24 | Pardon Me, May I . . . ? Consent Searches in Kansas By Colin D. Wood

Cover layout & design by Ryan Purcell, [email protected]

10 | The KBA and KBF: Working Together 20 | The Svobodas of Lawrence By Kathy Kirk One Family’s Convergence of Fate, History, and Heroism 10 | Mock Trial Provides a Unique Learning By Matthew D. Keenan Opportunity for Kansas Students 23 | 2014 Outstanding Speaker Recognition 12 | A Stigma Within Our Profession

Regular Features 6 | KBA President 18 | Law Students’ Corner By Dennis D. Depew By Jake McMillian 8 | YLS President 19 | Members in the News By Jeffrey W. Gettler 19 | Obituaries 9 | The Diversity Corner By Jacqlene Nance 31 | Appellate Decisions 15 | Law Practice Management Tips & Tricks 32 | Appellate Practice Reminders By Larry N. Zimmerman 38 | Classified Advertisements 16 | Substance & Style By Chelsi Hayden E Let your VOICE be TH 2013-14 Heard! KBA Officers & Board of Governors President JOURNAL Dennis D. Depew, [email protected] OF THE KANSAS BAR ASSOCIATION President-Elect Gerald L. Green, [email protected] Vice President 2013-14 Natalie Haag, [email protected] Journal Board of Editors Secretary-Treasurer Stephen N. Six, [email protected] Richard D. Ralls, chair, [email protected] Terri Savely Bezek, BOG liaison, [email protected] Immediate Past President Lee M. Smithyman, [email protected] Joan M. Bowen, [email protected] Hon. David E. Bruns, [email protected] Young Lawyers Section President Jeffrey W. Gettler, [email protected] Boyd A. Byers, [email protected] District 1 Toby J. Crouse, [email protected] Toby J. Crouse, [email protected] Emily Grant, [email protected] Gregory P. Goheen, [email protected] Connie S. Hamilton, [email protected] Mira Mdivani, [email protected] Katharine J. Jackson, [email protected] Jennifer K. Vath, [email protected] Michael T. Jilka, [email protected] District 2 Lisa R. Jones, [email protected] Charles E. Branson, [email protected] Hon. Sally D. Pokorny, [email protected] Hon. Janice Miller Karlin, [email protected] Casey R. Law, [email protected] District 3 Eric L. Rosenblad, [email protected] Julene L. Miller, [email protected] District 4 Hon. Robert E. Nugent, [email protected] Brian L. Williams, [email protected] Professor John C. Peck, [email protected] District 5 Rachael K. Pirner, [email protected] Terri S. Bezek, [email protected] Karen Renwick, [email protected] Cheryl L. Whelan, [email protected] Teresa M. Schreffler, [email protected] District 6 Richard H. Seaton Sr., [email protected] Bruce W. Kent, [email protected] Sarah B. Shattuck, [email protected] District 7 Richard D. Smith, [email protected] Matthew C. Hesse, [email protected] Marty M. Snyder, [email protected] J. Michael Kennalley, [email protected] Calvin D. Rider, [email protected] Matthew A. Spurgin, [email protected] Catherine A. Walter, [email protected] District 8 John B. Swearer, [email protected] Beth A. Warrington, staff liaison, [email protected] Issaku Yamaashi, [email protected] District 9 David J. Rebein, [email protected] The Journal Board of Editors is responsible for the selection and editing of District 10 all substantive legal articles that appear in The Journal of the Kansas Bar Jeffery A. Mason, [email protected] Association. The board reviews all article submissions during its quarterly District 11 meetings (January, April, July, and October). If an attorney would like to Nancy Morales Gonzalez, [email protected] submit an article for consideration, please send a draft or outline to Beth Warrington, communication services director, at [email protected]. District 12 William E. Quick, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Christi L. Bright, [email protected] monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., KDJA Representative and at additional mailing offices. The Journal of the Kansas Bar Association Hon. Thomas E. Foster, [email protected] is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KBA Delegate to ABA KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member Linda S. Parks, [email protected] subscription is $25 a year, which is included in annual dues. Nonmember Rachael K. Pirner, [email protected] subscription rate is $45 a year. ABA Board of Governors The Kansas Bar Association and the members of the Board of Editors assume Thomas A. Hamill, [email protected] no responsibility for any opinion or statement of fact in the substantive ABA State Delegate legal articles published in The Journal of the Kansas Bar Association. Hon. Christel E. Marquardt, [email protected] Copyright © 2014 Kansas Bar Association, Topeka, Kan. Executive Director For display advertising information contact Bill Spillman at (877) 878-3260 Jordan E. Yochim, [email protected] or email [email protected]. For classified advertising information contact Beth Warrington at (785) 234- Our Mission 5696 or email [email protected]. Publication of advertisements is not to be deemed an endorsement of any The Kansas Bar Association is dedicated to advancing the professionalism product or service advertised unless otherwise indicated. and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public POSTMASTER: Send address changes to The Journal of the Kansas Bar understanding of the law, and promoting the effective administration of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. our system of justice.

4 The Journal of the Kansas Bar Association KBA Solo and Small Firm Conference May 9-10, 2014 • Hilton Garden Inn Conference Center • Manhattan, Kan.

REGISTER ONLINE http://www.ksbar.org/event/2014SoloandSmall

JOIN US FOR . . . • Conference Programs and Plenaries Sessions will cover topics, such as The Future of Law Practice, The Secrets of Client Satisfaction, Document Assembly, 50 tips in 50 minutes, Tips and Tools for Research on Casemaker, and Storyboarding at Trial. Breakout sessions will include substantive law updates on areas, such as Family Law, Criminal Law, and Immigration Law, just to name a few! (Earn up to 12 hours of CLE) • Taste of Manhattan Pre-Conference Dinner For those who arrive at the conference on Thursday and want to relax and enjoy dinner with their colleagues. (Not included in registration fee) • Welcome Reception Meet and greet our special guest presenter Jim Calloway and enjoy a social hour with your colleagues and vendors. • Networking Lunch Grab a bite to eat before heading off to your next CLE program. • Tech Solutions Room Have questions about how to create an electronic email signature? Or maybe you want to know how to do something on your new tech device. Stop by the tech solutions room and we can provide answers.

Jim Calloway is the Director of the Oklahoma Bar Association Management Assistance Program. He received his Juris Doctorate from the University of Oklahoma, where he was named to the Oklahoma Law Review. He publishes the award-winning law blog Jim Calloway’s Law Practice Tips at http://jimcalloway.typepad.com and has served as co-author of three American Bar Association books on law practice management, How Good Lawyers Survive Bad Times (with Ross Kodner and Sharon Nelson) and Winning Alternatives to the Billable Hour: Strategies That Work, Second and Third Editions (with Mark Robertson).

Calloway is a member of the American Bar Association. He is an active member of the ABA Law Practice Management Section, has served on numerous section committees and previously served for six years on the ABA LPM Section Council. He is a member of the LPM Section’s Law Practice Magazine editorial board. He is also an active member of the ABA’s General Practice, Solo and Small Firm Division, where he serves on the Technology Committee and Technology & Practice Guide Editorial Board.

Calloway has made hundreds of presentations on law office management, legal technology, ethics and legal business operations and has been inducted as a Fellow of the College of Law Practice Management. Before taking his present position with the OBA, he was in private practice for approximately 16 years in south Oklahoma City and Norman, Okla. He is a former president of the Cleveland County (Oklahoma) Bar Association.

A Special Thanks to Our Platinum Sponsor kba president In Defense of Court Reporters s I write this column, there is a move afoot in the Kan- and a ruling from the judge on the objection. Four sas House to begin the process of eliminating court people are talking at once. How is an electronic re- Areporters in the courtrooms of Kansas. In times when cording system possibly going to sort out who is say- there constantly seem to be more needs than money, proposals ing what? With a court reporter present, he or she like this, which a few years ago would have been unthinkable, can bring the proceedings to a halt and take the time now seem to be gaining traction. The Kansas Supreme Court’s to clarify what each of the four people speaking at the own Blue Ribbon Commission and its more recent Court same time said. Budget Advisory Council have both broached this topic as well in recent years as a potential cost savings idea. 2. A hearing begins and continues until the morning I remember as a child going to court with my dad from time break. As the court breaks, the judge notices that the to time during the summer months when school was not in high tech digital recording system didn’t get turned session. It was always fun and, at times, very entertaining. I got on, didn’t have sufficient disc space to record every- to meet all sorts of interesting people, including other lawyers, thing, or didn’t work for some other reason. Both judges, law enforcement officers, court clerks, and a number opening statements and the first several witnesses of court reporters. I can remember Dad telling me how im- have not been recorded. Does the judge go back and portant it was to maintain a good relationship with all of those restart the proceeding or just move on without the people, regardless of whether your case turned out like you record? With a court reporter present, any electronic and your client wanted it to, because it was those people that malfunction would have been noticed immediately made the legal system work. Over the years, Dad and then my and the proceedings stopped until the malfunction brother and I have continued those efforts to be friendly and was corrected. to have not only a good relationship with but also to show the proper respect to everyone who is a part of the court system in 3. During a hearing, there is a question by counsel that both state and federal courts in which we appear. has embedded in it about 3 or 4 different questions I remember being especially enthralled with the court re- or is so long that by the end of the question the wit- porters. It was amazing to me how they could punch the but- ness cannot remember what the question really is. tons on that little machine and produce that long white paper The witness asks for the question to be repeated and tape that only they could read. Even more amazing was how it was so long and convoluted that the attorney who they could translate that paper tape into a full blown tran- asked cannot remember exactly what he or she asked. script of everything that was said in court in just a matter of How does that work with a digital recording system? days if a transcript was needed for any reason. I was in awe of With a court reporter present, all the court has to the magic powers of the court reporters. do is simply ask that the question be read back. The Today, the equipment used by court reporters has gone high same scenario can apply to an especially long and tech and paperless. While some reporters still use equipment convoluted answer by a witness. that generates the paper tape, most have gone to the elec- 4. The court takes under advisement a ruling on a case tronic paperless models that can be connected to a computer that took two days to try. There are lots of conflicting for transcription. Many reporters also use digital recorders to numbers and testimony. Several weeks later, as the simultaneously voice record while they still push those but- judge is working on the opinion, he or she decides tons on their machines. Many courts have added electronic that a partial transcript would be helpful. Someone recording equipment as a backup for when real court report- has to find the recorded hearing on the hard drive, ers are not available. Some of that equipment is the latest digi- figure out what part the judge needs, then make ar- tal type, but there are probably still some courtrooms around rangements for someone to come in and type that that use a magnetic tape system. For all court recording sys- part of the hearing up for him or her. What a hassle! tems, everyone who speaks has to make sure they are near a When the court’s regular reporter has transcribed the microphone at all times. hearing, all the judge has to do is ask the reporter to Those who support the elimination of court reporters tout type up the testimony of John Doe and that written how much less expensive the electronic recording systems are information can be in hand within a short period of and how good they are with modern digital technology. While time. With that written record before the court, the the technology has certainly improved, it cannot and never resulting opinion can be accurate and based on ex- will be able to fully replace the court reporter as far as I am actly what took place. concerned. Let me give a few examples: 5. A multiple-day trial takes place, and after a ruling an 1. I am in a hotly contested domestic trial. The witness- appeal is filed. When the request for transcript comes es are hostile toward each other and the examination in, the digital recording is found and it is discovered is tough. Spouse A is on the stand and engaged in a that the defense counsel’s microphone was inoperable combative cross examination by spouse B’s attorney. for some reason. How is an appellate court supposed There is a question, an objection, a witness response, to determine what took place if it has no record of 6 The Journal of the Kansas Bar Association kba president

what was said by defense counsel? There was recently About the President a decision by the Kansas Supreme Court to order a new trial in a criminal case for the primary reason Dennis D. Depew is an attorney with the Depew Law Firm in Neodesha. He currently serves as that a complete record was not made at the trial level. president of the Kansas Bar Association. The court was not able to decide the case because there was not a sufficient record to do so. [email protected] (620) 325-2626 All of the examples I have set out above have happened in Kansas. Some of these events occur on a daily basis in the courts of Kansas. We need court reporters to ensure the ac- curate and cost effective delivery of justice in Kansas. While I love modern technology and the ability to control my home theater from my iPad, I still have to decide what I want to hear or see and in what order. In court, modern technology can be a wonderful aid to the court and its participants. It will not, however, until there is significantly more advancement made, replace a real, live court reporter and the incredibly valuable service to justice that only a court reporter can provide. n

www.ksbar.org | April 2014 7 yls president Decisions, Decisions and Opinions, Opinions he past couple of months have been permeated by re- There are some areas in which very little discussion was need- flections on my part. However, as I have been reflective ed. The new conference room would, of course, need to have a Tin my writings, my partners and I have been making flat screen television mounted on the wall. After all, it is a new changes and moving toward the future in the expansion and era of video conferencing and Skyping. There is also the small remodeling of our office space. I believe we have handled it matter of March Madness, which starts on a weekday during fairly well, but we are just now completing phase one of a regular business hours. The conference room would also need three-phase process! to have small area in which to prepare coffee and beverages for Last fall we anticipated a project that would be completed clients and visiting attorneys while taking all day depositions toward the first part of the year. It is now three months into the and/or after-hours partnership meetings. The first things pur- new year and, as I said, we’re just about done with phase one. chased for the conference room were the mini-fridge and cabi- Enough said on the speed of the project. netry to hold the glasses and other incidentals required for just While exciting, this process has brought some unforeseen such meetings. We are still awaiting the arrival of the table and challenges. I now understand the many comments married chairs that took two months to agree upon. couples have made when discussing the stresses on marriages With the completion of phase one closing in, we will have to while in the midst of a major remodeling and/or building begin looking at wall decor and the other small nuances that project. pull a project together. We will then move employees into that While a marriage involves a couple, our firm involves four phase while work continues hard core in phases two and three. partners, four styles, four opinions. And who would have More decisions, more opinions. thought that one of the partners also happens to be an aspiring The result of this project is yet to be seen, but to date I have interior decorator. Yes, I’m talking about you, Dan. made some astute observations. Throughout the process, alli- We have made a lot of decisions. There was the flooring. ances have been formed. Alliances between partners to get a Wood-look, laminate, carpet, tile, entryway tile pattern, etc. Of majority vote on their preferred choice of wall treatment, crown course, in order to put down the new flooring, the old flooring molding, window trim, etc. Groveling has been exhibited a had to be removed. Imagine trying to speak on the phone or time or two. Whining has ensued from time to time. Anger has entertain clients in your office while workmen are using a ham- risen its ugly head, thankfully, very infrequently. It is almost like mer and chisel to remove tile from a cement floor that had been “Survivor” at times, only there is no million dollars at the end in place for the last 35+ years! The tile did not want to removed. and no one is getting voted out, I hope! It was loud! It took two full days. Lots of aspirin were consumed In all seriousness, thankfully, we are attorneys. Thankfully, by all employees. Best part of the day was when the workers we are very good mediators and have all learned valuable les- took their lunch break. sons in knowing which battles to fight and which battles to Other decisions involve colors. Paint colors, wood colors, concede. I predict the finished project will be fabulous and we chair colors, counter top colors, fixture colors, etc. Those are will all cohabit these offices for many years to come until some not small decisions. Based on the fact that most of the colors in new, fresh, young blood will move in and say, “You last remod- our current office space have been in place for at least the past eled this office WHEN???” When that time comes, I will know 10 to 15 years, the idea that what is being put into place will what to expect and will form my alliances early. I’m willing to be there for the next 10 to 15 years makes the decisions even concede on paint colors and fixtures, but the flat screen for more daunting. March Madness,* I mean video conferencing, stays. The tribe Some of the hardest decisions are what to keep and what to has spoken. n replace. Do we keep the mismatched filing cabinets or purchase new ones so they all match? Do we build shelving for office sup- About the YLS President plies or use the old gray metal shelves from the back room? Do Jeffrey W. Gettler is a partner at the Independence we keep the brick walls or cover them with sheetrock to help law firm of Emert, Chubb & Gettler LLC. He is also with utility costs and assist with sound issues? Decisions, deci- the prosecutor for the City of Independence. sions. Opinions, opinions. [email protected]

* By the time this issue reaches your desk, the 2014 NCAA Tournament Champions will be known. I hope I don’t alienate too many readers by hoping it is KU. Rock chalk, Jayhawk! 8 The Journal of the Kansas Bar Association the diversity corner Career Crossroads: An Upcoming Event for Transitioning Attorneys n April 10, 2014, the KBA Diversity Committee will than spending time getting over the awkwardness that can be host a speed networking event named Career Cross- present at non structured networking events. roads. This is a speed networking event where sea- Last year the experienced attorneys were: Tama Aga, Kath- O 1 soned attorneys are paired with attorneys who have two to five erine Bailes, Mary Beth Blake, Kelly Connor Wilson, Mari- years of legal experience. Each pair will be given 10 minutes to lyn Harp, Stan Hazlett, Janet Jackson, Amber Jeffers, Rico network on a one-on-one basis. Kolster, Judge Patrick McAnany, Mira Mdivani, Chief Jus- Last year I had the good fortune to attend this event. Dur- tice Lawton Nuss, Joyce Rosenberg, Rand Simmons, Judge ing the event I was able to have personal conversations with Linda Trigg, Amy Walters, and Lisa Westergaard. The KBA eight experienced attorneys who represented a wide variety of Diversity Committee is grateful for the support and encour- practice areas. I found that the one on one format allowed me agement that all of those attorneys provided. Their willingness to have meaningful conversations with experienced attorneys and commitment to volunteerism is a true reflection of their without vying for space and attention. dedication to the profession. The event ended with an open networking period in which We are looking for both experienced and new attorneys to the newer attorneys could mingle with non-assigned seasoned participate! The event will be held on April 10 from 5:30 p.m. attorneys, continue their previous conversations with assigned – 7:30 p.m. at the Wichita Bar Association, 225 N. Market, seasoned attorneys, or network with the other participants Wichita, KS. n and create connections for the future. I truly appreciated the materials provided to me prior to the About the Author event. I was given information about the experienced attor- Jacqlene Nance is an immigration services officer neys I would meet, which allowed me time to prepare ques- for the USCIS. Previously, she was the director of tions tailored to their interests, career paths, and practice ar- admissions and scholarships for the University of eas. I feel that my time at this event was very well spent. Each Kansas School of Law and the associate director of of the experienced attorneys received my resume in advance, admissions for the University of Connecticut School allowing both of us to have focused conversations on my ca- of Law. Nance is a member of the KBA Diversity reer path and possibly transitioning into the next phase rather Committee. [email protected]

Footnote 1. Kelly Connor Wilson passed away on February 12, 2014. She spent her career dedicated to assisting young attorneys in the profession, repre- senting clients who may not have otherwise had access to the legal justice system and taking on leadership roles in various bar associations at both the local and national level, including being past president of the Jackson County Bar Association and current Region VIII director of the National Bar Association. She leaves behind a husband, young son, and a host of family, friends, and colleagues. Kelly was a true inspiration to everyone she came in contact and will be deeply missed.

Bruce Nystrom, PhD Licensed Psychologist

River Park Psychology Consultants, LLC www.riverparkpsych.com 727 N. Waco, Suite 320 Wichita, KS 67203

telephone: (316) 616-0260 • fax: (316) 616-0264

www.ksbar.org | April 2014 9 kansas bar foundation The KBA and KBF: Working Together • Advance the profession and enhance the role of law- phlets, scholarships, and stipends are all managed by the KBF yers in society with the goal of enhancing our image as lawyers, educating • Promote the interests of the legal profession the public, and giving through pooled resources. • Provide services to members Belonging to the KBA does not automatically make you a • Encourage public understanding of the law member of the KBF. Being a member is easy. A quick click on • Promote administration of our justice system the KBA website will lead you to the link for KBF. A few more • Fund charitable and educational projects which foster clicks and you are where you need to be to become a vital part the welfare, honor, and integrity of the legal system of the giving effort. Please consider joining the foundation in order to strengthen our outreach. ounded in 1957, a little more than 70 years after the Your Support Can Make a Difference! n bar association was founded, the Kansas Bar Foundation Fwas established in order to support the KBA’s physical About the KBF President presence as well as the members’ desire to have a charitable and philanthropic arm. In addition to owning the building Kathy Kirk has been involved in bar and foundation and managing a variety of scholarship funds, the KBF admin- activities for many years. Prior to being in small firm practice with the Law Offices of Jerry K. Levy isters the Kansas IOLTA program which supports programs P.A., she served as the first ADR coordinator for the that provide access to the legal system for low-income Kan- Kansas Supreme Court. Kirk is currently president sans and advocacy for the abused. The KBF is our public ad- of the Kansas Bar Foundation and treasurer of the dress system. Moot court, mock trials, educational materials Kansas Association for Justice. for teachers, training for advocates, public information pam- [email protected]

Mock Trial Provides a Unique Learning Opportunity for Kansas Students he Kansas Mock Trial program is part of the National Mock Trial program that was designed to provide stu- Tdents with an insider’s look at the legal process and first- hand knowledge of courtroom procedures. Students develop useful questioning, critical thinking, and oral advocacy sills as they prepare for competition. The Kansas Mock Trial regional competition took place in Wichita and Olathe on March 1. A total of 26 teams and 190 students participated. This year’s case is a criminal case that was originally prepared by the Hon. Earl Ray Neal, of the 25th District Court in Kentucky, for use in Kentucky’s 2012 mock trial competition. It was adapted for use in Kansas by Shawn Yancy, mock trial coordinator. “Picking a case, as it turned out, was not as simple as I’d hoped, nor was attempting to adapt it to be gender neutral and Kansas relevant. This one was adapted to have taken place in Coaches and students worked with a new set of Kansas Topeka using real locations and real addresses that you could, Mock Trial Rules. Over the years the rules had been adapted for example, find on Google Maps,” explained Yancy. “The but it was clear that a new set of rules specific to the Kansas case involves a couple who met and then split up, including a program were needed. In 2013, KBA Young Lawyers Section restraining order. The couple is the defendant, a retired police members Shawn Yancy, Brooks Severson, Jennifer Michaels, officer, and the victim, the defendant’s significant other, and and Scott Gordon worked together to create the new rules. includes witnesses who are family, friends, and coworkers of History of Mock Trial and the KBA the parties. It is relatively straight forward, but includes some unique elements that have gotten positive feedback from the This year marks the 18th year of the KBA Mock Trial pro- teams.” gram. In 1996, the KBA’s Public Committee, in cooperation with the Kansas Supreme Court, formed the Law and Citizen- The Mock Trial Competition receives funding from the Kansas ship Project to sponsor the first two Kansas mock trial com- Bar Foundation, American Bar Foundation, and Shook, Hardy petitions in 1996 and 1997. To encourage the development & Bacon LLP. of the program, the Public Committee sought and received the assistance of the KBA YLS in 1997. Currently, the YLS 10 The Journal of the Kansas Bar Association kansas bar foundation

is the primary organizer of the competition. The competition relies primarily on the support of numerous volunteers. This year, more than 40 volunteers gave a combined total of approximately 320 hours to serve as judges. ... serving the citizens of Kansas and the Teachers/coaches work through- legal profession through funding chari- table and educational projects that foster out the year to prepare their the welfare, honor, and integrity of the students for competition. Each legal system by improving its accessibility, fall, high schools create teams of equality, and uniformity, and by enhanc- ing public opinion of the role of lawyers at least six students and are pro- in our society. vided with the case materials. In

OFFICERS the spring, all teams participate in one of two regional competitions in at least fered me. It’s a unique experience that provides Katherine L. Kirk Lawrence a courtroom atmosphere and highly respected President two rounds of competition, both prosecuting [email protected] and defending the case. Each team consists of judges to give people a great idea of whether or Edward J. Nazar Wichita three student attorneys and three student wit- not law should be a part of their future career President-elect exploration. I left Mock Trial with an in depth [email protected] nesses. The top teams at each of the two regional tournaments compete at the state tournament. knowledge of how a court case operates and Laura L. Ice Wichita skills that transferred to my debate career and Secretary-Treasurer The top Kansas team then travels to the national [email protected] competition. my everyday life. I would highly recommend Joni J. Franklin Wichita The popularity of this program was described the Kansas Mock Trial program to every high Immediate Past President school.” [email protected] well by 2012 and 2013 participant, Zach Hills, of Blue Valley West High School. He is now a Recognition BOARD OF TRUSTEES member of the University of Kansas debate team. John C. Brown Hays After the final rounds of competition at each Amy Fellows Cline Wichita “Mock Trial is one of the most important Melissa D. Skelton Topeka and worthwhile events that my high school of- of the regional tournaments, an awards ceremo­ Gregory P. Goheen Kansas City, Kan. ny was held to recognize outstanding students James L. Hargrove El Dorado Scott M. Hill Wichita and teams, and to announce which teams that Aaron L. Kite Dodge City will go on to compete at the state tournament. Charles D. Lee Hutchinson Congratulations for the following schools Hon. Kurtis I. Loy Pittsburg for advancing to the State competition: Rec­ognition for outstanding mock attorneys Amy E. Morgan Overland Park and outstanding student witnesses are awarded; David H. Moses Wichita • Blue Valley Northwest High School in addition, team rankings are also announced. C. David Newbery Topeka Susan G. Saidian Wichita • Shawnee Mission East High School All teams are encouraged to attend the awards Todd N. Thompson Lawrence • Washburn Rural High School cer­emony to support the competitors. This year, Kenneth W. Wasserman Salina • Sunrise Christian Academy Hon. Evelyn Z. Wilson Topeka six teams advanced to the state tournament on • The Independent School March 28-29. The winner will advance to Na- Brooks G. Severson Wichita • Northeast Magnet High School Young Lawyers Representative tionals, which is being held in Madison, Wis., Margaret A. Farley Lawrence this May. n Kansas Association for Justice Representative Patrice Petersen-Klein Topeka Kansas Women Attorneys Association Representative Nathan D. Leadstrom Topeka Kansas Association of Defense Counsel Representative Sara S. Beezley Girard Give a Hand Up to Kansas Bar Association Representative Bruce W. Kent Manhattan Those in Need Kansas Bar Association Representative Timothy M. O’Brien Kansas City, Kan. Kansas Bar Association • Help is needed to provide pro bono legal • KLS may be able to help with Representative services to low-income Kansans; ALL extraordinary litigation expenses when EXECUTIVE DIRECTOR areas of practice are needed. the interests of justice require it. Jordan E. Yochim Topeka [email protected] • No potential clients will be given your • For more information or to volunteer, MANAGER, PUBLIC SERVICES name without approval and all will be contact the Kansas Bar Association at Anne Woods Topeka screened for financial eligibility through (785) 234-5696 or at [email protected]. [email protected] Kansas Legal Services.

www.ksbar.org | April 2014 11 kansas lawyers assistance program A Stigma Within Our Profession By Anonymous very generation has its causes. Through public discourse, in the heat of the battle. So we deny we have a problem. We we as a society attempt to challenge long held biases and refuse to seek treatment. And as with any medical condition, Eignorance. Lawyers have proudly played significant roles the longer it is left untreated the worse it becomes. in the fight for the rights of the oppressed. As noble as that Looking back, I exhibited early symptoms as a teenager. It role may be, no one is without bias – including lawyers. wasn’t until college that the symptoms became bad enough When you think about people with mental illness, do you that I recognized something was wrong. I would slip into conjure images in your mind of senseless mass shootings in depressions which lasted for weeks. Barely able to get out of Arizona, Colorado, Connecticut, and Virginia? Or do you bed, I struggled to keep up with classes. Those down phases think of those homeless individuals, unwashed and living un- were followed by hyper-vigilant, productive periods when I der the bridges downtown? While these images are one face excelled, needed no sleep and could produce mass volumes of of mental illness, in fact the vast majority of violent crimes high quality work in very short periods of time. Most of the are committed by people who do not have any mental illness. time I tried to control the swing of my emotions by shutting And only 4 percent of the mentally ill are homeless at any down all emotions altogether. I simply tried to stop feeling given time. Thus, 96 percent of those with mental illness are – no happy, no sad. It was only when my brain swept me to living among us – mostly unidentified. one of my two extremes that everything I had been repressing We as lawyers are not immune from mental illness. I am a broke free. This roller coaster lasted for years, through law trial attorney who has practiced law for more than 25 years. I school and into the beginning of my career. It impacted me stand in front of judges and juries and plead my clients’ cases. as an attorney, wife and mother. It became harder and harder I work long hours in high pressure situations. I am a partner to hide the debilitating depressions. I was missing work and in my firm and an active volunteer in the city. I am married struggling when I was there. When I reached the point I was with children. And I have a mental illness. suicidal (the first of what was to be several visits to that edge), I am not alone. In fact, lawyers as a profession may be more I finally sought treatment. prone to mental illness. The ABA estimates that the rate of The practice of medicine is often trial and error and that is mental illness and alcohol or drug addiction among lawyers never as true as it is in the treatment of mental illness. I was is more than double the rate found in the general popula- originally diagnosed with depression. I saw various doctors tion. According to a Johns Hopkins University study of more and tried a multitude of medications for years. Every time my than 100 occupations, lawyers lead the nation with the high- depression seemed to be under control, I felt the roller coaster est incidence of depression. Significantly, lawyers also have the begin to slip again. I was 40 years old before I was properly highest rate of suicide among all professions. diagnosed with Bipolar II. That diagnosis scared the hell out So if our preconceived beliefs about mental illness are of me. I was only familiar with Bipolar I, which used to be wrong, then what is the truth? Mental health is quite simply known as manic-depressive disorder. While both Bipolar I the health of your brain, just as cardiac health is the health of and II are roller coasters, the rides are different. Generally, the your heart. Mental illness is often caused by an imbalance of highs are higher with Bipolar I but the lows are lower with Bi- chemicals in the brain which impact thoughts and therefore polar II. On the high side, Bipolar II has hypo-manias, instead behavior. Just as a diabetic needs daily medications to control of the extreme manic phases of Bipolar I. My hypo-manias their blood sugars, those with mental illness often need daily were my hyper-vigilant, productive periods. I had long held medications to balance those brain chemicals. Environmen- onto the belief that if I could just find the right medications tal stressors often complicate the efforts to find that balance. to control my depressions, I could be that hyper-productive Sometimes treatment means medications alone, sometimes person all the time. The perfect lawyer, right? Now I had to it’s talking with a professional, exercise, diet and/or a combi- accept that in order to stabilize the roller coaster and eliminate nation of the above. For some people, mental illness is a short the depressions I was going to have to also give up those highs. term condition that can be resolved with appropriate treat- That was crushing in itself. ment. For others, like myself, it is a lifetime condition. I am happy to say that in the years since my “correct” diag- The higher incidence of mental illness among lawyers can in nosis and the change to appropriate medications, my symp- part be attributed to the stress of our jobs. It is also attributable toms have remained relatively stable. I take pills each morn- to the fact that the personalities who are drawn to the rigors of ing, every evening, and in response to certain symptoms in the law are by those same characteristics more susceptible to between. I see my psychiatrist at least every three months and mental health issues. But the overriding aggravating factor is more often if needed. I also see a counselor regularly. My med- that the stigma of having a mental illness which exists in our icine cabinet looks like a pharmacy, but I generally feel good. society generally is exponentially worse in the legal profession. I am even able to allow myself to feel emotions – I genuinely We as lawyers don’t admit weakness and we don’t admit we feel joy for the first time in my life. need help. We fear that if it became known that we had a con- And through it all, no one I worked with knew a thing. Even dition which is so misunderstood and stigmatized, our clients now, I remain in the closet. I have great friends in this profes- and partners would question whether they could rely upon us sion, friends who know almost everything about me. But very

12 The Journal of the Kansas Bar Association kansas lawyers assistance program few know about this struggle. I would like to think it wouldn’t Because of our propensity to refuse help and because of the make any more difference to them than if I told them I had stigma of mental disease – more attorneys than any other pro- high cholesterol. But like those of different religions or differ- fession will commit suicide. It took me almost dying before I ent sexual orientations, I am afraid it will make a difference. I broke down and got help. If this many attorneys were dying am ashamed that I am afraid. I am ashamed I am that writing from any other medical condition, wouldn’t we as a group this anonymously. I could dismiss social friends who wouldn't demand education and help? Wouldn’t we be willing to offer accept my medical condition due to their own ignorance or compassion? bias. But when you’re talking about your career and your live- So for now I volunteer with the Kansas Lawyers Assistance lihood, it’s harder to be brave, step out of that closet and lay Program and work with other lawyers who are struggling on a down your truth. The potential repercussions are too great. journey similar to mine. I wait for the day that the stigma of Why does this matter? Why should we as a profession talk being a lawyer with a mental illness is viewed no differently about the issue of mental health? Remember the statistics – 20 than a lawyer with any other type of medical condition. And percent of attorneys have or will have a serious mental illness. I wait for the courage to step out of my closet. n

www.ksbar.org | April 2014 13

law practice management tips & tricks Technology Bites Technology bites. Hardly a month has passed in the last year KRPC 226, 1.1 was not amended but a new comment outlines that this has not been displayed in the news, underlined in red new duties: ink, for all to see. Just a few of the best worries: [8] To maintain the requisite knowledge and skill, a lawyer • Edward Snowden released copies of National Security should keep abreast of changes in the law and its practice, Administration documents in May, 2013. Those docu- including the benefits and risks associated with relevant ments reveal cooperation between the NSA and private technology, engage in continuing study and education, companies to purposefully hobble software and hard- and comply with all continuing legal education require- ware trusted by lawyers for protecting confidences. ments to which the lawyer is subject. • National retailer, Target, exposed at least 110 million Moving Target customers’ credit and debit card records in December, That is a sobering obligation. Computer security and techno- 2013 when its system was breached through stolen pass- logical sophistication have always been good business and sound words of a mechanical contractor. Software authored by practice. Now computer security and technological sophistica- a 17-year-old Russian offshored stolen data in real time. tion are foundational principals of legal competence. Many law- • In January, 2014 Apple discovered a bug in its OSX and yers never saw that coming and a goodly bunch of the rest are not iOS security software. A simple cut-and-paste error in sure where that idea is headed. code from 2012 creates a bug which allows eavesdrop- Consider the ethics rules related to accounting. That is a well- ping on supposedly secure connections. (Point Safari on grounded, historically settled universe for most day-to-day finan- your Apple device to gotofail.com to confirm that your cial issues encountered by a lawyer. Double entry bookkeeping OS is patched.) goes back to Leonardo da Vinci’s contemporaries in the 13th • The U.S. federal court system saw most federal court century and the generally accepted accounting principles hear- sites, including the electronic filing system, knocked of- ken back to the 1930s. Managing a trust account is well-mapped fline in a denial-of-service attack in January 2014. territory and there is robust standardization in certifying special- Ethics Rules Change ists to whom a lawyer can outsource. Incorporating accounting If those sorts of concerns were not worrisome enough as citi- issues into the ethics rules rather than leaving the matter to civil zens and consumers, the threats are now magnified for to us law- and criminal regulation is reasonable. yers by changes to the Kansas Rules of Professional Conduct ef- Technology is largely uncharted with huge empty spots on fective March 1, 2014. The rule amendments arise out of efforts the map and “Here be dragons” warning labels. Navigating is an of the ABA Commission on Ethics 20/20 and the corresponding adventure where the most trusted hardware vendor could turn Kansas Ethics 20/20 Commission. The purpose of the Commis- out to be purposefully weakening security of its products. Newly sions is stated at americanbar.org: “The ABA Commission on discovered errors in code can open all iPhone and Macbook law- Ethics 20/20 was created … to perform a thorough review of the yers to confidentiality issues. Your best efforts with your own ABA Model Rules of Professional Conduct and the U.S. system passwords can be thwarted by another’s carelessness. Unlike ac- of lawyer regulation in the context of advances in technology . counting issues, there is still robust, good faith debate over what . . .” constitutes reasonable care in technology (e.g., outsourcing IT Amended KRPC 226, 1.6 adds a new subsection c: resources to the “cloud” versus retaining IT expertise in house). This fluidity will make enforcement virtually impossible for all (c) A lawyer shall make reasonable efforts to prevent the but the most egregious of cases – cases which would have already inadvertent or unauthorized disclosure of, or unauthor- have been dealt with by existing data privacy laws (as acknowl- ized access to, information relating to the representation edged in new 1.6, comment 27). of a client. Outreach New comments to 1.6 clarify the duty. Excerpted: Having undertaken to regulate computer security and techno- logical savvy, the burden will be heaviest on the judiciary to do so [26] The unauthorized access to, or the inadvertent or un- fairly, in a thoroughly informed manner, and with a keen sense of authorized disclosure of, information relating to the rep- the complexity of risk analysis in this area. An outreach from the resentation of a client does not constitute a violation of judiciary to the bar about its intent and objectives in regulating paragraph (c) if the lawyer has made reasonable efforts to this area of practice will go far toward outlining where lawyers prevent the access or disclosure. might tread to avoid technology’s bite. n

[27] When transmitting a communication that includes About the Author information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the Larry N. Zimmerman is a partner at Zimmerman information from coming into the hands of unintended & Zimmerman P.A. in Topeka and an adjunct recipients. This duty, however, does not require that the professor teaching law and technology at Washburn University School of Law. He is one of the founding lawyer use special security measures if the method of com- members of the KBA Law Practice Management munication affords a reasonable expectation of privacy. Section. [email protected] www.ksbar.org | April 2014 15 substance & style Lawyer Speak: Plain English If you can’t explain it simply, you don’t to use complex legal concepts and (2) it is the most efficient understand it well enough. and persuasive way for them to explain complex concepts to – Albert Einstein others. You should use plain English if you want the reader to know how well you understand the material and you want the was in my weight-lifting class the other day when some- reader to understand what you are saying. one asked me what I did for a living. When I said that I Plain English increases your understanding of the material. Iteach legal analysis and communication, the entire group Drafting legal concepts in plain English is not easy—you can- moaned. Someone said, “Oh, you teach people to use twice not rely on the reader to do the work. To explain complicated as many words as necessary and write so that no one can un- matters in a way that your reader can easily understand them, derstand.” The conversation quickly digressed to how lawyers you have to know and understand the material very well. Plain make life more complicated and confusing than necessary. English forces you to process information at a higher level As I was vehemently defending my profession and explain- to gain a deeper understanding of the material. Only when ing that I teach my students to use plain English and avoid you understand something well, can you explain it clearly and legalese, a fellow attorney said that he always uses legalese and concisely to the reader. 6 wondered why I teach my law students to avoid it. I was genu- Plain English is efficient. Explaining what you mean so the inely surprised and began to wonder if perhaps we were defin- reader can understand it the first time he reads it saves the ing legalese differently. So I looked it up: reader time. It also reduces the time you have to spend ex- plaining the material. Taking time to learn to write in plain le·gal·ese noun \, lē-g -'lēz, -'ēs\ English now will save you and your reader time in the long : the language used by lawyers that is difficult for most run. people to understand : legal jargon1 Plain English breaks down unnecessary barriers. Using plain English does not mean forgoing legal terms of art. I think Legalese has been described as language “characterized by “terms of art” is what my fellow attorney meant when he said archaic usage, prolixity, redundancy and extreme thorough- he always uses legalese. Terms of art—words or phrases that 2 ness.” It is known for its “verbosity, Latin expressions, nomi- have a precise meaning within a discipline—are necessary, but nalizations, embedded clauses, passive verbs, and lengthy sen- their use does not have to create a barrier between the lawyer 3 tences.” In other words, legalese is simply bad writing. and her audience. You can even use the occasional Latin term, Lawyers hang on to legalese under a variety of misconcep- as long as you explain the term to your reader. But cut out 4 tions. Many think the law is too complicated and precise to the legal jargon that has an everyday English equivalent. For be stated simply. Some think legalese is necessary to make the example, replace “said” with “the,” “this,” or “that” and “pur- legal profession sophisticated. Others fail to see how legalese suant to” with “under.” clouds their communication. These misconceptions lead to Plain English facilitates the precision required in legal writ- unclear legal communication, frustrate clients, and give us a ing. Plain English is important for the legal profession because bad rap. of the types of communicating that we do. In our profession, These problems are easy to avoid—use plain English. Plain precision is vital. Your clients need to know what they are English is clear, concise writing designed to ensure the read- agreeing to do; opposing counsel needs to know what argu- er understands as quickly and completely as possible. Plain ments they are responding to; and judges7 need to know why English is described as “easily understood by the target audi- your argument should prevail. Hiding this information in le- ence: clear and straightforward, appropriate to their reading galese does a disservice to the writer’s purpose and the reader’s skills and knowledge, free of wordiness, cliché and needless need for the information. 5 jargon.” Plain English is not Dick-and-Jane style writing that Plain English—not legalese—makes lawyers sound sophis- dumbs down the material; it is quite the opposite. Plain Eng- ticated.8 Legalese is out of fashion (if it was ever in fashion9). lish requires the writer to learn the material very well and al- If you write clearly, your reader will believe you are a clear lows the reader to do the same. thinker. Readers are impressed when lawyers make the law un- The reasons I teach plain English are simple: (1) it is the only derstandable, not when we use big, old words that sound lofty way to determine if my students are processing and learning

Footnotes 5. Plain English Definition, Wikipedia.org, http://en.wikipedia.org/ 1. Legalese Definition, Merriam-Webster.com, http://www.merriam- wiki/Plain_English (last visited Feb. 25, 2014). webster.com/dictionary/legalese (last visited Feb. 25, 2014). 6. Robert Eagleson, Plain Language: Changing the Lawyer’s Image and 2. Legalese Definition, TheFreeDictionary.com, http://www.thefree Goals, 7 Scribes J. Legal Writing 119, 137 (2000). dictionary.com/legalese (last visited Feb. 25, 2014). 7. For a review of empirical data showing that judges prefer documents 3. Legalese Definition, About.com, http://grammar.about.com/od/il/g/ written in plain English over those written in legalese, see Pamela Keller, Legalese.htm (last visited Feb. 25, 2014). ‘Comes Now’ Must Go Now, 83 J. Kan. B. Ass’n 14 (Jan. 2014). 4. Robert Eagleson, Ensnaring Perceptions on Communication: Underly- 8. Eagleson, supra note 6, at 138-39 (discussing studies where readers ing Obstacles to Lawyers’ Writing Plainly, 89 Mich. B. J. 54 (June 2010) inferred that writers of plain English versions came from more prestigious (discussing perceptions that turn lawyers away from plain English). firms). 9. Jefferson, Cardozo, and Holmes used plain English. 16 The Journal of the Kansas Bar Association substance & style and make no sense to the reader. We have ethical and profes- About the Author sional responsibilities to take complicated material, digest it, and communicate it clearly to our audience. Legal work is Chelsi Hayden is a Lawyering Skills professor at sophisticated by its very nature. Plain English emphasizes its the University of Kansas School of Law. Prior to 10 joining KU, she served as chambers counsel to the sophistication. Hon. Carlos Murguia, U.S. District Court for the Plain English isn’t something you’re born with. It’s a skill District of Kansas, and practiced business litigation you can learn—at any stage of your practice. But you have at Shook, Hardy & Bacon LLP. Hayden graduated to put your pen to paper. Learning to write in plain English from KU Law in 2001, Order of the Coif, and was a requires thought and practice. There are many resources to member of the Kansas Law Review. help lawyers write in plain English: books,11 websites,12 even 13 software. Here are a few basic rules to get you started: 10. Eagleson, supra note 6, at 146. 11. Richard C. Wydick, Plain English for Lawyers 55 (5th ed. • Know your audience and write for it 2005); Alan L. Dworsky, The Little Book on Legal Writing 3 (2d • Use commonplace words; explain terms of art if you ed. 1992). Brian Garner’s Legal Writing in Plain English: A Text use them with Exercises (Univ. Chi. Press 2001) is a great resource for practice • Use short sentences (fewer than 20 words) and para- exercises—yes, people actually practice this stuff! 12. See generally PlainLanguage.gov, http://www.plainlanguage. graphs (fewer than 5 sentences) gov (last visited Feb. 25, 2014); Plain English Campaign, http://www. • Get to the point plainenglish.co.uk/free-guides.html (last visited Feb. 25, 2014). • Cut what you wrote in half—yes, half. 13. WordRake, http://www.wordrake.com (last visited Feb. 25, 2014). Learning to write in a way that allows the reader to easily un- derstand complex material is a fun challenge, but then again, I am a legal writing professor. n

www.ksbar.org | April 2014 17 law students’ corner Believing in the Magic here is some magic to it,” Thurgood Marshall said, But that doesn’t mean that we don’t miss the mark some- perhaps with a bit more idealism than is normally times. Like all places, sometimes Kansas gets covered in “Texpected in an opening statement. clouds. Sometimes Kansans forget about (or, more distress- “Those same kids in Virginia and South Carolina—and I ingly, misinterpret and sharpen as weapons) our state’s values. have seen them do it—they play in the streets together, they Sometimes we simply fail to believe in the magic. It could play on their farms together, they go down the road together, be fairly argued that Kansas’ recent attempt to pass anti-gay they separate to go to school, then they come out of school legislation (under the guise of “religious liberties”) is a prime and play ball together again . . . There is some magic to it.” example of such failure. It could also be fairly argued that the It was December 1953 and Thurgood Marshall, then-chief legislation’s death in a Senate committee is a truer reflection counsel for the NAACP, was making his opening statement of our state’s values. in Brown v. Board of Education, the most famous case that he It is moments like these—moments when we are shadowed would ever argue as a lawyer (and among the most famous by intolerance and misunderstanding—when the core respon- cases ever argued in American history). With the Civil Rights sibilities of the legal profession become abundantly clear: to Movement still a decade from its peak, it’s hard to guess advocate for fair and equitable interpretations of the law for whether Marshall could sense his imminent success before all people; to vigilantly pursue justice; to truly believe in the Chief Justice Earl Warren read the opinion, or if Marshall magic that happens when all members of society receive dig- could feel the societal burdens that he helped eliminate slowly nity and validation. start melting away like the thawing December snow outside History has shown us that the fires of injustice test and ulti- the U.S. Supreme Court building. Sound constitutional rea- mately strengthen our desire for equality. By resisting systemic soning aside, what is most often remembered from the histor- unfairness, “We the People” become stronger and more inclu- ic case is Marshall’s appeal to humanity—the affirmation that sive. It is through the triumphs—both big and small—that the law, when functioning properly, is intended to privilege the sun breaks the darkness and real freedom becomes cog- and protect all citizens equally. nizable. And perhaps more often than not, these victories are Unanimous. “Separate educational facilities are inherently championed in the courtroom and at the bench. For members unequal.” Magic. of the legal profession, this is truly where the magic happens. Fairness, equal opportunity, compassion for our neigh- For law students in Kansas, in particular, our responsibili- bors, and the other tenets represented by Brown are values ties to the legal profession could not be clearer. Our bar could that Kansans claim as our own and exhibit every day. So in not be higher. Our state’s history is a proud one, permeated a strange kind of way, Kansans take special honor in the out- with struggles and successes, built upon values that have with- come of Brown v. Board of Education. To be sure, we aren’t stood the test of time, always coalescing into a tradition that, proud of the fact that a Topeka school district was the named many years down the line, is the envy of all our neighbors. We defendant in the lawsuit; in retrospect, nearly all Americans must become lawyers, judges, and leaders who protect and wish cases like Brown had been unnecessary in the first place. advance this tradition. Instead, Kansans are honored that integration—an integral Because in Kansas, we still have a reputation to uphold. We first-step toward racial (or, more accurately, human) equal- still have a trail to blaze. And as the case has always been, there ity—is forever tied to us. While outsiders might mistake our remains some magic to it. n core values as simple Midwestern charm, Kansans know that those principles run much deeper. About the Author Kansas’ commitment to equality and fair treatment for all citizens didn’t start with Brown. Instead, it is rooted in the very Jake McMillian is a second-year law student at the University of Kansas School of Law and a history of our state, deeply embedded in every Kansan’s DNA: proud fourth generation Kansan. He is currently our earth stained red during the Bleeding Kansas revolts; the president of KU Law Outlaws and Allies, is diversity abolitionist victory and our introduction to the Union as a and outreach coordinator for KU Law Student free state; the local suffragist movement that made KU and Ambassadors, and is an intern at Hodges Law K-State among the first state-run universities in the world to Group, the only law firm in Kansas City that focuses specificaly on LGBT legal issues. allow women; women’s right to vote in local elections begin- ning at statehood; the Dockum Drug Store protest in Wich- ita—among the first lunch-counter sit-ins in the Civil Rights Movement. Indeed, since our state’s inception, the warm light of equality has shone kindly upon us.

18 The Journal of the Kansas Bar Association kba news Members in the News Changing Positions Edward H. Tully has joined Lathrop & Wendel W. Wurst, Garden City, have Jess W. Arbuckle has become general coun- Gage LLP, Overland Park. been appointed to the State Judge’s Coun- Bryan L. Walker sel of Viega LLC, Wichita. has joined MacDonald, cil by Chief Justice Lawton Nuss. Glenda L. Cafer Terri J. Pemberton Emmanuel N. Ayuk, James J. Cronin, Illig, Jones & Britton LLP, Erie, Penn., as and Thomas R. Dowling, and Scott P. Smal- an associate patent attorney. have started a firm, changing the original ley have been named partners at Stinson name, Cafer Law Office LLC, to Cafer Leonard Street LLP, Kansas City, Mo. Changing Locations Pemberton LLC, Topeka. Bruce B. Waugh Brian J. Christensen and David M. Kight Leslie Beims has started her own practice , Overland Park, has start- joined Jackson Lewis P.C., Kansas City, located at 1616 Main St., PO Box 96, ed Bruce Waugh Mediations, focusing on Mo. Goodland, KS 67735. construction, business, banking, employ- Tyler A. Darnell was named partner at Frieden, Unrein & Forbes LLP has moved ment, real estate, and contract disputes. Arthur-Green, Manhattan. to 1414 SW Ashworth Place, Ste. 201, Correction: Bradley R. Gardner has joined Posinelli Topeka, KS 66604. In the February issue of the P.C., Kansas City, Mo., as an associate. Kutak Rock LLP has moved its Kansas Journal, it was announced that Timothy L. Joel I. Krieger and Frederick K. Starrett City, Mo., office to Two Pershing Square, Dupree, of Kansas City, Kan., was named a have joined Douthit, Frets, Rouse, Gen- 2300 Main St., Kansas City, MO 64106. district judge for Wyandotte County when tile & Rhodes LLC, Leawood. Tamara J. (Pistotnik) Collins has moved in fact he only announced his candidacy for Jacqueline K. Levings joined Freddy’s to 200 W. Douglas, Ste. 619, PO Box judge. We sincerely apologize for this error Frozen Custard & Steakburgers, Wichita, 4713, Wichita, KS 67201. and any confusion it may have caused. as general counsel. Editor s note: Jonathan R. Myers has joined the Kansas Miscellaneous ’ It is the policy of The Journal of the Kansas Bar Association to include Corporation Commission, Wichita. Hon. Ed Bouker, Hays, Hon. Kim W. only persons who are members of the Kansas Matthew N. Sparks has joined Bryan Cave Cudney, Washington, Hon. Patricia Bar Association in its Members in the News LLP, Kansas City, Mo. Macke Dick, Hutchinson, Hon. R. section. Curtis R. Summers has been named as a Wayne Lampson, Kansas City, Kan., partner at Husch Blackwell LLP, Kansas Hon. David A. Ricke, El Dorado, Hon. City, Mo. Nicolas M. St. Peter, Winfield, and Hon.

Obituaries K.I. (Ike) Loy Laurence Allen Taylor K.I. (Ike) Loy, 88, of Pittsburg, died February 27 at the Laurence Allen Taylor, 64, of Colby, died February 25 at Heritage Nursing Home in Girard. He was born August 24, his home. He was born in Colby on February 2, 1950, to 1925, in Pittsburg to Wallace J. and Nora (McElfish) Loy. Loy parents William and Edith Taylor. He attended Colby public graduated from Pittsburg High School in 1943 and joined the schools, Kansas State University, where he received his Bach- U.S. Navy, serving in the Pacific Theater until the conclusion elor of Science degree, and Washburn University School of of World War II. Law, where he graduated in 1977 with a juris doctorate. After Loy earned an accounting degree from the University of graduation he had a 37-year career as a practicing attorney in Kansas in 1950 and graduated from Washburn University Oakley and Colby, serving as Thomas County attorney from School of Law in 1953. He opened his Pittsburg practice in 1988 to 2004. 1953, where he actively practiced until ill health forced his Taylor was active in the community, serving on the ADAC retirement in 2005. board, Max Pickerill Lecture Series Committee, and the He was a member of the Musicians Union, Pittsburg Amer- Northwest and Kansas bar associations. ican Legion, Masonic Lodge, York Rite, Scottish Rite, Mirza Taylor is survived by his wife, Sue, of the home; son, Aus- Shrine, and the Royal Order of Jesters. Loy was also a mem- tin, of Denver; mother, Edith, of Colby; sister, Lois Francis, ber of the Kansas Bar Association, a Fellow in the Kansas Bar of Wilson; brothers, Tom, of Minden, Neb., Bill and Robert, Foundation, and the Crawford County Bar Association. In both of Colby, and Harry, of Salina; and many nieces and addition, he served as judge of the city court of Pittsburg. nephews. He was preceded in death by his father, William, Loy is survived by his daughter, Kimberley Loy Shipman, and sister, LeeAnn. n of Bartlesville, Okla.; his son, Kurtis I. Loy, of Pittsburg; and his eight grandchildren. He was preceded in death by his wife, Christine; his daughter, Debra Dian Loy; his parents; his twin brother, Mike Loy, and other brother, Warren Loy; and his sister, Donna Hammick.

www.ksbar.org | April 2014 19 The Svobodas of Lawrence, Kan. One Family’s Convergence of Fate, History, and Heroism By Matthew D. Keenan

ccording to the Department of Veterans Affairs, 415 The Twins, Floyd and Lloyd World War II veterans died every day last year. But if you think this is an obituary for the passing of another Floyd and Lloyd enlisted in the Army on May 1, 1942. A They were assigned to the 76th Infantry Division, which was member of our greatest generation, prepare to be enlightened. Because Kansas lawyer Chuck Svoboda is very much alive. attached to Patton’s Third Army. Lloyd was a graduate of And if his name is familiar to you, it may be because I first Officers Candidate profiled him here back in 2011. And now, without a word School in June 1944 limit, I have the rest of his story. and promptly trav- And so whatever time you were going to bill today, push eled to the Europe- pause. Because when you are finished reading this story, that an Theater with his deposition you have tomorrow will seem much less important. brother. Historians tell us the Battle of Where It All Began the Bulge was the If the History Channel ever wanted to set a ratings record, bloodiest battle for American troops in it should dedicate a miniseries to the life and times of Joe Floyd and Lloyd Svoboda and Florence Svoboda and their six children. That tale would all of the war. Casu- include heroism in the most alties – depending on the source – ranged somewhere between violent battle of World War 80,000 and 100,000. And in the middle of it all were two II, a father who was a veteran brothers from Lawrence. of the two world wars, and “The Germans had constructed a pillbox which was harbor- would also involve a football ing a number of high powered guns that were doing signifi- game between a high school cant damage to the positions of the American forces,” Lloyd’s player and an iconic figure of son, Tom, told me. “Dad was the second lieutenant and was college football and the NFL. leading his brigade to take out those guns.” A bullet struck And it would start with Joe him in the face, entering through his left eye. The Lawrence Sr. Daily Journal-World, in a front-page story on May 19, 1945, Joe Svoboda stood 6 foot had this headline: “Directed his men after being hit. Lt. Lloyd 4 inches and was a native of J. Svoboda awarded Silver Star for action.” It offered addi- Ellsworth. His parents, Alois tional details: “Ignoring the terrific rain of lead directed at and Anna Stejskal Svoboda, him from the besieged Germans, were immigrants from Praha, Lieutenant Svoboda rushed to the Czechoslovakia. Joe met Flor- head of the squad and skillfully ence Saindon in Damar, Kan., maneuvered them to a spot about Florence and Joe Svoboda Sr. which is northwest of Hays, 30 yards from the pillbox. While and were married for 38 years. They spent most of their adult placing the men in position, a hid- years in Lawrence and had six children – Joe Jr., Lloyd, Floyd, den Nazi machine gun opened fire Betty, Norma, and Charles. and Lt. Svoboda was struck and Joe Jr. contracted polio as a youth but that was barely a seriously injured. speed bump. He got a degree in chemical engineering at the “Crawling back to a covered po- University of Kansas and taught at the University’s War Col- sition, he called his squad leader lege, and then, later obtained master’s and doctorate degrees and instructed him to hold the at Carnegie Tech. Next came Floyd and Lloyd, who were ground gained, and to send back identical twins. Betty stayed in Lawrence, married and raised word to the company commander informing them of their a family (Elizabeth Josephine Brune). Norma became a nurse plight and of the fact that only four men remained in the squad. (Norma Jean Hamrick) and assisted with the war effort. And “The word went back, reserves came forward, and the pill- six years later, came Chuck. box was captured.” Lloyd received the Silver Star, the Bronze Star, and Purple Heart. You can look it up.

20 The Journal of the Kansas Bar Association A Nostalgic Touch

“Though he lost his left eye, it never bothered him nor Garfield’s work quotes one soldier on the dense fog: “When stopped him from getting his engineering degree and work- you could see a hundred feet that was a clear day.” ing at Black and Veatch for 40 years” Tom told me. “When American forces reclaimed both Attu and Kiska, with the we were growing up, my friends and I would put tape over latter island resulting in a 19-day battle that left 549 Japanese our eye and try to play baseball and basketball to be like dead. Dad. We gained an appreciation for what he lived with. But Football, War, and the Youngest Svoboda he never talked about his actions on that day in February, 1945.” Which brings us to football. Trivia buffs of both KU and Lloyd had an appointment with history once again when he MU know that Don Fambrough and Don Faurot have his- and Rosemary were both at the Kansas City Hyatt Regency tories deeply rooted in the intersection of war and football. on July 17, 1981. Rosemary was one of the witnesses the Kan- Fambrough played at Texas in 1941 and 1942, and then en- sas City Star quoted for the 30th anniversary of the accident, tered the military in the Army Air Corps, where he met a man and she told the paper that two of the husbands from their named Ray Evans. The rest of that story is hardly trivial. party had “gone to the main floor and were at a bar when they Don Faurot coached military teams at the Naval Air Sta- were pinned under the debris until around 3:30 a.m. and were tion at Jacksonville in 1944, where he met a man named Bud rushed to the hospital. They both remained in the hospital for Wilkinson. Faurot taught Wilkinson offensive strategies that two and a half months. I will never forget the cries for help helped lead Oklahoma to three National Championships in from people pinned under the debris.” The Svoboda’s escaped the 1950s. Other college coaches inextricably connected with without injury. the war effort included Paul Brown and Bear Bryant. And what about Floyd? He got his degree in petroleum en- Wilbur D. Jones Jr. penned a book, “Football! Navy! gineering and worked in the oil and gas business. He never War! How military ‘lend-lease’ players saved the college married. game and helped win WWII.” It’s a largely forgotten yet Joe, Sr. fascinating era of our most popular sport intersecting with military history. Joe Sr. served in World War I as a lieutenant. In WWII he Beano Cook wrote the foreword: “Pearl Harbor had left the served as a major. Between the wars, he worked as a banker nation battered, humiliated and uncertain of the future. The but was still in the Reserves on December 7, 1941. Rose Bowl Game, after all, had to be moved from Pasadena While the twins were en- and played in a misty rain in Durham, North Carolina. There gaged with Hitler, Joe was were losing battles abroad and on the home front: the man- directed to engage the Japa- power drain and travel restrictions would force hundreds of nese on United States soil colleges to drop football for anywhere from one season to the – in one of the forgotten duration of the war. A game plan for the nation’s survival, battles in WWII in Adak, as well as the survival of the game, Alaska. had to be devised. There was never Six months after Pearl a time, and probably never will be, Harbor, on June 6, 1942, when war and football were more 500 Japanese soldiers landed closely coupled than World War II. in Alaska and claimed U.S. That’s because football, in so many soil as Japan’s. Brian Gar- ways, saved America. And the war, field, in his book “The Thou- in turn, saved football.” sand Mile War – World War So many NFL players were com- Joe Svoboda Sr., World War I II in Alaska and the Aleu- missioned in the war that some tians” said this about the teams, like the Pittsburgh Steelers, fight to retake U.S. territory back from the Japanese: “It is had only six players on their roster, about a thousand miles from Dutch Harbor, near the Alaskan and combined their team with the Peninsula to Attu at the far western tip of the Aleutian Island Philadelphia Eagles. In an inter- Chain. They are the most brutal thousand miles in the Pacific view with the New York Times, the Ocean. Here, for fifteen months in 1942-1943, was fought Steelers co-owner Bert Bell stated, Chuck Svoboda one of the toughest campaigns of World War II.” “Pittsburgh had no backs left and Philadelphia had no line- And in the mix was one Joe Svoboda. His position was staff men.” With a roster full of 4-Fs — men ineligible for the officer, 17th Naval District and Commander, Marine Corps draft — Phil-Pitt was born. Newspaper columnists dubbed base at Adak, Alaska. the team the Steagles. In 1943 he wrote this letter: “Sometime in the early part Nineteen active or former NFL players died in the War. of June we sailed on board to the Aleutians. The life here is Collegiate stars were lost as well. The University of Iowa’s very rugged but we don’t mind. We have no newspapers, no Nile Kinnick, for instance, for whom their football stadium is radios, no music or dances, no trees or shrubs, no women, no named, won the Heisman, was drafted in the second round of comforts of life, but we have plenty of fog, rain, clouds, mud, the NFL draft, but spurned the league to attend law school. wind, mountains, snow, lakes, fish, tundra and other things When the war started he joined the Navy. He died when his we read about in the states.” plane crashed in June 1943.

www.ksbar.org | April 2014 21 A Nostalgic Touch Still, football flourished. Which leads us back to the young- est Svoboda. “After December 7, 1941, Dad was ordered to report to San Diego. The following summer of 1942 I drove mom out there. She stayed there, I returned to Lawrence alone. I lived with the Penny family for most of my high school years – they treated me like one of their own.” Chuck lettered in football as a sophomore and started his junior and senior years, and helped win state titles, which for Lawrence High is about as newsworthy as saying grass is green. Upon high school graduation, at the mature age of 17, Chuck was headed to the Navy Air Corps. “I was fascinated with air planes. Everyone was. I wanted to be a pilot. So I called my dad, who at that time was the commander at a Marine base in Seattle. I needed his permission, which I received. Six months later I was at the Naval air station in Dallas. When I arrived one of the first things I noticed Starting lineup for the Dallas NAS football team with Chuck Svoboda at left was that they were practicing football. I asked the coach if tackle. they would let an aviation cadet play – ‘yes, if you are good enough to start’ he told me.” Three weeks later another cadet “Doak cracked him pretty good” Chuck recounted. “Back then arrived, equally skilled at handling the pigskin. His name you played both ways. I saw Gus get hit. There was a steel drain- was George E.R. (Gus) Kinnear. His football pedigree? Flor- age cover and Gus landed right on top of it hitting his head. The ida State University. crowd went dead quiet. Gus laid there for a second and then After the Japanese surren- jumped up. He looked at Doak and said ‘good hit buddy.’ The dered in September 1945, crowd went wild.” Chuck learned what the Navy “Later we played against Wee Willie Wilkin,” a player, had had in mind for him and worth noting, who was most certainly not Wee. A tackle at 6 his fellow pilots: “The bomb foot 4 inches and 261 pounds, who went on to be a three-time was a secret and the Navy was Pro Bowler and two-time first team All-Pro. You can look that proceeding with its own plan up too. for attacking Japan. The avia- All in all, a pretty impressive football pedigree for a Law- tion cadets in Dallas were go- rence High kid. ing to be the advance strike Chuck graduated in engineering in 1949 then law school force for the invasion of Japan. and practiced defense work in the metro for 50 years. He was They estimated 80 percent an AV-rated attorney for most of those years. And Kinnear? casualties.” “Gus stayed in the Reserve and made his own mark.” He was The world was a dangerous recalled during the Korean conflict with combat tours on the place but there was still time USS Princeton and USS Lake Champlain, and during Viet- for football. Svoboda created the holes that Kinnear, a fullback, nam on the USS Kitty Hawk and USS Ranger. Later he was ran through. On November 23, 1946, in Beaumont, Texas, the Naval Air Corps commanding officer for the Pacific Fleet. his team, the Dallas Naval Air Station (NAS), played an Army When he retired he was the only four-star admiral from the team whose star player was Doak Walker. Walker was not only Navy Air Corps. And you know where to find that fact as well. a Heisman trophy winner, but also a three-time All American, And last year Kinnear, now retired at York Harbor, Maine, and later, a four-time All-Pro. He is a member of the Pro Foot- called his former teammate. “We need to get together at least ball Hall of Fame. one more time before the sand runs out.” And in November, And in that game, there was one play where Gus was sprint- Svoboda obliged by flying to Maine to see his fellow team- ing up the sideline, jumped up to take a pass, and the only per- mate, friend, and naval comrade. son between Gus and the goal line was that kid named Doak. Like most of the Greatest Generation, they probably didn’t dwell on their military accolades. But those football games against future NFL Hall of Fame players? No doubt. n

About the Author

Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. [email protected]

Gus Kinnear (No. 13) and Chuck Svoboda (No. 46) of the Dallas NAS football team. 22 The Journal of the Kansas Bar Association 2014 Outstanding Speakers Recognition The Kansas Bar Association would like to extend a special thank you to and recognition of the following individuals who gave so generously of their time and expertise in speaking at our Continuing Legal Education seminars from January through March 2014. Your commitment and invaluable contribution is truly appreciated.

Matthew D. All, Blue Cross & Blue Stanton A. Hazlett, Office of the Dr. Stana Martin, Mrs LTC Inc., Shield of Kansas Inc., Topeka Disciplinary Administrator, Topeka Liberty, Mo. Zachary J. Anshutz, Kansas Insurance Jason Heffner, Principal Financial Anne McDonald, Kansas Lawyers Department, Topeka Group, Overland Park Assistance Program, Topeka Janet L. Arndt, Office of Kansas Bernard J. (B.J.) Hickert, Newbery Amy M. Memmer, Supreme Court Attorney General Derek Schmidt, Ungerer & Hickert LLP, Topeka Central Staff, Topeka Topeka Hon. Stephen D. Hill, Kansas Court Joseph N. Molina III, Kansas Bar Hon. Karen Arnold-Burger, Kansas of Appeals, Topeka Association, Topeka Court of Appeals, Topeka Ryan A. Hoffman, Kansas Corporation Ronald W. (Ron) Nelson, Ronald W Justice Dan Biles, Kansas Supreme Commission, Wichita Nelson P.A., Shawnee Mission Court, Topeka Ross A. Hollander, Joseph Hollander Timothy P. (Tim) O’Sullivan, Coleen Boxberger, 20th Judicial & Craft LLC, Wichita Foulston Siefkin LLP, Wichita District, Great Bend Bruce Hopkins, Polsinelli P.C., Kansas Steven J. Obermeier, Johnson County Hon. David E. Bruns, Kansas Court of City, Mo. District Court, Olathe Appeals, Topeka Mary Kay Howe, Douglas County Jennifer Olsen, Shawnee County Sharon Cahill, Wyandotte County District Court, Lawrence District Court, Topeka District Court, Kansas City, Kan. Robert M. (Bob) Hughes, Bever Dye Ryan M. Peck, Morris Laing Evans Lori M. Church, Kansas Association of L.C., Wichita Brock & Kennedy Chtd., Wichita School Boards, Topeka Joseph W. Jeter, The Jeter Law Firm Prof. David E. Pierce, Washburn Prof. James M. Concannon III, LLP, Hays University School of Law, Topeka Washburn University School of Law, Justice Lee A. Johnson, Kansas Michael K. Ramsey, Hope Mills Bolin Topeka Supreme Court, Topeka Collins & Ramsey, Garden City Steve Crawford, WHISPER, New Casey L. Jones, Hinkle Law Firm LLC, Randall K. Rathbun, Depew Gillen York, N.Y. Wichita Rathbun & McInteer L.C.,Wichita Patricia M. Dengler, Brown Dengler Hon. Phillip B. Journey, Sedgwick Hon. Kim R. Schroeder, Kansas Court & O’Brien LLC, Wichita County, Wichita of Appeals, Topeka Patrick H. Donahue, Disability Charles W. (C.W.) Klebe, Office of Eric Smith, League of Kansas Professionals, Lawrence Kansas Attorney General Derek Municipalities, Topeka Steve R. Fabert, Office of Kansas Schmidt, Topeka Dennis Stanchik, Dennis J. Stanchik Attorney General Derek Schmidt, Eric Kraft, The Katz Law Firm P.A., P.A., Olathe Topeka Overland Park Dillon L. Stum, Deines & Deines, Hon. Mark G. Farrell, Amherst Lydia H. Krebs, Appellate Defenders Wakeeney Criminal and Civil Court, Amherst, Office, Topeka Burton Taylor, Proventus Consulting N.Y. Chelsey G. Langland, Kansas Court of LLC, Mission Sarah E. Fertig, Office of Kansas Appeals, Topeka David R. Tripp, Stinson Leonard Street Attorney General Derek Schmidt, Hon. Steve Leben, Kansas Court of LLP, Kansas City, Mo. Topeka Appeals, Topeka Tyler K. Turner, The Jeter Law Firm Carol L. Foreman, Judicial Council Erna K. Loomis, Loomis Law Offices LLP, Hays Administrative Procedure Advisory LLC, Olathe Trevor C. Wohlford, Kansas Court of Committee, Topeka Justice Marla J. Luckert, Kansas Tax Appeals, Topeka Hon. Henry W. Green Jr., Kansas Supreme Court, Topeka Molly M. Wood, Stevens & Brand, Court of Appeals, Topeka Hon. Thomas E. Malone, Kansas Lawrence Danielle M. Hall, Kansas Bar Court of Appeals, Topeka Ashlyn L. Yarnell, Ronald W Nelson Association, Topeka P.A., Shawnee Mission

www.ksbar.org | April 2014 23 Pardon Me, May I . . . ? Consent Searches in Kansas

By Colin D. Wood

24 The Journal of the Kansas Bar Association “In a society based on law, the quest.6 In fact, even if the officer pos- concept of agreement and consent sesses probable cause and has time to should be given a weight and dig- secure a warrant, the officer need not go nity of its own. Police officers act in to the trouble.7 full accord with the law when they This article is intended as a practi- ask citizens for consent. It reinforces cal review of the most-litigated areas of the rule of law for the citizen to ad- consent search law. By design the arti- vise the police of his or her wishes cle breaks no new ground, it certainly and for the police to act in reliance does not get into the weeds about any on that understanding. When this particular issue, nor does it pretend to exchange takes place, it dispels in- raise every facet of consent. However, ferences of coercion.”1 for having invested a few minutes a reader should be able to become gener- A police officer, in full uniform with ally familiar with how consent matters her holstered handgun in plain view are handled in our Kansas courts. The standing with others at the coffee coun- author candidly admits his professional ter of a corner convenience store, turns support for the idea of a legally-obtained to one of the other customers and in a consent to search. pleasant, conversational voice, but with- Under the Fourth Amendment, a law out any suspicion of criminal activity, enforcement search conducted without asks permission to search the customer’s a warrant is per se unreasonable unless pockets. The other customer agrees. A it meets one of the several recognized search reveals evidence of a crime. The exceptions to the warrant requirement. evidence is later admitted against the One of those exceptions is consent.8 customer and newly-minted defendant. Surprisingly, consent searches are a re- Surely a search cannot be valid simply cent legal phenomenon. Most scholars by a verbal agreement between the two trace the first consent-related case to of them. This is America. Where was the 1921,9 with a second following 25 years government agent’s probable cause? . . . later.10 It was not until 1973 that the the warrant? . . . and especially where United States Supreme Court set the was the disinterested magistrate to re- relatively low standard for a valid con- view the constable’s suspicions? If that sent search. In the 21st century, consent can happen, what’s next? . . . my mother searches remain the source of interesting showing state agents into my rent-free legal debate.11 bedroom based simply upon my ill- Judges and scholars are divided into advised failure to move out 20 years three camps when it comes to explain- ago, and my continuing to allow her to ing why consent searches are valid under put away my laundry and clean up my the Constitution. First, and the majority messy room? Oh, the humanity. view of the U.S. Supreme Court, is that a The scholarly answer to those ques- consent search is an exception to the war- tions is “volenti non fit iniuria,” Latin rant and probable cause requirements for “[t]o a person who consents, no in- of the Fourth Amendment because it 2 justice is done.” The less scholarly ad- is essential to proper law enforcement. vice is to simply say more often, “no” A second view, for example held by and “stay out.” It has long been the rule Justice Marshall, is that under consent of law in both federal and state courts there is no “search” for Fourth Amend- that a person may consent to a search ment purposes because the consenting 3 or to a seizure. The Fourth Amend- person is able to choose whether or not ment proscribes unreasonable searches to exercise their constitutional rights. and seizures, but it does not proscribe The third view, adopted by Justice Sca- 4 a person’s voluntary cooperation. A lia, asserts that the validity of a consent law enforcement officer needs no level search depends upon whether the po- of criminal suspicion to approach any- lice conduct surrounding the seeking of one in a public place, without formali- consent was reasonable, because reason- ties, and to seek their consent to do just ableness is the touchstone of the Fourth 5 about anything. And, though maybe a Amendment.12 good idea, prior to requesting consent The questions raised in a routine the officer need not inform the person consent case tend to be: Was there a re- of their right to refuse the officer’s re- quest by law enforcement for consent to

www.ksbar.org | April 2014 25 Consent Searches search? If there was a request, to whom was it directed? Did that Although recognizing that it is obligated to follow the U.S. person have the capacity and the authority to give consent? As- Supreme Court’s interpretation and application of the Fourth suming sufficient authority, did that person give consent? Was Amendment,22 Kansas courts sometimes frame it a little dif- the consent given expressly or impliedly? Was such express or ferently: “[f]or a consent to search to be valid, two conditions implied consent voluntary? If voluntary, what was the scope of must be met: (1) there must be clear and positive testimony the search to have been? Did the officer stay within that scope? that consent was unequivocal, specific, and freely given and If not, why not? Did the consenter ever broaden, narrow, or (2) the consent must have been given without duress or co- withdraw the consent? Was the consenter in a position to have ercion, express or implied;23 “voluntarily, intelligently and modified the scope of the search? If not, why not? During the knowingly”;24 and “unequivocal and specific.”25 It follows that consent request, was the consenter being detained in some even though phrased differently, our state courts have not manner? And, finally, if the officers have blundered along the raised the prosecution’s burden beyond that required by the way, should the Exclusionary Rule suppress the evidence? U.S. Supreme Court.26 I. Voluntariness When seeking consent to search, a law enforcement officer is not required to advise the potential consenter of the right to “[T]his Court is not empowered to forbid law enforcement refuse, and actual knowledge of the right is not a prerequisite practices simply because it considers them distasteful. The of a voluntary consent.27 However, advising or failure to ad- Fourth Amendment proscribes unreasonable searches and vise one of the right to refuse is a factor a court may take into seizures; it does not proscribe voluntary cooperation . . .13 account when weighing voluntariness.28 It is also unnecessary Consent searches are part of the standard investigatory to have advised a consenter, not then in arrest custody, of his techniques of law enforcement agencies. They normally oc- or her Miranda rights.29 The subjective thoughts or underly- cur on the highway, or in a person’s home or office, and ing intentions of an officer seeking consent are irrelevant to under informal and unstructured conditions.”14 the analysis, as long as the substance of the officer’s thoughts and intentions are not made known to a consenter prior to As a practical matter, permission to conduct a consent their consent.30 The use of deception or trickery is a factor to 15 search will pass muster if it was freely and voluntarily given. be weighed, but its use does not automatically render consent But consent that was the product of official intimidation or involuntary.31 A threat to obtain a warrant may invalidate a harassment is not consent at all because citizens do not forfeit suspect’s eventual consent if the officers truly lacked the prob- their constitutional rights when they are coerced to comply able cause necessary for the search warrant.32 Further, a sus- 16 with a request that they would prefer to refuse. Nor is mere pect’s consent may be tainted by a threat of detention, which 17 submission to apparent police authority true consent. essentially amounts to an arrest, if consent is refused.33 Although detention is a factor in weighing whether a par- When analyzing whether duress was present or coercion ticular consent was voluntary, and even though in Kansas a had occurred during the granting of consent, no one factor is particular type of detention may render a particular consent dispositive, and the factors are much the same as those used to search legally void, the test for detention is separate from to determine if an encounter with police was consensual.34 A 18 the test for voluntariness of the consent to search. non-exhaustive, non-exclusive list of the objective factors used The prosecutor has the burden of proving by a preponder- by our courts in the determination of voluntariness of consent ance of the evidence that consent was given, and that it was to search are: telling the consenter that he or she can refuse, 19 voluntary. The question of whether a person’s consent to the presence of more than one officer, the actual brandish- an officer’s request to search was in fact voluntary or was the ing of a weapon (because it is well known in our society that product of duress or coercion is a question of fact to be de- most officers are armed, the presence of a holstered firearm is 20 termined from the totality of all the circumstances. But, as unlikely to be coercive35), touching or application of force, a the starting point of analysis, courts recognize that simply by commanding tone of voice or use of aggressive language in- asking for consent an officer has implied that the person may dicating that compliance is required (although some officer object and would therefore indicate to a reasonable person safety commands are acceptable36), retention of the person’s 21 that he or she is free to refuse. In other words, the review of personal property, a request to accompany the officer to an- a consent search is to begin on a level playing field. other location, interaction in a nonpublic place, the absence of other members of the public, and, within the actual view of the consenter, the display of a police vehicle’s emergency lights.37 Federal courts in Kansas add to that list of factors: physical mistreatment, use of violence, threats, promises, in- ducements, deception, trickery, or an aggressive tone, and, though more subjective, the physical and mental condition and capacity of the defendant.38 Though consistent with a consideration of the totality of the circumstances, no one factor can be legally dispositive. Courts are not expected to simply count the number of factors weigh- ing for and against voluntariness. A particular factor may be more indicative of a coercive atmosphere in one case than an- other.39 Although a signed consent form is helpful to the issue

26 The Journal of the Kansas Bar Association Consent Searches of voluntariness and is indicative of voluntary consent, the request “to look in the car” would give an officer authorization law does not require police to obtain them.40 to conduct a thorough search of the car.56 A voluntary consent following a refusal is possible but the 41 A. Consent During Detention prior refusal(s) is a factor in the weighing of voluntariness. There are four types of police-citizen encounters recognized Although courts differ elsewhere, in Kansas a refusal of con- 42 in Kansas: 1) voluntary or consensual encounters, which are sent cannot be used as a basis for reasonable suspicion. Con- not considered Fourth Amendment seizures; 2) investigatory sent need not be express or verbal. Gestures or other non- 43 detentions, also known as temporary detentions or Terry stops, verbal conduct can be found to constitute sufficient consent. requiring reasonable suspicion of a crime having been, being, Consent may be granted through gestures or other indications or about to be committed, and allowing a brief detention of acquiescence, so long as they are sufficiently comprehen- 44 while an officer confirms or dispels the officer’s suspicions. sible to a reasonable officer, at least in federal courts. In our Car stops are legally akin to those types of Terry stops; 3) pub- state courts consent by implication, at least when it involves 45 lic safety stops, which are not grounded in the investigation homes and DUI blood testing, is not voluntary consent. of a crime, but instead are based upon the law enforcement’s Kansas state courts want something more. community caretaking function and requiring an immediate So long as a suspect understands English well enough to response, intervention or detention by police for public health respond to an officer’s request, or has demonstrated an over- and safety purposes; and, 4) arrests, requiring probable cause all working knowledge of English, the suspect can voluntarily that a crime has been committed, and probable cause that a consent to a search despite a general difficulty in speaking 57 46 particular person has committed the crime. English. The general rule under the Fourth Amendment is that the II. Scope of the Consent and Search fact of custody alone has never been enough in itself to dem- onstrate a coerced confession or consent to search.58 The law “In short, a search pursuant to consent may result in con- recognizes an inevitable level of pressure inherent in being the siderably less inconvenience for a subject of the search, and, subject of law enforcement scrutiny and assumes that an or- properly conducted, is a constitutionally permissible and 47 dinary person can still exercise a free choice. Any individual wholly legitimate aspect of effective police activity.” being subjected to an investigative detention will feel some 59 A consent search is limited to the terms of its authoriza- degree of compulsion to acquiesce to an officer’s request. tion.48 When a search is based upon consent, law enforcement During events that amount to no more than a permissible po- officers have no more authority than they have apparently lice encounter in a public place, or during a justifiable Terry- type detention, officers may seek and obtain valid, voluntary been given by the consent. Consent to search a garage would 60 not implicitly authorize a search of an adjoining house; and, consent to search, at least for cases in federal court. In our authorization to search a home for a stolen refrigerator would Kansas courts, it is a little different. not authorize the opening of the home’s desk drawers.49 Except in those states that have found extra protection under Important matters in the analysis of the scope of a search their state constitutions, most courts now recognize that the would include the expressed intention of the search, its dura- U.S. Supreme Court has all but discarded the “scope” prong of Terry v. Ohio while retaining the “duration of the event” tion and the area to be searched. But those questions are not 61 to be determined on the basis of the subjective intentions of prong of that case. Investigating officers may ask questions the consenter or the subjective interpretation of the search- having nothing to do with the reason for detention as long 50 as those “unrelated” questions do not measurably extend the ing officer. Instead, the standard for measuring the scope of 62 a person’s consent is that of objective reasonableness – what duration of the detention. would the typical reasonable person have understood from However, the Kansas Supreme Court has declined to go the exchange between the officer and the consenter?51 along, and has retained its “long standing” prohibition of of- The scope of a search is generally defined by its expressed ficers seeking consent to search during a normal car stop. Al- 52 though officers may seek voluntary consent to search during a object. A general grant of permission to search an automo- 63 64 bile typically extends to the entire car, absent an objection consensual encounter and following a custodial arrest, ab- or an explicit limitation by the consenter. When consent is sent reasonable suspicion of a crime secondary to the original predicated explicitly on an understanding that the search will be brief, an extended duration may well exceed the scope of the consent.53 For example, in a search for illegal drugs that can be found in the smallest container or confinement of a car, a consent to “search the car” would include all unlocked containers. However, it would be unreasonable to search a locked container found during the same consent search, and thus an officer would need to seek new consent to open the locked container.54 The rule is that when a consenter does not limit the scope of a search, and does not object when the search exceeds what the consenter later claims was a more limited consent, the indica- tion is that the search was within the scope of the consent.55 A

www.ksbar.org | April 2014 27 Consent Searches traffic violation, a request to search during a typical car stop tual use of the property by persons generally having joint automatically renders any consent to search involuntary.65 access or control for most purposes, so that it is reasonable Therefore, in car stop situations destined for state courts to recognize that any co-inhabitant has the right to permit and where reasonable suspicion of a more serious crime does inspection in his own right and that the others have as- not exist, officers are required first to end the temporary de- sumed the risk that one of their number might permit the tention before seeking consent to search. That is best done by common area to be searched.”69 returning to the driver any personal property in the officer’s possession and telling the driver in no uncertain terms that The Fourth Amendment recognizes a valid warrantless en- they are free to go.66 Then, and only then, may an officer re- try and search of premises when the police obtain the volun- quest a driver’s consent to stay, consent to answer additional tary consent of an occupant or other person who shares, or is questions, and possibly consent to a search. reasonably believed to share, common authority with another When a defendant’s consent to search is preceded by a over the area to be searched. However, should a co-occupant Fourth Amendment violation, the state must also prove that be physically present and he or she objects to the search, then there was a break in the causal connection between the illegal- no evidence found during the consent search can later be used 70 ity and the evidence obtained as a result of it, known as the against the objecting co-occupant. But, such an objection 71 doctrine of attenuation. Voluntariness of consent is measured is not irrevocable or permanent. Should the objector then by the proximity in time of the Fourth Amendment viola- leave the premises, either by choice or by lawful arrest, the 72 tion to the consent, the intervening circumstances, and the objection to the search leaves, too. Though ownership may purpose and flagrancy of the officers’ misconduct. Whether or be a factor in consent authority, title to property is not neces- 73 not evidence found during a violation should be suppressed sarily conclusive. The prosecution must only show that 1) through the exclusionary rule is a fact-driven issue and is the third party had actual or apparent authority to consent therefore open to analysis and debate.67 Courts tend to agree to the search; and, 2) that such consent was freely and volun- 74 that the prosecution’s burden of showing a sufficient break in tarily given. the causal connection between a defendant’s illegal seizure and As a general rule, Fourth Amendment protection also ap- 75 a granting of consent to search is “a heavy one.”68 plies to hotel and motel rooms. But, when the rental period of a hotel guest’s occupancy of a room terminates, the guest III. Third-Party Consent loses the exclusive right to privacy in the room. Assuming the “The authority which justifies the third-party consent does hotel has not acquiesced or given permission for the guest to not rest upon the law of property, with its attendant his- stay past the original rental period, a hotel employee may en- torical and legal refinements, . . . but rests rather on mu- ter the room, or give consent to the police to enter the room.76

28 The Journal of the Kansas Bar Association Consent Searches

The authority of law enforcement officers to constitutionally IV. Summary enter a residence under exigent circumstances and the emer- gency assistance doctrine if they reasonably believe someone In Kansas, consent searches can legally occur by verbal is in imminent peril, particularly in a domestic abuse event, is agreement between an officer and an individual. A voluntary in no way restricted by the consent rules.77 consent search is not a waiver of a constitutional right, but instead is a reasonable search under the Fourth Amendment A. Common Authority because it is voluntary. And, consent is voluntary if by a pre- Common authority rests upon the mutual use of the prop- ponderance of the evidence the facts indicate that there was erty by persons generally having joint access or control for no force or intimidation by the government.83 most purposes, so that it is reasonable to recognize that any of Courts, attorneys and law enforcement officers should re- the co-users or co-occupants has the right to permit a search main vigilant in their respective constitutional duties to pro- in their own right. Occupants have assumed the legal risk that tect our communities from the overzealous and unlawful use another co-occupant might permit the police to search the of consent searches. But at the same time, we should recognize common areas. Courts focus on whether the facts available that, “[i]n short, a search pursuant to consent . . . is a consti- to the officer would warrant a person of reasonable caution tutionally permissible and wholly legitimate aspect of effective 79 (sometimes referred to as “an officer of reasonable caution”) police activity.”84 Or, as only weeks ago Justice Alito phrased it, to believe that the consenting party had authority over the “. . . the lawful occupant of a house or apartment should have 80 premises to be searched. the right to invite the police to enter the dwelling and conduct B. Apparent Authority a search. Any other rule would trample on the rights of the oc- When an officer is presented with ambiguous facts related cupant who is willing to consent.”85 The law is finally settled: it to consent authority, the officer has a duty to inquire bet- is as much a constitutional right to say yes as it is to say no. n ter whether a person has sufficient authority over common areas that the person can consent to a search.81 Should, after About the Author a reasonable inquiry, the facts available to the officer would Colin D. Wood is a retired KBI senior special agent lead a reasonable person to believe that the third party had and assistant attorney general, having started his common authority over the area to be searched, then the con- career as a street police officer in 1973. He is sent would be valid. An officer can even have been reasonably currently a contract attorney in the U.S. Attorney’s wrong about the facts, and the consent remains valid. But, Office Asset Forfeiture Unit in Wichita and since should the officer have made a mistake of law, then an invalid 2002, has been cross-designated as a special 82 assistant U.S. attorney. Wood is a graduate of consent cannot be saved. Wichita State University and Washburn University School of Law.

Endnotes Consent Forms and Consent Formalism, 2013 Wis. L. Rev. 751 (2013) 1. United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. [hereinafter Leong and Suyeishi]; see list of articles cited by the Kansas 2d 242 (2002). Supreme Court in Thompson, supra notes, at 777-78. 2. Latin, a legal maxim; Bartlett’s Familiar Quotations 120:4 (Little 12. Maclin, supra note 9, at 36; LaFave, supra note 11, 8.1(a). Brown & Co., 16th ed. 1992). 13. Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 3. State v. Boyle, 207 Kan. 833 (1971); Zap v. United States, 328 U.S. 2d 389 (1991). 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), rev. for other reasons, 330 14. Schneckloth, supra note 6, at 227; United States v. Mendenhall, 446 U.S. 800 (1947); Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S. Ct. U.S. 544, 557, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). 1801, 114 L. Ed. 2d 297 (1991). 15. Royer, supra note 4, at 497. 4. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 16. Bostick, supra note 13, at 438. 229 (1983). 17. Royer, supra note 4, at 497. 5. Terry v. Ohio, 392 U.S. 1, 34, 88 S. Ct. 1868, 20 L. Ed. 2d 889 18. State v. Spagnola, 295 Kan. 1098, 289 P.3d 68 (2012); Thompson, (1968); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, supra note 8, at 811-13. 64 L. Ed. 2d 497 (1980); INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 19. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 1758, 80 L. Ed. 2d 247 (1984); United States v. Madden, 682 F.3d 920, L. Ed. 2d 797 (1968). 925 (10th Cir. 2012); State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 20. Schneckloth, supra note 6, at 231-32 . (1997). 21. Drayton, supra note 1, at 196. 6. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. 22. Thompson, supra note 8, at 779, citing Mapp v. Ohio, 367 U.S. 643, Ed. 2d 854 (1973). 655-57, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied 368 U.S. 871, 82 S. 7. Fernandez v. California, 571 S. Ct. __, 2014 WL 700100 (Feb. 25, Ct. 23, 7 L. Ed. 2d 72 (1961). 2014). 23. Id., at 776; State v. Spagnola at 1098. 8. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015, 1024 (2007); 24. State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997). State v. Sanchez-Loredo, 294 Kan. 50, 272 P.3d 34 (2012). 25. State v. Blair, 31 Kan. App. 2d 202, 209, 62 P.3d 661 (2002). 9. Tracey Maclin, The Good and Bad News About Consent Searches in the 26. For more than 50 years, the Kansas Supreme Court has held that § Supreme Court, 39 McGeorge L. Rev. 27 (2008); Amos v. United States, 15 of the Kansas Constitution provides the same protection from unlawful 255 U.S. 313 (1921) [hereinafter Maclin]. government searches and seizures as the Fourth Amendment to the federal 10. Davis v. United States, 328 U.S. 582 (1946). constitution. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010); 11. Wayne LaFave, Search and Seizure: A Treatise On The Fourth Amend- see Ohio v. Robinette, 519 U.S. 40, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 ment, 4 Search & Seizure § 8.1 (5th ed); Brian Gallini, Schneckloth v. (1996) ([t]he Fourth Amendment test for a valid consent to search is that Bustamonte: History’s Unspoken Fourth Amendment Anomaly, 79 Tenn. L. the consent be voluntary; and, voluntariness is a question of fact to be Rev. 233 (2012) [hereinafter LaFave]; Nancy Leong and Kira Suyeishi, determined from all of the circumstances).

www.ksbar.org | April 2014 29 Consent Searches

27. Schneckloth, supra note 6, at 248-49; Thompson, supra note 8, at 763. 59. United States v. Hernandez-Lizardi, 2013 WL 3802135 *5 (10th 28. Schneckloth, at 231. Cir. 2013) (unpublished). 29. State v. Ulriksen, 210 Kan. 795, 798, 504 P.2d 232 (1972). 60. Royer, supra note 4, at 501-02; United States v. Jones, 701 F.3d 1300, 30. Thompson, supra note 8, at 804-07. 1318 (10th Cir. 2012). 31. United States v. Jones, 701 F.3d 1300, 1319-20 (10th Cir. 2012); 61. Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 State v. Tatum, 40 Kan. App. 2d 846, 196 P.3d 441 (2008); State v. Wake- (2005); Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. field, 267 Kan. 166, 127, 977 P.2d 941 (1999). 2d 694 (2009); State v. Jenkins, 3 A.3d 806 (Conn. 2010) (gathering the 32. Eidson v. Owens, 515 F.3d 1139, 1146 (10th Cir. 2008). cases in the wake of Muehler); United States v. Alcaraz-Arellano, 441 F.3d 33. Id. (officer’s threat to hold suspect up to 3 days while a warrant was 1252, 1259 (10th Cir. 2006). obtained suggests an arrest). 62. Muehler; Johnson, generally. 34. Thompson, supra note 8, at 813. 63. See Watson, supra note 58, and Thompson, supra note 8,; United States 35. Drayton, supra note 1, at 195. v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997); see also 26 Am. Jur. Proof 36. State v. Lee, 283 Kan. 771, 777-78, 156 P.3d 1284 (2007). of Facts 2d 465 § 4 . 37. Thompson, supra note 8, at 811-13. 64. Watson, at 424; United States v. Silva-Arzeta, 602 F.3d 1208, 1215 38. Eidson, at 1146 (citing United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2010). (10th Cir. 2006). 65. State v. Smith, 286 Kan. 402, 419, 184 P.3d 890 (2008); State v. 39. Thompson, at 812. White, 44 Kan. App. 2d 960, 968-69, 241 P.3d 591 (2010). 40. Eidson, at 1147; Leong and Suyeishi at 769 asserting a greater use of 66. Thompson, supra note 8,, generally. consent forms would be easy and a win for all parties involved. 67. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998); State v. 41. LaFave, supra note 11, § 8.1(f), citing United States v. Welch, 683 Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006); State v. Wendler, 47 Kan. F.3d 1304, 1309, (11th Cir. 2012); see also State v. Hogan, 45 Kan. App. App. 2d 182, 200-03, 274 P.3d 30 (2012); State v. Williams, 297 Kan. 370, 2d 715, 723 (2012) (citing State v. Thomas, 291 Kan. 676, 246 P.3d 678 381-87, 300 P.3d 1072 (2013); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. (2011) (repeated questions which persist despite repeated denials of culpa- 2254, 45 L. Ed. 2d 441 (1963); United States v. Melendez-Garcia, 28 F.3d bility is a voluntariness factor). 1046, 1053 (10th Cir. 1994). 42. State v. Clemmons, 2004 WL 720223 at *6, 86 P.3d 1026 (Kan. 68. United States v. Fox, 600 F.3d 1253, 1259 (10th Cir. 2010). App. 2004) (unpublished); United States v. Santos, 403 P.3d 1120, 1126 69. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 (10th Cir. 2005) (however suspicious the tailoring of consent may be as a L. Ed. 2d 242 (1974). matter of common sense, it cannot be a basis for reasonable suspicion lest 70. Georgia v. Randolph, 547 U.S. 103, 122-23, 126 S. Ct. 1515, 164 the very idea of voluntary consent be rendered fictional); State v. White, L. Ed. 2d 208 (2006); the Court decided the issue of Randolph’s being 2006 WL 2264986 at *4-5, 139 P.3d 152 (Kan. App. 2006). “physically present” in the 2013-14 term in the case of Fernandez v. Cali- 43. United States v. Guerrero, 379 F. Supp. 2d 1138, 1146 (D. Kan. fornia, 571 U.S. __, 2014 WL 700100 (Feb. 25, 2014). 2005) (citing United States v. Benitez, 899 F.2d 995 (10th Cir. 1990). 71. State v. Martinez, 2013 WL 5925903, *5, 311 P.3d 1168 (Kan. 44. United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007). App.) (unpublished). 45. State v. Poulton, 37 Kan. App. 2d 299, 307-08, 152 P.3d 678 (2008) 72. Fernandez, supra note 70, at *7 (an occupant who is absent due to a (reversed on unrelated point of law). lawful detention or arrest stands in the same shoes as an occupant who is 46. United States v. Guerrero, 379 F. Supp. 2d 1138, 1146 (D. Kan. absent for any other reason). 2005). 73. Martinez, supra note 71, at *7 (dicta, but citing Randolph, supra 47. Schneckloth, supra note 6, at 228. note 70). 48. Walter v. United States, 447 U.S. 649, 656-57, 100 S. Ct. 2395, 65 74. United States v. Sanchez, 608 F.3d 685, 689 (10th Cir. 2010). L. Ed. 2d 410 (1980). 75. State v. Gonzales, 32 Kan. App. 2d 590, 593-94, 85 P.3d 711 (2004). 49. Id. 76. State v. Tush, 2012 WL 6061557 at *8, 289 P.3d 1185 (unpub- 50. LaFave, supra note 11, at 8.1(c). lished), rev. denied. 51. Jimeno, supra note 3, at 250-51. 77. Martinez, supra note 71, at 7 (citing Randolph, supra note 70). 52. Id. at 251; also see United States v. Vasquez, 2013 WL 3895283 (D. 78. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 Kan) citing 1st, 2nd and 5th Circuit law. L. Ed. 2d 242 (1974); State v. Kerestessy, 44 Kan. App. 2d 127, 134, 233 53. United States v. Rosborough, 366 F.3d 1145, 1150-51 (10th Cir. P.3d 305 (2010). 2004). 79. State v. Haug, 2013 WL 195522, *3, 291 P.3d 1073 (Kan. Ct. App. 54. Jimeno, supra note 3, at 251-52; United States v. Osage, 235 F.3d Jan. 11, 2013) (citing State v. Porting, infra, note 80). 518, 522 (10th Cir. 2000). 80. State v. Porting, 281 Kan. 320, 328, 130 P.3d 1173 (2006). 55. United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000); United 81. Kerestessy, supra note 78, at 134. States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). 82. Porting, supra note 80, at 328. 56. United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (cit- 83. Schneckloth, supra note 6, at 228. ing other 10th Circuit cases of McRae and Espinosa). 84. Id. 57. Thompson, supra note 8, at 772; State v. Parker, 282 Kan. 584, 588, 85. Fernandez v. California, 571 U.S. __, 2014 WL 700100 at *10 (Feb. 147 P.3d 115 (2006). 25, 2014). 58. United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); Royer, supra note 4, at 503.

30 The Journal of the Kansas Bar Association Appellate Decisions Appellate Decisions

All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member services at [email protected] or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions. Supreme Court INDEFINITE SUSPENSION Attorney Discipline IN RE ROBERT A. MINTZ ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 110,111 – FEBRUARY 7, 2014 IN RE DANIEL R. BECK FACTS: In this contested original proceeding in attorney disci- ORIGINAL PROCEEDING IN DISCIPLINE pline, a panel of the Kansas Board for Discipline of Attorneys made NO. 109,886 – FEBRUARY 7, 2014 findings of fact and concluded that Robert A. Mintz did not violate FACTS: This is a contested original proceeding in discipline filed the Kansas Rules of Professional Conduct (KRPC). This disciplin- by the office of the disciplinary administrator against respondent, ary matter concerned Mintz’ involvement in the death of a prior law Daniel R. Beck, of Andover, an attorney admitted to the practice of colleague with whom he was having a romantic relationship and her law in Kansas in 1988. Beck’s disciplinary matters involve his repre- battle with chronic alcoholism. sentation of clients in estate planning matters. Also, during the time DISCIPLINARY ADMINISTRATOR: The office of the disci- period when his license was suspended due to failure to satisfy the plinary administrator filed a formal complaint against the respon- annual CLE requirements to maintain his law license, Beck actively dent, alleging violations of KRPC 8.4(b), KRPC 8.4(c), and KRPC engaged in the practice of law. 8.4(d), namely committing a criminal act that reflects adversely on DISCIPLINARY ADMINISTRATOR: On January 5, 2012, the lawyer's honesty, trustworthiness or fitness as a lawyer in other the office of the disciplinary administrator filed a formal complaint respects, engaging in conduct involving dishonesty, fraud, deceit or against respondent alleging violations of the Kansas Rules of Profes- misrepresentation, and engaging in conduct that is prejudicial to the sional Conduct (KRPC). On February 21, 2012, respondent filed administration of justice. an answer to the formal complaint. The disciplinary administrator HEARING PANEL: The Hearing Panel conducted a hearing and filed a second formal complaint on November 14, 2012, which concluded that respondent did not violate the KRPC. respondent answered on December 4, 2012. Respondent filed a HELD: Court agreed with the disciplinary administrator that proposed plan of probation on January 25, 2013. The deputy dis- some of the panel’s findings of fact are not supported by clear and ciplinary administrator recommended that no less than indefinite convincing evidence and the panel’s conclusions of law are not sup- suspension be imposed. ported. Court concluded Mintz violated two rules—KRPC 8.4(c) HEARING PANEL: The Kansas Board for Discipline of At- (2013 Kan. Ct. R. Annot. 655) (conduct involving dishonesty, torneys conducted a hearing on the formal complaints on April 9, fraud, deceit, or misrepresentation) and KRPC 8.4(d) (conduct that 2013, when the respondent was present and represented by counsel. is prejudicial to the administration of justice). Having found vio- Respondent stipulated that he violated KRPC 1.4 (2013 Kan. Ct. lations of the KRPC, Court rejected the recommendation of the R. Annot. 484) (communication with clients); KRPC 8.4(c) (2013 disciplinary administrator that Mintz should be disbarred. Court Kan. Ct. R. Annot. 655) (dishonest conduct); and KRPC 5.5 (2013 concluded that indefinite suspension was appropriate. Kan. Ct. R. Annot. 630) (unauthorized practice of law). The panel accepted those stipulations and further determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competent rep- Civil resentation); Kansas Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349) (properly registered attorneys may practice law); and HABEAS CORPUS Kansas Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) MILLER V. STATE (giving notice following suspension). The Hearing Panel unani- DOUGLAS DISTRICT COURT – REVERSED mously recommended that the respondent’s license be suspended AND REMANDED for a period of two years. COURT OF APPEALS – AFFIRMED HELD: Court held that the Hearing Panel’s conclusions were NO. 103,915 – FEBRUARY 14, 2014 supported by the evidence of respondent's lack of communication, FACTS: Miller’s conviction for premeditated murder of his wife encouraging others to falsify documents, and to falsifying docu- was affirmed in direct appeal. State v. Miller, 284 Kan. 682 (2007). ments himself. Court found respondent practiced law without a In that appeal, appellate counsel failed to challenge erroneous written license for nearly three years for failure to satisfy the annual CLE jury instruction that read: “If you have a reasonable doubt as to the requirements. Court held respondent’s grave misconduct violated truth of each of the claims required to be proved by the State, you some of the most basic tenets of the profession and merited his must find the defendant not guilty. If you have no reasonable doubt disbarment. as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” Miller sought post-conviction relief in 60-1507 motion alleging in part ineffective assistance of counsel at trial and appeal in failing to challenge the written reason- www.ksbar.org | April 2014 31 Appellate Decisions able doubt instruction. Alternatively he claimed the written instruc- Supp. 40-3118(b) and the policy sufficient to force a lapse of cover- tion constituted structural error. District court denied the motion. age, regardless of whether a proper substantive basis for nonrenewal In unpublished opinion, Court of Appeals reversed and remanded. exists under K.S.A. 2012 Supp. 40-276a(a) and the policy? Focusing on appellate counsel’s performance, the panel found that FACTS: Nationwide Mutual Insurance Co. sued the children of the written reasonable doubt instruction misinformed the jury, was Melvin L. Briggs in the U.S. District Court for the District of Kan- structural error standing alone, and that appellate counsel rendered sas, seeking declaratory judgment that it had effectively nonrenewed ineffective assistance by failing to find and assert the issue on direct Melvin’s insurance policy before the automobile accident that led appeal. Supreme Court granted state’s petition for review. to his death. Because Nationwide had complied with statutory and ISSUE: Ineffective assistance of appellate counsel policy requirements for notice of nonrenewal, it was granted sum- HELD: State concedes district court error in giving jury a writ- mary judgment. The Briggses appealed to the U.S. Court of Appeals ten instruction that effectively told jury that it may acquit the de- for the Tenth Circuit, arguing that Nationwide also had to comply fendant only if it had reasonable doubt as to all of the elements with K.S.A. 2012 Supp. 40-276a(a), which sets out permissible rea- the State is required to prove – rather than acquitting if it has sons for coverage termination. The Tenth Circuit certified the ques- reasonable doubt as to any single element. State’s arguments that tion to the Court. appellate counsel’s performance was nonetheless satisfactory were ISSUES: (1) Insurance and (2) nonrenewal considered and rejected. Although Court of Appeals’ disapproval HELD: Court held that neither Kansas statutes nor the language of the oral reasonable doubt instruction given to the jury was con- in Melvin’s policy required a statement of a permissible substantive trary to Kansas case law, it correctly found that the written instruc- reason for nonrenewal in the notice to make the notice procedurally tion error in this case was “structural” under Sullivan v. Louisiana, effective. Nationwide strictly complied with the statutory and policy 508 U.S. 275 (1993). Judgment of Court of Appeals reversing and procedural notice requirements, and coverage lapsed on September remanding Miller’s case was affirmed. Judgment of district court 3, 2008. was reversed and remanded. This does not mean that the Briggses are necessarily without a STATUTES: K.S.A. 2013 Supp. 21-5108(a); K.S.A. 20-3018(b); remedy. If Nationwide lacked a permissible substantive reason to re- K.S.A. 21-3109, -3401(a); K.S.A. 22-3414(3); and K.S.A. 60-1507, fuse to renew Melvin’s policy, then it violated K.S.A. 2012 Supp. 40- -1507(a), -2101(b) 276a(a) and breached the contract of insurance. The violation and breach occurred at the moment of the wrongful nonrenewal—i.e., INSURANCE AND NONRENEWAL while the policy was still in force. Nationwide would be liable for NATIONWIDE MUTUAL INSURANCE CO. any damages caused by its breach. In addition, if Nationwide vio- V. BRIGGS ET AL. lated the substantive provisions of K.S.A. 2012 Supp. 40-276a(a), CERTIFIED QUESTION U.S. COURT OF APPEALS FOR it may be subject to administrative penalties under the Unfair Trade THE TENTH CIRCUIT – QUESTION IS DETERMINED Practices Act, K.S.A. 40-2401 et seq. NO. 109,015 – FEBRUARY 7, 2014 STATUTE: K.S.A. 40-276a(a), -2401, -3118(b), -3201 CERTIFIED QUESTION: Is notice to nonrenew an insurance policy that complies with the procedure set out in K.S.A. 2012 Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office Updated Appellate Forms Available for Reference Chapter 12 in the Kansas Appellate Practice Handbook, 5th edition, contains revised and streamlined suggested appellate practice forms. If it has been a while since your office has reviewed forms, this would be a good opportunity to excise extra- neous language (for example, “Comes Now” and “Wherefore”). Subdivisions and headings are suggested in many instances to improve clarity. A helpful briefing checklist has been included in subsection 12.35, as well as a sample brief at 12.36. Appendix C contains a citation guide for reference in preparing appellate briefs. The handbook is available online, free of charge, at www.kscourts.org or www.kansasjudicialcouncil.org. Proofread Appellate Filings Many motions arrive in the appellate clerk’s office with the wrong court or the wrong case number designated. The clerk will make those corrections in the interest of moving the filing along, but that kind of error creates a poor first impression as judges begin to read the document. Proofread carefully. The Extent of Appellate Counsel’s Responsibility When an attorney undertakes appellate representation, whether retained or appointed, the attorney’s responsibility to the client does not end when the opinion is filed. The attorney must determine whether rehearing or modification should be sought and whether the client desires to file a petition for review of a Court of Appeals opinion. Rehearing or modification must be sought in the Court of Appeals not later than 14 days after the opinion is filed and in the Supreme Court not later than 21 days after the opinion is filed. A petition for review must be filed not later than 30 days after the Court of Appeals opinion is filed. The attorney must be prepared to continue briefing and present oral argument in the Supreme Court if the petition for review is granted.

If you have questions about these practices or appellate procedure generally, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.

32 The Journal of the Kansas Bar Association Appellate Decisions

MUNICIPALITY, NOTICE, complied with the statute as to content and manner of delivery. AND SUBSTANTIAL COMPLIANCE However, Court held that substantial compliance with K.S.A. 2012 SLEETH ET AL. V. SEDAN CITY HOSPITAL ET AL. Supp. 12-105b(d) is not achieved when a claimant’s notice fails to CHAUTAUQUA DISTRICT COURT – AFFIRMED provide any statement of monetary damages. Court also held that COURT OF APPEALS – ISSUE SUBJECT the provision in K.S.A. 2012 Supp. 12-105b(d) giving a municipal- TO REVIEW IS REVERSED ity 120 days to investigate and review a claim is a statutory condi- NO. 105,876 – FEBRUARY 7, 2014 tion precedent to filing a lawsuit, and that a claimant’s premature FACTS: This was a wrongful death claim arising out of the death filing of a lawsuit leaves a court without subject matter jurisdiction. of Christopher J. Johnson, a patient at Sedan City Hospital. His par- Court stated that even if it assumed plaintiffs substantially complied ents, Scott and Linda Sleeth, alleged that Short, a hospital employee, with K.S.A. 2012 Supp. 12-105b(d) by May 2, 2010, which was the punctured Johnson’s bowel while inserting a feeding tube, causing his earliest date they provided the hospital with any statement of dam- death on August 7, 2008. The Sleeths sued the hospital and Short. ages, the district court properly dismissed their case because they The district court found that Sedan City Hospital was a municipality prematurely filed it. as defined by K.S.A. 2012 Supp. 12-105a(a) because it was owned by STATUTES: K.S.A. 12-105a, -105b(d); K.S.A. 20-3018; K.S.A. the city of Sedan. That meant the wrongful death claim was subject 60-212, -513(a), -518, -1903, -2101(b); and K.S.A. 75-6101, to the notice requirements of K.S.A. 2012 Supp. 12-105b(d) (not -6115(a)(2) amended since 2004; claim arose in 2008). See K.S.A. 75-6115(a)(2) (the Kansas Tort Claims Act is applicable to claims against a hospital owned by a municipality and the employees thereof alleging a health Criminal care provider’s failure to perform professional services). The district STATE V. CLARK court dismissed the action early in the proceedings, concluding the SHAWNEE DISTRICT COURT – CONVICTIONS Sleeths failed to comply with the K.S.A. 2012 Supp. 12-105b(d) no- AFFIRMED, SENTENCE VACATED, AND REMANDED tice requirements. The Sleeths contend they actually or substantially NO. 105,613 – FEBRUARY 7, 2014 complied with K.S.A. 2012 Supp. 12-105b(d) through a letter to the hospital administrator or a series of letters sent to the hospital admin- FACTS: Clark was convicted of two counts of aggravated indecent istrator and an insurance carrier representative. In a fractured opinion, liberties with a child under 14 years of age. District court imposed all three panel members of the Court of Appeals issued individual two concurrent hard 25-year life sentences and ordered lifetime post- opinions, but reinstated the claim under substantial compliance. release supervision. Lifetime electronic monitoring was included in ISSUES: (1) Municipality, (2) notice, and (3) substantial the sentencing journal entry. On appeal, Clark claimed there was compliance insufficient evidence of his intent to arouse sexual desires of himself HELD: Court held that one or more letters to the hospital’s ad- and/or the children. He also challenged the post-release supervision ministrator and an insurance carrier representative substantially and lifetime electronic monitoring provisions in his sentence.

www.ksbar.org | April 2014 33 Appellate Decisions

ISSUES: (1) Sufficiency of the evidence and (2) post-release su- STATUTES: K.S.A. 21-4701, -4718; K.S.A. 21-4643; and pervision and electronic monitoring K.S.A. 60-1507 HELD: Under facts and circumstances in this case, sufficient evi- dence supported the convictions. STATE V. HUDDLESTON State conceded that the sentencing court erred in imposing life- SEDGWICK DISTRICT COURT – AFFIRMED time post-release supervision. That portion of Clark’s sentences was NO. 106,273 – FEBRUARY 14, 2014 vacated. State also conceded sentencing court erred in ordering life- FACTS: Huddleston’s conviction for premeditated first-degree time electronic monitoring. Case was remanded for nunc pro tunc murder arose from the death of Stover in 2000. No charges were order to correct that portion of the journal entry. brought in the case for more than 10 years. Huddleston, Edwards STATUTES: K.S.A. 2013 Supp. 22-3717(u); K.S.A. 2008 Supp. and Pischel were involved in Stover’s death when he was injected 22-3717(u); K.S.A. 21-3504(a)(3)(A), -4643; and K.S.A. 22- with high doses of insulin. Edwards later confessed in 2010 to her 3601(b)(1) involvement in the crime and implicated Huddleston as injecting Stover with the insulin. STATE V. DULL ISSUES: (1) Prosecutorial misconduct, (2) premeditation, (3) SEDGWICK DISTRICT COURT – AFFIRMED jailhouse letters, and (4) admission of evidence NO. 105,115 – JANUARY 31, 2014 HELD: Court found that the prosecutors made improper argu- FACTS: Dull, age 20, was convicted of aggravated criminal sod- ments to the jury misstating the law by suggesting that premedita- omy, rape, and aggravated indecent liberties involving a 13-year- tion could occur after a homicidal act. Court concluded it is not old victim. The victim’s mother reported the sexual activity. Dull reasonably probable that those misstatements affected the outcome claimed that he did not have sex with the victim and also that the of the trial given the strong evidence of premeditation, the jury in- other testimony in the case demonstrated that it was consensual. structions, and the prosecutors’ correct statements of the law regard- The district court sentenced Dull to 3 concurrent hard 25 to life ing premeditation. Court also held that the trial judge did not err sentences under Jessica’s Law. He was also convicted of burglary when he admitted into evidence two jailhouse letters written about and theft in a separate case tried to the bench on stipulated facts, the crimes by Huddleston because the letters were relevant and rea- and the sentence was ordered to run concurrently with the sen- sonable people could agree with the trial judge’s determination that tences for the sex crimes. the probative value of the defendant’s letters providing circumstan- ISSUES: (1) Prosecutorial misconduct, (2) admission of evidence, tial evidence of his or her intent when committing an act that caused (3) ineffective assistance of counsel, (4) sufficiency of the evidence, death outweighed any prejudice caused by vague references in the and (5) departure motion letters to the defendant’s incarceration. HELD: Court held a prosecutor’s assertion during opening state- STATUTES: K.S.A. 21-3401; K.S.A. 22-3601; and K.S.A. 60- ment that a sex victim’s story to her mother was “the truth” is outside 261, -401, -407, -455, -460 the wide latitude allowed to attorneys for the state and therefore error. It is not reversible error, however, because it was not repeated STATE V. KELLY or emphasized and did not appear calculated or deliberate; it thus JOHNSON DISTRICT COURT – AFFIRMED was not gross and flagrant and was not a product of ill will. In addi- NO. 105,934 – FEBRUARY 21, 2014 tion, given the strength of the evidence, Court stated it was satisfied FACTS: Kelly, prosecuted as an adult for robbing liquor store beyond a reasonable doubt that the prosecutor’s early and isolated and killing a clerk, was convicted on guilty pleas to felony murder reference to “the truth” did not affect the outcome of the trial in and aggravated robbery. A hard 15-year life sentence and concurrent light of the entire record. Court held that there was no objection to 172-month sentence was imposed. Twelve years later Kelly moved the admission of the evidence that Dull’s younger brother was hav- to withdraw pleas, arguing ineffective assistance of counsel, and also ing sex with the victim’s friend in the next bedroom during the al- claimed his sentences constituted cruel and unusual punishment. leged crimes, and Court did not reach the merits of the issue. Court District court considered motion as filed under K.S.A. 60-1507, found that Dull’s ineffective assistance of counsel claims were raised and denied it as time barred. Kansas Supreme Court reversed, re- for the first time on appeal, and Court did not order a remand be- manding for district court’s consideration of motion under K.S.A. cause it was not requested by appellate counsel. Court found suf- 22-3210(d) as a post-sentence motion to withdraw pleas. State v. ficient evidence to support all the convictions. Court stated there is Kelly, 291 Kan. 563 (2010). District court subsequently denied the no requirement for stating findings on the record when the district motion without conducting an evidentiary hearing. Kelly appealed court denies a departure motion and there was no error in this case. claiming that ineffective assistance of counsel constituted manifest

34 The Journal of the Kansas Bar Association Appellate Decisions injustice and district court erred in summarily denying his motion. tion might have been given in his case His claim that attorneys failed Kelly also claimed his aggravated robbery sentence was illegal because to advise him that he would waive right to challenge admissibility of his prior juvenile adjudications were used both to certify him for statements to police if he entered guilty pleas has no factual or legal trial as an adult, and in computing Kelly’s criminal history score in basis in the record. And Kelly established no prejudice on any of sentencing. those claims. Nor did Kelly’s conclusory allegation of cruel and un- ISSUES: (1) Denial of motion to withdraw plea and (2) illegal usual punishment preclude summary denial of his plea withdrawal sentence motion. HELD: District court did not err in denying ineffective assistance Kelly’s claim that dual use of his prior juvenile adjudications ren- of counsel claims without conducting an evidentiary hearing. Kelly’s dered his sentence illegal is defeated by State v. Lanning, 260 Kan. claim that attorneys failed to advise him of the mandatory mini- 815 (1996), which remains controlling. mum sentence for felony murder is contrary to the record. His claim STATUTES: K.S.A. 2013 Supp. 22-3210(e); K.S.A. 22-3210, that attorneys failed to advise him of possible juvenile sentencing -3210(d), -3504, -3504(1), -3601(b)(1); K.S.A. 60-1507; K.S.A. was raised for first time on appeal, but even if properly raised, there 1994 Supp. 21-4710, -4710(a), -4710(d)(11); and K.S.A. 38- was no reasonable basis to believe a lesser included offense instruc- 1636(a), -1636(i) (Furse 1993)

Court of Appeals HELD: The insurers contended that the district court erred in Civil three ways: (1) by applying Missouri law; (2) by finding the policy covered negligence and negligent misrepresentation litigation; and CHILD SUPPORT AND ADOPTION SUBSIDY (3) by finding no exclusion in the policy that extinguished the in- IN RE MARRIAGE OF THOMAS surers’ duty to defend Central Power on those claims. Court found JOHNSON DISTRICT COURT – AFFIRMED no error: (1) Missouri law applies because the insurance contract NO. 109,771 – FEBRUARY 14, 2014 was made in Missouri when the last act needed for creation of the FACTS: Donald Thomas appeals from the trial court’s decree of insurance contract—delivery of the insurance policy—took place at divorce. As part of the divorce decree, Donald was ordered to pay Central Power’s Missouri business location; (2) Under Missouri law, his former spouse, Lisa Thomas, $315 per month in child support. claims for negligence and negligent misrepresentation have been Donald argues the trial court erred in calculating child support be- held covered under similar insurance policies; (3) Under Missouri cause it failed to reduce or eliminate his support obligation based law, exclusions apply only when their language clearly and unam- on a monthly adoption subsidy that Lisa received from the state of biguously precludes coverage, and no exclusion cited here by the Kansas. insurers did so. Because the court below appropriately applied Mis- ISSUES: (1) Child support and (2) adoption subsidy souri law, and because the plain language of the policy covers and HELD: Court held that because an adoption subsidy is meant to does not exclude coverage for negligence and negligent misrepresen- supplement an adoptive parent’s income for the benefit of a special tation. The court affirmed. needs child, the adoption subsidy is in no sense attributable to the STATUTES: No statutes cited. adoptive parent. An adoption subsidy is income attributable to the adopted child. Because an adoption subsidy is not income attribut- able to the parent, but, rather, income of the child, the adoption Criminal subsidy could not be considered in the income attributable to the custodial parent for the purpose of calculating child support. STATE V. DECLERCK STATUTE: K.S.A. 38-319, -324 SHAWNEE DISTRICT COURT – AFFIRMED NO. 109,759 – FEBRUARY 7-2014 INSURANCE AND DUTY TO DEFEND FACTS: Declerck was the driver in single vehicle accident that CENTRAL POWER SYSTEMS & SERVICES INC. killed a passenger. While at the hospital for treatment of injuries De- V. UNIVERSAL UNDERWRITERS INSURANCE ET. AL. clerck refused consent for blood sample, but custodial blood draw JOHNSON DISTRICT COURT – AFFIRMED was taken pursuant to K.S.A. 2011 Supp. 8-1001(b)(2) because NO. 108,875 – FEBRUARY 21, 2014 there was a fatality and Declerck could have been cited for traf- FACTS: Universal Underwriters Insurance Co. and Zurich Amer- fic offense. That testing disclosed marijuana chemicals in Declerck’s ican Insurance Co., collectively “the insurers,” appeal the district blood. Declerck filed motions to suppress that evidence, claiming court's determination that the insurers had the duty to defend an no exigent circumstances excused warrant requirement, and law insured against claims made against the insured in a lawsuit. The enforcement lacked probable cause to believe Declerck was under district court held that the insurers were obligated to defend Central influence of drugs. District court granted the motions. State filed Power Systems & Services Inc. in litigation instigated by a customer interlocutory appeal to challenge suppression of blood test. of Central Power. That customer had alleged that Central Power ISSUES: (1) Constitutionality of K.S.A. 2011 Supp. 8-1001(b)(2), had been negligent and had made negligent misrepresentations re- (2) Kansas implied consent statute, and (3) good-faith exception to garding the way products Central Power provided would operate. exclusionary rule Applying Missouri law, the district court found that the claims as- HELD: The warrantless blood draw violated the Fourth Amend- serted against Central Power for negligence and negligent misrepre- ment. Although blood was drawn in accord with K.S.A. 2011 Supp. sentation triggered the insurers’ duty to defend under the insurance 8-1001, there was no probable cause that Declerck had been operating coverage provided to Central Power. motor vehicle while under influence of drugs or alcohol. K.S.A. 2011 ISSUES: (1) Insurance and (2) duty to defend Supp. 8-1001(b)(2) is unconstitutional to extent it requires a search

www.ksbar.org | April 2014 35 Appellate Decisions and seizure absent probable cause the person was operating or attempt- ISSUES: (1) Bunyard jury instruction, (2) lesser included offense ing to operate a vehicle under the influence of drugs or alcohol. instruction, (3) sufficiency of the evidence, (4) prosecutorial mis- State’s argument for implied consent, raised for first time on appeal, conduct, and (5) sentencing was considered, finding that Declerck’s implied consent under Kansas HELD: While a Bunyard instruction would be legally appropriate implied consent statute did not constitute consent for purposes of in a prosecution for aggravated criminal sodomy, in this case Franco a valid exception to the warrant requirement under Fourth Amend- claimed the victim initially consented and that they stopped as soon ment. State v. Johnson, 297 Kan. 210 (2013), is distinguished. as the victim indicted he no longer wished to participate. Thus a State’s argument for good faith exception to the exclusionary rule, Bunyard instruction was factually inapposite and unnecessary when also raised for first time on appeal, was not considered because ad- jury was not asked to determine legal culpability of a defendant who equate record was not provided and disputed facts prevented appel- chose to continue engaging in a sex act after the other participant late review. had withdrawn consent. STATUTES: K.S.A. 2012 Supp. 8-1001(b); K.S.A. 2011 Supp. Under Lawrence v. Texas, 539 U.S. 558 (2003), the Kansas crimi- 8-1001, -1001(a), -1001(b)(2), -1001(d)(3); K.S.A. 2011 Supp. nal sodomy statute, K.S.A. 21-3501(a)(1), and its recodification 21-5405(a)(3); K.S.A. 2007 Supp. 8-1001, -1001(a); and K.S.A. at K.S.A. 2013 Supp. 21-5501(b), are unconstitutional and unen- 8-1001 forceable with respect to anal intercourse between consenting adults of the same sex conducted in private. Because prosecution of Franco STATE V. FRANCO for criminal sodomy would have been constitutionally impermissi- FINNEY DISTRICT COURT – AFFIRMED ble under Lawrence, it could not have been a lesser included offense NO. 107,814 – FEBRUARY 14, 2014 of aggravated criminal sodomy. FACTS: Franco was convicted of aggravated criminal sodomy. Sufficient evidence supports Franco’s conviction. Appellate court The adult male victim told the jury the sex was forced and contin- does not reweigh evidence or determine credibility of witnesses. ued over his objections. Franco testified that the sexual encounter Prosecutor’s argument was fair comment on how jurors should ex- was consensual, and that he stopped as soon as victim asked. On ap- amine the evidence in assessing credibility of Franco and the victim. peal Franco claimed: (1) the jury should have been instructed under Controlling Kansas Supreme Court precedent defeats Franco’s State v. Bunyard, 281 Kan. 392 (2006), that no crime is committed sentencing claim. when a willing participant in a sex act withdraws consent and the STATUTES: K.S.A. 2013 Supp. 21-5501(b), -5504(a), -5504(a) other participant stops within a reasonable time; (2) the jury should (1); and K.S.A. 21-3107, -3412, -3501(2), -3502(a)(1), -3505, have been instructed on criminal sodomy as a lesser included of- -3505(a)(1), -3506, -3506(a)(3) fense; (3) questions about victim’s version of the sexual encounter should have caused jury to have reasonable doubt about Franco’s STATE V. HANKINS guilt; (4) prosecutor’s rebuttal during closing argument misstated JOHNSON DISTRICT COURT – AFFIRMED the law and diluted state’s burden of proof; and (5) the use of Fran- NO. 109,123 – FEBRUARY 21, 2014 co’s criminal history in sentencing violated Apprendi v. New Jersey, FACTS: Hankins pled guilty to aggravated robbery, burglary 530 U.S. 466 (2000). and two counts of aggravated assault. His PSI report listed three

36 The Journal of the Kansas Bar Association Appellate Decisions prior convictions and the trial court sentenced him using a criminal history category G. The district court denied Hankins’ motion for departure and sentenced him to a controlling term of 68 months’ prison. The district court denied Hankin’s motion to correct illegal sentence, finding that he waived his right to challenge his criminal history by stipulating to it in open court and that even if challenged, Hankins failed to prove it was incorrect because deferred sentences from other states, here Oklahoma, can be included in a defendant’s criminal history. ISSUES: (1) Illegal sentence and (2) criminal history HELD: Court stated that depending on the facts of the case, the doctrine of invited error can bar a defendant who forgoes his or her statutory opportunity to challenge his or her criminal history from subsequently complaining that his or her sentence was based on that unchallenged criminal history. Court held that a prior Oklahoma deferred adjudication after a plea of guilty is counted as a prior con- viction for calculating criminal history under the Kansas Sentencing Guidelines. STATUTES: K.S.A. 21-3107, -3110, -4710, -4711, -4714, -4715, -4716, -5111, -6810, -6811, -6814; K.S.A. 22-3414, -3504, -3601; K.S.A. 60-1501, -1507

STATE V. SHELLY BROWN DISTRICT COURT – APPEAL DISMISSED NO. 109,292 – FEBRUARY 14, 2014 FACTS: Shelly was convicted on one count of unlawful distribu- tion of drug precursor, and one count of unlawful possession of drug precursor. District judge advised Shelly of right to appeal sentence within 14 days of April 2012 sentencing, but no direct appeal was filed. In July 2012 Shelly filed a 60-1507 motion seeking resentenc- ing on both convictions pursuant to State v. Snellings, 294 Kan. 149 (2012), a case decided the same date Shelly was sentenced. District court found Snellings applied to Shelly’s conviction for unlawful possession of drug precursor but not to the distribution offense, and modified Shelly’s sentence on the possession charge. Shelly timely appealed from the resentencing, and asked for hearing under State v. Ortiz, 230 Kan. 733 (1982), to allow appeal from original sen- tencing. District court conducted a hearing and found that none of the Ortiz exceptions applied to permit an untimely appeal from the April 2012 sentencing. On appeal, Shelly argued the first exception applied because he was never advised of the severity level of the sentence as required by State v. Patton, 287 Kan. 200 (2008). Shelly also claimed that the third exception applied because his retained trial counsel advised Shelly there was no basis for an appeal. ISSUE: First and third Ortiz exceptions HELD Shelly was entitled to seek further relief under Snellings only if untimely appeal from April 2012 sentencing is allowed. No error in district court’s finding that the first and third Ortiz excep- tions did not apply. The Kansas Supreme Court in Patton never intended to broaden the plain language of the controlling statutes by requiring a sentencing judge to specifically advise the defendant of right to appeal the severity level of the sentence. Here, record showed the sentencing judge satisfied the statutory requirements by informing Shelly of his right to appeal. The record further showed that Shelly never directed retained counsel to file an appeal from the April 2012 sentencing order. Because no Ortiz exception allowed Shelly to pursue untimely appeal of his original sentence, the appeal was dismissed with no opinion on whether Snellings would apply to Shelly’s conviction of unlawful distribution of drug precursor. STATUTES: K.S.A. 21-4721(e)(3); K.S.A. 22-3424(f), -4159(a); K.S.A. 60-1507; and K.S.A. 65-4159(a), -4161(a)

www.ksbar.org | April 2014 37 classified advertisements

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The at (785) 409-5228. hardwood floors, large windows, and building also includes a beautiful glass includes use of conference room, recep- atrium sitting room used as an art dis- We have the Space You Need at the tion etc. External signage (visible from play. Provided services include private Price You Want! We have offices avail- Nall) is available with long-term lease, parking and receptionist services. Please able in all sizes from 200 sq. ft. to 8,000, or purchase. Lease for $1,100/month, call Swinnen & Associates LLC at (785) or no office at all under our virtual pro- or will sell my 20 percent interest in 272-4878 for more information and to gram. We offer a cost-effective solution the 2,400 sf building unit (the other schedule an appointment to view the for small- to medium-sized companies 80 percent of the building is used by a space. and branch offices with very little up- small accounting firm). Contact Daniel front cost and flexible lease terms. You Langin at (913) 661-2430 or dlangin@ Professional Offices, West of can typically move into your office in langinlaw.com. Plaza. Two corner offices and reception a day and have access to a professional area/3rd office, plus kitchenette and environment and services without all Office Sharing/Office for Lease— bathroom. Windows, hardwood floors, the overhead. Please visit us at www. Country Club Plaza, Kansas City. new paint throughout. $1,150/month. officetechcenter.us. Office sharing or office lease opportuni- Eleven-year tenant just vacated. Contact ty on the Country Club Plaza in a Class (816) 753-2823 for more information. Beta Testers Needed A high profile corner building with am- ple free public parking for clients. 200 Professional Office Space for Lease Beta Testers Needed for Law Office to 11,000 square feet available. Win- or Sale. Newly vacated space at 79th Software. If you, or any of your staff, dow offices available, high-speed DSL, and Quivira, Lenexa, KS. Great rates, would like to beta test Juris DOC Pro, printer, copier, facsimile, scanning, tele- and will consider valuable upfront lease free of charge, for 60 days in exchange phone, kitchen facilities, reception area, concessions for high quality, long term for feedback. Download it at: http:// and multiple conference rooms. Offices lease. Office is located in a commercial www.jurisdocpro.com. Once installed, are state-of-the-art with award-win- center that is for sale. Excellent income- contact me and I’ll send you a 60-day li- ning interior finish and design. Dedi- producing investment opportunity for cense key, which removes the watermark cated area available for your assistant if an owner-occupant. Attractive owner from the forms and allows unlimited use needed. Reasonable rent. No long-term financing available for qualified buyer. of the application for 60 days. In addi- lease required. Some possibility of busi- Call (816) 805-6415. tion to an invoicing component that ness referrals depending on your area of

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