine, but the issue keeps resurfacing. nances enacted by cities under specific (DUI) ordinance to cover operating a The issue of pre-emption sometimes enabling acts of the Legisl ature . bicycle while under the infl uence of gets confused with the idea of whether Ordinary ordinances are those referred alcohol or drugs; Jo hnson Co unty Water §5(6) the Legislature intended a state law t84o to in Article 12, of the Kansas District No . I v. City of Ka nsas City, be uniformly applicable to all cities. Constitution: "[C] ities shall exercise which upheld nine conditions that 77a Pre-emption is not really a concept chat such determination (home rule) by city had attached to a special use per­ has a place in the discussion of whether ordinance passed by the governing body mit granted to a water district;78 State ex a law is uniform or nonuniform. The with referendums only in such cases as rel. Franklin v. City of Topeka, where law is either uniform or it is not. If the the Court upheld a city anti-discrimi­ prescribed by the legislature1 . .." law is uniform, then the question is According to one commentator,7 this na ti on ordinance against a state whether the law pre-empts any city or ability is the most significant aspect of agency; Hutchinson Human the Home Rule Amendment as it gives Relations Co mmission v. Kansas cities the power to initiate legis­ Midla9 nd Credit Ma nagement, lation by ordinance without having to lnc.,7 which affirmed the abil­ rely on enabling statutes. The same ity of cities to establish local rationale applies to the use of "ordinary" civil rights agencies80 ; City of home rule resolutions by counties. Ju nction City v. Lee, where the Court uphel d an ordinary home rule ordinance defi ning WhereTher eno a rstatee se vlawera lexi inststsances where the crime of unlawful use of cities and counties may use ordinary weapons to encompass the car­ home rule ordinances or resolutions. rying of both concealed and The first occurs when a city or county unconceal ed weapons; and81 desires to act and there is no state law Dillon Stores v. Lovelady, on the subject sought to be addressed which held that a county can by the local legislation. The regulation hire a private accounting firm and licensure of massage parlors or as a "tax fe rret" to assist the adult entertainment studios by coun­ county appraiser in analyzing ties, uphel d in Moody v. Board of reported values for tangible 7 Shawnee Co unty Co mmissioners, 2 is a personal property. good illustration of the first situation. county home rule action . The only Another example of this type of home caveat relates to county home rule as Alternative to permissive legislation rule action is a city or county's pro­ the county home rule statute, K.S.A. - a key "scope of home rule" issue hibiting ticket scalping at sporting or A third instance involving ordinary 19-l0la, has, in addition to the uni­ entertainment events on state and fe d­ home rule ordinances or resolutions form law exception, numerous other eral property.73 concerns situations where either uni­ exceptions. form or nonuniform enabling or per-

JANUARY 2005 - 31 THEJOU RNAL OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE: HOME RULE: A PRIMER hensive weapons control scheme, had the Court found no conflict with the THE LAW OFFICES OF thereby evidenced an intent to pre­ state DUI law where a city ordinance ]])@w@:7 wn@l IL@ml@l ILJLJP empt the field. The Court rejected the criminalized the operation of a Citybicycle of 1020 N. Main, Suite A argument saying legislative intent to junctionwhile intoxicated. City v. Cador However,et, 94 in P.O. Box 635 pre-empt was not so simplistically the Court Wichita, KS 67201 found and, absent clear expression, invalidated an ordinance attempting to would not be found. declare third and subsequent DUis the Ailil®Irml®J�

JANUARY 2005 - 33 THEJOURNAL OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE: HOME RULE: A PRIMER in pari The distinction between a statute and therefore, must be construed city. 11In8 fact, it is part of an enact­ an enactment is very important in deter­ materia. ment that excludes any city of the Claflin v. Walsh, 1 1 5 mining whether a city charter ordinance is the home rule fi rst class with 1a population of more may be used to affect a particular statute case most frequently cited regarding the than 200,000.1 9 Section two amends or statutes. For example, the Kansas doctrine of in pari materia. In Claflin, KS.A. 12-860, which on its face also Code of Procedure for Municipal Courts the Court upheld a Kansas City charter appears to apply to any city 'but is in ordinance exempting the fact part of an enactment chat applies

city from K.S.A. 73-407 only to 2cities of less than 80,000 popu­ and providing substi­ lacion.1 0 Section 3 amends KS.A. 14- tute provisions transfer­ 569, which again, on its face, looks as if

ring management and it applies to all cities. In fact, 121K.S .A. control of the Soldiers' 14-569 is part of an enactment chat

and Sailors' Memorial applies2 only to cities of the second Building from a board class. 1 2 Applying the Claflin rationale, of trustees to the city it is the author's opinion that SB 328 is commissioners. The subject to charter ordinance by any city issue was whether to which it applies. 123 K.S.A. 73-407 was "applicable uniformly The Kline Court's interpretation of to all cities" and, there­ uniform enactments - 2004 fo re, not subject to In State ex. rel. Kline v. Unified charter ordinance. The Government of Wyandotte County/Kansas Court found that the City, Kansas, 124 the Kansas Supreme statute was not uni­ Court upheld the validity of a charter formly applicable to all ordinance of the Unified Government cities because it permit- exempting the city of Kansas City from ted three exceptions in its the Sunday sales prohibition of KS.A. was enacted as SB 205 and appears in application to various cities. Moreover, 41-712, a section of the Kansas Liquor Chapter 61 of the 1973 Session Laws of the Court noted that another statute, Control Act. The court held that the Kansas. This enactment, which contains KS.A. 73-427, which was part of a sep­ Kansas Liquor Control Act was not uni­ 46 sections, appears at KS.A. 12-4101 arate enactment, authorized control of formly applicable to all cities since there through 12-4602. All sections of this memorials by certain city governing were at least three sections of the law

enactment apply uniformly to all cities bodies. In determining whether the that the district court had recognized12 except for one section, KS.A. 12-4105, Legis-lature intended to have a statute did not apply uniformly to all cities. 5 which requires municipal judges in cities apply "uniformly to all cities," the Court In doing so, the Court reaffirmed of the first class to be attorneys while concluded that all statutes relating to the the flagship 1980 home rule decision of permitting cities of the second and third same subject, although enacted at differ­ City of junction City v. Griffin. The in pari materia Kline class to have judges who are not attor­ ent times, are and should court quoted with appr1oval the neys. Because of this one section, the be construed together: "In order for a following passage from Griffin: 26 enactment is not uniformly applicable to statute to be applicable uniformly to all 114 116 all cities. Every statute that is part of cities there must be no exceptions." "The grant of home rule power this enactment is subject to charter ordi­ to cities under Article 12, §5 of What if an enactment amends nance even though each statute, except the Kansas Constitution has for KS.A. 12-4105, applies uniformly. statutes that are part of nonuniform enactments? therefore added a new dimension to be considered in determining What if two or more enactments deal The1 2004 Legislature passed SB whether the legislature has occu­ with the same subject - doctrine of 1 7 328, which on its face appears to pied a field. Legislative intent to in pari materia? apply to all cities. The bill amends pre-empt a field is alone insuffi­ The Kansas Code of Procedure for statutes that provide that unpaid cient. It is now necessary to Municipal Courts may be used for pur­ charges for sewer services provided by examine the provisions of the poses of illustrating a second key point cities, county sewer districts, and State enactment to determine in determining uniformity in reference improvement districts become liens whether the constitutional stan­ to legislative enactments. Suppose the against the property. However, the dard of uniform application to Legislature in 1973 had enacted the 2004 amendments exempt the property cities has been met. If not uni­ Code and all 46 sections applied uni­ of landlords when a tenant contracts fo rm, legislative intent as formly to all cities but the special provi­ for the service. expressed within the enactment sion requiring municipal judges to be The bill amended three statutes that will not overcome the constitu­ attorneys in cities of the first class had apply to cities; however, each of these tional requirement for uniform been placed in a separate bill or enact­ three statutes are part of enactmen cs Griffin application. (Citation omitted.) ment. The holding should have applicable only to certain cities. Section The legislature may pre-empt the been unchanged because the two enact­ one amends KS.A. 12-63lk, which on constitutional powers of cities ments dealt with the same subject and, its face looks as if it would apply to any only in the manner prescribed in

34 -JANUARY2005 THEJOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PR/MERI the constitution. ''As between the arisen. Unfortunately, the Court enunci- will of the people expressed in the ated certain rules for city home rule in constitution, and chat expressed in the context of enabling legislation. the statute, the former always127 pre­ The following are excerpts from the vails." (Citation omitted.) Moore decision chat continue to create interpretive problems for both cities and The Court then specifically overruled counties: language in BlueI28 Sta r Supper Club, Inc. v. City of Wichita and Bigs chat had held "It is clear chat initially these chat legislative language intended co pre­ statutes are not uniformly applicable empt local action was sufficient to pre­ co all cities as they provide an empt regardless of uniformity. optional procedure which may be adopted by any city as a means of governing matters pertaining to city Commentary on five home rule cases planning and subdivision regula­ that create confusion or a separate line tions. However, after careful exami­ "The Court held that a Moof reasoningore v. City of Lawrence 129 nation of these provisions we are permissive or enabling Mo ore v. City of Lawrence has been convinced the Legislature intended the fu lcrum of several major problems these statutes to be uniformlyapp lica­ law (i.e. a law author­ with the interpretation of both city and ble to those cities which elected to county home rule powers. The facts in adopt the planning commission proce­ izing, but not the Moore case are relatively simple but dure provided by 12-701 et seq. must be considered in order to under­ While the application of the statutes requiring, a city or stand what was at issue and how the con­ may be optional, it is clear chat once countyto take action) fusion arose regarding home rule powers. a city chooses to adopt chis method The city of Lawrence passed an ordi­ the Legislature intended for those was not uniform as not nary home rule ordinance supplement­ statutes controlling the planning ing the then city planning and zoning commission procedure to be bind­ all cities choose to uti­ law. The ordinance required the city gov­ ing. [I]f each city which elected to erning body to approve subdivision plats create a planning commission ... lize the statutory plan­ and the dedication of easements and were allowed, by way of charter ning and zoning laws. public rights of way. The state statute ordinance, to determine which of required only the approval of the city the provisions were not applicable Ho wever, because the planning commission. A subdivision to chat city, the purp

JANUARY 2005 - 35 THEJOURN AL OF THEKANSAS BAR ASSOCIATION I LEGAL ARTICLE: HOME RULE: A PRIMER The problem is the Court's holding issue the GO bonds, alchough it had argue chat state legislation implies or chat a law is deemed uniform if the available for its use at lease one statutory authorizes local legislation to supple­ LegislatuI3re2 wants or declares it to be enabling act that authorizes the issuance ment or enhance the state law. In ocher uniform. This erroneous conclusion, of GO bonds to finance che construc­ words, the legal rationale for the city or rejected repeatedly in ocher opinions, tion of "arterial highways." The attorney county regulation supplementing a uni­ surfaces, likeGriffin a bad penny,Kline in other general had advised Douglas County form state law would shift from a home cases. Boch and hold chat chat the Arterial Highway Act (Act) was rule authorization argument co a statu­ a uniform law muse in face be uniform not the exclusive method for counties to tory authorization argument, which is finance arterial highway con­ contrary to the intent of the Home struction, that the use of chat Rule Amendment. Happily, this "court­ Act was permissive, and chat imposed" exception has never surfaced state law did not otherwise pre­ in any appellate court decisions co dace. vent counties from using home rule as an alternative to usin Syllabus No. I 3g' 4. An enabling act the Arterial Highway Acc. is uniformly applicable co all The attorney general also con­ cities or counties if it authorizes cluded chat the county need not all cities or counties to perform fi rst "charter out" from the certain acts. Such statutes are Arterial Highway Act because state law and pre-empt the field the latter was permissive, of their application without the nonexclusive, and nonuniform use of pre-emptive language, enabling legislation chat the unless there are express excep­ county could use or not use to tions in the statutes or unless the finance th13e6 South Lawrence statutes per13tain9 to police power Tr afficway. regulations. Boch the district court and the Court of Appeals found the Syllabus No. 4 is misleading and Douglas County action proper.137 directly contradicts ocher Court deci­ The Kansas Supreme Court, sBlevins.ions rendered both prior to and after however, disagreed and, in doing The net result of the above rule in its application to all cities (or coun­ so, created rules for both city and is that the doctrine of implied legiMooresla­ ties). A legislative statement of pre­ county home rule chat have spawned tive pre-emption, to which the emption is ineffective if, in face, thMoore,e law problems and confusion to chis day. Court adhered, is the rule of law except iBles nvins,ot u niform. UnfortCity ofunately Topeka, Tw o of che six pares of the syllabus where Blpoevinslice power is concerned. In andGriffin the cases are reprinted and are followed by com­ short, reinstates Dillon's Rule ignore thKline.e rule recencly reaf­ mentary. wherever the Legislature has enacted a firmed in uniform state law unless the law Moore Syllabus No. 2. The Court, in effect, endorsed A court-imposed involves police power. The source of the doctrine of implied Legislature pre­ exception to the home rule power for local governments to supple­ emption and, in the process, blurred amendment allows concurrent ment uniform laws with local legisla­ two separate questions: Is the law uni­ legislation on police power regu­ tion is the Klinepolice power itself, not home formly applicable to all cities, and if so, lations as long as the local legisla­ rule. The Court clearly rejected has the Legislature clearly pre-empted tion does not conflict with1 38u ni­ chis ill-conceived rule. supplemental action by cities? No con­ formlyapplicable state laws. Eight opinions oBlevinsf the Kan sas Supreme sideration was given to whether there Court have cited since the deci­ were nonuniform provisions in the The statement in Syllabus No. 2 is sion was rendered in 1990. None of to then-exi133 sting city planning and zoning contrary the clear language of the these cases repeat the erroneous conclu­ law. This point iCitys criof tical Topeka as o cher city Home Rule Amendment. le is true sions regarding police power and home cases, including the case, that prior to the city constitutional rule or endorse the 1r40ule of implied leg­ are built on this oversight. home rule amendment court decisions islative pre-emption. Blevins v. Hiebert134 upheld city ordinances chat supple­ Bigs v. City of Wi chita mented state laws involving police Bigs v. City of Wi chita, 141 In August 1985, the Douglas County power regulation, where further local In plaintiffs Board of County Commissioners action was not clearly pre-empted and were private club licensees who sought adopted resolutions authorizing the where the local action was not in con­ refunds of excess liquor license fe es col­ construction of highway improvements flict with the state law. Bue, how can lected by the city between July 1, 1988, and the issuance of general obligation the Court impose an exception to a and Nov. 8, 1995. The city used charter (GO) bonds to finance chose improve­ constitutionally granted power that is ordinances to raise license fees in excess ments for a project commonly known to be "liberally construed" to give cities of the $250 statutory maximum. as the South Lawrence Trafficway. GO the largeBlstevins mea sure of self-government? The first home rule issue was whether bonds were issued in 1985. The county If the rule were followed, it the Legislature could simply repeal a sec­ used its statutory home rule powers to would force local governmental units to tion of the Club and Drinking

36 - JANUARY2005 THEJOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PRIMER'

Establishment Act, which was clearly to theMoore, county option. plat, which the city had earlier disap­ not(i.e. uniform in its application to cities In the cities were in controlBigs, of proved. cities in counties between 160,000 their own destiny, whereas, in For many years, the city and county and 185,000 had a different license fee county voters determineBigs what cities can had amicably participated in a joint structure than other cities). As noted or cannotMoore do. The ruling extended city-county planning agency whereby earlier, the Court held that the repeal of the rule (i.e. ·permissive laws that county subdivision regulations applied the nonuniform provision of KS.A. 41- apply to cities are uniform laws) to in the unincorporated area of the 2622(6) (2) was sufficient to comply county option laws that affect cities county except for land located within with requirements of Kansas located Kltherein.ine three miles of the city of Topeka. In Constitution Article 12 § 5(c)(4) (char­ The court overruledBigs, some of January 2001, the governing body of ter ordinances may be repealed only by the troubling rationale of but Bidid the city of Topeka had rejected the sub­ enactments uniformly applicable to all it overrule the primary holding of gs division plat. Miffed, the county com­ cities). The Court rejected the city's that a county option law meets the missioners enacted a charter resolution argument that the entire Club and constitutional requirement of14 a3 law that approved the plat and spurred the Drinking Establishment Act should be uniformly applicable to all cities? city's lawsuit. re-enacted without the nonuniform pro­ Crumbaker v. Hu nt Midwest The confused reasoning is reflected v1s10n. Mining Inc. in the following passage: The second and more important Crumbaker v. Hunt Midwest home rule issue involved the so-called In 144 "The district court correctly con­ Mining Inc. et seq. county option provision of the Club the validity of an annex­ cluded that KS.A. 12-741 and Drinking Establishment Act. This ation agreement between the City of is not uniformly applicable to all issue addressed the question of whether De Soto and the owners of a rock counties. The procedures for the Club and Drinking Establishment quarry operation was questioned. The adoption of subdivision regula­ Act is a nonuniform law and, thus, sub­ issue, as stated by the Court, was tions affecting property outside ject to charter ordinance or whether the whether the city had the authority to cities in K.S.A. 12-749(d) and Act constitutes a uniform enactment change the land use of a property KS.A. 12-750 are quite different under the Home Rule Amendment. located outside but adjacent to the city from those in KS.A. 19-2961(6). The Club and Drinking Establish­ by way of an annexation agreement and In addition, the plat approval ment Act applies only to counties to bypass provisions of KS.A. 12-757 procedure set out in KS.A. 12- where voters approved the constitu­ regarding notice to property owners145 752 differs significantly from the tional amendment allowing liquor by and planning commission hearings. plat approval procedure for sec- the drink at the general election in The quarry wanted to expand the November 1986 or where voters later territory of its operation thereby approved liquor by the drink pursuant decreasing the buffer area for neigh­ to KS.A. 41-2646. In short, the law boring property, changing the loca­ creates two classes of counties: those tion of an access road, and omitting counties where liquor by the drink is a continuous and complete recla­ permitted and those counties where mation process. The Court held liquor byMoore the drink is prohibited. In that the city could not bypass contrast, dealt with an act that K.S.A. 12-757 and the city's own allowed any city to enact planning and zoning procedures. However, rather zoning regulations.Bigs than achieving this result by con­ The CourtMoore repeated the trou­ cludingad that hoc home rule cannot pro­ bling language in that permissive vide exceptions to estab­ laws allowing cities to elect to follow a lished zoning procedures, the statutory procedure are uniform. Court,Moore once again, planted its flag UnfortunMooreately , the Court compounded in country. the problem by opining, as fol­ City of Topeka v. Board of lows: "the legislative intent is clear, and to Commissioners of Shawnee to allow counties who elect adopt County the provision of the enactment, to then City of opt out by charter ordinance defeats TopekaThe issuev. Board in ofthe Commissioners recent of the intent14 2and purpose of the 4 Shawnee Count/ 6 Legislature." Bigs case was whether The word "counties" used by the a charter resolution passed by Shawnee ond and third class c1t1es in Court in the quote above is simply a County was a valid exercise of county Moore, KS.A.Bigs, 12-40Crumbaker,1. In light of mistake. The election for selling liquor home rule power. The charter resolu­ and nonunifor­ under the state law is a county by tion did two things: (1) it exempted mity of the planning and zoning county option - so it was the county Shawnee County from the provisions et seq., laws for cities and counties does making the selection, but it was the city of KS.A. 12-741 but only for a not decide the issue. An enact­ of Wichita that opted out of what it particular subdivision plat; and (2) it ment with optional applicability considered a nonuniform state law due simultaneously approved a subdivision is deemed uniformly applicable

JANUARY2005 - 37 THEJOU RNAL OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE:HOME RULE: A PRIMER

to the governing bodies that elect from several conferees14 8repr esenting About the Author to fo llow the procedure pre­ both cities and counties. Mike He im is an attorney with the Kansas scribed by the enactment. In this Perhaps even more important in Legislative Research Department, where he case, the County elected to fol- regard to revealing the legislative intent staffi the ]ud iciary and Local Government was language deleted from the original Committees of low the procedure prescribed147 by KS.A. 12-741 et seq." version of SB 23 by the 1991 Senate the Senate and Committee on Local Government. Ho use. He also This decision ignores the clear leg­ Deleted was an amendment proposing teaches state and islative history of city/county planning to add another limitation to the county local government and zoning laws. KS.A. 12-74 l (a) rec­ home rule statute. The amendment /,awas an adjunct ognizes the power of cities and counties would have required counties to follow at Wa shburn to use home rule as follows: SB 23 as well as K.S.A. 19-2950 Un iversity School through 19-2966 (planning/zoning ofLaw. "This act is enabling legislation involving certain improvement districts He graduated for the enactment of planning and and certain counties designated as from Wa shburn zoning laws and regulations by urban areas); and would have prohib­ University School cities and counties for the protec­ ited charter resolutions of those of Law (magna cum la ude, 1982); has a tion of the public health, safety, statutes. Had the Legislature wanted to master'sde gree in public administration from and welfare, and is not intended preclude counties from chartering out the University of Ka nsas (1973); and has a to prevent the enactment or of the planning and zoning statutes, it bachelor'sde gree in English from Benedictine enforcement of additional laws could have done so by enacting SB 23, College (cum /,aude, 1969), Atchison. He is a and regulations on the same sub­ as it was introduced. In the absence of member ofthe Kansas Bar Association. ject which are not in conflict with such limitation, and in light of the He is a presenter of CLE topics re/,ated to the provisions of this act." admitted nonuniformity of the plan­ municipal /,aw and has served as a legal con­ ning and zoning statutes, Shawnee sultant and expert witness on municipal /,aw This section was added to 1991 SB County should not have been prohib­ issues. He is the author of Kansas Local 23 by the Senate Local Government ited from opting out of such statutes Government Law (3 rd ed. 2005), a legal Committee after considering testimony because of a perception that the treatise on municipal /,aw, and other books Legislature intended the statutes to be and articles on state and municipal/,aw. uniform for those counties electing to follow them. The City of Topeka case can be inter­ Mediation preted to extend the Moore doctrine to & clearly nonuniform enactments or, more Kansas Missouri likely, the case simply demonstrates the appellate court's distaste for the district court's decision upholding a charter res­ olution changing the plat approval pro­ Choose cedure for one subdivision plat. Experience Conclusion

Cities and counties in Kansas have broad home rule powers, although the home rule powers of cities are more E. Dudley Smith secure due to the constitutional basis for these powers. The Kansas appellate courts, for the most part, have con­ 35 Years Litigation/Trial Experience strued the home rule powers of both Who's Who in American Law cities and counties in broad fashion Licensed in Kansas and Missouri upholding the exercise of these powers. There are, however, some appellate deci­ Kansas Supreme Court Approved sions striking home rule actions and, in the process, establishing restrictive rules of interpretation that cannot be recon­ (913) 339-6757 ciled with other home rule decisions. (913) 339-6187 (FAX) Time will tell whether the Court has developed two conflicting lines of 51 Corporate Woods, Suite 300 ■rationale for deciding home rule cases. 9393 West 110th Street Endnotes begin on page 39. Overland Park, KS 66210 [email protected]

38 - JANUARY2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PRIMER I ENDNOTES Barten v. Ti,rkey Creek Watershed joint Dist.( 1987); No . 32, §3.27( 3d ed. 2005)(discussion of the repealed 1. Kan. Const., art. 12, § 5(d). 200 Kan. 489, 438 P. 2d 732 statutes). See 2. 277 Kan. 516, 85 P.3d 1237 (2004). (1968). The Limits of Municipal Power Rest53.aurants 228 Kan. o/ Wi 698,chita 620Inc. P.2dv. City 11 a/22Wi (1ch980).ita, 3. 277 Kan. 874, 89 P.3d924 (2004). Un37.der SandaloHo me w,Rule: Role fo r the Courts, 215 A 48 Kan. 636, 527 P.2d969 (1974). 4. 27State1 Kan ex rel.. 455, Kline 23 v.P.3d Boar 855d of (200 Comm1). issioners 5. MINN. L. REv.State 643 Co(1964)ntrol. of Local Government 54. K.S.A. I 9-10IC . et.seq. of Un ified Government of Wyandotte Co unty, 38. Clark, 55. K.S.A. 19-2680 Ka nsas City, In Ka nsas, Sp ecial Legislation and Home Rule, See 277 Kan. 516, 85 P. 3d 1237 20 also56. Dod 237ge Kan.r'sBar 67, 697Grill P.2d v. Jo1310hnson (19 85).Co unt y KAN. L. REv. 631 at 654 (1972). & (2004).Leavenwo rth Club Owners Association v. See also, Ka nsas Board of Commissioners, 6. Co39.unt yL. Govern1974 ch.ment 110. in Tra nsition,Heim, Ka nsas 32 F.3d1436 (10th Cir. Atchison, 1994)(county home rule provides authority for City208 of Ly Kan.ons v.318 Suttle,, 492 P.2d 183 (1971). Legislative Research Department, 7. 209 Kan. 735, 498 1976, and Kansas counties to share in the state's police Report of the Second Commission on Revision power). P.2d9 DPR, (1972) In c.. v. City of Pittsburg, 8. 24 K.A. 703, of the Kansas Consrirurion, prepared by Walter 57. L. 2003, ch. 59. E. Sandelius, January I, 1963, fo r more 58. K.S.A. 2003 Supp. 72-8205 (e) (3). 953 P.2dBigs 23 v. I City(1998). of Wichita, 9. 271 Kan. 455, 23 background on the origin ofcount y home rule. 59. Kan. Const., art. 12, § 5(c). 40. L. 2003 ch. 59. 60. KS.A. 19-10I b. P.3d855 Hamp (200ton I). v. City of Wichita, Should There Be Ho me Rule For I 0. 192 Kan. Ka41.nsas Benjam Schoolin, Dis tricts? 61. 231Id. Kan. 225, 643 P.2d 188 (1982). 5 KAN. J.L. & PUB. 62. at 226. 534, 389Calla P. 2dwa y757 v. (1City964) of. Overland Pa rk, 11. 2 I I POLICY,No. 3 175 (1996). 63. 277 Kan. 753, 89et P.3d seq.;893 (2004). 42. Kan. Const., arr. 12, § 5(6). 64. K.S.A. 19-101 Kan. Const., arr. Kan. 646,Cla rk508 v. P.2dCity 902of Overl (1973)and. Pa rk, Id. 12. 226 Kan. 43. 12, § 5. 609, 602 P.2d12 92 (1979). 44. Kan. Const., art. 12, § 5(c). 65. Kan. Const., arr. 14. Home Builders Association of Greater 45. Kan. Const., arr. 12, § 5(d). 66. Kan. Const., arr. 12, § 5(6). Ka nsas13. City v. City of Overland Pa rk, 22 Kan. 46. frn.38 at 656. City Home Rule, 67. KSA 19-IO!a (a). App. 2d 649, 92 1 P.2d234 (1996). 47. W. Crummett, Report of the9 68. Kan. Const., arr. 12, § 5(6). Ka nsas City Renaissance Festival WASHBURNId. L.J. 3 (1969), citing the 69. Op. Acr'y Gen. 64 (1983). Cor14.porat ion v. City of Bonner Sp rings, Ka nsas jo int Commission on Constitutional See 269 Kan. ReVJson Ge70.neral K.S.A. Building 2003 Contractor Supp. L.19 L.-101 v. a(b).Board of Qan. 16, 1961). Dr. Frederic H. Guild, C. 670, 8 Id.P.3d 70 I (2000). Shawnee Co unty Commissioners, 15. fen. 13. direccor of the Kansas Legislative Research 275 Kan. 525, Johnson County Wa ter District No . v. City Department and consultant ro the Kansas Joint 66 P. 2d 873 (2003) (county exercising eminent ofKa16 . nsas City, 255 Kan. 183, 87 I P. 2d 1256 Commission on Constitutional Revisions, in a domain under home rule must do so by I letter dared October 1, I 958, addressed to Allen resolution, nor by morion). (1994).State ex rel. Schneider v. City of Ka nsas Id. 17. E. Prichard, executive direcror of rhe League of 71. frn . 38 ar 658. City, Kansas Municipalities, specifically addressed rhe 72. 237 Kan. 67, 697 P.2d1310 (1985). 228Moore Kan. v. 25,City 612 of LawrP.2dence,578 (1980). 18. 232 Kan. 353, use of the double uniformity language: 73. Op. Att'y Gen. 55 (2000). 74. Note 38 at 669-673. 644 P. 2dCr umb445 aker(1982) v. .Hu nt Midwest Mining Inc. , . .. This Wisconsin amendment, in the Ka nsas City v. Henre, 19. first part of the sentence, appears co confer 75. 96 Kan. 794, 153 P. 275 Kan. 872, 69 P.3d60 1 (2003). sweeping powers upon cities co 'determine 548 (1915) (ordinance upheld imposing higher City of Topeka v. Board of Shawnee County standards than stare law formilk sold within rhe Co20.mmi ssioners, their local affairs and government.' It is 277 Kan. 874, 89 P. 3d 924 only the limitation in the last part of the city. City can act to preserve the peace, good (2004). sentence which is in debate, which reads order, and health of its citizens even though David v. Board of Comm'r. of No rton stare regulations exist on the same subject). Co21.unty, 'subject (only co chis constitution and) to 277 Kan. 753, 89 P.3d 893 (2004). such enactments of the legislature of 76. 275 Kan. 848, 69 P3d. 621 (2003). General Building Contractors, LCC v. 77. 255 Kan. 183, 871 P.2d12 56 (1994). Board22. of Shawnee County Commissioners, statewide concern as shall with uniformity 275 affect every city or village.' 78. 266 Kan. 385, 969 P.2d852 (1998). Kan. 525, 66 P.3d 873 (2003). 79. 213 Kan. 308, 517 P.2d 158 (1973). State ex rel. Tomasic v. Un ified Government 80. 216 Kan. 495, 532 P.2d12 92 (1975). of 23.Wyandotte County/Kansas City, Ka nsas, In our comment ... we pointed out that 265 the (Wisconsin) court was not following 81. 253Blevins Kan v.. 274,Hiebert, 855 P.2d487 (1993). Kan. 779, 962 P.2d543 (1998) although home this language precisely as ir was written .. . 82. 247 Kan. 1, 795 P.2d 325 ( 1990) (ordinary county resolution rule wasDuckworth not an issue v. inCit they case.of Ka nsas City, 24. 243 Ir is my impression that these .. . authorizing the issuance of general obligation (Wisconsin) cases ... rewrite the bonds for a hi hway bypass project invalid); Kan. 386,Blevins 758 v. P.2d Hiebert,201 (1 988). Clark v. City ofg Overland Park, 25. 247 Kan. 1, 795 P.2d constitutional language co read as 226 Kan. 609, 325 (1990). follows: 'subject co any enactment of 602 P. 2d I 292 ( l 979)(courr rejects argument David, statewide concern or co such enactments that a charter ordinance must be used to exempt 26. See 277 Kan. at 757-8. 27. fu ll listing of Kansas appellate courrs' on local affairs as shall with uniformity the city fro m local retail sales tax law Kawherensas affect every city or village.' alternative statutory procedures exist); city homeSee rule decisions on page 41. City Renaissance Festival Corp. v. City of Bonner 28. full listing of Kansas appellate courts' Sp rings, county home rule decisions on page 42. ... (In Wisconsin) there are no 269 Kan. 670, 8P.3d 70 I (2000) enactments of statewide concern, (amusement admission tax cannot be enacted by 29. Kan. Const., arr.et.12 seq., § 5. 30. K.S.A. 19-101 whether they affe ct cities with ordinary home rule ordinance). Blevins v. Hiebert, uniformity or not, which can be affected State ex rel. Kline v. Un ified Government of 31. 247 Kan. 1, 795 P.2d Wy 83.and otte County/Kansas City, Ka nsas City of Topeka v. Board of Shawnee by a charter ordinance. The (Wisconsin) 277 Kan. 325Co unty (1990); Co mmi ssioners, 277 Kan. 874, 89 P.3d courts have changed the language co 516, 534, 535, 85 P. 3d 1237 (2004)(pre-emption mean that all enactments of statewide 924 (2004). requires both a uniform state law Butand seea clearCity concernare not subject co home rule. statement of pre-emption in the law. 32. Kan.Reynolds, Con st., art. 12, § 5(d). Vtm Gilder v. City of Madison, of To peka v. Board of Shawnee Co unty 33. Local Government Law 2d Ed. 48. 267 N.W. Commissioners, 277 Kan. 874, 89 P.3d 924 (2004) (West, Hunter2001), pp.v. Pitts76-84.bur gh, 25 (Wis.1 936) (Wisconsin home rule powers of 34. 207 U.S. 161, 28 cities subject to nonuniform laws of statewide ( legislative intent to pre-empt an area of the law is State ex rel. v. sufficient; uniform state law nor required nor a S.CtCity of40, Overl 52 andL.Ed Pa rk,151 (1907)Ka n.; concern). 215 700, 527 P.2d 49. Kan. Const., art. 12, § 5(6). clear statementCity of Topeka of legislative v. Board pre-e of mption).Shawnee County Home Rule For Ka nsas Cities, 84. 1340 (1974). Municipal Corporations, 50. Marrin, See also 10 Commissioners, 35. Dillon, § 237 KAN. L. REv.. 501, 505 (1962). KSA 12- 227 Kan. 874, 89 P. 3d 924 (2004). (5th ed.State 191 ex1). rel. v. City of Overland Pa rk, 137 to 12-138c (procedure for imposing home 36. 215 rule tax). 85. Kline,227 Kan. 332, 607 P.2d459 (1980). Miller v. USD 86. 277 Kan. at 533-5. Kan. 700, 527 P.2d13 40 (1974); 51. KS.A 12Ka-188.nsas Local Government Law, Griffin, 12 Kan. App. 2d 368, 744 P. 2d 865 52. Heim, 87. 227 Kan. at 336. 88. 216 Kan. 495, 532 P.2d 1292 (1975). 470, THE JOURNA L OF THE KANSA S BAR ASSOCIATION JANUARY2 005 - 39 I LEGAL ARTICLE: HOME RULE: A PRIMER Id. 89. Other examples of stare laws containing 104. ar 331. ordinary home rule resolution rather than a pre-emptive language: 105. K.S.A. 19-1016(6). charter resolution was to avoid a protest petition K.S.A. 12-140; K.S.A. 19-l0la (no power ro 106. K.S.A. 19-I0lb(a); 19-l0la(b). and election, which were fe atures of the Arterial levy and collect taxes on income from whatever 107. K.S.A. 19-1016. HighwayBlevins Act. v. Hiebert, source derived). 108. Op. Att'y Gen. 22 (1989). 137. 247 Kan. 1, 795 P.2d K.S.A. 8-235 (no local drivers' license act 109. Op. Att'y Gen. 4 (1997). 325 (1990)Blevins,. required but cities can require licensure for taxi 110. K.S.A. 19-1016. Municipal Home Rule 138. Blevins, 247 Kan. at 1. or bus drivers). in the111 .Un Vaitednlandingham, States, 139. Blevins v.247 Board Kan.of at Co 2.unty Commissioners, K.S.A. 12-142 (no retailer's tax, excise tax, or l OState WM ANDCont MARYrol of L. Loc R.Ev.al 140. Executive tax in the nature of an excise upon the sale of 302Governments (1968); in Cla Kark,nsas: Sp ecial Legislation and Ai25rcr1 Kan.aft Consulting 374, 834 P.2dv. Ne 13wton,44 (19 92), cigarettes or cereal male beverages other than a Home Rule, Di252llon Ka Storesn. 42 v.1, retailer's sales tax). 20 KAN. L. REV. 631 (1972). 425,Lovel ad845y, P. 2d 57 (1993); K.S.A. 12-1617 (no license taxes or 112. City179 Kan. of ju nction638, 298 City P.2d v. Griffin,316 (1 956). District253 Kan.No. 1274, v. City 279, Co un855cil P.of2d Ka 487nsas occupation taxes upon agricultural producers 113. 227 Kan. (1City,993); and growers). 332, 607 P. 2d 459 (1980) ("rhe division into McCarthy255 Kan.v. City 18 of3, Leawood,193, 871 P.2d 1256 (1994); K.S.A 20-31 27 (attorneys registered under act chapter, article and section does not have the City 257of junction Kan. 566, Cit 584,y v. not liable for city occupation or license fe es). effect of making separate enactments of a single 894Cado ret,P.2d 836 (1995); The Kansas Supreme Court held char this bill passed by the legislatu re of rhe state of Cityo{W' 263ichita Kan. v. Ha 16ckett,4, 946 P.2d 1356 (1997); statute does not apply ro cities andSee is, Brewster therefore, v. Kansas.")Griffi n, reaffirmed David v. Bd.275 of CoKan.mm' 848,r of 69No rtonP.3d Citynor subject of Overl roand charter Park, ordinance. Kline,114. 227 Kan. at 335-7; in 62County,1 (2003), Kline 233 Kan. 390, 66Brewster1 P.2d 277 Kan. ar 534. See 277 Kan. 753, 89 P.3d.924 (2004). 1240 (1983). specifically limited also115 Ge. neral212 Kan.Contractor 1, 509s, LCC,P.2d 1130 (1973). 141. Bigs271 , Kan. 455, 23 P.3855 (2001). to its unique set of facts. Claflin in pari mat275eria Kan. at 539 142. Kline,27 1 Kan. at 467. K.S.A. 40-2810 (no license or ocher fe e/tax ( and doctrine 143. 277 Kan. at 520 and 535. based upon receipts of certain mutual fire reaffirmed).Claflin, 144. 275Crumbaker, Kan. 872, 69 P.3d60 1 (2003). insurance companies). 116. 212 Kan. at 9. 145. 275 Kan. at 873. K.S.A. 41-208 (state exclusively controls 117. L. 2004, ch. 107. 146. 277City Kan.of Topeka, 874, 89 P.3d924 (2004). distribution, sale, possession, transportation and 118. L. 1953, ch. 120. 147. 277 Kan. at 878-879. traffic in alcoholic liquor, and the manufacture of 119. K.S.A. 12-63 lg. 148. Senate Local Government Minutes, beer bur permits cities ro prohibit by ordinance 120. K.S.A. 12-856(a). January 23, 1991, Attachment 7; Senate Local what is prohibited by state law as long as the 121. L. 1953, ch. 11et7. seq. Government Committee Minutes, February 5, minimum andBut maximum see State, penaltiesex rel. Kli nefor v. violation Unified 122. K.S.A. 14-566 1991, Attachment I; Senate LocalSee also Government areGovernment the same).of Wyandotte County/Kansas City, 123. A charter ordinance would nor be Minutes, February 5, 1991. the 1991 Ka nsas necessary for certain cities such as the city of Legislative Session Supplement Nore on Senate (K.S.A. 41-208 nor sufficient ro prevent Wichita as none of the three sections of the law Bill No. 23, andReport "P onroposal Ka nsas No. Legisl 22-Plaative Innninterimg rhe city of Kansas City from passing a charter being amendedId. apply ro char city. Studiesand Zoning," to the 1991 Legislature, ordinance allowing Sunday sales of liquor as the 124. fen. 2. which contains Kansas Liquor Control Act is nor uniformly 125. The court rejected the Kansas Attorney rhe Interim Committee recommendations and a applicable ro all cities). General's arguments that K.S.A. 41-712, dealing copy of 1991 SB 23 as it was introduced. K.S.A. 65-776 (political subdivisions with Sunday sales, applied ro private conduct of prohibited from requiring local inspection of liquor retailers rather than to cities and therefore milk and dairy product producers unless to Brewsterwas not av. "localCity of aff Overlair."and The Pa staterk, had relied on ensure compliance with state law; prohibits a case holding license fees, or other charges). that a city cannot impose an occupation tax or K.S.A. 66-1, 128(6) (prohibits local licenses city license fe e on attorneys registered in counties for motor carriers). with a county law library. K.S.A. 19-1310 (now K.S.A. 79-3102(e) (except for mortgage KS.A. 20-31 27(e)) provided an exemption from registration fees, no other mortgage, fees, or city imposed occupation taxes. The issue of rhe taxes). statute's uniformity was never reached as the K.S.A. 79-34See24 Exe (nocutive local Ai rcrtaxesaf t Coonnsu motorlting, Court ruled the stature did not apply to cities vehicleInc. v. Cityfuel). of Newton, bur rather appliedBrewster to private conduct. The Court 252 Kan. 421, 845 P.2d noted char as had never been cited in a 57 (1992) (court invalidates city/county fuel subsequent published opinion, its ruling was flowage fee). limited Klito itsne, unique facts and parties. K.S.A. 79-4702 (exclusive power in rhe state 126. Kline, 277 Kan. at 534. Griffin, ro regulate, license, and tax bingo games). 127. 227 Kan. at 534 (quoting 90. 216 Kan. 495, 532 P.2d 1292 (1975). 227 Kan. at 336)(emphasis added). 91. A four-part test forHome determ Rulinine fo� rconflicts Ka nsas 128. 208 Kan. 731,495 P.2d524 (1972). canCities, be Afo Maundnual in forBien, Cit y Offi cials, 129. 232 Kan. 353, 654 P. 2d 445 (1982). League of 130. Moore,L. 1982, ch. 67. Kansas Municipalities, 1985, at 16-17. 131. 232 Kan. at 356-7(emphasis 92. 257 Kan. 631,894 P.2d876 (1995). added). Moore, 93. 275 Kan. 848, 69 P.3d62 1 (2003). 132. 232 Kan. at 357. 94. 263 Kan. 164, 946 P.2d13 56 (1997). 133. In fact,et nonunif seq. orm provisions exist: 95. Kan. Const., art. 12, § 5(a). Home K.S.A. 12-401 (special platting law for Buil96.ders Kan.Association Cons v.t., City art of12 Overland, § 5(6) Pa. rk, cities ofet seq.rhe second and third class); K.S.A. 13- 22 1146 (cities of the third class may issue Kan. App. 2d 649, 921 P.2d234 (1996) (Kansas general obligation bonds outside ofMo debtore limits to Local Retailer's sales tax statute nor uniform as carry our city's master plan). The Court's more than four classes of cities created by rhe assumption char an enabling law is binding and act; charter ordinance appropriate). char a city cannot utilize an alternClaativerk v.procedure City of 97. Kan. Const., art. 12, § 5(c)(l). contradicted its own ruling in Id. Overland Pa rk ty 98. Id. where the Court held that a ci 99. could enact a local sales tax pursuant to K.S.A. 100. Kan. Const., art. 12, § 5(c)(2)(3). 12-137 rather than using an alternative procedure 101. Kan. Const., art. 12, § 5(c)(4). established in K.S.A. 12-172. 102. 15 Kan.App.2d 721, 815 P. 2d 1116 134. 247 Kan. 1, 795 P.2d325 (1990). (1991). 135. Op. Att'y Gen. 90 (1985). 103. 271 Kan. 455, 23 P.3d855 (200 1). 136. One of the consequences of using an 40 - JANUARY2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION LEGAL ARTICLE: HOME RULE: A PRIMER I Kansas Appellate Courts' Home Rule Decisions City home rule upheld: 1. City occupational taxes. Ha mpton v. City of Wichita, 192 Kan. 534, 389 P.2d 757 (1964). 2. Officeand working hours for offices and employees. Wh itmer v. House, 198 Kan. 629, 426 P.2d 100 (1967). 3. Earlier closing hours for private clubs. Leavenworth Club Owners Association v. Atchison, 208 Kan. 318, 320, 492 P.2d 183 ( 1971). 4. Ordinances regarding open containers for cereal malt beverage. City of Ly ons v. Suttle, 209 Kan. 735, 498 P.2d9 (1972). 5. General cable franchise ordinances. Cap itol Ca ble Inc. v. City of Topeka, 209 Kan. 149, 495 P.2d983 (1972). 6. Occupational taxes. Ca llaway v. City of Overland Pa rk, 21 1 Kan. 646, 508 P.2d902 (1973). 7. Human relations ordinance legitimate exercise of city's police power. Hutchinson Human Relations Commission v. Midland Credit Ma nagement, Inc. 213 Kan. 308, 517 P.2d 158 (1973). 8. Ordinances revoking sign permits. Restaurants of Wichita, Inc. v. City of Wichita 215 Kan. 636, 527 P.2d969 (1974). 9. City ordinance upheld prohibiting carrying of unconcealed weapons. City ofju nction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). 1 0. Ordinance regulating closing hours of private clubs not in conflict with statute. Ga rten Enterprises, Inc. v. City of Ka nsas City, 219 Kan. 620, 549 P.2d864 (1976). 11. Code of Procedure for Municipal Courrs held nonuniform and subject to charter ordinance. Cityof ju nction City v. Griffin, 227 Kan. 332, 607 P.2d459 (1980). 12. Ordinance imposing city sales tax upheld. Clark v. City of Overland Park, 226 Kan. 609, 602 P.2d 1292 (1979). 13. City requirement upheld for payment of Davis Bacon wages on construction projects that went beyond state requirements. Andersen Construction Company v. City of Topeka, 228 Kan. 73, 612 P.2d 595 (1980). 14. Industrial revenue bond 10-year exemptions and payments in lieu of taxes are matters of local concern. State ex rel. Tomasic v. City of Ka nsas City, 237 Kan. 572, 701 P.2d 1314 (1985). 15. Home rule ordinance governing selection of elected city officers upheld. Edgington v. City of Overla nd Pa rk, 15 Kan. App.2d 721, 815 P.2d 1116 (1980). 16. Special use permit requirements forwater district not pre-empted by state water treatment regulations. Jo hnson County Wa ter District No. Iv. City of Ka nsas City, 255 Kan. 183, 871 P.2d 1256 (1994). 17. Kansas Wa ter Pollution Act (12-3101 et seq.) is not uniformly applicable to all cities; stormwarer utility may be created by charter ordinance. City of Wichita v. Ka nsas Taxpayers Network, Inc. , 255 Kan. 534, 874 P.2d667 (1994). 18. Impact fe e ordinance. McCarthy v. City of Leawood, 257 Kan. 566, 569, 894 P.2d836 (1995). 19. Plat tax upheld. Home Builders Association v. Cityof Overland Pa rk, 22 Kan. App. 2d 649, 921 P.2d234 (1996). 20. City anti-discrimination ordinance applied to dispute between state agency and employee. State ex rel. Fra nklin v. City of Topeka, 266 Kan. 385, 969 P.2d 852 (1998). 21. Municipal rental property regulatory ordinances do not violate home rule provisions. Brooks v. Sauceda, 85 F. Supp. 2d 1115, 1129 (D. Kan. 2000). 22. Ordinance expanding local driving under the influence law to cover riding a bicycle while intoxicated upheld. City of Wichita v. Ha ckeit, 275 Kan. 848, 69 P3d 621 (2003). 23. Sunday sales of packaged liquor upheld. State ex rel. Kline v. Un ified Government of Wyandotte County/Kansas City, Ka nsas 277 Kan. 516, 85 P. 3d 1237 (2004).

City home rule invalidated: 1. Ordinance prohibiting huckstering and peddling invalid. Delight Wh olesale v. City of OverlandPa rk, 203 Kan. 99, 453 P.2d 82 (1969). 2. Ordinance regulating cable television held unreasonable and void. Co mmunityAnt enna TV of Wichita, Inc. v. City of Wichita, 205 Kan. 537, 471 P.2d360 (1970). 3. Specific cable television franchising ordinance void due to arbitrary fea tures. Cap itol Ca ble, Inc. v. City of Topeka, 209 Kan. 152, 495 P.2d885 (1972). 4. Sewer service charge cannot be imposed when no sewer service is provided. Jennings v. Walsh, 214 Kan. 398, 521 P.2d31 1 (197 4). 5. Board of Regents nor subject to building code ordinance of Kansas City for construction at Kansas University Medical Center. State ex rel. Schneider v. City of Ka nsas City, 228 Kan. 25, 612 P.2d578 (1980). 6. City ordinance requiring city governing body approval of subdivision plat invalid. Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d445 (1982). 7. Occupation tax may not be applied to attorneyswho pay a registration fee for support of a county law library. Brewster v. City of Overla nd Pa rk, 233 Kan. 390, 661 P.2d12 40 (1983). 8. "Fuel flowage fe e" imposed on aviation fuel transported onto city-county airport held to be a tax prohibited by 79-3424. Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 845 P.2d 57 (1993). 9. City may nor use home rule powers to assess a tax to allow telephone company to lay cable. City of Shawnee, Ka nsas v. AT & T Corporation, 910 F. Supp. 1546, 1557 (D. Kan. 1995). 10. City ordinance may nor make a rhird or subsequent driving under rhe influence crime a misdemeanor when stare law makes it a fe lony. City of junction Cityv. Cadoret 263 Kan. 164, 946 P.2d 1356 ( 1997). 11. A city may not use an ordinary home rule ordinance ro establish an amusement admission tax. Ka nsas CityRenaissance Festival Corporation v. City of Bonner Sp rings, 269 Kan. 670, 8 P.3d70 1 (2000). 12. A city may not exempt itself out of the Club and Drinking Establishment Act by charter ordinance. Bigs v. City of Wichita, Ka nsas, 271 Kan. 455, 23 P.3d855 (2001). 13. City may not use annexation agreement to change zoning of a rock quarry. Crumbaker v. Hunt Midwest Mining Inc. 275 Kan. 872, 69 P.3d 60 1 (2003).

THE JOURNAL OF THE KANSA S BAR ASSOCIATION JANUARY2005 - 41 LEGAL ARTICLE: HOME RULE: A PRIMER I l. Regulate adult entertainment. Moody v. Bd of Shawnee County Comm'r, 237 Kan. 67, 697 P.2d 1310 (1985). County2. Increasehome commissioner rule upheld: quorum requirements. State ex rel. Stephan v. Bd of Sedgwick CountyCo mm'r, 244 Kan. 536, 770 P.2d455 (1989). 3. Hire outside agencies co assist in assessing properties. Dillon Stores v. Lovelady, 253 Kan. 274, 855 P.2d487 (1993). 4. Hold an advisory election but not binding election. Blevins v. Bd of Douglas County Co mm'rs, 251 Kan. 374, 834 P.2d13 44 (1992). 5. Condemn private property for economic development. General Building Contractors, LLC v. Bd. of Shawnee CountyCo mm'rs,275 Kan. 525, 66 P.3d873 (2003).

1. Railroads are a matter of statewide concern and beyond county home rule power. Missouri Pa cific Railroad v. Bd. of Greeley County CountyComm'rs, home231 Kan. rule 225, invalidated: 643 P.2d 18 8 (1982). 2. Exempting county from out-district tuition. State ex rel. Stephan v. Bd. of Lyon Co unty Comm'rs, 234 Kan. 732, 676 P.2d 134 (1984). 3. Require fines for violations of county home rule resolutions received by district court co be paid co county. Bd. of Sedgwick County Co mm'rs v. Noone, 235 Kan. 777, 682 P.2d 1303 (1984). 4. Use permit fe e for oil and gas operations. Billy Oil Co. v. Bd of Leavenworth Co unty Comm'rs, 240 Kan. 702, 732 P.2d737 (1987). 5. Arterial Highway Acc. Blevins v. Hiebert, 247 Kan. 1, 795 P. 2d 325 (1990). 6. Fuel flowage fee invalid. Executive Aircraf t Co nsulting, Inc. v. City of Newton, 252 Kan. 421, 845 P.2d57 (1993). 7. Requiring county appraiser co become state certified. Bd. of Tr ego CountyCo unty Comm'rs. v. Ka nsas Dept. of Revenue, 261 Kan. 927, 933 P.2d69 1 (1997). 8. Only sheriffcan hire and fire deputies; no purchase preapproval necessary once sheriff's budget is approved. Bd of Lincoln County Co mm'r. v. Nielander, 275 Kan. 257, 62 P.3d 274 (2003). 9. Opting our from city/county zoning laws co approve subdivision plat. City of Topeka v. Bd. of Shawnee County Comm'r, 277 Kan. 874, 89 P.3d924 (2004). 10. Impose more stringent environmental regulations on confinedanimal fe eding operations. David v. Bd. of Comm'r of Norton County, 277 Kan. 753, 89 P.3d893 (2004).

42 -JANUARY 2005 THE JOURNA L OF THE KANSAS BAR ASSOCIATION All opinion digests are available on the KBA members-only website at www.ksbar.org, and we send out a weekly eJournal informingKBA members of the latest decisions. If you do not have access to the KBA members-only site, please contact Deana Mead, manager, member services, at [email protected] or at (785) 234-5696. Yo u may go to the courts' website at www.kscourts.org for the full opinions. Supreme Court

(certificate of conviction of crime shall be conclusive evi­ Attorney Discipline dence of the commission of that crime in any disciplinary proceeding). The panel considered mitigating and aggravat­ IN RE GLENNF. AN DERSON, II ing factors, including Respondent's three prior disciplinary ORIGINA L PROCEEDING IN DISCIPLINE sanctions and recommended published censure. Respondent DISBARMENT filed exceptions to some of the panel's findings. NO. 92, 142 -DECEMBER 3, 2004 HELD: The Court found Respondent's exceptions to be FACTS: Respondent, a practitioner from Wichita, was without merit and adopted the panel's findings of fact, con­ admitted to the bar in April 2002. A hearing panel of the clusions of rules violations and recommended discipline. Kansas Board for Discipline of Attorneys considered 17 complaints against him, several of which arose out of his IN RE VICTOR S. NEL SON professional relationship with disbarred attorney Cortland ORIGINA L PROCEEDING IN DISCIPLINE Berry. Respondent failed to cooperate during the investiga­ INDEFINITE SUSPENSION tion of the complaints. The Supreme Court issued an order NO. 92,140-DECEMBER 3, 2004 to show cause and, one month after the disciplinary hearing, FACTS: A hearing was held on three separate complaints temporarily suspended his license to practice law. arising out of bankruptcy and real estate representations Respondent failed to file exceptions to the final hearing against Respondent, a private practitioner from Wichita. The report, which found numerous rules violations and several panel found violations of KRPCs 1.3, 1.4, 1.5 (fees), 1.7 aggravating factors. The Disciplinary Administrator's Office (conflict of interest), 8.1, and 8.4; and SCRs 207 and 211 and hearing panel recommended disbarment, and (b). A majority of the panel commended a two-year definite Respondent requested probation, claiming unique circum­ suspension with reinstatement hearing required. The third stances. member recommended indefinite suspension based on HELD: The Court found the panel's findings of fact and Respondent's failure to comply with terms of a prior proba­ conclusions of rules violations were undisputed and further tion. Respondent filed exceptions to the final hearing report found none of the factors that might support probation to but, in oral argument before the Court, conceded that indef­ be present. The Court ordered disbarment based on viola­ inite suspension was appropriate. tions of KRPCs 1. 1 (competence), 1.3 (diligence), 1.4 (com­ HELD: The Court found clear and convincing evidence munication), 1. 15 (safe-keeping property), 1.16 (declining of the panel's findings, of fact and conclusions, of rules viola­ or terminating representation), 4.1 (truthfulness), 5.3 tions. In light of the severity of the violations and (supervising non-lawyer assistants), 5.5 (unauthorized prac­ Respondent's previous discipline, the Court concluded that tice of law), 8.1 (disciplinary matters), and 8.4 (misconduct); Respondent should be indefinitely suspended from the prac­ and SCRs 207 (duties of the bar) and 211(6) (filing answer tice of law. to disciplinary complaint). IN RE MICHAEL K. SHEAHON IN RE ALLEN B. ANGST ORIGINA L PROCEEDING IN DISCIPLINE ORIGINA L PROCEEDINGIN DISCIPLINE PUBLISHED CENS UR E PUBLISHED CENS UR E NO. 91,877 - DECEMBER3, 2004 NO. 92, 072- DECEMBER3, 2004 FACTS: Respondent, a practitioner from Salina, received FACTS: Respondent, a practitioner from Abilene, two client complaints that were heard by a disciplinary panel. received a misdemeanor battery conviction in a bench trial, At the hearing, the panel ordered Respondent to provide his where the court found he had grabbed his wife and shoved crust account records. Respondent agreed to refundunearned her out of a doorway. Respondent self-reported this convic­ fe es to one client and to submit to a mental health examina­ tion to the Disciplinary Administrator's Office and stipulated tion. When Respondent failed to return the fu nds or provide to the allegations in the amended formal complaint. the trust account records, the panel issued an order closing The panel fo und a violation of KRPC 8.4(6) the record. Respondent's partner entered his appearance and (misconduct - criminal act) through operation of SCR 202 moved to reopen the hearing forsubmission of new evidence.

JANUARY 2005 - 43 THE JOURNAL OF THE KANSASBAR ASSOCIATION This was granted by the panel, and Respondent then course of the litigation, Sander filed three motions to dis­ refunded the unearned fees plus interest and submitted to qualifyALJ Moore. ALJ Moore denied each of the motions mental health and substance abuse evaluations. to disqualify. Appeals of the first two cases were dismissed by The panel found violations of KRPCs 1.1, 1.3, 1.4, the district court for lack of jurisdiction. On July ,1 , 2002, l.16 (d), and 8.1(6); and SCRs 207(6) and 211(6). the legislature's amendments to KS.A. 44-532(e) became Respondent requested supervised probation but failed to effective giving the district court jurisdiction to review an comply with the guidelines. The Disciplinary Administrator's ALJ' s denial of a motion to disqualify. The appeal of Sander's Office requested published censure and a $2,500 fine. The third motion to disqualifycame after the effective date of the panel recommended six-month definite suspension, mental amendments and the district court concluded that Sander's health therapy, and development of written billing and trust affidavit created a reasonable doubt concerning AL] Moore's account policies. impartiality and ordered that he be disqualified from HELD: The Court affirmed the panel's factual findings Sander's case. However, the court denied Sander's motion to and conclusions of rules violations. In considering discipline, disqualify ALJ Moore from any case in which a claimant is the Court rejected the panel's recommendation and ordered represented by the attorney that represented Sanders, Roger published censure without the fine, expressing reluctance to Riedmiller, but upon a reconsideration, the district court launch a practice of imposing fines in disciplinary cases, and granted Sander's motion for a blanket disqualification. The noting that SCR 203(a)(5) does not expressly authorize Fund appealed to the Court of Appeals. The case was trans­ fines. ferred to the Supreme Court. ISSUES: Can a party appeal the decision of the district Civil court regarding disqualification of an ALJ? HELD: Court dismissed the appeal. Court held the plain language of KS.A. 2003 Supp. 44-523(e) does not provide HABEAS CORPUS for an appeal of the district court's decision to an appellate BROWNV. ST ATE court regarding the disqualification of an ALJ. Court stated SEDGWICK DIS TRICT CO URT that K.S.A. 60-2101 specifically excludes cases that are REVERSED AND REMANDED reviewable by law in the district court and limits appeals NO. 91,275- DECEMBER 3, 2004 from administrative decisions to those situations specifically FACTS: Brown filed 1507 motion alleging ineffective authorized by statute. KS.A. 2003 Supp. 44-556 controls assistance of trial counsel. District court appointed counsel the jurisdiction for workers compensation appeals and and held hearing, and then denied the motion. specifically limits the appellate courts to review of decisions Correspondence from Brown more than two years later of the Wo rkers' Compensation Board. It does not authorize established that he was unaware of counsel's appointment, review of any district court decision. the denial of the 1507 motion, or his right to appeal . STATUTE: KS.A. 20-3018(c); KS.A. 2003 Supp. 44- District court denied Brown's motion to allow appeal out of 523(e), -556; KS.A. 2003 Supp. 60-206; KS.A. 60-2101 time. Brown's appeal transferred to Supreme Court. ISSUE: Effective assistance of counsel WORKERS' COMPENSA TION; RETALIATORY DISCHARGE HELD: Although there is no constitutional right to effec­ GONZALEZ- CENTENO V.NOR TH CENTRAL KANSA S tive assistance of counsel on collateral attacks, a statutory REGIONAL JUVENILE DETENTIONFAC ILITY right to counsel exists under certain circumstances for which GEARYDIS TRICT COURT - AFFIRMED IN PA RT, some standard of competence is required. Agreement with REVERSED IN PA RT, AND REMANDED Cullins v. Crouse, 348 F.2d 887 (10th Cir. 1965), is stated. 89,560 - DECEMBER 3, 2004 Counsel's failure to advise client of right to appeal for more FACTS: Gonzalez began employment with two unrelated than two years does not satisfy the most minimal standard. employers, NCK and Ve nator, in August 1996. In November When counsel is appointed to represent indigent inmate on 1996, Gonzalez injured his back while working at Ve nator. 60-1507 motion, counsel's failure to timely notifymovant of He filed and received workers' compensation benefits from the denial of that motion and of the movant's right to appeal Ve nator from Nov. 29, 1996, through March 16, 1998. In results in the denial of movant's statutory right to competent June 1997, Ve nator fired Gonzalez for absences necessitated counsel. In such cases, movant is entitled to file notice of by his work-related injuries. Ve nator reinstated Gonzalez in appeal out of time. March 1998, after he made a claim for retaliatory discharge. STATUTES: KS.A. 2003 Supp. 22-4506(6), -4522(e)(4), In December 1997, Gonzalez had back surgery and was 60-2103; KS.A. 20-3018(c), 60-1507, -1507(d) release to go back to work in January 1998. In June 1998, Gonzalez aggravated his back injury before going to work at WORKERS' COMPENSA TION; DISQUALIFICATION OF NCK and went home early from work at NCK because of ADMINIS TRA TIVE LAWJU DGES; APPELLATE REVIEW pain. On June 29, 1998, Gonzalez called in sick due to the SA ND ER V.ST ATE OF KANSA S AND STATE-SELF back pain, but did not talk to the director or assistant direc­ INS URA NCE FUND tor at NCK contrary to company policy. NCK gave ELLIS DISTRICT COURT -APPEAL DISMISSED Gonzalez a warning. On July 27, 1998, Gonzalez called in NO. 91,779- DECEMBER 3, 2004 sick again on account of the back pain and again did not talk FACTS: Sander filed a workers' compensation action to the director or assistant director. He was terminated from against the State of Kansas and its insurer the State Self­ NCK on July 29, 1998, for insubordination. The district Insurance Fund (Fund). Administrative Law Judge (ALJ) court found there is a cause of action available to Gonzalez Bruce Moore was assigned to hear Sander's case. During the for retaliatory discharge, but that NCK was entitled to sum-

44 - JANUARY 2005 THEJOURNAL OF THE KANSASBAR ASSOCIATION mary judgment because Gonzalez failed to prove that he was ISSUES: What date triggers the statute of limitations for a fired as a result of a work-related injury or making a workers' constructive discharge claim or a§ 1983 claim based upon it? compensation claim against his other employer. HELD: Court affirmed the Court of Appeals and the dis­ ISSUES: Did Gonzalez have a cause of action for retalia­ trict court. Court stated that a plaintiff's state cause of action tory discharge against NCK, which was not the employer for wrongful termination based on constructive discharge and against which Gonzalez' workers' compensation claim was any companion 42 U.S.C. § 1983 (2000) fe deral claim asserted? Did the district court erroneously enter summary accrues - and the applicable two-year statute of limitations judgment in favor of NCK for lack of evidence supporting begins to run - at the time the plaintiff tenders his or her res­ Gonzalez' contention that he was fired by NCK, as a result ignation or announces a plan to retire. Court held the con­ of a work-related injury, or making a workers compensation trolling date in the case was Aug. 24, 2000, the date Whye claim against his other employer? tendered his resignation and announced his retirement. HELD: Court affirmed the district court's ruling recogniz­ STATUTES: K.S.A. 2003 Supp. 60-5 13(a) (4), (b); K.S.A. ing a retaliatory discharge cause of action against an 12-105b(d) employer other than the one against, which the workers' compensation claim was filed. Court reversed the district Criminal court's granting of summary judgment in favor of NCK. Court stated that Gonzalez made a prima facia case with evi­ dence showing that he sustained a work-related injury and STATE V. CAMPBELL filed a workers' compensation claim, NCK had knowledge of RENO DIS TRICT COURT -AFFIR MED AND the work-related injury, NCK terminated Gonzalez' employ­ COURT OF APPEALS -AFFIRMED ment, and there was a causal connection between his work­ NO. 88, 654 - DECEMBER 3, 2004 related injury and the termination. NCK articulated a legiti­ FACTS: Campbell found guilty of multiple drug offenses. mate, nonretaliatory reason for Gonzalez. Gonzalez' burden StateCourt v. ofCampb Appealsell, affirmed the convictions and sentences, was only to demonstrate a genuine dispute of material fact as State v. Frazier, 31 Kan.App.2d 1123, declining to follow to whether NCK's stated reason was unworthy of belief. 30 Kan.2d 398 (2002). Supreme Court Court held that because reasonable minds could differ as to granted review on single issue of whether Campbell's sen­ the conclusions drawn from the evidence in the present case, Fratencezier. for possession of ephedrine was illegal pursuant to the entry of summary judgment was improper. Campbell argued his possession of ephedrine with intent to manufacture controlled substance was identical to WRONGFUL TERMINATION; STATUTE OF LIMI TATIONS possession of drug paraphernalia with intent to manufacture ty WHYE V. THE CITY COUNCIL FOR THE CITY OF a controlled substance, a lower penal crime. TOPEKA, KANSA S ETAL. ISSUE: Identical and overlapping statutes SHAWNEE DISTRICT COURT -JUDGMENT OF THE HELD: Campbell was properly sentenced for possession of COURT OF APPEALSAF FIR MING THE DIS TR ICT COURT ephedrine with intent to manufacture methamphetamine IS AFFIRMED . JUDGMENT OF THEDIS TRICT CO URT IS and possession of drug paraphernalia with intent to use it to AFFIRMED. Framanufacturezier, a controlled substances. Full discussion of NO. 90, 762 - DECEMBER 3, 2004 relevant legislative history, and subsequent case law. FACTS: Topeka Police Officer Roland Whye was arrested Definition of drug paraphernalia in K.S.A. 65-4150(c) and charged with battery and criminal restraint. He was sus­ includes "products and materials of any kind that are pended without pay for 10 days. According to Whye, his intended for use in manufacture a controlled substance." In arrest displeased the mayor of Topeka, and she demanded K.S.A. 65-7006(a), "product" is used as synonym fo r Whye's termination by the Chief of Police Dean Forster, oth­ ephedrine or pseudoephedrine. Ephedrine or pseu­ erwise he would jeopardize his own position. Whye decided to doephedrine are products used in manufacture of a con­ pursue early retirement and on Aug. 24, 2000, Chief Forster trolled substance, methamphetamine. Conduct prohibited sent a letter to the City's chief administrative officer stating by K.S.A. 65-7006(a) is defendant's act of knowingly pos­ Whye's intent to retire. The police department agreed with sessing ephedrine or pseudoephedrine with intent to use the Whye's plan to retire, paid for Whye for vacation time on Aug. product to manufacture a controlled substance. Conduct 25, 2000. Whye's retirement became effective Sept. 15, 2000, prohibited by K.S.A. 65-4152(a) (3) is defendant's act of in accordance with the agreement. Whye was acquitted of the knowingly possessing drug paraphernalia with intent to use criminal charges against him on June 20, 2001, and he filed it to manufacture a controlled substance. If drug parapherna­ his lawsuit on Aug. 30, 2002. He claimed a denial of due lia being possessed is identified, or alleged to be a product or process under § 1983 and a constructive discharge in violation material, then the charges are identical. Here, Court of of state public policy. The district court ruled Whye's claims Appeals reached right result, but reasoning was erroneous. were time barred by the two-year statute of limitations. On Charge of possessing drug paraphernalia did not include appeal, Whye did not dispute the two-year statute of limita­ "products or materials" and therefore was not identical to tions. Rather, he argued his claim did not accrue until the charge of possession of ephedrine or pseudoephedrine with effective date of his retirement, Sept. 15, 2000, because the intent to manufacture methamphetamine. defendants could have reversed their position, and he could STATUTES: 18 U.S.C. §§ 922(h) and 1202(a); K.S.A. have continued working. The Court of Appeals agreed with 2003 Supp. 65-410l(e) and (n); K.S.A. 2001 Supp. 65- the district court, but said the time began running when 4152(a), -7006(a); K.S.A. 60-1507, 65-41 07(d)(3), Whye became certain of his termination when the department -4150(c), -4 1 52, -4152(a) (3), -4152 (c), -4 159(a), -416l(a), responded to Chief Forster's memorandum on Aug. 25, 2000. 7006, -7006(a), -7006(d)

JANUARY2005 - 45 THE JOURNAL OF THE KANSASBAR ASSOCIATION STATE V. CAVA NESS STATE V. CONN WYANDOTTE DISTRICT COURT - AFFIRMED LYON DISTRICT COURT - AFFIRMED IN PA RT, NO. 91,041 - DECEMBER 3, 2004 REVERSED IN PA RT, AND REMANDED FACTS: Notwithstanding claim that he was high on drugs, CO URT OF APPEALS-A FFIRMED IN PA RI:, had just "snapped," and did not intend to kill the victim, REVERSED IN PA RT Cavaness was convicted of premeditated first-degree murder, NO. 89, 008 - NOVEMBER5, 2004 conspiracy to commit premeditated first-degree murder, and FACTS: Police stopped Conn for traffic violation, arrested aggravated kidnapping. On appeal, he claimed trial court him for driving without proper driver's license, and failing to erred in refusing request for instruction on lesser included provide proof of insurance. Once officers confirmed Conn's offense of second-degree murder and in admitting gruesome proffered identification information was false, they searched pictures of murder victim. He also claimed there was insuffi­ car and found driver's license and evidence of drugs. Urine cient evidence of premeditated first-degree murder. test conducted at jail tested positive for methamphetamine. ISSUES: (1) Jury instruction, (2) gruesome photographs, Trial court denied Conn's motions to suppress evidence from and (3) evidence of premeditation search of car and from urine testing. Conn convicted of drug HELD: No error in not instructing jury on unintentional offenses, obstruction of official duty, and driving without second-degree murder. Cavaness participated in acts result­ insurance. Court of Appeals reversed and remanded for new ing in victim's death and there was no evidence of reckless trial, finding evidence from search of car should have been rather than intentional conduct. Cavaness' arguments were suppressed, and finding Conn's consent to urine testing was rejected in State v. Jo nes, 267 Kan. 627 (1999). no� voluntary. Supreme Court granted State's petition for All photographs at issue were relevant. No abuse of discre­ review. tion is shown in the admission of this evidence. Argument ISSUES: (1) Search of car and (2) urinalysis that doctor's diagram or sketch of body could have been used HELD: Under facts, search for Conn's driver's license in instead is rejected. auto from which he had been removed could not be justified Evidence of Cavaness' conduct before and after the killing, as search incident to arrest for crime of driving without a and of victim being dealt additional blows after being felled valid license or insurance. However, search was valid under and rendered helpless, was sufficient to support inference probable cause with exigent circumstances exception for that murder was premeditated. crime of obstruction of official duty. There was probable STATUTES: KS.A. 2003 Supp. 21-3402(a) and (6), 22- cause to believe there was evidence in auto of Conn's identi­ 3414(3); KS.A. 21-3402(6), 60-410(6), -407([) fication, which would have been evidence that he provided a false name. Under facts, officer improperly advised Conn that his dri­ ver's license would be revoked if he did not submit to urine test, Conn's consent was not knowing and voluntary, and results should have been suppressed. Error was not harmless How's that umbrella policy where passenger was owner of car and admitted to metham­ phetamine use, and urine test result was important part of workingfo r your business? state's evidence that Conn was in possession of drugs and paraphernaliafound in the car. Case remanded for new trial. DISSENT (Allegrucci, J.): Agrees that Conn's consent to Not every business-insurance policy works for urinalysis was coerced and agrees that search of car was not every business. valid as search incident to arrest. Dissents from holding that search of car was justified by exigent circumstances exception. Professional Insurance Resources STATUTES: KS.A. 8-1001 sections (6) and (f), 22-2501 and Zurich understand that section (c) business is filled with variables that have a critical S'DlTE V.MCCOIN effects on the type of LYON DISTRICT COURT -JUDGMENT wtCATED, COURT insurance coverage you OFAPP EALS- JUDGMENT W!CATED, need. That's why we craft coverage to your APPEA L DISMISSED AND CASE REMANDED TODIS TRICT business' needs, not the shop's down the CO URT WITHDI RECTIONS street. NO. 91,039 - DECEMBER 3, 2004 FACTS: McCoin convicted in 2001 on no contest plea to Please call us today for a free review of your attempted manufacture of methamphetamine. No appeal taken insurance program. We'll keep you covered from sentencing. McCoin filed motion in 2003 for "order cor­ without leaving you high and dry. recting the Journal Entry of conviction," alleging a defective charging document. District court treated pleading as motion to rt#hPIR arrest judgment and denied the motion. McCoin appealed, Professional Insurance Resources claiming his sentence was illegal and then argued for relief under State v. McAda m, 277 Kan. 136 (2004). Court of Appeals (800) 367-2577 affirmed and held McAdam could not be applied on collaterally ww,;v.alpsinsure.com attack. Supreme Court granted McCoin's petition for review. A Member of tbe ALPS Family of Professional Service Companies ISSUE: Appellate jurisdiction

46 -JANUARY 2005 THE JOURNAL OF THE KANSASBAR ASSOCIATION HELD: State v. Mc Cain, 32 Kan.App.2d 638 (2004), is ISSUES: (1) Mulitiplicity, (2) jury instructions, (3) cumu­ ordered withdrawn from publication, and appeal is dismissed for lative error, and ( 4) sentencing lack of jurisdiction. McCoin did not raise any sentencing issue in HELD: Under circumstances of case, charges of attempted his motion to the district court. His motion to arrest judgment manufacture of methamphetamine and possession of was untimely, and district court had no jurisdiction to address ephedrine and pseudoephedrine with intent to manufacture the motion. Even if motion could be liberally construed as rais­ methamphetamine are multiplicitous. Conviction and sen­ ing a sentencing issue, there is no jurisdiction to address applica­ tence for possession of ephedrine and pseudoephedrine with tion of McA dam to McCoin's sentence because district court had intent to manufacture methamphetamine are set aside. no jurisdiction under KS.A. 22-3504 to modify sentence chat Attempted manufacture of methamphetamine and posses­ was not illegal, thus no jurisdiction for McCoin's appeal. sion of drug paraphernalia are not multiplicitous. Remaining Judgment of Court of Appeals affirming the district court is multiplicity claim is moot. vacated. Case remanded to district court with directions to dis­ No clear error in not giving lesser included offense or una­ miss McCoin's motion for lack of jurisdiction. nimity instructions. All elements of possession of drug para­ STATUTES: KS.A. 2003 Supp. 60-1507; KS.A. 22-3502, phernalia are not identical to some elements of attempted -3504, 65-4159, -4159(a), -4161 manufacture of methamphetamine. Also, record reveals no possibility of jury confusion about possession of drug para­ STATE V.RAM IREZ phernalia offense, where state effectively elected the particu­ FINNEYDIS TRICT COUR T - AFFIRMED lar criminal act upon which it relied for conviction. CO URT OF APPEALS-A FFIRMED No error supports claim of cumulative error. NO. 89, 446 - NOVEMBER 12, 2004 Elements of KS.A. 65-4 l 59(a) and 65-4161 (a) are identi­ FACTS: Ramirez arrested in bar by officer who knew her cal in circumstances of this case. In accord with State v. and her history of drug activity, observed her uncharacteris­ McAdam, 277 Kan. 136 (2004), Stevens may be sentenced tic behavior, and saw her holding piece of torn plastic baggie. only under lesser penalty provision of 65-4161 (a). State's Ramirez appealed from drug possession conviction, challeng­ cross-appeal is moot. ing district court's denial of motion to suppress evidence. In CONCURRING (Beier, J.): Concurs in result and reason­ unpublished opinion Court of Appeals majority affi rmed, ing of the opinion, but departs from court's treatment of finding evidence was obtained in search incident to arrest for multiple acts claim because this is not a multiple acts case. which there was probable cause under totality of circum­ STATUTES: KS.A. 2003 Supp. 21-3107(2)(6); KS.A. stances. Dissent thought officer's observations justified only 20-3018(c), 21-3107(2), -472l(e)(3), 22-3504(1), 65- an investigatory stop and frisk. Ramirez' petition for review 410l(e), -41 07(d)(3), -41 27c, -4152(a) (2) and (3), (b), and granted. (c), -4159(a) and (b), -416l(a), -7006 ISSUE: Probabk cause for arrest HELD: Probable cause determination depends on totality of circumstances. Where one or two factors may cause a reason­ able suspicion, a combination of several factors may create probable cause. Combination of factors in chis case was suffi­ cient to establish probable cause to arrest Ramirez, search inci­ LARGE TRUCK ACCIDENTS dent to that arrest was lawful. DISSENT (J. Allegrucci): Disagrees with majority's hold­ 25 years of experience litigating ing that there was probable cause to arrest Ramirez under truck accident cases totality of circumstances. Agrees with rationale of dissent in DOT safety regulations and Court of Appeals opinion, and would reverse district court. standards reviewed

STATUTES: KS.A. 2003 Supp. 22-2401 Access to accident reconstruction experts STATE V.ST EVENS RENO DIS TRICT COURT -AFFIRMED IN PA RT, Referral fe e honored REVERSED IN PAR T, AND REMANDED NO. 89, 603 - DECEMBER 3, 2004 FACTS: Stevens convicted of attempted manufacture of methamphetamine, possession of ephedrine, or pseu­ doephedrine with intent to manufacture methamphetamine and possession of drug paraphernalia with intent to manufac­ ture methamphetamine. He appealed, alleging (1) three sepa­ Edward]. Hund rate multiplicity claims, (2) trial court should have instructed Attorney at Law jury that possession of drug paraphernalia charge was lesser included offense of attempted manufacture of methampheta­ BRADSHAW mine and should have given unanimity instruction on posses­ 888-866-7996 JOI-INSON 316-264-0796 sion of drug paraphernalia charge, (3) cumulative error denied -.._HUND him a fair trial, and (4) error in sentence for attempted manu­ 200 W. Douglas, Suite 100 facture of methamphetamine. State cross-appealed alleging Wichita, KS 67202 error in sentence for possession of ephedrine or pseu­ doephedrine. Appeal transferred to Supreme Court.

JANUARY 2005 - 47

THE JOURNAL OF THE KANSASBAR ASSOCIATION Court of Appeals

Civil was entered in favor of BNSF against Tri-State. Tri-State received judgment against GSO in the amount of $32,1 32.60 on March 6, 1999, and GSO deposited the judgment amount CHILD SUPPORT with its lawyer. Munson issued a garnishment of the funds and IN RE MARRIAGE OF VA NB UREN BNSF moved to intervene. The trial court decided that RENO DISTRICT COURT - REVERSE AND Munson was entitled to the money because he had filed his REMANDED WITH DIRECTIONS lawsuit and obtained his judgment before BNSF had received NO. 90, 787 - MOTION TO PUBLISH Its assignment. OPINION ORIGINALLY FILED SEP TEMBER 17,2004 ISSUE: Did the trial court err in finding that since FACTS: The Vanburens were divorced in 1988, and the Munson had a judgment against Tr i-State, he was entitled to father was initially ordered to pay $210 per month in child the proceeds ofTri-State's judgment against GSO? support. In 1991, the support was reduced, and then, in 2001, HELD: Court reversed the trial court's decision and held it was increased to $330 per month. On April 22, 2003, the BNSF was entitled to the proceeds of Tr i-State's judgment father filed a motion to terminate child support effective May against GSO. Court stated that Munson's judgment against 31, 2003. The motion alleged that the child had attained the Tr i-state clearly predated Tr i-State's assignment to BNSF. age of 18 years and would graduate from high school by the However, the Court found the problem with relying on end of May. Mother/SRS objected, stating that the child sup­ Munson's judgment as the critical date is that Munson did port statutes contemplate that a school year ends on June 30. not make any attempt to levy its judgment until well after TheIn re districtMa rria gecourt of Sell, granted the motion based on its belief that Tr i-State had executed an assignment to BNSF. Court stated 31 Kan. App. 2d 164, was controlling. that a judgment does not act as a lien unless and until levy is ISSUES: Pursuant to K.S.A. 60-1610(a)(l)(B), does a made. Court stated that Munson could have obtained either child support obligation end in the month of high school a writ of execution under KS.A. 60-2401, or an order of graduation or does it continue to June 30, the end of the garnishment using KS.A. 60-716 on any other property of school year? Tr i-State, and such actions would have preserved Munson's HELD: Court reversed and remanded with directions for priority right to any future funds held by or for Tr i-State. the district court to exercise its discretion in decidSelling Munson's failure to take action immediately after obtaining whether to terminate child support. Court distinguished judgment opened the door for BNSF to gain priority to the as involving a parent agreement. KS.A. 60-1610(a)(l)(B) funds. Court held Tri-State's assignment to BNSF, which was codifies the general rule that a parent's obligation to pay made after Munson's judgment against Tri-State but prior to child support ends when the child reaches age 18 and estab­ Munson's garnishment, must prevail. The funds should be lishes the exception that the support obligation for a child awarded to BNSF. who turns age 18 during the child's last year of high school STATUTES: KS.A. 60-716, -2401, -2405 will continue until June 30 of the year of graduation, unless the court has ordered to the contrary. Court stated that the CONSTRUCTION CONTRACTS; ALTERATIONS OR June 30 termination date applies only if there is no parental EXTRA S, AND MECHANIC'S LIEN agreement or prior court order that establishes an earlier SA DDLEWOOD DOWNS V.HOLLAN D CORPORATION child support termination date for a child reaching age 18 JOHNS ON DIS TRICT COURT - AFFIRMED prior to high school graduation. Court stated that a parent NO. 91,057 - OCTOBER 29, 2004 may file a motion to terminate an adult child's support effec­ FACTS: Holland received the bid for the construction of tive on a date after high school graduation but before June street improvements in the Saddlewood Downs Subdivision. 30 following graduation, and a district court has the discre­ Holland entered a written contract to provide all the neces­ tion to grant or deny such a motion. sary materials, tools, labor, and equipment for construction STATUTES: KS.A. 2003 Supp. 60-1610(a)(l) of the streets in accordance with the approved plans. The contract did not include any line item for fly ash stabiliza­ COLLECTION OFJU DGMENTS, ASSIGNMENT OF tion or mention in directly. After Holland completed the site RIGHTS, AND GARNISHMENT grading for the streets, the City determined that additional MUNS ON V. TRI-STATE COMMODITIES stabilization of the subgrade material was necessary and SHERMANDIS TRICT COURT application of fly ash was required. Holland stopped work, RE VERSED AND REMANDED WITH DIRECTIONS and called a meeting to advise all parties of the fly ash NO. 91,348 - OCTOBER 15, 2004 requirement. At the meeting, the parties discussed and nego­ FACTS: Munson sued Tr i-State in 1995, and obtained a tiated the price for the fly ash stabilization work. After sev­ judgment for $31 ,234 in May 1998. In 1996, Tr i-State sued eral correspondence, Holland applied the fly ash in August GSO America Inc. in federal court. Burlington Northern and 2000, and began sending periodic payment invoices to Santa Fe Railroad Company (BNSF) sued Tri-State in federal Saddlewood that included a specific line item for fly ash sta­ court, and the parties settled their case by consent judgment bilization work. Saddlewood refused to pay all of Holland's and Tr i-State assigning its claim against GSO to BNSF. On invoices claiming it did not owe money for the fly ash work. July 20, 1998, BNSF obtained a security agreement and Holland filed a mechanic's lien. Saddlewood eventually paid assignment from Tr i-State. A day later, a consent judgment 48 -JANUARY2005 THEJOURN AL OF THE KANSASBAR ASSOCIATION Holland the amount of the mechanic's lien and reserved the HELD: Court reversed holding that the misspelling of right to challenge the validity of the lien. The district court Rodger's name on the earlier financing statement rendered granted judgment to Holland findingthe fly ash stabilization such financing statement ineffective. Court acknowledged work was not part of the original contract and that it consti­ that to hold that a missing "d" in a debtor's first name ren­ tuted extra work by Holland for which it was entitled to ders a financing statement "seriously misleading" seems compensation. The court stated that although there was no harsh on its face and would seem to be a minor error or written authorization for the fly ash work, Saddlewood's omission in KS.A. 2003 Supp. 84-9-506(a). However, court actions or inactions constituted an authorization for the stated that the filingcreditor has the statutory burden to cor­ extra work and a waiver of the requirement in the original rectly list the debtor's name, so potential searching creditors contract that extra work required written authorization. are under no obligation to conduct multiple searches using Court rejected Saddlewood's claim for slander of title finding variations of the debtor's name. Court held that an error in the mechanic's lien was not maliciously filed. listing a debtor's name on a financing statement that pre­ ISSUES: Did the district court err in finding the fly ash cludes discovery of a prior security interest renders the work was not part of the original contract and Holland was financing statement seriously misleading if a searching credi­ entitled to extra compensation even though there was no tor has utilized the standard search logic as discussed in written authorization as required by the contract? Did the KS.A. 2003 Supp. 84-9-506. district court err in denying Saddlewood's claim for slander STATUTES: KS.A. 2003 Supp. 84-9-322, -9-506 of title? HELD: Court affirmed the district court's award to DRIVER'S LICENSEAN D ADMINIS TRATIVE SUSPENSION Holland. Court distinguished the case of Green Co nst. Co. v. IN RE DRIVING PRIVILEGES OF G.L. MUNDHENK£ Ka nsas Po wer & Light Co. , 717 F. Supp. 738 (D. Kan. 1989), RENO DISTRICT COURT - REVERSED concerning the risk of uncertainty of subsurface conditions. NO. 91,373 - NOVEMBER 5, 2004 Court agreed with the trial court's conclusion that fly ash sta­ FACTS: Mundhenke was stopped at a DUI checkpoint, bilization work was not part of the original contract and exhibited bloodshot eyes, smelled of alcohol, acknowledged Holland was entitled to additional payment for the work. consumption, and failed field sobriety tests, a PBT, and the The court cited three factors: (1) fly ash work was not Intoxilyzer 5000. The Kansas Department of Revenue included in the big package, (2) contract does not have a line (KDOR) received Mundhenke's request foran administrative item for fly ash work, and (3) the negotiations by the parties hearing and after the hearing, the KDOR affirmed suspension demonstrated the work was an additional item. The court of driving privileges. Mundhenke filed a petition for judicial also found that a pattern of disregarding the requirement of review and copied the KDOR. Mundhenke alleged that written authorization for changes to a contract is only one because he had waived the right to cross-examine the certifying factor to be considered in determining if oral modifications officer as a condition of his diversion agreement in the criminal are binding. The court also agreed with the district court prosecution, he did not understand that he could call the offi­ that although Holland's mechanic's lien may have been tech­ cer to testify at the administrative hearing and that the admin­ nically defective, it was not maliciously filed and that the istrative hearing should have been dismissed. The district court absence of malice defeated the claim forslander of title. dismissed the proceedings on two grounds: (1) Mundhenke's STATUTES: No statutes cited. request for review of the administrative suspension was moot because the KDOR had failed to suspend Mundhenke's driving DEB TOR AND CREDITOR AND FINANCING STATEMENTS privileges 30 days after the administrative hearing order and PA NKRA TZIM PLEMENT COMPANY V. had waived the right of suspension, or (2) in the alternative, CITIZENS NA TIONAL BANK Mundhenke had failed to execute proper service upon the RENO DIS TRICT COURT - REVERSED AND Secretary of Revenue and thus the court lacked jurisdiction. REMANDED WITH DIRECTIONS The KDOR filed a motion to alter or amend the court's judg­ NO. 91,721- NO VEMBER 19, 2004 ment, arguing the KDOR could not lawfully suspend FACTS: Rodger House purchased a tractor from Pankratz. Mundhenke's driving privileges until the appeal of the suspen­ House executed a note and security agreement, and assigned sion was final and the proceedings were not final until resolu­ it to Deere and Co. (Deere). Deere filed the financing state­ tion of the motion to dismiss. Mundhenke argued the KDOR's ment with the Kansas Secretary of State and designated the motion to alter was untimely. The district court agreed with debtor as "House, Roger. " House executed a note and secu­ Mundhenke and affirmed the order dismissing the administra­ rity agreement for a loan in favor of Citizens, and he pledged tive suspension of Mundhenke's driver's license. all his equipment as collateral. Citizens filed a financing state­ ISSUES: Was the KDOR's motion to amend timely filed? ment with the correct name of the debtor as "House, Did the KDOR waive the right to suspend Mundhenke's Rodger. " House filed for bankruptcy. Deere reassigned the license? House note and security agreement to Pankratz. Pankratz was HELD: Court reversed. Court concluded the district court allowed relief from stay to sell the tractor. Pankratz filed suit erred in finding the KDOR's motion to alter or amend was seeking declaratory relief to determine whether Pankratz or not timely. Court held that based on the three-day mail rule, Citizens had the prior perfected security interest. The district the KDOR's motion to alter or amend was timely and conse­ court granted summary judgment in favor of Pankratz quently the notice of appeal was timely as well. Court held because it perfected its security interest before Citizens per­ that where the KDOR is aware of a petition for review of an fe cted its interest. administrative proceeding that is pending in district court, ISSUES: Was the financing statement seriously mislead­ KS.A. 8-1 020(0) requires a suspension in the implementa­ ing, and thus, Pankratz did not perfect its security interest? tion of the administrative sanction until the petition for

JANUARY2005 - 49 THEJOURNAL OF THEKANSAS BAR ASSOCIATION review is fully resolved. Court stated the district court erred HABEAS in finding the KDOR had waived its right to impose an GRIFFIN V. GILCHRIS T administrative suspension of Mundhenke's driving privileges LEAVENWORTH DISTRICT COURT by not initiating such suspension 30 days from the adminis­ REVERSED AND REMANDED trative order. NO. 92,074 - OCTOBER 29, 2004 STATUTES: KS.A. 8-259, -1002, -1020(6), (o); KS.A. 60- FACTS: Griffin filed pro se 1501 petition that named staff 206(a), -259([) ; KS.A. 2003 Supp. 60-206(a), (e); KS.A. 77- counselors at Lansing Correctional Facility as respondents. 601 et seq. District court summarily dismissed petition as failing to state grounds forrelief and as naming improper parties as respon­ DRIVER 'S LICENSE, ADMINIS TRATIVE SUSPENSION, dents. Griffin appealed. AND JURISDICTION ISSUE: Pro se habeas petitions SOZA V.KANSA S DEPARTMENT OF REVENUE HELD: When a petition for writ of habeas corpus is filed FORD DIS TRICT CO URT -AFFIRMED that does not name custodian, bur it nevertheless is clear who NO. 91,175-NOVEMBER 12, 2004 the custodian is from reading petition as a whole, it is error to FACTS: Soza was arrested for DUI and received the DC- summarily dismiss the petition based on petitioner's failure to 27 form for requesting an administrative hearing, indicating name petitioner's custodian as a respondent. Here, Griffin che hearing request must state whether the certifying officer clearly is in custody of Secretary of Corrections and Lansing is to be subpoenaed for the hearing, otherwise the right to warden. District court erred in dismissing the petition. compel the officer to attend is waived. Soza mailed the STATUES: KS.A. 2003 Supp. 60- 1501, -1502; K.S.A. request for a hearing, but failed to make a request for the 60-1501, -1503 officer's attendance. At the administrative hearing, Soza appeared with counsel, bt.it no other witnesses were present. HABEAS CORPUS According to Soza, the hearing officer cold him that because WOODBERRY V.ST ATE OF KANSA S the certifying officer was not subpoenaed, the DC-27 would SEDGWICKDIS TRICT COUR T - AFFIRMED be admitted, and Soza's license would be suspended whether NO. 90,114 - FEBRUARY 13, 2004 or not Soza testified. Soza requested a continuance co sub­ MOTIONTO PUBLISH GRANTED poena the officer, but it was denied. Soza elected not to tes­ PUBLISHED NOVEMBER 4, 2004 tifyor present evidence. Soza's attorney informed the hearing FACTS: Woodberry is Lansing prisoner serving consecutive officer that all issues were "reserved" for appeal. The hearing sentences for 1979, 1984, and 1993 convictions and has his­ officer affirmed suspension of Soza's driving privileges. The tory of unsuccessful post-conviction motions. He filed 1507 hearing officer wrote "reserved" beside all but one issue, but and 1501 motions in Sedgwick District Court arguing illegal also noted an issue of "whether served." Soza sought judicial aggregation of his sentences and alleging prosecutorial mis­ review. Kansas Department of Revenue (KDOR) filed a conduct and ineffective assistance of trial and appellate coun­ motion for summary judgment arguing that because Soza sel in his 1979 conviction. District court summarily dis­ did not preserve any issues at the administrative hearing, the missed the motions, finding they were barred by doctrine of district court was without jurisdiction to hear his case. The !aches and constituted an abuse of the remedy. district court agreed finding that in order to perfect issues for ISSUES: (1) 1501 Motion and (2) 1507 Motion appeal, Soza was required to provide some evidence as to HELD: To extent Woodberry challenges aggregation and each issue which would support his position. The court con­ conversion of his sentences, Sedgwick court was not proper cluded that Soza failed co raise any issue at the administrative forum for 1501 Motion. These arguments are not considered hearing, and because the court had no jurisdiction co con­ in this appeal. sider issues not raised below, KDOR was entitled to judg­ No abuse of discretion in dismissing 1507 Motion. ment as a matter of law. Doctrine of laches applies where defendant's most recent ISSUES: Did the district court err in granting summary 1507 claim regarding ineffective assistance of counsel was judgment to KDOR finding that Soza failed to adequately brought 22 years after chat conviction, and defendant's raise the issues at the administrative hearing? motions were successive under Supreme Court Rule 183(d). HELD: Court affirmed the district court's grant of summaty STATUTES: KS.A. 2002 Supp. 60-1501; KS.A. 60-1507 judgment a11d the suspension of Soza's driving privileges. Court sections (6) and (c) held that the mere "reservation" of issues at the administrative hearing is inadequate to meet the exhaustion requirement for PROPERTY, EASEMENT FOR PUBLIC USE, subject matter jurisdiction of the district court on appeal of such AND ABANDONMENT matters. Even with a de novo review, appellate review is restricted RIVERSIDE DRAINAGE DIS TRICT OF SED GWICK to those issues preserved in a motion for rehearing before the CO UNTY V. HUNT, ETAL. commission and to a review of the agency record. Court quoted SED GWICK DIS TRICT COURT-AFFIRMED IN PA RT, from caselaw that if the agency is not made aware of the ai·gu­ REVERSED IN PA RT, AND ment at the hearing, it cannot truly be said that the court in the REMANDED WITH DIRECTIONS de novo hearing is reviewing the agency action. NO. 91,752 - OCTOBER 29, 2004 STATUTES: KS.A. 8-259(a), -1001 et seq., KS.A. 77-623 FACTS: Seneca Construction Co. owned two lots with a 125 foot right-of-way dedicated to the public immediately north of the two lots. There also existed a flood control main­ tenance access easement that consisted of the north 15 feet of the two lots. Seneca installed a fe nce along the southern bor-

50 - JANUARY 2005 THE JOURNAL OF THE KANSASB AR ASSOCIATION der of the drainage right-of-way and it encroached upon the both tax appeals and because appraisals were too distant in easement. Hunt purchased lot ONE from Seneca without first time to be credible. County appealed. having the property surveyed. Hunt believed the north ISSUES: (1) Recusal and 2) judicial review boundary of the property was the existing fe nce line, which HELD: Although trial judge's statements regarding taxa­ included the maintenance access easement area. Hunt tion statutes not being fair and equitable could cause con­ acknowledge that mobile homes, flagpoles, light poles, and cern whether this judge was appropriate to consider case, two signs were located in the easement area. Hunt stated the County's failure to fileaffi davit of prejudice did not preserve drainage district never expressed a desire or need to use the issue for appellate review. easement. After a survey by the drainage district, Hunt Proceedings before BOTA are controlled by Kansas removed the fe nce from the right-of-way, bur he refused to Administrative Procedure Act, not Kansas Rules of move the other property from the easement area. The drainage Evidence. Evidence need not be excluded solely because it is district filed a declaratory judgment seeking an order requiring hearsay. Tr ial court erred in finding the appraisal evidence Hunt to remove his property from the easement area. The dis­ was inadmissible, and in substituting its own conclusion on trict court found that while the drainage district's land was not evidence credibility. Substantial evidence supports BOTA's subject to adverse possession, its actions in not using the ease­ appraisals. District court's decision is reversed and matter is ment since 1974, and permitting the area to be fenced off remanded for entry of judgment affirming BOTA's determi­ constituted as abandonment. The district court ordered title to nation of appraisal values. the easement area be quieted in the name of Hunt. The STATUTES: KS.A. 2003 Supp. 20-3lld(a) and (6), 60- drainage district appealed. Hunt appealed the district court's 460(g), (h), and (i); KS.A. 60-401 et seq., 74-2426(a), 77- ruling that he could not obtain the land by adverse possession. 501 et seq., -524(a) -601 et seq., -62l (c) subsections (7) and ISSUES: Did the district court err in finding the drainage (8), 79-503a district abandoned the property? Did the district court err in finding Hunt could not obtain the land by adverse possession? UNDERINSURED MOTORIST INS URANCE COVERAGE HELD: Court found the general rule regarding abandon­ LOUCKS V.FA RM BUREA U MUTUAL INSURANCE ment of property set forth in Botkin v. Kickapoo, Inc. , 21 1 FINNE Y DIS TRICT COURT Kan. 107, 505 P.2d749 (1973), does not control the dispo­ AFFIRMED IN PA RT, REVERSED IN PA RT,AN D sition of an easement dedicated for public use and held by a REMANDED WITH DIRECTIONS public or quasi-public entity. Court stated an easement for NO. 91,488 - DECEMBER 3, 2004 the maintenance of an adjacent drainage right-of-way dedi­ FACTS: Loucks worked for Burtis Motor Company Inc. cated to the public and held by a drainage district does not While Loucks was showing a station wagon to a customer, a revert to the underlying fee owner unless its purpose, which truck driven by Diciderio Celiz crashed into the parking lot is to facilitate maintenance of the drainage right- of-way, has and pinned Loucks between two cars. Loucks sustained sig­ become impossible or so highly improbable as to be practi­ nificant personal injuries. Celiz was insured by State Farm cally impossible. Court held the district court erred in find­ and Shelter Insurance with aggregate limits of $50,000 liabil­ ing that the drainage district had abandoned the easement. ity coverage. Loucks had a personal automobile policy with At oral argument, the drainage district conceded that in Farm Bureau with total Underinsured Motorist (UIM) cov­ order to preserve its easement, Hunt need not be required to erage of $300,000. Burtis had insurance coverage with remove from the easement area the existing pavement or Universal Underwriters. Loucks filed a personal injury and underground utility lines. Their presence will not interfere negligence lawsuit against Celiz. Loucks gave written notice with the drainage district's future use of the easement area. to Farm Bureau. State Farm and Shelter stipulated that Celiz Court stated that Hunt could continue to park vehicles or was 100 percent at fault and that punitive damages should mobile homes on the easement area, so long as they can be be awarded. Loucks settled with State Farm and Shelter for moved whenever the drainage district needs access to the policy limits of $50,000. Farm Bureau, to preserve its UIM easement area to maintain the drainage ditch. On Hunt's subrogation rights against Celiz, substituted its payment of cross-appeal, court rejected Hunt's position. Court stated $50,000 to Loucks. Farm Bureau filed a motion to intervene that Hunt could not obtain the drainage district's mainte­ in the lawsuit, but later withdrew its motion to intervene nance easement by adverse possession because the drainage after reaching a settlement agreement with State Farm and district is a quasi-municipal corporation and is not subject to Shelter requiring State Farm and Shelter to defend the law­ possession by an individual or private entity. suit and reimburse Farm Bureau for the $50,000. Loucks STATUTES: No statutes cited. dismissed the lawsuit after receiving the policy limits. Celiz was a Mexican citizen and returned to Mexico. The district TA XATION court dismissed the lawsuit without prejudice. However, IN RE EQUALIZATION APPEAL Loucks never released Celiz from liability. Loucks filed a OF ANDOVER ANTIQUE MALL UIM action against Farm Bureau. The district court denied BOARD OF TA X APPEALS- REVERSED AND REMA NDED Farm Bureau's motion to dismiss for failure to state a claim. NO. 91,514 - OCTOBER 29, 2004 Farm Bureau refiled the Celiz action as a subrogation action FACTS: Antique mall sought judicial review of appraisals brought in the name of Loucks. The two cases were consoli­ by Board of Tax Appeals (BOTA) in 1999 and 2001. District dated for discovery purposes. After Farm Bureau's attorney court consolidated action and overruled County's motion for withdrew from the case, Loucks' personal attorneys declined recusal. District court determined new appraisal values, find­ to prosecute the refiled Celiz case. Several months later, Farm ing BOTA's appraisals were not supported by substantial evi­ Bureau had another attorney on the case, but he did not dence because appraisal evidence was improperly admitted in contact Loucks. Farm Bureau filed a motion that the two

JANUARY 2005 - 51 THEJOURNAL OF THE KANSAS BAR ASSOCIATION cases be tried separately. Farm Bureau filed a motion for WORKERS' COMPENSA TION summary judgement in the UIM action alleging Loucks had JORDAN V.PYLE, INC. , ET AL. breached the insurance policy with Farm Bureau by dismiss­ WORKERS' COMPENSA TIONBO ARD -AFFIRMED ing the original lawsuit against Celiz and pursuing a direct NO. 91,485 - NOVEMBER 19, 2004 action against Farm Bureau. Loucks presented evidence of FACTS: Jordan and Gagnebin were employed by Pyle, and his injuries, and the jury returned a verdict in his favor for were assigned to a construction project in Woodward, Okla. $171,750. Farm Bureau filed a second summary judgment In February 2000, there were two altercations between Jordan motion alleging that Loucks was an insured person under and Gagnebin over a $2 microwave rental fe e that was owed to Burtis' policy with Universal and that Universal provided the hotel, where the two were staying during the construction primary coverage for Loucks' claim. The district court project. In the break room next to the construction building, entered judgment for Loucks after subtracting workers com­ Jordan and Gagnebin confronted each other about the fee. pensation benefits. Judge Vieux entered an order allowing The details of the altercation varied, but Jordan and Gagnebin attorney fees, but Judge Quint conducted the hearing to engaged in a fight. The construction foreman broke up the determine the amount of fees to be awarded. Quint awarded fight and ordered Jordan to go to the job site. As Jordan was attorney fe es and expenses of nearly $175,000. leaving the building, Gagnebin went after him and stabbed ISSUES: (1) Did the trial court err in finding that Loucks him in the head and neck. Jordan fe ll back onto a table. did not breach the insurance policy by dismissing his lawsuit Jordan received treatment at a local hospital. Jordan com­ against Celiz and pursuing a direct action against Farm plained of swelling in his left thumb and a laceration to the Bureau? (2) Did the trial court err in ordering that the UIM left side of his head, but did not complain of a back injury at case be tried before the refiled subrogation case? (3) Did the that time, nor was a back examination performed. The treat­ trial court err in finding that Loucks did not have UIM cover­ ing physician released Jordan to return to work that day. The age with Universal? ( 4) Did the trial court err in finding that day after the fights, Pyle terminated Jordan under its no toler·­ Loucks was entitled to attorney fees from Farm Bureau? (5) ance for fighting policy. Other than working a short time for a Did the trial court err in assessing the amount ofattorney fe es? friend, Jordan was unable to find work. Jordan told the HELD: Court affirmed all issues except the attorney fe e administrative law judge (ALJ) that he and Gagnebin had a issues. (1) Court held that Farm Bureau's argument that long-standing dispute, and that he had previously informed Loucks breached the insurance policy by dismissing the law­ the foreman and the owner of Pyle that Gagnebin had threat­ suit against Celiz overlooks the fact that Loucks was never ened him with fi ghting and that when they went to required to file the lawsuit in the first place. Loucks also did Oklahoma, he wanted a separate hotel room from Gagnebin. not breach his insurance policy by filing a separate lawsuit The foreman denied knowledge of any long-standing dispute directly against Farm Bureau to attempt to recover UIM bene­ between Jordan and Gagnebin, but knew they did not like fits. Court stated that Farm Bureau's subrogation rights against each other. Another employee testified he knew of the dispute Celiz have been fully protected and are still intact. Court and that the owner knew as well. In June 2000, Jordan sought found that Loucks had done whatever was necessary to help treatment for back injuries and indicated on the patient infor­ Farm Bureau exercise its rights and had done nothing to vio­ mation that the date of accident was March 2000, but he late the provisions of the insurance contract. Court held dis­ claimed it was hurting previous to that date. Dr. Drazek trict court did not err in denying Farm Bureau's motion for released Jordan from her care in July 2001, indicating he had summary judgment based on Loucks' alleged breach. (2) reached maximum medical improvement with work restric­ Court found no abuse of discretion in the district court's try­ tions and a 10 percent whole body functional impairment. Dr. ing the UIM case before the refiled subrogation case. Court Murati gave Jordan a 20 percent impairment and Dr. Mills stated that Farm Bureau correctly noted that the district gave him a 5 percent impairment. All three doctors indicated court's decision to try the UIM case first requires the issues of Jordan's symptoms were caused by the February 2000 injury. liability and damages to be tried twice if Farm Bureau pursues Murati and Drazek gave Jordan a 97 percent task loss. Mills its subrogation claim against Celiz. Court stated that although gave Jordan a 28 percent task loss. Jordan had a previous it found no abuse of discretion in this case, the Court noted injury when he fractured his right wrist and hip after falling that when both a damage case against a tortfeasor and a con­ off a ladder at work. The ALJ used the 97 percent task loss tract case against the UIM insurer are pending at the same opinion of Drazek and a 100 percent wage loss resulting in a time, it could possibly be an abuse of discretion for the district 99 percent work disability for Jordan. The board modified the court to order the UIM case to be tried first. (3) Court inter­ award finding Jordan had not made a good faith effort to find preted Universal's insurance contract with Burtis and agreed work and was entitled to a 52 percent wage loss. The board with the district court's interpretation that Loucks did not also averaged the task loss opinions of all the doctors and came have UIM coverage with Universal. (4) Court held the district up with 71 percent task loss. The board's resulting disability court did not err in finding that Farm Bureau acted without rating was 61.5 percent. just cause or excuse in denying the UIM benefits. (5) ISSUES: (1) Did Jordan's injuries arise out of and in the However, the Court held the amount of attorney fe es was course of employment? (2) Did the Board properly calculate excessive, if limited to the amount for representation during benefits? Is Jordan entitled to work disability benefits in the two summary judgment motions. Court also stated there excess of his functional impairment because he was fired for is no statutory authority for the recovery of attorney fe es from good cause unrelated to his injury? (3) Was Jordan entitled Farm Bureau for the time spent prosecuting the underlying to the $15-per-day payment for meals in Oklahoma as con­ tort case in the original case filed against Celiz. stituting part of his wages? (4) Should Jordan's work disabil­ STATUTES: KS.A. 40-254, -256, -284(6), (c), (e)(5), (f), ity have been reduced by the task loss from his previous -287, -454, -908; KS.A. 2003 Supp. 60-256(c) worker's compensation injury?

52 - JANUARY 2005 THEJOURNA L OF THE KANSAS BAR ASSOCIATION HELD: Court affirmed the Board's award. (1) Court stated Evidence of Scuczman's employability is discussed. Board chat injuries chat result from personal disputes between cowork­ found zero percent cask loss, contra1y to ALJ award. Board also ers are compensable if the employer had reason to anticipate utilized functional impairment percentage provided by physi­ that the injuries would occur if the employees continue to work cian and based disability compensation on Stutzman's salary together. Court found Pyle was aware of ongoing disputes while he was contagious. This was rationally based solution between Jordan and Gagnebin, but yet placed the two in the given the characteristics of HCV, Stutzman's age and training, same hotel room during the construction project. Court found and the rehabilitation specialist's assessment. Result reached in it foreseeable the men would come into conflict since they were chis difficult calculation was within reasonable limits, although living together and working together in such close quarters. reasonable persons might arrive at different results. Court found it irrelevant who initiated the fight. The injuries STATUTES: K.S.A. 1999 Sup. 44-5 10e, -510e, 510e(a) arose out of the conditions and incidents of his employment with Pyle. (2) The court found Pyle never offered Jordan an accommodating job after the injuries and it is left to mere con­ Criminal jecture whether Pyle would have offered Jordan an accommo­ dating position if he had not been terminated. The court agreed STATE V.DYKE with the ALJ and the board chat Jordan was terminated for DOUGLAS DISTRICT COUR T -AFFIRMED IN PA RT, defending himself against an attacker with a knife, and there SENTENCE V,4.CATED, AND CASE REMANDED was an absence of evidence of a written policy regarding fighting NO. 89, 097 - NOVEMBER 23, 2003 or evidence chat Jordan had been advised of such policy. The PUB LISHED VERSION FILED NOVEMBER 10, 2004 court found chat Jordan may have thrown the first punch, but FACTS: Dyke convicted pursuant to plea agreement co one only after Gagnebin had threatened him, yelled at him, and count of felony driving under infl uence of alcohol, third shoved him. The court also found Pyle cook no preventive offense. At sentencing, trial court treated conviction as fourth measures co diffuse a conflict between Jordan and Gagnebin. DUI conviction after prosecutor noted chat there were actually The court also agreed with the board chat Jordan had failed to four prior convictions. Dyke later filed motion co clarify the make a good faith effort co find employment. (3) Court stated sentence. Notwithstanding Dyke's stated preference for creat­ chat although Jordan received the $15-per-day payment separate ing the conviction as a fourth offense so he could commence from his pay check, it was clear that chis payment constituted alcohol treatment, he refused to withdraw plea. Trial court part of his wages for working in Oklahoma and was economic affi rmed the plea and sentence. Dyke appealed. gain to him because he would have had to pay for meals regard­ ISSUE: Legality of sentence less of his employment. (4) The court stated chat a few years HELD: Dyke was charged with, and pied no contest to, separated Jordan's injuries and chat the previous injury had been one count of DUI as a third offense. Ac sentencing hearing resolved, and he was able to perform chose casks chat he had Dyke was clearly sentenced for a third offense. Tr ial court done before his 1996 inju1y. The court agreed with the Board's did not have jurisdiction co sentence Dyke for a fourth DUI, findings concerning Jordan's previous injuries as not permanent. even though there is more than adequate evidence to prove STATUTES: K.S.A. 44-501 et seq., -50l (g), -510e(a), chat chis is indeed his sixth offense. -51 l (a)(l ), (2)(C), (3); K.S.A. 77-601 et seq. STATUTES: K.S.A. 8-1 567(f) and (g), 22-3504(1)

WORKERS' COMPENSA TION SUPPRESSION OF EVIDENCE AND DRUG TAX STAMP STUTZMAN V. CITY OF LENEX A STATE V.J ENNINGS WORKERS' COMPENSA TION BOARD -AFFIRMED SHAWNEE DISTRICT COUR T - AFFIRMED NO. 91,368 - OCTOBER 22, 2004 NO. 91,413 - NOVEMBER 5, 2004 FACTS: Stutzman, a Lenexa police detective diagnosed FACTS: As officers were executing a search warrant at a resi­ with hepatitis C infection (HCV), applied for workers' com­ dence for drugs and a resident named Curtis Jones, three guys pensation benefits alleging his exposure to HCV occurred in long winter coats knocked on the back door. The officers from handling a shooting victim's bloody body almost two indicated they were police and told che three men co cake their years earlier. Administrative law judge (ALJ) awarded all hands out of their pockets. The officers spoke with each man. medical expenses and 100 percent permanent partial disabil­ Officer Garman spoke with Jennings, asked him if he had any ity. Workers' Compensation Board affirmed finding of work weapons and then requested permission to search him. related injury, but assigned 15 percent fu nctional impair­ Jennings consented. Officer Garman testified chat if Jennings ment co Stutzman and assigned 41 percent permanent partial would have said no, he could have walked away from the resi­ disability after Scuczman's release from HCV treatment. City dence. One of the other officers stated that he would not have and insurance carrier appealed. allowed the man with whom he was talking to walk away with­ ISSUES: (1) Causation and (2) permanent partial general out a pacdown search. During the search of Jennings, Officer disability Garman discovered a plastic bag containing several individually HELD: Well-written briefs and skilled oral arguments noted wrapped rocks of cocaine. No drug tax stamp was attached to the bags. After Officer Garman discovered the plastic bag, in chis fact intensive case involving difficult medicolegal issues Miranda and physician depositions on both sides regarding Scutzman's another officer cook him co a bedroom, gave a warn­ acquisition of HCV and whether it occurred in scope of ing and asked Jennings if he used cocaine. Jennings said he did employment. Notwithstanding conflicting testimony, there is not use it. He cold the officer chat he intended to sell the substantial competent evidence establishing chat HCV positive cocaine and chat it was in his possession as "fronted" to him co blood exposure occurred during Scuczman's employment as sell and then keep the profits. Jennings was charged with pos­ Lenexa detective. Board's decision is upheld. session of cocaine with intent co sell, no drug tax scamp, and

. JANUARY 2005 - 53 THE JOURNALO F THE KANSAS BAR ASSOCIATION possession of drug paraphernalia. The trial court denied Nev., 124 S.Ct. 2451 (2004), is distinguished on facts. Jennings motion to suppress arguing that his consent was First Amendment protected Mollie's criticism and chal­ tainted because he had been unlawfu lly seized when the officer lenge directed at officers. To peka ordinance could 'not be told him to removed his hands from his pockets. Jennings was used to curb this protected speech. convicted on all charges after a bench trial. STATUTES: K.S.A. 22-2402, -2402(1), 3 8-1527(6) ; ISSUES: Did the trial court err in not suppressing the evi­ TopekaCit y Code § 54-73 (2004) dence discovered in the search of Jennings? Should Jennings' conviction for failure to affix a drug tax stamp be reversed STA TE V. TA YLOR because the state failed to prove Jennings possessed more SEDGWICK DISTRICT COURT - AFFIRMED than one gram of cocaine? NO. 90, 896 - DECEMBER 3, 2004 HELD: Court affirmed Jennings' convictions. Court held FACTS: Taylor was 20 years of age and the victim was 14 the trial court did not err in denying the motion to suppress. years of age when they had consensual sexual intercourse. Court stated that Jennings was not inside the house when the Taylor was convicted of aggravated indecent liberties with a search warrant was executed, but voluntarily approached the child. house. When the police discovered his presence, he was not ISSUES: Was Taylor denied effective assistance of trial ordered to get on the ground and then handcuffed, instead counsel? Is K.S.A. 21-3504(a)(l) constitutional? the officers identified themselves, stepped onto the porch and HELD: Court affirmed Taylor's conviction. Court held one-on-one asked the men some questions. The officers told Taylor failed to raise the ineffective assistance of counsel the men to take their hands out of their pockets for officer claim to the trial court and it would not be considered for safety reasons and it would not communicate to a reasonable the first time on appeal. Court held K.S.A. 21-3504, outlin­ person that he or she was not free to leave. Court agreed with ing aggravated indecent liberties, is constitutional. Taylor the cases finding that the request for the men to remove their argued K.S.A. 21-3504 imposes a blanket proscription upon hands from their pockets did not turn the voluntary consensual, private intimate activities of all unmarried per­ encounter into a seizure. The men were free to leave and there sons under age 16 without regard to maturity, thus violating was no seizure when Jennings consented to the search. The the Due Process Clause, and that proscription of protected consent to search was voluntarily given. Court rejected activity for unmarried persons when such activity is pro­ Jennings argument that because only one out of the 10 seized tected for married persons violated the Equal Protection cocaine rocks was tested and because the evidence failed to Clause. Court stated the State has a compelling interest in show that this particular rock weighed in excess of one gram, the well-being of its children and in the exercise of its police there was insufficient evidence produced at trial to convict powers and may enact legislation to protect children from him of a drug tax stamp violation. Court stated there was suf­ adult sexual predators, and therefore, a rational relationship ficient evidence to prove beyond a reasonable doubt the drug exists between K.S.A. 21-3504(a)( l ) and the legitimate tax stamp violation with which Jennings was charged. Court interests of the State. noted it was important to point out that it would be prohibi­ STATUTES: K.S.A. 21-3504(a)(l), (b) tively expensive to require the state to conduct drug testing on every one of the 10 rocks found in the bag. CITY OF DODGE CITY V. WIPF STATUTES: K.S.A. 65-4152, -416l(a); K.S.A. 79-5201 FORD DISTRICT COURT -AFFIRMED et seq., -5208, -520l(c) NO. 91,668 -JULY30 , 2004 MOTION TO PUBLISH GRANTED CITY OF TOPEKA V. GRABAUSKA S FACTS: Wipf convicted in municipal court of driving SHAWNEE DISTRICT COURT - REVERSED under the influence. Wipf refused all blood alcohol breath NO. 91,619 - OCTOBER 29, 2004 testing, but requested blood test. Wipf was transported to FACTS: Mollie Grabauskas and her sister were stopped by hospital for blood test, and afterwards asked to call an attor­ police investigating report of runaways. Mollie swore at offi­ ney. On appeal, district court granted Wipf's motion to sup­ cers, refused to identify herself, and sustained broken arm press blood test results, finding Wipf's expressed desire while while being arrested for violation of To peka ordinance in custody to contact an attorney was improperly denied. against interference with city officers and employees. District City of Doge City filed interlocutory appeal. court affirmed Mollie's municipal court conviction for inter­ ISSUE: Suppression of blood test results fe ring with officer in performance of duty. Mollie appealed, HELD: Under facts, all elements in Standish v. Department arguing the police seizure was illegal, and claiming her arrest ofR evenue, 235 Kan. 900 (1984), are met. Although Wipf ini­ was based on constitutionally protected speech. tially refused consent to any blood alcohol testing at police sta­ ISSUES: (1) Stop and detention, and (2) First tion, he later withdrew this blanket refusal at the detention Amendment center by consenting to blood test at hospital. Although HELD: Officers' initial encounter with girls was reasonable K.S.A. 8-1001(h) provides that test selection is to be made by and justified under community caretaking function, which is officer, the officer in chis case acquiesced in and facilitated discussed and extended in this case. Once that function had administration of the blood test. Under plain language of ended, continued contact between girls and officers was volun­ K.S.A. 8-1001(f) (I) construed in Wipf's favor, Wipf had right tary encounter which became a seizure when officer grabbed to consult with attorney after completion of testing. Remedy and attempted to handcuff Mollie. Based on totality of circum­ for violation of K.S.A. 8-1001([)(1) is suppression of the evi­ stances, officers did not possess any reasonable, articulable sus­ dence. District court's decision is affirmed. picion to detain Mollie. Because the detention was unlawful, STATUTES: K.S.A. 8-1001 sections (a), (f)(C), (f)(I), and the conviction is reversed. Hiibel v. Sixth judicial Dist. Court of (h); K.S.A. 1987 Supp. 8-l00l (f)( l)(E)

54 -JANUARY2005 THE JOURNAL OF THE KANSASBAR ASSOCIATION ♦ LAW OFFICES OF Appellate Practice Reminders ... SPETH &KING From the Appellate Court Clerk's Office Suite 230 R.H. Garvey Bldg. 300 West Douglas Statements Concerning Tr anscripts Wichita, KS 67202 One of the items required for docketing is either a copy of a email: [email protected] request for transcript or a statement that no transcript will be ♦ 35% Referral Fees requested. Rule 2.04(e). Occasionally, a third situation occurs: a transcript hasSee been requested and completed prior to the date of ♦ All Expenses Advanced docketing. In that instance, prepare a written statement that the transcript has been completed and include it with your docketing materials. The appellant's brief due date can then be set. ♦ Settlements or Trial Requests forTr anscripts BeforeAppeals are Taken ♦ All types and sizes of cases If a transcript was requested but not completed before a case is appealed, there are two things that an attorney should do to keep the appeal moving fo1ward smoothly. Send a copy of the request fortran­ ♦ Proven track record script along with the other docketing materials as required by Rule of success 2.04(e). inform the court reporter that the request is now for a case on appeal.Also, This helps the court reporter prioritize work. PERSONAL INJURY ♦ If you have any questions about these or other appellate court rules and practices, call the Clerk's Office and ask to speak with WRONGFUL DEATH Jason Oldham, the chief deputy appellate clerk, at (785) 368-7170. (316) 264-3333 ♦ 1-800-266-3345 CLASSIFIED ADVERTISEMENTS POTTAWATOMIE COUNTY ATTORNEY'S PART-TIME ASSISTANT CITY ATTORNEY OFFICE has a full-rime position for an assistant The City of Lenexa is accepting applications for POSITIONS AVAILABLE county attorney. Must have juris doctorate rhe position of part-time assistant city attorney. degree and basic computer and word processing This is a regular, part-rime position involving skills. Salary and duties commensurate approximately 20 - 25 hours per week including A-V RATED, OLDEST AND LARGEST LAW with experience. Qualified applicants may occasional evening hours. The successful appli­ FIRM IN THE MANHATTAN/ send a resume and cover letter to the cant will be licensed to practice law in Kansas JUNCTION CITY area with large, diverse, and Pottawatomie County Attorney's Office, and significant experience in municipal law is growing clientele seeks associate with outstanding P. O. Box 219, 106 Main Sr., Westmoreland, KS preferred. Previous experience in litigation is academic qualifications and at least two years' 66549 (785/457-3511) or at also desirable. The primary responsibility of rhe experience in civil litigation. We seek a lawyer [email protected]. EEOE assistant city attorneywill be to perform general with strong personal and professional credentials legal duties as assigned, as well as occasionally ro work in the firm's expanding litigation prac­ DEPUTY-IN-CHARGE, U.S. BANKRUPTCY assist with municipal court as needed. Wo rk is rice. Excellent opportunity ro practice in a robust COURT, Kansas City, Kan. Overall responsibil­ performed in accordance with the City's mis­ marker with great potential for advancement. ity for the daily operation of the K.C. divisional sion, goals, and organizational values. Excellent Salary negotiable and commensurate with experi­ Clerk's office. Minimum: 3 yrs. progressively verbal, written, and analytical skills are essential. ence. Send resumes ro Vic Davis, Weary Davis responsible administrative, supervisory, or mana­ Demonstrated competence in using PC-based LC., P.O. Box 187, Junction City, KS 6644 1. gerial exp. Prefer: 3 yrs. exp. in court or legal applications such as Microsoft Office is desir­ administration; 4 yrs. exp. in general court oper­ able. Salary range: $2,306.25 to $4,289.65 per Part- to full-rime attorney for To peka office. ations; Bachelor's degree in business, public, or month, depending on number of hours and Cover Douglas, Shawnee, and other KS dockers judicial adm.; office manager of fe deral or state qualificarions. Send cover letter and resume to as well as backup for MO dockers. Chapter 61 court, or law firm. Starting salary: $47, 198- City of Lenexa, Human Resources Department, experience, landlord/tenant, collections, and $91 ,245. Send resume and AO 78 Application 12350 West 87th Sr. Parkway, Lenexa, KS bankruptcy exp. pref. MO/KS Bar. Fax cover (obtained through fax request at 316-269-6181, 662 15-3883. Application deadline: Jan. 14, and resume to (816) 792-1941 or e-mail OR see www.ksb.uscourrs.gov for AO 78 and 2005. EOE. [email protected]. PVA 04-KC-2, which gives derailed job descrip­ tion, qualifications, benefits) to: H.R. Mgr., 401 N. Market, Rm. 167, Wichita, KS 67202. Refer ro PVA 04-KC-2 when applying. Closing dare: (Classifieds continued on page 58) 1/14/05. EOE

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D Young Lawyers...... $10 ► CONCENTRATIONAREAS Members to age 36 or admitted in pastfive )'etl ri ...... '---1 $___ __, - Check ( ✓) up to of concentration chat Total Section Dues Practice Areas THREE AREAS best describes your practice. DEMOGRAPHICS (OPTIONAL) CATEGORY NAME CATEGORY NAME ► This information is very helpful for statistical purposes. Please check: □ Administrative Law □ Insurance Law (Regulatory) D African-American D Anglo-American D Hispanic-American Agricultural Law Intellectual Property Law D American Indian D Asian-American D Physical Disability □ □ (Patent, Trademark & Copyright) Alternative Dispute Resolution KANSASBAR FOUNDATION (OPTIONAL) □ International Law Appellate Practice □ ► 0 Add my tax deductible contribution to the Kansas Bar Foundation: □ Labor & Employment Law Bankruptcy, Insolvency □ _$50 Sustaining Membership _ Other ...... ! $ I □ _Contribution co fund civil legal services for low-in_co_me � & Reorganization Litigation � ___ □ (Commercial & Business) Civil Rights citizens in lieu of pro bono service ...... !�$----�-1 □ Litigation Collections □ (General Civil Practice) (Add subtotalsof sections D, E, & G) .... □ ► TOTAL ENCLOSED ,_1 $______,I □ Construction Law □ Municipal Law □ Consumer Protection Oil, Gas & Mineral Law a!:l 83 � Corp., Business & Banking □ Check# __(made payable co KBA) □ VISA □ MasterCard □ An1. Ex. □ Public Utility Law & ► □ Regulated Industries □ Criminal Law (Prosecution) Credit Card No. ______Exp. Dace ____ Criminal Law (Defense) Real Estate Law □ □ Signature ______□ Criminal Law (Indigent Defense) □ School Law Elder Law Taxation MAILING INFORMATION □ □ Return application to: KBA, P.O. Box 1037, Topeka, KS 66601-1037, Environmental Law Tort & Personal Injury or use your YlSA/MasterCard/American Express and fax to: (785) 234- □ □ 3813. Questions? Call (785) 234-5696. □ Family Law □ Trade & Professional Associations Trust, Estate Planning TAX CONSIDERATIONS General Practice Gifts to the Ka 11sas Bar Fo11ndatio11 are tax deductible as charitable □ □ & Probate Health & Hospital Law co11tributio11s. In compliance with the Omnibus Budget Reco11cili11tion Act of 1993, we esti­ □ Workers' Compensation mate I2 percent of your KBA membership dues are not deductible 1/Sa bwiness expense bec11111e Insurance Law (Litigation) □ they are allocable to lobbying expenditum. Eigh ty-eightp ercent of 2005 membership dues and □ JOO percent of_section membership dues remain 'deductible as a business expeme. Dues are not deductible as charitablecontributiow. CLASSIFIED ADVERTISEMENTS ·

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Tw enty years in Silicon Valley building malpractice, personal injury, product liability, or ment operations of reinsured entities; developing technology businesses. Te n years providing expert workers' compensation litigation, please give strong relationships with reinsurer's customers and witness activities with major law firms. Shari Willis a call at (316) 265-7272. brokers. Position is full-time and requires travel. [email protected] Please send resume in confidence to: Linda www.rJsventures.com (913) 387-0070 Parsons, Wagstaff & Cartmell LLP,4740 Grand REAL ESTATE FOR SALE Ave. Suite 300, Kansas City, MO. 641 12. EXPERT WITNESS - MANUFACTURING, PACKAGING, ENGINEERING. Product liabil­ ity covering pharmaceuticals, foods, medical 28 M/L ROLLING ACRES in Leavenworth ATTORNEY SERV ICES devices, and industrial products. Product/package County. Hwy frontage. Gorgeous building site. design and development, fe deral agencies policies Wa ter meter available. Only 20 minute drive to and standards, environmental hazards. Conatech Fort Leavenworth - all paved roads. Less rhan Consulting Group Inc., 287 N. Lindbergh Blvd., 40 miles to Lawrence. Wo uld make a great Suite 208, Creve Coeur, MO 63 141-7849. investment. $99,000 by owner. Call MEDICAL CASE REVIEW Phone: (314) 995-9767, Fax: (3 14) 995-9766. (9 13) 727-1803. LITIGAT ION PREPA RATION Looking for a firm oflegal nurse consultants who stand apart from the rest and give you _s_ EA R_ c_ H_ I_N_F _o_RMA:__ m_r_N__ ...... _ _o_F _F_1_c E S_rA_ c_ k_-y, _J\I_L ABL_ ...__ R E the winning advantage? Experience in _ _ _E __ E_ __.I I multiple specialties -Active in clinical arenas. AUTHOR RESEARCHING KANSAS PROFESSIONAL OVERLAND PARK OFFICE SUITES avail­ LEGAL HISTORY fo r book coveri ng the HEALT HCARE SOLUTIONS able immediately. Sizes range from 16.6 x I 1.7 period from 1854 to I 96 l. Interested in identi­ (405) 323-8565 to 4.5 x 7.5. Rents start at $400, conference fying and locating sources and materials related room, kitchen, telephones, and full-time recep­ to che topic. Persons with materials, informa­ tionist. Call Sherry at (913) 385-7990, ext 303. tion, or suggestions can e-mail Bob Parnacoct at [email protected]. EXPERIENCED ATTORNEY with excellent STATE CAPITOL VIEW, AVAILABLE imme­ legal research and writing skills is available to diately in high traffic To peka location. Large assist overworked solo practitioners and small first-floor office space for lease, off-street park­ firms. I provide prompt, professional service at ing, central reception area, $300 per mo. Te l., KBA Classifieds: reasonable rates. References are available copier, fa x, reception negotiable. Referrals possi­ upon request. Please contact Shelley ble. Contact Susan Barker Andrews at (785) Schiebel Patterson at 816-204-7949 or 234-0600 or Bruce C. Harrington at (785) 234- A great way to [email protected]. 0040 for private showing. get the word out to your fellow ELECTRONIC CASE FILING ASSISTANCE NEW STATE-OF-THE-ART professional KBA members about position Electroni c filing is now mandatory in office suites in prime Overland Park location openings, items fo r sale, offi ce Bankruptcy Court. We can help you keep your near I 19th Srreer & Metcalf. Suites range from Issuespace and other services.D eadlines clients regardless of your electronic filing capa­ 102 ro 210 sq. ft. Cusrom-sized suites and bility. ECF provides electronic case filing serv­ virtual sui tes also available. Occupancy ices, software, hardware, and training solutions. February/March 2005. Services will include: February ...... January 5 Call ECF (3 16) 262-8098. Ask for Liz or Eric. conference rooms, WI-FI, high-speed Internet, March ...... February 4 voicemail, copier, fax, scanner, reception/phone OVERWHELMED WITH RESEARCH/ answering, secretarial support, janitorial services, April ...... March 4 WRITING WORK? Lee me help! Experienced and private parking. For additional information May ...... April 5 attorney is available for research/writing assign­ call Kelly at (913) 68 1-3335 or e-mail to June ...... May 6 men ts. Visi t www.anglinlawoffice.com and [email protected]. contact Stephanie Anglin at (913) 484-3 174 or July/August ...... June 7 [email protected]. September ...... August 2 FOR SALE October ...... September 2 FO RMER 8TH CIRCUIT COURT OF APPEALS law clerk with 16 years of appellate November/December ...Oct ober 4 litigation experience is available for January 2006 ...... December 7 appellate referrals or consultation. Contact THE LAWBOOK EXCHANGE, LTD. Thomas Sheehan at (9 13) 461-3648 or buys, sells, and appraises all major lawbook sets. [email protected]. Also, antiquarian, scholarly. Reprints of legal classics. Catalogues issued in print and online. Mastercard, VJSA & AmEx. To place a classified ad, which (800) 422-6686; fax: (732) 382-1887; www.lawbookexchange.com. is free fo r KBA members, call (785) 234-5696 or visit www.ksbar.org 58 - JANUARY2005 THEJOUR NAL OF THEKANSAS BAR ASSOCIAT ION CLE Docket 2005 JANUARY JANUARY 1 21 Government Law 2 3 4 5 6 7 8 Capitol Plaza Hotel, Topeka 6 CLE credit hours, including 1 hour professional 14 15 9 10 11 12 13 responsibility credit 16 17 18 19 20 21 22 23 24 25 26 27 28 29 28 DUI 30 31 Marriott, Wichita 6 CLE credit hours, including 1 hour professional FEBRUARY responsibility credit 1 2 3 4 5 FEBRUARY 6 7 8 9 10 11 12 9 and 10 Annual CLE Slam Dunk! 13 14 15 16 17 18 19 KSU, Manhattan 20 21 22 23 24 25 26 12 CLE credit hours, including 2 hours 27 28 professional responsibility credit

MARCH 11 Juvenile Law Hyatt Regency, Wichita 1 2 3 4 5 6 CLE credit hours, including 1 hour professional 6 7 8 9 10 11 12 responsibility credit 13 14 15 16 17 18 19 20 21 22 23 24 25 26 18 Estate Planning 27 28 29 30 31 Capitol Plaza Hotel, Topeka 6 CLE credit hours, including 1 hour professional responsibility credit

25 Family Law Institute Airport Hilton, Wichita 6 CLE credit hours, including 1 hour professional responsibility credit

KANSAS BAR MARCH ASSOCIATION 4 Bankruptcy Institute Doubletree, Overland Park KBA Continuing Legal Education: 6 CLE credit hours, including 1 hour professional Your partner in practice! responsibility credit For more information, or to register online, visit: 11 Heart of America Health Law Institute Embassy Suite on the Plaza, Kansas City www.ksbar.org 6 CLE credit hours, including 1 hour professional responsibility credit

18 Evidence Ritz Charles, Overland Park 6 CLE credit hours, including 1 hour professional responsibility credit