Your Partner in the Profession | April 2018 • Vol. 87 • No. 4

Etched in Digital Stone: Nonconsensual Por- nography in and a Web That Never Forgets Christopher Teters P 40

KBA Day at the Capitol: An Opportunity for Direct Advocacy with Members of the Hon. Chief Justice Lawton R. Nuss P 31

40 | Etched in Digital Stone: Nonconsensual Pornography in Kansas and a Web That Never Forgets Christopher Teters 31 | Direct Advocacy: KBA Day at the Capitol Chief Justice of the Lawton R. Nuss

Cover design by Ryan Purcell 6 | KBA Elections 25 | State of the Judiciary About Your Candidates in Contested Races ...... Chief Justice of the Kansas Supreme Court Lawton Nuss 17 | Math and the Law Series: 36 | Outstanding Speakers Recognition Using Math to Determine How Best to Pay for Long Term Care...... Jenny Walters

Regular Features 11 | KBA President 37 | Substance and Style title...... Gregory P. Goheen ...... Joyce R. Rosenberg 13 | KBF President Managing Cumulative Stress in Your Profession 56 | Members in the News ...... Hon. Evelyn Z. Wilson 58 | Obituaries 15 | YLS President 60 | Appellate Decisions The Importance of Sleep...... Clayton Kerbs 69 | Appellate Practice Reminders 20 | Law Practice Management Tips & Tricks A Picture is Worth a Thousand Words: Cheap and Easily Manipulated Video Recent Amendments to Supreme Court Rule 3.07 ...... Larry N. Zimmerman ...... Douglas T. Shima 24 | Spring 2018 CLE Schedule 72 | Classified Advertisements 34 | Diversity Corner 2018 National Conference of Bar Presidents Fellow Award Recipient Mr. Fred D. Gray....Katherine Goyette

www.ksbar.org | April 2018 3 E Let your VOICE TH 2017-18 be KBA Officers & Board of Governors Heard! JOURNAL President OF THE KANSAS BAR ASSOCIATION Gregory P. Goheen, [email protected] President-elect 2017-18 Bruce W. Kent, [email protected] Journal Board of Editors Vice President Mira Mdivani, [email protected] Emily Grant, chair, [email protected] Secretary-Treasurer Charles E. Branson, [email protected] Sarah G. Briley, [email protected] Hon. David E. Bruns, [email protected] Immediate Past President Steve N. Six, [email protected] Richard L. Budden, [email protected] Boyd A. Byers, [email protected] Young Lawyers Section President Clayton Kerbs, [email protected] Jennifer Cocking, [email protected] Connie S. Hamilton, [email protected] District 1 Toby J. Crouse, [email protected] Michael T. Jilka, [email protected] Christi L. Bright, [email protected] Lisa R. Jones, [email protected] Diana Toman, [email protected] Hon. Janice Miller Karlin, [email protected] District 2 Casey R. Law, [email protected] Sarah E. Warner, [email protected] Hon. Robert E. Nugent, [email protected] Hon. Sally D. Pokorny, [email protected] Professor John C. Peck, [email protected] District 3 Rachael K. Pirner, [email protected] Angela M. Meyer, [email protected] Richard D. Ralls, [email protected] District 4 Karen Renwick, [email protected] Brian L. Williams, [email protected] Terri Savely, [email protected] District 5 Teresa M. Schreffler, [email protected] Cheryl L. Whelan, [email protected] Richard H. Seaton Sr., [email protected] Vincent Cox, [email protected] Sarah B. Shattuck, [email protected] District 6 Tish S. Morrical, [email protected] Richard D. Smith, [email protected] Marty M. Snyder, [email protected] District 7 Gary L. Ayers, [email protected] Patti Van Slyke, journal editor and staff liaison, [email protected] Sylvia B. Penner, [email protected] Catherine A. Walter, [email protected] Hon. Jeffrey E. Goering, [email protected] Meg Wickham, dir. of communications and member svcs., [email protected] District 8 Issaku Yamaashi, [email protected] Gaye B. Tibbets, [email protected] Natalie Yoza, [email protected] District 9 Aaron L. Kite, [email protected] Journal Board of Editors The is responsible for the selection and editing of all District 10 substantive legal articles that appear in The Journal of the Kansas Bar Association. [email protected] The board reviews all article submissions during its quarterly meetings (January, Gregory A. Schwartz, April, July, and October). If an attorney would like to submit an article for District 11 consideration, please send a draft or outline to Patti Van Slyke, Journal Editor Mark Dupree, [email protected] at [email protected]. District 12 Bruce A. Ney, [email protected] Ryan Purcell, graphic designer, [email protected] Nancy Gonzalez, [email protected] Alexander P. Aguilera, [email protected] The Journal of the Kansas Bar Association (ISSN 0022-8486) is published At-Large monthly with combined issues for July/August and November/December for a Eunice Peters, [email protected] total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published KDJA Representative by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Hon. Michael F. Powers, [email protected] Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, KBA Delegate to ABA which is included in annual dues. Nonmember subscription rate is $45 a year. Rachael K. Pirner, [email protected] Hon. Christel E. Marquardt, [email protected] The Kansas Bar Association and the members of the Board of Editors assume 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. Linda S. Parks, [email protected] Copyright © 2017 Kansas Bar Association, Topeka, Kan. ABA YLD Delegate Joslyn Kusiak, [email protected] For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or Executive Director email [email protected] Jordan Yochim, [email protected] For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email [email protected]. Our Mission

Publication of advertisements is not to be deemed an endorsement of any TheKansas Bar Association is dedicated to advancing the professionalism and product or service advertised unless otherwise indicated. legal skills of lawyers, providing services to its members, serving the community POSTMASTER: Send address changes to The Journal of the Kansas Bar through advocacy of public policy issues, encouraging public understanding of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. the law, and promoting the effective administration of our system of justice.

4 The Journal of the Kansas Bar Association REGISTER NOW Law Students Welcome!

KBA Golf Tournament Sycamore Ridge Golf Course Enjoy a round of golf and networking with Kansas attorneys. Thursday, June 14th 9:00 a.m. Registration & practice range open 10:00 a.m. Shotgun start e tournament will feature several traditional proximity prizes, including men’s & women’s longest drive, closest to the pin and longest putt. ere will also be a “Hole- in-One” prize on a par 3,TBD. Registration is $100, which includes lunch at the turn and two drink tickets. You have the option to purchase the golf “extra” package onsite. It includes four (4) mulligans, a 6’ foot string and the Gary Woodland Drive (hole TBD) on a par 5. For more information please contact: Joe Molina at 785-234-5696 or [email protected]

* e tournament is open to those accepted to law school for 2018-19, those currently in law school, as well as practicing and retired attorneys/judges.

www.ksbar.org | April 2018 5 KBA Elections Introducing the Candidates in Contested Races

Secretary/Treasurer

Nancy Morales Gonzalez is a lifelong Kansan and has been a Kansas lawyer for 16 years. She has served on the Kansas Bar Association Board of Governors for the past 9 years. She received her undergraduate degree from the University of Kansas, and her Juris Doctorate from the University of Missouri-Kansas City, where she was the managing editor of a national law journal, among other awards and endeavors. Nancy began her legal career as a judicial law clerk at the U.S. District Court for the Western District of Missouri, before joining a national law firm. In a year’s sabbatical from the firm, she served as a judicial law clerk at U.S. Court of Appeals for the Eighth Circuit. Nancy transitioned from the firm in 2008 to enter into government service. She presently is a senior attorney representing the federal government in national litigation. In addition to her legal practice, Nancy holds leadership positions in many civic and professional organizations. She aspires to serve the lawyers of Kansas as the Secretary-Treasurer of the Kansas Bar Association. n

Cheryl Whelan: Since 2012, I have had the pleasure of serving as the District Three Gover- nor on the Kansas Bar Association (KBA) Board of Governors (BOG). For the last year, I also served on the BOG Executive Committee. With this experience, I am very aware of the chal- lenges facing the KBA on a variety of issues including membership and finances. The KBA must address these challenges in order to remain a relevant and vibrant organization. With my second term on the BOG soon ending, I am running for the KBA Secretary-Treasurer so that I may utilize my experience and knowledge of the KBA to continue working on these issues. For over 25 years I have been very involved with the KBA at the committee and section level. I am a long-term member of the Government Law Section, and a past president as well as a past secretary-treasurer of the section. I currently serve on the Board of Publishers, the Golf Tournament Planning Committee, the Law Related Education Committee, the Media- Bar Committee and the Nominating Committee. In the past, I served on the Commission on Professionalism, the Annual Meeting Analysis Task and the Annual Meeting Planning Committee for the 2014 Annual Meeting. I also am involved in other professional and civic organizations including the Topeka Bar Association, the Women Attorneys Association of Topeka, the Kansas Women Attorneys As- sociation and Sertoma. I am a past board member of the American Red Cross of the Capital Area. Currently, I am an Assistant Attorney General and the Director of Open Government Training and Compliance in the Office of Kansas Attorney General . Addi- tionally, I am a Judge Advocate in the Army Reserve, and was awarded the Bronze Star for a combat deployment in Iraq. After 21 years of service, I am retiring from the Army Reserve this spring. I previously served as the General Counsel for the Kansas State Department of Education and have many years of experience as an attorney with various governmental agen- cies including the United States Army, the State Fire Marshal’s Office, the Shawnee County District Attorney’s Office, and the . I earned both my Juris Doctor and Masters of Public Administration from the University of Kansas. My undergraduate degrees in political science and communication studies are from Washburn University. n

6 The Journal of the Kansas Bar Association kba elections

KBA Delegate to the ABA House of Delegates

Natalie Haag: Kansas is the best place in the country to practice law. The lawyers in our state are great advocates for their clients, for fair and impartial courts and for integrity in the legal community. I hope to represent this great group of lawyers as the KBA Delegate to the ABA House. My 32 years of legal experience includes civil and criminal litigation, administrative law and corporate law, and I’ve practiced in law firms, at the State of Kansas and in both public and private corporations. Over the last 21 years, I’ve worked as General Counsel and Chief of Staff to Governor Graves, Director of Governmental Affairs for Security Benefit Corpora- tion and General Counsel for Capitol Federal® Savings Bank. In these positions, I’ve worked extensively with legislative bodies, which has allowed me to develop and hone my lobbying skills. As your delegate, I would enjoy putting these skills to work by advocating for your positions at the ABA. Practicing law in Arkansas City, Wichita and Topeka, I’ve met attorneys from across the state in a wide variety of practices. While serving on the KBA Board of Governors, as the President of the KBA, and on various KBA committees, including the Legislative Com- mittee (former chair), 2020 Diversity Committee, and CLE Committee, I’ve had the op- portunity to travel all over Kansas and learn about the issues that matter to our entire legal community. During my terms as KBA President-Elect and President, I also represented our state at ABA meetings, where I gained a deeper understanding of the value this organization brings to our profession. My prior experience with the ABA, combined with my knowledge of what’s important to Kansas lawyers, will help me to give valuable input to the ABA House on the policies that govern the practice of law. As your ABA delegate, I would be happy to have the opportunity to continue and expand my service to the bar. I have demonstrated my long-term commitment to our legal commu- nity through committee and board service as a member of the KBA, Topeka Bar Association, Women Attorneys Association of Topeka and Kansas Women Attorneys Association. This commitment is also reflected in my service as the Second Congressional District Repre- sentative on the Supreme Court Nominating Commission, which has allowed me to work with dedicated lawyers from across the state to select qualified candidates for our judiciary. In addition, I have the pleasure of serving my alma mater as a member of the Washburn University School of Law Business and Transactional Law Center Board of Advisors. It has been a great honor to be recognized for my professional service with the 2008 Kansas Bar Association Outstanding Service Award, 2013 Topeka Bar Association Newton Vickers Pro- fessionalism Award and the 2016 Washburn University School of Law Alumni Fellow. My position as General Counsel of Capitol Federal® Savings Bank, while busy, allows me the flexibility to commit to studying the issues and attending the ABA and KBA meetings required to fulfill the obligations of this position. It would be my pleasure to represent the great lawyers of Kansas and advocate for your positions at the ABA. I request your vote for the position of KBA Delegate to the ABA House. n

www.ksbar.org | April 2018 7 kba elections

KBA Delegate to the ABA House of Delegates (cont'd from previous page)

Eric Rosenblad: I have been a practicing member of the Kansas Bar since 1982 and have directed the Southeast Kansas Legal Services program since 1984. Let me share my thoughts about this election. The work of the Kansas Bar Association and the American Bar Association has never been more important. We strive to preserve the rule of law, to maintain fair and impartial Courts, to provide vital public education on legal issues, to improve the law and resist improvident reactionary proposals, and to constantly improve our member’s ability to provide high qual- ity, effective service to our clients. As a member of the KBA Board of Governors I have ap- preciated the opportunity to work on these issues. As a Fellow and Trustee of the Kansas Bar Foundation I have been impressed by the important work our members support. The Foundation provides crucial financial support to law related charities to meet critical needs. The educational projects supported by the Foundation improve understanding and respect for the law. I am pleased to be a part of supporting this work. Kansas lawyers understand that the privilege of practicing law comes with some duties. Our training and experience has given us valuable leadership skills that are needed in our local communities. Like many of you, I have regularly volunteered my time to many civic, charitable and religious organizations, serving on boards, giving advice and counsel, and sometimes rolled up my sleeves for a good cause. This is my vision for our profession and the values I would hold as your representative to the ABA House of Delegates. If you share this vision, I will welcome your support. n

Christi Bright: I am a graduate of the University of Kansas School of Law and have been representing clients in various areas of the law throughout the states of Kansas and Missouri for over 20 years. I am grateful to have built, alongside my husband, a very successful and prominent family law practice in Overland Park Kansas. Throughout my practice, I have dedicated a great amount of my time and efforts in serving on numerous boards, commis- sions, committees and task within the state and local bar associations. In addition to serving as one of the District 1 Board of Governors, I am also the President Elect for KBA’s Family Law Section and am past co-chair of the Diversity committee. I also serve as the Board liaison to the KBF Board of Trustee’s. Locally, I serve on the family law bench bar committee for the Johnson County Bar Association where we recently modified and updated local guidelines that are used and referenced all over the state by Judges and practi- tioners alike. We also prepare and present continuing legal education to other practitioners on relevant and issues that are facing our profession. In addition to my service to my local and state bar associations, I also serve the ABA as a presidential appointment on the Commission for Youth at Risk. I serve in so many professional capacities because I believe that our bar is only as strong as the service that we individually provide back to it. Throughout my career, I have clerked for the Honorable W. Stephen Nixon, a Circuit Court Judge in Jackson County Missouri and given several lectures throughout Kansas and Missouri, including for continuing legal education credits, on the topics of probate, employ- ment and housing discrimination and diversity. When I am not working, I am a passionate tennis player with a growing ambition for golf. I most enjoy spending time outdoors with my family. Most people have heard me say that I am tropical and love most things outdoors, including gardening, but this Kansas weather sends me into a light depression every winter. On weekends, I can be found serving in my church as a children’s church teacher or working at one of the local outreach centers helping meet the needs of the homeless or disadvantaged. I dreamed of being at attorney when I was 8 but I never could have imagined that God would take that dream and fulfill so many others through the life that I am so richly blessed to live! I can’t help but wake up each day and be thankful and ask how can I help someone else be better today! n

8 The Journal of the Kansas Bar Association During the spring of 2017, The Kansas Bar Association surveyed the legal community on the economics of law practice considering sim- ilar studies undertaken in 2012, 2005 and 1997. The objectives of all studies were to derive and report the following:

• Demographics of practicing attorneys, including views on economic sentiment • Attorney 2016 taxable income arrayed by practice class, gender, field of law, office location, full- vs. part-time status, yearsin practice and firm size • Associate, legal assistant, and secretary 2017 annual compensation by years of experience (tenure) and office location • Prevailing average 2017 hourly billing rates for attorneys arrayed by a variety of indicators, and for legal assistants by years of experience, firm size and office location • Attorney time allocated to billable and non-billable professional activities in 2017 • Fixed expense and gross revenues per attorney and overhead rates associated with maintaining a private law practice by office location and firm size in 2016, and • Contemporary law office client and matter management, technology embracing and marketing practices

This information has been organized here to help attorneys plan and manage their professional lives. They can compare themselves and their firms against benchmarks/ norms established from aggregating survey data. These benchmarks consider these variables: office loca- tion, firm size, practice class, area of legal / primary field of law and years in practice. Attention is also given to analysis of gender-specific factors influencing income gaps. Time series infor- mation is also provided to denote trend, given available data.

Spiral bound & color printed only $65 for KBA members For more information or to order, visit: www.ksbar.org/bookstore or call the KBA at 785-861-8815

www.ksbar.org | April 2018 9 Save the Date

ANNUAL MEETING 2018 Thurs. & Fri. June 14 & 15 DoubleTree Overland Park

10 The Journal of the Kansas Bar Association kba president

A Retrospective.... by Greg Goheen

ifty years ago, in April of 1968, I was born into what The subject of Sen. Kennedy’s speech, the Vietnam War, many consider to be one of the most turbulent years of was at the forefront of the minds of most Americans during the 20th century. Because this year presents a bit of a 1968. On Jan. 30, Viet Cong forces launched a series of sur- Fmilestone, it provides an opportunity to look back and reflect prise attacks across South Vietnam in a campaign known as on the events that took place that year and how they continue the Tet Offensive; it began on the Tet holiday (the Vietnamese to shape our society a half century later. Following a year that New Year) and caused a significant change in how the Ameri- had witnessed both the Summer of Love and numerous race can people viewed the war in Vietnam and how they viewed riots throughout our nation, 1968 began on an optimistic themselves as a nation. note with the January 5 selection of Alexander Dubček as the As with life today, not every event in 1968 was necessar- leader of the Communist Party in Czechoslovakia which ush- ily historic or tragic. In 1968, the Federal Hourly Minimum ered in a political liberalization movement now known as the Wage was $1.60 an hour. Today it is $7.25 an hour. A movie Prague Spring. This note, like so many others, would later fall ticket in 1968 cost $1.50 while my ticket to “Avengers: Infin- silent in August of 1968 when, in the largest military opera- ity War” cost $14.22. The average cost of a new car in 1968 tion in Europe since the end of World War II, 750,000 War- was $2,822.00 and a gallon of gasoline cost only 34 cents. Av- saw Pact troops including 6,500 tanks and 800 planes invaded erage annual income was around $7,850.00 with the cost of a Czechoslovakia. new house averaging around $14,950.00. The 1968 year-end On January 19, 1968, Dr. Martin Luther King Jr. gave his Dow Jones Industrial Average was 943 while today it hovers last speech to a university which happened to be at Kansas over 24,000. The Standard & Poor’s 500 index closed above State University. His speech, titled “The Future of Integra- 100 for the first time on June 4, 1968, at 100.38. Today it tion,” was delivered as part of the all-University Convoca- sits at over 2,700. The current rate of inflation for the United tion and was attended by over 7,000 people at Ahearn Field States is around 2.2% whereas it was 4.57% in 1968. House. Less than three months later, on April 4, Dr. King was Television shows Batman and the Andy Griffith Show came shot and killed at the Lorraine Motel in Memphis, Tenn. His to an end in 1968. Rowan & Martin’s Laugh-In, Hawaii Five- legacy continues to inspire some 50 years later. 0 and 60 Minutes debuted. Sixty Minutes remains on the air Somewhat eerily, U.S. presidential candidate Robert F. today while Hawaii Five-0 has returned to television. On the Kennedy would later give a speech titled “Conflict in Viet- big screen, the 40th Academy Awards, originally scheduled to nam and at Home” at Kansas State University on the morning be held on April 8, 1968, were postponed to April 10, 1968, of March 18 as part of the then relatively new Landon Lec- because of the assassination of Dr. King. “In the Heat of the ture Series on Public Issues. (Senator Kennedy gave a second Night” won best picture, beating out “Guess Who’s Coming speech at the University of Kansas that afternoon.) Like Dr. to Dinner,” “The Graduate,” “Bonnie and Clyde” “and "Doc- King, Senator Kennedy would lose his life to an assassin’s bul- tor Dolittle." let less than three months later on June 5 at the Ambassador It was a year without baseball in Kansas City as the A’s had Hotel in Los Angeles, Calif. left for Oakland following the 1967 season, and although

www.ksbar.org | April 2018 11 kba president

the Royals were created as an expansion team on January 11, which addressed discrimination in housing and is commonly 1968, they would not begin play until the 1969 season. In referred to as the Fair Housing Act. This Act is generally re- college basketball, Kansas State University won the Big 8 and garded as the final great legislative achievement of the civil represented the conference in the NCAA Tournament which rights era. was won that year by UCLA over North Carolina. Kansas In 1968, the Kansas legislature established a citizen's com- University, runner-up in the Big 8, went to the NIT where mittee to study and propose amendments to the constitution it lost in the championship game to Dayton. Washburn Uni- which would later result in a 124-page report to the legislature versity’s basketball team posted an 8-0 conference record. On in February of 1969. Among the significant recommended the gridiron, the University of Kansas football team lead by changes in Article 3 was the creation of "a unified court with running back John Riggins was co-Champion with the Uni- overall administrative and procedural rule-making powers in versity of Oklahoma of the Big 8 in the Fall of 1968 though the supreme court branch thereof." Report of the Citizens' it lost in the 1969 Orange Bowl to Penn State University. At Committee on Constitutional Revision, p. 43 (Feb. 1969). Washburn, the 1968 team is credited as the team that helped The committee's commentary on the proposed changes re- save Ichabod football. Internationally, 1968 saw both a Win- vealed that the purposes behind amending Article 3, section ter Olympics in Grenoble, France, and a Summer Olympics 1, included the "[p]roper supervision, administration and in Mexico City, Mexico, as well as the first International Spe- discipline of judicial personnel" and "steadfast recognition cial Olympics Summer Games which was held at Soldier Field of and insistence upon vigilant maintenance of the doctrine in Chicago, Illinois, with about 1,000 athletes participating. of separation of powers—with the three branches of govern- Foreshadowing today’s athletic protests, during the summer ment free from encroachments of each other." The report Olympics, U.S. Olympians Tommie Smith and John Car- added that a proposed constitutional amendment unifying los who won gold and bronze respectively in the 200-meter the court system "would create a unified court with overall sprint, raised black-gloved fists during the medal ceremony. administrative authority in the supreme court branch thereof The music charts in 1968 were topped by hits such as “Hey and would vest the supreme court with rule making power Jude” by the Beatles, “The ” by the Band, “Wichita regarding process, practice, and procedure at all levels of the Lineman” by Glen Campbell, “I Heard It Through the Grape- unified court, as well as regarding appeals. Such rule making vine” by Marvin Gaye and “Mama Cried” by Merle Haggard. power is, in reality, an inherent power of the judiciary." Re- Elvis with his televised special, and Johnny Cash with his live port of the Citizens' Committee, p. 43. These recommenda- album at Folsom Prison, both revived their careers. Of note, the tions would eventually result in amendment to Article 3, § 1, 1968 prison population was 188,000 and the incarceration rate of the Kansas Constitution, ratified in 1972 by the voters of the lowest since the late 1920's. Incarceration rates and prison the state of Kansas. populations have increased dramatically since that time but re- In the 1968 presidential election, Richard Nixon won, beat- cent years have witness a reversal of that long term trend. ing both Hubert Humphrey and George Wallace. Pres. Nixon Nineteen sixty-eight was an active year for the legal pro- carried every Kansas county except Wyandotte. In that same fession. On April 3, 1968, the United States Supreme Court November election, Bob Dole was elected to his first term as heard arguments in Green v. County School Board, 391 U.S. United States Senator. 430 (1968), a school desegregation case wherein the Court The year 1968 ended as it began—on an optimistic note— held that the Fourteenth Amendment required action to rem- with the astronauts on Apollo 8 entering orbit around the edy past racial discrimination—or what has come to be called moon on December 24. This year, 2018, is far from over and, affirmative action – based on an "affirmative duty to take like 1968, has seen its share of tragedies and triumphs. To- whatever steps might be necessary to convert to a unitary sys- wards the end of the year, the first commercial manned space tem in which racial discrimination would be eliminated root flights are scheduled to take place, allowing us to again marvel and branch." The United States Supreme Court would also at our potential to overcome adversity and accomplish incred- render another seminal educational decision in Epperson v. Ar- ible achievements in our next 50 years. n kansas, 393 U.S. 97 (1968), where it invalidated an Arkansas statute that prohibited the teaching of human evolution in the About the Author public schools by holding that the Establishment Clause of First Amendment to the United States Constitution prohibits Gregory P. Goheen is a shareholder at a state from requiring, in the words of the majority opinion, McAnany, Van Cleave & Phillips, P.A., where "that teaching and learning must be tailored to the principles he has practiced since graduating from or prohibitions of any religious sect or dogma." Southern Methodist University’s Dedman School of Law in 1993. He received his On April 11—my birthday—United States President Lyn- bachelor’s degree in 1990 from the University don B. Johnson signed into law the Civil Rights Act of 1968, of Kansas. Greg is past President of the Kansas Association of School Attorneys and Fellow and past Trustee of the Kansas Bar Foundation. 12 The Journal of the Kansas Bar Association kbf president

Managing Cumulative Stress in Your Profession by Hon. Evelyn Z. Wilson

t's good to have a friend who also happens to be a clinical that sometimes they get dropped; billable hours; unreasonable therapist. During the course of conversations about such demands; unfair accusations. And then there are the personal things as family and good places to eat in New Orleans, stressors, such as the death of a nephew who was a pediatri- Ishe asked me a question about how I deal with cumulative cian, when cancer got him at age 29; the dementia and death stress. of my dad two years ago...or was it three; my husband's sur- Huh? gery; my stupid ankle sprain; and certainly other things lurk- ing around in compartments I'll just leave alone for now. I'm fine. What do you mean - cumulative stress? Anyway, I guess when I think about it.... Apparently the stresses we experience during the course of our lifetimes have a cumulative effect, much like certain spices I'm not special. My stresses are not special. I know you've can heat up your food during the course of a meal. So, her all had them, too. question focused on me and how I deal - personally - with the If you've stayed with me until now, please do yourself a cumulative stress I must be experiencing. favor and think about the effect cumulative stress is having on Our brains are remarkable. They can stretch, and adapt, and you. Don't ignore it. Cut yourself some slack and recognize learn. But you can't make them forget. You can compartmen- that we live and work in the middle of a cooker. Cut talize, such as when you don't think about your birthday for your colleagues some slack, too. months, but when someone asks you when your birthday is, Then do some things to help yourself. Take a break. Set pa- you can remember. That ability to compartmentalize keeps rameters with your clients and co-workers. Take your vaca- you from dealing with a tsunami of data all the time. tions. Don't work all the time. Stop. Say no. Let people help Because of her question, I focused on some of the stresses I you. Go outside. Laugh. have had. By the way, I know a good therapist. As a judge, my number one hard thing was listening to Be well. Be happy. n evidence of child pornography. Looking at it was the second- hardest thing, but listening to the screams of a toddler was About the Author worse. I think about that sometimes, because you sure can't Hon. Evelyn Z. Wilson is Chief Judge of Kansas’ forget it. Third Judicial District (Shawnee County). Before taking the bench in 2004, she practiced law for More on the hit parade (as a judge and/or an attorney): 19 years—seven years in northwest Kansas and litigant parents who hate each other so much they don't see 12 years in Topeka. Judge Wilson graduated from what's happening to their children - things I see and listen Bethany College and Washburn Law School. to, but cannot fix; so many phone calls and emails to answer

www.ksbar.org | April 2018 13 CALLING ALL VENDORS, SPONSORS AND ADVERTISERS!!

Vendors, sponsors and advertisers are integral influencers in making the Kansas Bar Association partnerships possible.

We offer many options to showcase your products, services and people while featuring competitive price points through the following:

• Annual Meeting • Continuing Legal Education Programs • Golf Tournament • Journal (10 issues per year) • Public Service Outreach ○ Law Wise (newsletter resource for teachers and students in elementary school through high school) ○ High School Mock Trial Tournament ○ Constitution Day Projects • Trivia Night • Vendor Marketplace • Web Marketing Contact Deana Mead Let’s discuss how the KBA can align your law firm or KBA Associate Executive Director company goals and objectives with our events and (785) 861-8839 | [email protected] participants. yls president

The Importance of Sleep by Clayton Kerbs

I’ll sleep when I’m dead.” According to Matthew Walker, You have probably guessed the above is talking about sleep, PhD, in his new book Why We Sleep (Scribner, 2017) and you would be correct. No caveman diet required, just if we do not get sufficient sleep now, we will bring that sufficient sleep. Sleep is not the absence of wakefulness, it is “familiar refrain to reality sooner rather than later. The consen- “exquisitely complex, metabolically active, and deliberately sus is that adults need to get at least seven hours of sleep per ordered series of unique stages.”3 The potential health ben- night.1 Why do we sleep? What happens to our bodies when efits4 are plentiful and should be enough for those of us that we do not get sufficient sleep? What can we do to improve our are sleep-deprived to make meaningful changes. quantity of sleep? Sufficient sleep improves our memory and enhances our ability to learn and store information. Almost 2,000 years Scientists have discovered a revolutionary new treat- ago, Roman rhetorician Quintillian noted the positive effect ment that makes you live longer. It enhances your sufficient sleep has on memory. And here we are, 2,000 years memory and makes you more creative. It makes you later, sacrificing sufficient sleep in order to watch “The Walk- look more attractive. It keeps you slim and lowers food ing Dead” or Instagram stories! We know this to be true for cravings. It protects you from cancer and dementia. It our children, and we make it a priority for them to get enough wards off colds and the flu. It lowers your risk of heart sleep so that they may be more successful in the classroom. attacks and stroke, not to mention diabetes. You’ll even Why do we not make it a priority for ourselves as adults? feel happier, less depressed, and less anxious. Are you Wouldn’t it help you remember those great one-liners you had interested?2 planned for cross-examination the next day?

www.ksbar.org | April 2018 15 yls president

Studies have also shown the positive impact sufficient sleep has tion for me while the older child with Type 1 is not. Type 1 on physical health, such as quicker recovery for stroke victims.5 requires attention twenty-four hours per day, so it is a little If we do not get sufficient sleep, the impacts can be devastat- more concerning than my own personal health. ing. It can lead to fatigue that rivals being legally intoxicated.6 Career demands, excessive caffeine and using electronics In the United States, there is one motor vehicle accident per prior to sleeping can all lead to sleep deprivation. Caffeine hour that is from fatigue-related error.7 Those of us who repre- has a half-life of five to seven hours, so it still may be present sent municipal clients should pay particular attention to this, in brain tissue five to seven hours after it is consumed.12 We because we often drive home late at night after a full day’s feel sleepy when our adenosine levels increase, usually about work. One study showed that getting six hours of sleep for twelve to sixteen hours after we wake up. Caffeine works by ten days straight is the equivalent level of sleep deprivation to blocking adenosine receptors, masking our need for sleep. that of a person that has stayed awake for twenty-four straight However, adenosine continues to be produced and builds up hours.8 until the caffeine is gone from our system. This can lead to a Continued sleep deprivation can also be linked to numer- crash and overwhelming sleepy feeling. Limiting our caffeine ous neurological disorders, such as Alzheimer’s, anxiety, de- intake can lead to more sufficient sleep. pression, bipolar disorder, suicide, and stroke.9 Physiological It is not realistic to remove electronics from our daily rou- diseases and disorders are also associated with sleep depriva- tine; that genie is out of the bottle. Dr. Walker’s hope is that tion. Those include cancer, diabetes, heart attacks, infertility, we can incorporate technology in the bedroom that leads to weight gain, and immune deficiency.10 I think we all can relate individualized sleep tracking and the ability to change room to the fact that sleep deprivation can lead to increased mood conditions to produce a good sleeping environment. He also swings and a lack of control over our emotions.11 notes harmful blue light from LED bulbs can be replaced by 13 Knowing all the benefits of sleep, why do we not get suf- warmer yellow light. ficient sleep? I think this is a personal and subjective question In the end, we each can take steps to get more sufficient because everyone may have different reasons, and sleep de- sleep. The CEO of Aetna went as far as providing bonuses to privation may be just during a season of life. For me, I have a employees that could present verified sleep-tracker data that child younger than a year old, and I have a child that has Type showed they were getting sufficient sleep. Maybe present that 1 diabetes. The baby phase is a seasonal stage of sleep depriva- one at the next office meeting!n

1. Luisa Bazan, M.D., Sleep and Your Health, American Bar Associa- tion (2017) https://www.americanbar.org/groups/young_lawyers/publ About the Author cations/tyl/topics/work-life/sleep-and-your-health.html. 2. Matthew Walker, Why We Sleep, Scribner 2017. Clayton Kerbs currently practices in his home- 3. Id. at 108. town of Dodge City with his father, Glenn. 4. Id. 109-131. Clayton’s practice consists of domestic and mu- 5. Id. at 131. nicipal law cases. He attended Creighton Uni- 6. Id. at 130. versity and Washburn University School of Law. 7. Id. at 140. Prior to practicing law, Clayton worked for U.S. 8. Id. at 132. Senator . Clayton is married to Leah; 9. Id. at 132. they have two sons, Porter and Chandler. 10. Id. at 132. [email protected] 11. Id. at 146. 12. Id., 27-30. 13. Id. at 325.

16 The Journal of the Kansas Bar Association math and the law—journal series

Math and the Law: A 2018 Journal Series

Using Math to Determine How Best to Pay for Long Term Care by Jenny Walters

do not have a math gene. Despite this, I was able to sur- there is only one answer. I also enjoy using math because it vive geometry, trigonometry and algebra classes through provides much of what I believe we all love—facts. high school and college with the help of teachers and Our firm helps people find ways to pay for long term care. Iclassmates. I even made it through most of my pre-veterinary On the surface, this is relatively simple – you determine how classes in college, including dreaded university chemistry labs. much the individual’s income is and how much the long term Then came plane trigonometry. If the purpose of that class care expenses are. Sometimes, there is enough income to pay was to weed people out, it worked. I had to find another pro- for care. However, with nursing home costs reaching $6,000 fession that might support my horse habit, so law school it in our area (which is on the low end), it is common for the was. So, in a way, I really did go to law school so I did not have people we meet to not have near enough income to cover their to do math. I never would have guessed I would use math on nursing home care. Paying out-of-pocket drains modest re- a daily basis in my profession—and even enjoy it. sources very quickly and can leave a spouse at home impov- I enjoy using math daily because it gives a clear answer. erished. This is where we get to apply the law to the numbers While there may be some grey areas interpreting and arguing and provide a . over the law itself, once the law is applied to the numbers,

www.ksbar.org | April 2018 17 math and the law—journal series

have to be spent down, for example the home- stead and one vehicle.3 Only the countable resources must be spent down to $2,000 (or less). These countable re- sources include assets like bank accounts, invest- ments, cash value of life insurance, and retirement accounts. Completing the spend-down may be as simple as purchasing things the individual needs, like home improvements, a new vehicle, and a funeral plan. It can also involve complex calcula- tions where assets are gifted for preservation. To meet the income requirements, the indi- vidual’s income, or more specifically, the patient obligation, must be below the Medicaid rate at the nursing home. The patient obligation is the amount the individual is required to pay to the nursing home while on Medicaid.4 The patient obligation is calculated by taking the individual’s There are several ways for an individual to pay for long term income and subtracting allowed deductions, such as supple- care, including their own resources, long term care insurance, mental insurance premiums, excess Medicare Part D premi- veteran’s pension benefits, and Medicaid. I am going to focus ums, and a $62 personal needs allowance.5,6 If the resulting on the math we use to assist someone in need of Medicaid number is less than the monthly Medicaid rate at the facility, benefits. Many of our clients are surprised to hear that there then the income requirement is met. The Medicaid rates can is much more involved than just spending all of their money vary between nursing homes across the state, with examples down to $2,000. from $153 to $242 per day. The requirements to qualify for Medicaid in Kansas are contained in the Kansas Economic and Employment Services Married Couple Manual (KEESM). The KEESM is full of opportunities to As I mentioned, a spouse entering long term care could eas- use math to help our clients, be they single, married, young, ily impoverish the spouse living at home. In this example, the or old. Really, our clients’ situations read like word problems, husband needs long term care and the wife is at home. and the KEESM provides the keys to solving those problems. Let me go through some examples. Each step can lead down The couple is allowed to have a resource assessment done to rabbit holes in the law, but I will stick to a broad overview. I establish the amount of countable resources that the wife can will go through the calculations for a single person and a mar- have in her name at the time the husband applies for Medic- ried couple. In addition, I will explain the issues that gifting aid, with the resource assessment based on the value of their presents and situations where annuities are a useful tool. resources as of the date the husband entered the hospital or long term care and had a stay of 30 consecutive days or lon- Single Person ger.7 We call this the “snapshot date.” The effect is that if the couple had been spending resources on care since that time, To be eligible for Medicaid to help cover long term care the resource assessment will go back to when their resources costs, a person must meet an asset requirement, an income were higher. requirement, and a care needs requirement. The care needs requirement is determined by an assessment at the nursing Much like the single person, to determine if the asset re- home.1 quirement is met, we gather documentation and values for all of those resources and determine what resources are countable The general asset requirement is that an applicant must have and what resources are exempt. The exempt resources, such as countable resources below $2,000 in order to qualify for Med- the home, vehicle, and funeral plans are taken out of the equa- icaid.2 To meet the income requirement, the income needs to tion. The remaining countable resources are added together be below the cost of care. and divided in half. If the wife’s one-half is less than $24,180, The first step to determine if someone meets the asset re- then the wife is allowed to keep $24,180, which is the mini- quirement is to gather information for all of the resources and mum.8 If the wife’s one-half is over $120,900, then the wife determine what is exempt and what is countable. An exempt is limited to that amount, which is the maximum.9 The hus- resource is one that is not counted as an asset and does not band is limited to countable resources of $2,000 or less. Any

18 The Journal of the Kansas Bar Association math and the law—journal series

additional resources over the limits have to be spent down be- annuity is only counted as income and is not a countable re- fore the husband will qualify for Medicaid. The spend-down source.15 can be completed by paying the nursing home, purchasing an In the married couple scenario, an annuity could be used exempt item like a vehicle, making home improvements, and to convert the money that needs to be spent down into an paying debt. It may also involve purchasing an annuity, which income stream for the wife. For a healthy spouse with limited I will explain below. resources, an annuity can ensure they have the income to live Even if the assets are divided and spend-down requirements at home as long as possible. are met, there are still the income requirements. In order for Annuities can also be used to lessen the impact of gifting. As the husband to qualify for Medicaid, his income must be be- I mentioned, a penalty does not start until someone is other- low the Medicaid rate at the facility. The patient obligation is wise eligible. If we know there are gifts that cannot be cured, calculated similarly to the single person, except an allocation an annuity might be used to create income to pay for care to the wife, if any, also needs to be subtracted out. during that penalty period. In another effort to prevent the spouse at home from be- When using annuities in either situation, we crunch the coming impoverished, there is a minimum monthly mainte- numbers relating to how much will go into the annuity, how nance needs allowance (MMMNA) the wife may be entitled much the monthly income will be, and how that additional to. If the wife’s income, minus some allowed deductions, is less income will factor into the calculations described above. than $2,030, then she is entitled to as much of the husband’s income that is needed to bring her income up to $2,030.10 Due to my math gene limitations, I must always have a cal- This could present a situation where the husband’s income ap- culator handy; however, it is both challenging and satisfying pears to be above the Medicaid rate; however, when the wife’s to help a client navigate the options and find a solution to pay MMMNA is deducted, it brings the husband’s income back for long term care. Sometimes that involves paying privately, below the Medicaid rate. and sometimes that involves going through all the calcula- tions required to reach Medicaid qualification. However, if Gifting plane trigonometry is ever involved, I will be looking for re- ferrals. n Gifting presents a special set of circumstances. If a person applying for Medicaid or their spouse has gifted property away in the five years before applying for Medicaid, a penalty will be imposed.11 More specifically, any gifts over $50 a month in About the Author any one month over those five years can cause all gifts from the last five years to be added up to determine the amount of Jenny Walters is a partner at Clinkscales Elder 12 Law Practice, P.A. in Hays. She has practiced the penalty. A penalty essentially means a period of time that there since graduating from Washburn University Medicaid will not pay benefits. This can be detrimental to a School of Law in 2009. Jenny received her client, and we must carefully calculate how much gifting there bachelor’s degree in 2006 from Fort Hays State has been and how long the penalty will last. University. She is a member of the National Academy of Elder Law Attorneys. Jenny is The penalty is calculated by taking the total value of prop- married to Steven and they have a son, Theron. erty gifted in that five years and dividing it by $197.88.13 The result is the number of days the penalty will last. The pen- alty does not start until that person is “otherwise eligible” for Medicaid, meaning but for the gifting, the person would be 14 1. KEESM §8114 eligible. That means we have to go through all the above 2. Id. §5130 calculations to determine if the other eligibility requirements 3. Id. §5340 and §5520 are met. 4. Id. §8170 5. Id. §8172.1 Ultimately, we have to determine whether we should at- 6. Id. §8160(3) tempt to “cure” the gift and have the gift returned (if that is 7. Id. §8144 even possible), go ahead and apply for Medicaid to get the 8. Id. §8144.1 penalty period started, or wait until the 5-year window has 9. Id. §8144.1 closed on the gift. 10. Id. §8144.2 11. Id. §5724 12. Id. §6410 (27) Annuities 13. Id. §5724.4 Annuities are one of the more valuable tools we have in 14. Id. §5724.5 Medicaid planning. More specifically, a Medicaid-qualified 15. Id. §5722

www.ksbar.org | April 2018 19 law practice management tips and tricks

What happens when anyone can make it appear as if anything has happened, regard- less of whether or not it did? – Technologist, Aviv Ovadya

Cheap and Easily Manipulated Video

by Larry Zimmerman

Expensive and Specialized Cheap and Easy he 1994 movie Forrest Gump won an Oscar for best An anonymous user on Reddit, a hugely popular internet visual effects recognizing the film’s computer graphics forum, reignited the conversation with a post in late 2016. trickery that stitched Tom Hanks into archival video Motherboard, an online magazine, bumped into a Reddit ofT John F. Kennedy, Lyndon Johnson, and Richard Nixon. user, deepfakes, sharing his video face-swapping hobby. He George Lucas’s powerhouse visual effects company, Industrial replaced one actor’s face in a video with another actor’s face. Light & Magic, mastered several different technological pro- Within weeks, another Reddit user released FakeApp software cesses and harnessed considerable computing power to render to make face-swapping simple for anyone regardless of skill or the scenes. Some worried at the time about potential dangers equipment. An entire Reddit forum with over 15,000 mem- of the power to manipulate shared history; but most were cau- bers popped up to swap tips and manipulated videos. One tiously dismissive, understanding the skill, money, and time particularly impressive face-swap recreated the CGI appear- required to achieve comparable results. ance of Princess Leia in the 2016 Star Wars film, Rogue One.

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

The cheap, easy, and quick version from FakeApp was virtu- One problem observed by lawyers consulted for this article ally indistinguishable from the high-budget, professionally is that it is the porn performer whose body appears nude in produced effect. face-swapped video – not the victim whose face is superim- posed. Involuntary Porn The situation has been addressed for children. In the same “AI-assisted porn is here and we’re all f*****,” wrote Saman- House Bill 2501, child pornography sections defined “sexu- tha Cole for Motherboard. It should not be surprising that ally explicit conduct” as including either actual or simulated the deepfakes hobby and immediate use of FakeApp was to conduct. Further, “visual depiction” includes computer-gen- create pornography. Specifically, celebrity porn made by face- erated images. The drafting anticipated and prohibited face- swapping actors like Daisy Ridley from Star Wars, Gal Go- swapping porn involving children. Those consulted indicate dot from Wonder Woman, and Emma Watson from Harry expanding such protections to adults would likely address Potter with porn performers. The resulting face-swap porn “involuntary porn” that face-swapping software makes so videos and dozens of others were quickly shared and spread simple to create. on platforms like Reddit, Twitter, and PornHub. One lawyer consulted suggested that existing K.S.A. 21- Once the alarm bells were sounded, reaction to “invol- 6103 regarding criminal false communication might address untary porn” was relatively quick. By the end of February, face-swapping porn. The statute prohibits communicating to the face-swapping forum on Reddit was shut down, Twitter any person information known to be false that exposes an- and other platforms erected algorithmic blockades to face- other to public ridicule or which deprives the victim of social swap video and even PornHub banned the category and be- acceptance. The bar appears higher than the prohibitions in gan scouring archives to remove offending videos. Everyone the child and revenge pornography statutes. Lawyers work- seemed to realize quickly what porn performer, Grace Evan- ing with victims of face-swapping, involuntary porn might geline, voiced, “One important thing that always needs to find it worth investigating. happen is consent. Consent in private life as well as consent on film. Creating fake sex scenes of celebrities takes away Lawyers Beware their consent. It’s wrong.” Far beyond the confines of fake pornography, the democ- The Common Victim ratization of this sort of technology adds new hurdles lawyers must understand. Altering a grainy security video, tweaking The impact of face-swap porn is just starting to filter out the faces in video of a crowd of witnesses, changing the driver of the celebrity realms as individuals learn to use FakeApp of a car from a dash cam video – it all becomes possible with software themselves or search out those online willing to cre- a little bit of knowledge or the willingness to pay $50 to com- ate video on commission. Ordinary people have already been mission a face-swap online. Part of what happens when it can face-swapped into videos for humorous or prank purposes be made to appear as if anything has happened is that lawyers and there is no reason to believe that abusers, harassers, stalk- apply our tools to ferret out fact from fiction to protect vic- ers, and blackmailers will not soon be face-swapping victims tims, punish offenders, and protect the public.n into compromising video as part of their arsenal. The time and cost involved to embarrass an ex-spouse with a realistic- looking fake porn video is trivial. Revenge Porn Law It is not clear that there are many tools in our Kansas crimi- nal code to address such conduct. The conversation around this type of “involuntary porn” in the media has classified it as a type of revenge porn—something Kansas addressed in House Bill 2501 that became law in July, 2016. House Bill About the Author 2501 amended K.S.A. 21-6101 to include as breach of pri- Larry N. Zimmerman is a partner at Zimmerman vacy the following: & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology disseminating any videotape, photograph, film or im- at Washburn University School of Law. He is age of another identifiable person 18 years of age or one of the founding members of the KBA Law older who is nude or engaged in sexual activities and Practice Management Committee. under circumstances in which such identifiable person [email protected] had a reasonable expectation of privacy….

www.ksbar.org | April 2018 21 KBA LIBRARY

Don’t leave the office without it! All KBA Handbooks are now available as eBooks through Casemaker! Visit https://go.ksbar.org/CasemakerLibra

22 The Journal of the Kansas Bar Association for more information. www.thebarplan.com

WE OFFER: LAWYERS’ PROFESSIONAL LIABILITY INSURANCE COURT BONDS BUSINESS OWNER’S POLICY Bob Murray WORKERS’ COMPENSATION Regional Sales Manager SERVICES

2018 FAMILY LAW CLE

YEARS YOUNG

Award-winning tax software and customer service.

• Federal/State Income Tax Compliance • Client Portals – Drake Securefilepro • Document Mgmt & Document Storage • Tax Planning Systems • 1099/W2 compliance

® April 20, 2018 Professional Tax | Since 1977 Double Tree by Hilton, Toll-Free 800.890.9500 DrakeSoftwareSales.com Lawrence

www.ksbar.org | April 2018 23 Spring CLEs

Live CLE: Webinars: People in Crisis: An Interactive Program Internet for Lawyers Webinar: April 13, 2018 Moving Your Practice Into the Cloud- The Oread Benefits and Drawbacks 1200 Oread Avenue April 6, 2018 (Noon-1:00 PM) Lawrence, KS 66044 Registration is limited. KBA Members, KWAA Mem- Mesa CLE Webinar: bers and KU Law Alums/Students are given preference From Competence to Excellence in registration. April 23, 2018 (Noon-1:00 PM)

2018 Brown Bag Ethics Series: Internet for Lawyers Webinar: Communication, Competence & Confidentiality Me Too: Sexism, Bias and April 18, 2018 Sexual Misconduct in the Legal Profession Robert L. Gernon Law Center April 27, 2018 (Noon-1:00 PM) 1200 SW Harrison Topeka, KS Mesa CLE Webinar: The 2018 Ethy Awards April 28, 2018 (10:00 AM-12:00 PM) 2018 Family Law April 20, 2018 Internet for Lawyers Webinar: DoubleTree by Hilton The Case for Practice Management- 200 McDonald Drive Why Outlook Isn’t Enough Lawrence, KS May 3, 2018 (Noon-1:00 PM)

2018 Administrative & Government Law CLE April 20, 2018 Robert L. Gernon Law Center 1200 SW Harrison Topeka, KS

2018 Bankruptcy & Insolvency Law CLE April 27, 2018 The Wichita Boathouse 515 S. Wichita Street Wichita, KS 67202

2018 Midwest Intellectual Property Institute May 4, 2018 Sprint Corporation 6050 Sprint Parkway Overland Park, KS State of the Judiciary

Delivered to a Joint Session of the and House of Representatives by the Honorable Lawton R. Nuss, Chief Justice of the Kansas Supreme Court on January 17, 2018

peaker Ryckman, President Wagle, distinguished mem- bers of the House and Senate, honored guests, and my Sfellow Kansans. On January 29th, Kansas Day, I will start the 9th year of my privilege of serving in the capacity of chief justice of the Supreme Court. I thank Speaker Ryckman for generously of- fering me this fourth opportunity during that time to speak to you about Kansas courts. And I thank President Wagle for graciously agreeing to the scheduling of this event. Mr. Speaker, I also thank you for inviting my judicial colleagues: the justices on the Supreme Court and the judges on the Court of Appeals. Many years ago when I was in the Marines, the Navy car- Chief Justice Lawton R. Nuss ried us all over the Pacific. On every ship, announcements were made over the intercom system called the "IMC." An- nouncements began with "Now hear this. Now hear this." Now, what wild eyed, left-leaning Hollywood celebrity said The ultimate announcement said that too. But it was followed that? It was a Hollywood actor all right: named Ronald Rea- by, "This is the captain speaking." And sailors and Marines gan at his 1982 presidential news conference. And Reagan alike dropped whatever they were doing and paid strict at- said it repeatedly during his presidency. tention – because the captain was the ultimate authority on Perhaps you were surprised to hear President Reagan speak the ship – in all matters. In fact, one I knew displayed a brass so passionately about government enforcing constitutional plaque that said, "I am the captain of this ship and I will do as rights at the point of a bayonet. After all, he was a proud I damn well please." champion of reducing what he considered governmental "in- The people of Kansas, in their constitution, wisely decided terference" in people's lives. But Reagan recognized a few that no single person would be completely in charge of their things in life were essential. Because as governor of California ship of state – in all matters. So they separated the powers – he also had said, and created three equal branches of government. This means [A]t any level of government I have always subscribed that even though at this moment I might say "Now hear this, to a belief that protecting the rights of even the least now hear this, this is the chief justice speaking" – you are not individual among us – is basically the only excuse the obligated to drop what you are doing, nor obligated to pay government has for even existing. strict attention, nor even pay any attention. But if you care about justice in Kansas like our founders did, and I hope you Fortunately, we rarely have to resort to bayonets. Instead, do, then I would ask you to grant me your attention for a few constitutional rights are enforced, and protected – for even minutes. the lowest person among us – in the Kansas court system as administered by our approximately 1,600 employees and 260 Someone once said: judges spread across 105 counties. Some of those employees I . . . believe that the Federal Government has an ob- and judges are with us this afternoon in the gallery behind ligation to enforce the constitutional rights of even the you. Those in robes are some of the chief judges from around least individual among us, wherever he may be, if those the state who are responsible for the legal proceedings in our rights are being denied, and to do so at the point of 31 judicial districts. They appear here today at their own ex- bayonet if necessary. pense. I will ask all judicial branch personnel there to stand.

www.ksbar.org | April 2018 25 state of the judiciary

Please join me in thanking them for their service to our great Their long study for the right vendor is now complete. And I state. am pleased to report that during the last 30 days, a contract Now let me share with you some of the things Kansas judg- was signed with Tyler Technologies of Plano, Texas. The $11.5 es and court employees have been doing. million in the contract also comes from docket fees earmarked by the 2014 legislature for this purpose. Tyler has worked well eCourt and e-filing: with statewide judicial systems in 13 other states; they were our committee's clear choice. I will start by updating you on our electronic (or eCourt) project which I first talked about in my speech here in 2011. We anticipate that the statewide eCourt project will be completed within about four years. That day will bring even One part of that project is electronic filing (or e-filing). As more uniformity and efficiency to the entire court system to you know, this enables legal documents to be filed with the benefit Kansans – one of the greatest achievements since court courts electronically. After years of work, implementation of unification in the 1970's. an e-filing system has been completed for all state courts – in 105 counties and in both the appellate courts. By June, no In the meantime, we have been expanding our use of exist- state court will any longer accept paper filings by attorneys. ing technology in other areas and embraced the efficiencies it Completion of this big project was made possible because the produces. 2014 legislature earmarked some docket fee revenues for the project for several years. I join many Kansans in thanking you Videoconferencing: for those important appropriations. It means that nearly 4 1/2 In most of our 31 judicial districts, after arrest, a criminal million court documents have been filed – without people defendant's first appearance before a judge in the courtroom having to travel to the courthouses or put them in the mail. is conducted by camera from the jail. This saves the time and I mentioned in past years that the long-term eCourt plan cost of transporting the hundreds, if not thousands, of defen- has been for e-filing to eventually be integrated with an elec- dants to the courtroom and back. Many districts also use vid- tronic case management system different from the ones pres- eoconferencing for similar proceedings: juvenile detention, ently used by court personnel in processing cases. These two mental illness hearings, criminal arraignments, or testimony components of eCourt allow us to shift from a paper-based of expert witnesses or KBI lab personnel, all with a view to- system to one that will provide judges, court staff, and at- ward savings. torneys with immediate, statewide access to case information, Our court of appeals and Office of Judicial Administration details, and records provided by the Kansas courts. both use videoconferencing for certain activities instead of re- Just a few examples of the benefits that eCourt will provide: quiring attorneys and others to sustain the expense of coming to Topeka. OJA uses it for training court personnel across the • Improve case processing in the courts. state; the Court of Appeals for oral arguments on some cases. • Increase the efficiency of information delivery to all judges. As for the Supreme Court, we recently obtained video ca- • Increase operational efficiency by automating certain pability in our Topeka conference room. I had the privilege of activities and streamlining others. being the system's first user. In November, at the invitation of Major General Vic Braden of the 35th Infantry Division, I • Maintain and improve data sharing between various presented a legal education program for him and the lawyers governmental and public entities. under his command. By the way, they were in Kuwait at the • Enable our employees in any county courthouse to time. Because of the eight-hour time difference, I had to get work from their computers on court business for other coun- up at what the military calls O Dark Thirty. I thank them for ties. This alone is a big benefit because it allows the Supreme their service to us all—7,000 miles from home. Court to more effectively and efficiently manage the state's court system. Personnel Efficiencies: Eventually, eCourt will also provide the public with state- The judicial branch has also looked at personnel efficiencies. wide 24-hour access to some of the most frequently requested Our weighted caseload study several years ago allowed us to court information – from any computer with an internet con- accurately determine, by actual workloads, how many judges nection. and court clerks were needed and where they were needed in Three years ago the eCourt steering committee began to the state. Because the study excluded the 700 employees not review exactly how to change from different computer sys- working directly in the offices of the clerks of the court, in tems in the courts to one centralized case management sys- 2016 we conducted a "position inventory" to address them. tem. The committee also looked to standardize the various These assessments, which are continually updated, help us de- practices currently performed throughout all the state courts. termine needed personnel levels on an ongoing basis. It also

26 The Journal of the Kansas Bar Association state of the judiciary

allows us to consider the impact of recent advancements in appreciate that this most sacred duty of government becomes technology on those staffing needs. We are currently work- more difficult to perform when approximately 700 of our jus- ing with the National Center for State Courts to perform a tice system's 1,600 employees (44 percent) are still paid about workload study of our more than 300 Court Services Officers 16.5 percent below market. This includes many court services (also known as CSOs). Essentially, they supervise offenders officers, who each year supervise 18,000 convicted criminals on probation. on probation, including approximately 3,000 sex offenders. These studies and our increased use of technology have in- And we can only wonder what Jefferson might have to say deed been valuable tools in modernizing court operations. about our ability to perform this most sacred duty – when That in turn benefits the Kansans we all serve. told that nearly one-third of our employees also need to work jobs outside the Judicial Branch to make ends meet. This is But as I mentioned from this podium last March, while we five times higher than the Kansas average. are gaining efficiency through them, we are also continuing to lose efficiency – through increased turnover of highly experi- • Now standing in the gallery is Mr. Brad Schuh, (a enced judges and employees. Besides retirement, these losses CSO I) who represents the 700 employees paid 16.5 are primarily because of low compensation. For the same rea- percent below market. And also Ms. Miranda Cum- son, we often have had real trouble finding suitable replace- mings (managing court reporter) who represents the ments in many courthouses. approximate 500 employees having to work at least one other job to make ends meet. • As you may recall, using a grant, in 2016 we hired the experts from the National Center for State Courts Let's fast forward from Hamilton and President Jefferson to to study the compensation earned by our (1) court em- yet another president, Andrew Jackson – who is considered by ployees and (2) district magistrate judges. They looked many historians to be a great champion of the people. Jackson at compensation levels of these folks in other state court said, systems, and in comparable positions in local govern- All the rights secured to the citizens under the Consti- ment and private business. tution are worth nothing . . . except guaranteed to them • After you authorized judicial branch personnel a 2.5 by an independent and virtuous Judiciary. percent pay increase last session, for which I publicly So let's look at our judiciary. Among the things the com- thank you, the National Center then updated its find- pensation study revealed are that even after last year's 2.5 per- ings and conclusions. Among other things, it considered cent increase: recent increases in employee compensation in the sources • Over 21 percent is still needed to raise district mag- it examined last year, such as other states' court systems. istrate judge salaries to market level. A founding father of our country, Alexander Hamilton, has • And more than one-fourth of our magistrate judges often been attributed with saying, "The first duty of society is who responded to the survey have indicated they are justice." Seemingly at odds with Hamilton's view is the fact seeking employment outside the judicial branch. The that even with last session's 2.5 percent increase: number one reason given? Compensation. • Nearly 1/3 of all the employee positions in our jus- The people's champion, Andrew Jackson, was not alone in tice system still have starting salaries below the 2017 his beliefs. An Atchison businessman named Robert Graham federal poverty level – for a family of four; was a delegate at the Wyandotte Convention in 1859 – which • And the fact that every Kansas judicial branch job was established to create a constitution so Kansas could be classification is still below market pay rate, some by as admitted as the 34th state. Graham told his fellow delegates, much as 21%. [E]verything should be done for the purpose of calling • Standing in the gallery now is Ms. Penny Timmons, to the bench the best legal talent in the country. As a (trial court clerk IV) who represents those of our em- safeguard to the interests of the people, this is of more ployees who are paid 20.4 percent below market. And importance than anything else that will come before us. Ms. Karen Hughes, (word processing tech) who repre- This sentiment was echoed by other delegates. sents our employees paid below the federal poverty level I mentioned. It is a matter of public record, however, that even after last session's increase, today Kansas district judges (the trial judges Thomas Jefferson was a great rival of Hamilton's among the in your communities), still rank next to last in the nation for founding fathers. Because like Reagan, President Jefferson be- what they get paid. Kansas is only ahead of New Mexico. lieved in smaller government. Even so, Jefferson also believed that, "The most sacred of the duties of a government [is] to do Last year from this podium I said it is human nature for equal and impartial justice to all its citizens." I hope you can people to devote their time and money to those things that are

www.ksbar.org | April 2018 27 state of the judiciary

most valuable to them. So after recalling these statements of • The 28th Judicial District (Salina and Minneapolis) the founders of this country and our state, all Kansans again had only 11 applicants; down from 38 in 2011. may want to ask themselves: what value do we place today on the administration of justice in our state? Some may respond Average Cost of Turnover: that although the national center's work does provide objec- The National Center described some of the hidden cost of tive market data based on various sources, it has no bearing underpaying employees—which results in turnover. As men- on the real world in Kansas. So allow me to share our judicial tioned, our turnover rate is nearly five times higher than the branch reality. national average. Actual numbers establish that because of low pay, we are Among the relevant factors considered in this cycle of inef- losing more and more good, experienced people in our branch ficiency were the time and energy spent on recruiting, inter- of government. And actual numbers show it also is hard to viewing, and hiring new employees, with existing employees recruit suitable replacements. First, according to the Bureau of trying to cover all the work until the vacancies are filled. And Labor Statistics, the current average turnover rate nationally then time and energy is spent on training the new person – by is 3.2 percent. Ours in the judicial branch? Almost five times existing employees who again have to put aside their regular as high: 15 percent. duties. If this increase in turnover and decline in applicants Second, we have also seen a large drop in the number of continues to worsen, at some point we will find ourselves— qualified applicants for our positions. Let me provide some particularly in the smaller, rural counties – with no suitable examples. applicants. And because Kansas statute requires at least one judge per county, that means the only judge in the county will Trial Court Clerk II Positions (entry level) be doing all the court's work. In 2017, the 19th Judicial District (Winfield and Arkansas Putting aside the obvious inefficiencies, the real question City) had 11 applicants for two positions. Five of them even- then becomes: how many judges will be willing to perform tually withdrew, either because they could not take a pay cut all these court functions in these counties—when today many or already found a better position elsewhere – so essentially of our magistrate judges already want to leave their existing six applicants, down from 42 applicants for two positions in workloads for higher paying jobs? In light of this reality, an 2010. even more important question may arise: do you want to con- Unfortunately, the pay raises from last session have not re- tinue to keep at least one judge in each of our 105 counties if versed this downward trend for clerks. Two months ago: we are unable to hire any suitable staff to support them? That is a policy question for this legislature to consider. I take no • The 28th Judicial District (Salina and Minneapolis) position on it today. had only eight applications for an opening, down from 50 for an opening just five years ago. Getting down to brass tacks, what do all these people in the Judicial Branch do for the money you currently invest in them? • The 5th Judicial District (Emporia and Cotton- wood Falls) had only 12 applications for an opening, Well, last fiscal year, they processed almost 400,000 new down from 38 just five years ago. cases filed in the district courts. This caseload included more than 20,000 felony cases and more than 14,000 misdemean- • And the Sedgwick County Court had five openings or cases. In addition to supervising convicted criminals on – but only six applicants. Only three were hired. Last probation, they protected almost 7,000 children who were in month that court had three openings but only three ap- need of care by ruling on requests related to their safety and plicants – of which only one was deemed qualified. wellbeing. And they protected nearly 14,000 people by issu- Trying to fill these particular positions will only become ing restraining orders—to­ say nothing of the probate, juve- more difficult. Starting pay is $11.80 per hour. But recently nile, domestic, traffic, and other cases. Among the thousands WalMart announced it is raising its minimum wage to $11 of civil cases filed were those by Kansas business owners to per hour and is adding eligibility for bonuses up to $1000. collect money owed them. For CSO I's (probation officers) the news is regrettably Last week the governor said from this podium, that we "will about the same. fight the scourge of human trafficking like no other state and throw that darkness from our borders." In response to his re- • For example, in 2016 the 17th Judicial District in quest for us to recognize the efforts of the attorney general northwest Kansas had only four applications for an and the legislature on this issue, General Schmidt got a stand- opening; down from 21 applications in 2005. ing ovation. Rightfully so. But with this renewed emphasis And unfortunately, the recent pay raises have not reversed on increasing the numbers of people prosecuted for these ter- this downward trend for CSO's. Three months ago: rible crimes, we need to remember where the attorney gen-

28 The Journal of the Kansas Bar Association state of the judiciary

eral—and all of the prosecutors of this state—will go to do Other types of specialty courts have been established with that: the Kansas courts whose personnel will shoulder these this same goal in mind. Veterans' court in Johnson County was increased caseloads. The same can be said for any other new created for those who have committed misdemeanors or lower- legislation passed to achieve the worthy goals of protecting level felonies and who are eligible for treatment by the Veterans human rights, criminalizing conduct, or both. Administration. Like drug courts, the veterans' court offers al- Let me return to a few examples of the many other things ternatives to incarceration. A recent graduate of the 18-month the courts have done. long program credits it with turning him away from suicide after his return from a combat tour in Afghanistan. Committee on Fees, Fines, and Bonds: Similarly, Douglas County District Court established a Be- We are all painfully aware of the problems that were dis- havioral Health Court to target those whose mental health closed in the city of Ferguson, Missouri. Although municipal issues may have contributed to the low level, nonviolent crim- court problems of that magnitude have not arisen in Kansas, inal charges against them. The goal is to dismiss the charges your Supreme Court has nevertheless been proactive. First, I after a period of successful intervention and treatment. have communicated with the judge who served as the Chief And other judicial districts have similar nontradition- Justice of Missouri at that time. al courts with similar goals. The 29th Judicial District, Second, we have created a committee to review bonding Wyandotte County, has "mental health court." Lyon County practices, fines, and fees of the more than 300 municipal in the 5th Judicial District has "Home Court" for supervising courts in Kansas. Among other things, the committee will ex- low risk juvenile offenders with capable parental involvement. amine the operations of these courts and compile a "best prac- And three districts have juvenile truancy courts. All of these tices" model for them to follow. Committee members from specialty courts operate pursuant to Supreme Court Rule that across the state include Rep. Brad Ralph of Dodge City. The adopts statewide operating standards for such courts. committee has now met twice—with more to come. It will report its ultimate findings to not only our judicial adminis- Supreme Court Travel: trator but also the League of Kansas Municipalities. My last topic on the State of the Kansas judiciary concerns With that municipal courts committee as a model, a num- the appellate courts continuing to take their proceedings di- ber of chief judges have asked the Supreme Court to later rectly to the people of Kansas. The court of appeals has heard form a similar one for our state court system. While best its cases argued across the state for years—recently in Hugo- practices and some degree of uniformity are worthy goals, the ton and Ulysses in southwest Kansas. real foundation for the entire project is the desire to maintain As for the Supreme Court, most recently we heard cases in Kansans' faith in their system of justice. So if problems are Winfield and Emporia. This spring we will be in northwest found, we intend to see they are fixed. Kansas. Like others, that session will be held in the evening —so that people who work during the day can come and see Specialty Courts: for themselves, who we are, what we do, and how we do it. Specialty, or problem-solving courts, differ from the usual To date, Hays has the record turnout: nearly 700 people at- courts because they coordinate services provided to criminal of- tended. But Goodland is where Justice Luckert grew up. So fenders with direct supervision by a judge. Most of these are we may see that record broken as people come out to see their drug courts which attempt to address an offender's underlying "hometown achiever." substance abuse problems—problems that often lead to a frus- trating cycle of criminal offenses, incarceration, and then more Conclusion: offenses. National research has shown that drug courts can be In closing, for the good work you have done for Kansans effective in reducing offender recidivism. That in turn saves in these difficult times, I want to express my gratitude. Now I considerable judicial—and correctional—resources. To date, am well aware you are still facing many challenges during this some variation of drug courts—ranging from juvenile drug legislative session. Maybe some of the biggest ones ever. courts to those limited to defendants addicted to meth—exist From my remarks this afternoon, clearly one challenge is in 10 of our 31 judicial districts. this: If things continue on this financial path in the judicial But the tradeoff for these rewards continues to be more ju- branch, there are serious concerns about our ability to admin- dicial time: they often require intense supervision by judges, ister the quality of justice that Kansans have come to expect in addition to that by their regular probation officers. Despite and deserve. But I believe that you will continue to take fair this extra work, several more districts are looking to start drug account of the needs of the judicial branch—our judges and courts in 2018 because they see the benefits for the individuals employees—as we continue to enforce the constitutional and the state. rights held so dear by Ronald Reagan. And continue to pro-

www.ksbar.org | April 2018 29 state of the judiciary Ward Law Offices, LLC welcomes Tony A. Potter, Of Counsel to the firm. (State of the Judiciary, Cont'd.)

vide justice embraced by the founders of not only this nation but also this great state. I began with a quote from President Reagan. Let me end with one from another president, our fellow Kansan, Dwight Eisen- hower. Sixty years ago, President Eisenhower said: If civilization is to survive, it must choose the rule of law. . . . [W]e honor not only the principle of the rule of law, but also those judges, legislators, lawyers and law-abiding citizens who actively work to preserve our liberties under law. His words ring so true today. If justice, liberty and the rule of law are not to wither in Kansas, but to thrive, then as the man from Abilene said, we all need to work together. And we need your help as legislators. It's nice to have an occasion like this to get to know each other a little better. So we invite you to a reception outside the old Supreme Court chamber after my remarks. My fellow judges and I look forward to introducing ourselves and visiting with you there, and to talk about how to implement what Eisenhower said. T. Lynn Ward w Tony A. Potter w Laura E. Poschen I bid you Godspeed. And to wish you, as they say on ships, 345 Riverview, Suite 120 | Wichita, KS 67203 n "Fair winds and following seas." Thank you. 316.260.3120 | wardlegal.com

KBA Feb 2017 T Potter.indd 1 12/7/17 8:45 AM

30 The Journal of the Kansas Bar Association March 19, 2018 • KBA Day at the Capitol An Opportunity for Direct Advocacy with Members of the Kansas Legislature

A Note from the Chief Justice of the Kansas Supreme Court, The Honorable Lawton R. Nuss

When I delivered my State of the Judiciary address to the Kansas Legislature, I explained why compensation increases are needed for judicial branch employees and judges. For example, nearly one-third of our employees must also take jobs outside the judicial branch just to make ends meet. And annual compensation for our district judges ranks next to last in the entire nation. Since my January address, our personnel have discussed these details and others with many legislators. I was heartened when this message was reinforced by a number of KBA members March 19. On that day, those members visited the Capitol and spoke with nearly 60 legislators. They were able to explain how below-market wages paid to judicial branch employees and judges impact their clients—the legislators' constituents. This impact on everyday Kansans and businesses is a story most persuasively told by lawyers. I deeply appreciate not only the KBA's initiation of this program but also those members who devoted their day to promoting justice in a different manner than usual.

KBA President Greg Goheen and Chief Jus- tice Nuss met back at the KBA office to assess the day's activities.

www.ksbar.org | April 2018 31 When the professional stakes are highest, put the deepest legal experience on your side.

We assist attorneys with all professional licensure issues, including initial applications for admission to the bar, responses to ethics complaints, and petitions for reinstatement.

Through investigations or hearings we ensure any allegation against you is challenged with the strongest possible defense.

JosephHollander.com

Christopher M. Joseph Diane L. Bellquist

KANSAS CITY LAWRENCE TOPEKA WICHITA 10990 QUIVIRA, #200 5200 BOB BILLINGS PKWY., #201 1508 SW TOPEKA BLVD. 500 N. MARKET OVERLAND PARK, KS 66210 LAWRENCE, KS 66049 TOPEKA, KS 66612 WICHITA, KS 67214 913.948.9490 785.856.0143 785.234.3272 316.262.9393

Fastest smartest malpractice insurance. Period.

800.906.9654 GilsbarPRO.com

32 The Journal of the Kansas Bar Association the diversity corner

2018 National Conference of Bar Presidents Fellow Award Recipient: Mr. Fred D. Gray

by Katherine Lee Goyette

Colored People (NAACP) for eight years. Mr. Gray served as legal counsel for the organization during the time it was not allowed to operate. Mr. Gray also represented Rosa Parks after her arrest following a refusal to give up her seat on a Mont- gomery, Alabama, city bus. After her arrest led to the Mont- gomery Bus Boycott, Mr. Gray served as Dr. Martin Luther King, Jr.’s first civil rights attorney. Over the past half century, Mr. Gray has litigated landmark civil rights cases, including: • Browder v. Gayle, 142 F.Supp. 707 (M.D. Ala. 1956) (holding that bus segregation is unconstitutional under the Fourteenth Amendment); • Gomillion v. Lightfoot, 364 U.S. 339 (1960)(electoral districts with boundaries drawn to specifically disenfranchise black voters violated the Fifteenth Amendment, later leading to the “one man, one vote” concept); • William v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965) (ordering the State of Alabama to protect marchers protesting Fred D. Gray their inability to vote from Selma to Montgomery)2; • Mitchell v. Johnson, 250 F.Supp. 117 (M.D. Ala. 1966) n early February 2018, I had the opportunity to attend (seeking a permanent injunction prohibiting jury commis- the American Bar Association Mid-Year Meeting in my sioners from excluding qualified blacks from jury service); and capacity as President-Elect of the Military Spouse J.D. • Lee v. Macon County Bd. of Educ., 270 F.Supp. 859 INetwork, a military spouse bar association. The National (M.D. Ala. 1967)(integrating all state institutions of higher Conference of Bar Presidents awarded their NCBP Fellow learning in Alabama, including the majority of elementary Award this year to Mr. Fred D. Gray. He was honored with and secondary school systems). the NCBP Fellow Award on Friday, February 2, 2018 during the NCBP/NABE/NCBP Joint Awards Luncheon in Vancou- Finally, Mr. Gray also served as counsel in protecting the ver, British Columbia. Though I had heard of Mr. Gray, I rights of persons subjected to the infamous Tuskegee Syphilis did not know the extent of his contributions to civil rights Study, a 40-year study conducted by the U.S. Public Health law until the ABA meeting—contributions in the law that are Service intended to observe untreated syphilis in populations certainly worth sharing. of blacks in rural Alabama, though concealed as “free health care” from the federal government to victims. Mr. Gray a native of Montgomery, Alabama and is most known for his work as a civil rights lawyer during the civil Mr. Gray was the first person of color to serve as president rights movement, alongside Dr. Martin Luther King, Jr. and of the Alabama Bar Association in 2002 as well as the first E.D. Nixon., as well as an author, lecturer, and state legislator person of color to serve as general counsel for Alabama State (one of the first African-Americans to serve in the Alabama University. He founded the Tuskegee History Center, a mu- Legislature since 1870’s-era re-construction). Currently, Mr. seum that educates the public about the Tuskegee Syphilis Gray is a senior partner at Gray, Langford, Sapp, McGowan, Study and provides civil rights educational resources.3 Mr. Gray & Nathanson, of Tuskegee, Alabama.1 Gray holds numerous honorary degrees and awards, includ- ing the Federal Bar Association’s Sarah T. Hughes Civil Rights During the 1950’s, the Alabama Award (2004) and the American Bar Association’s Thurgood outlawed the National Association for the Advancement of Marshall Award (2004). Mr. Gray has written three books,

34 The Journal of the Kansas Bar Association the diversity corner

“Bus Ride To Justice,” “The Tuskegee Syphilis Study: The Real About the Author Story and Beyond,” and “The Children Coming On: A Retro- spective of the Montgomery Bus Boycott.”4 n Katherine Lee Goyette (McBride) is a 2010 graduate of Washburn Law (JD) and a 2012 graduate of the University of Kan- 1. Profile – Fred D. Gray, Esq., http://www.glsmgn.com/Attorneys/ sas School of Law (LLM). She is currently Default.aspx. working for Fendley & Etson in Clarksville, 2. Mr. Gray was portrayed by Cuba Gooding, Jr. in the 2014 film Tennessee; previously, she was a felony Selma, which included Gray’s oral argument before Judge Frank Johnson prosecutor in southern Colorado. Katherine that the march to Selma should be allowed to occur. has been a member of the KBA's Diversity 3. More information about the Tuskagee History Center can be found Committee since 2011, serving as co-chair at http://www.tuskegeecenter.org. of the Diversity Committee from 2015-2016. 4. Fred D. GRAY, BUS RIDE TO JUSTICE (NewSouth Books)(1995); Katherine is the President-Elect of the Military Spouse JD Net- FRED D. GRAY, THE TUSKEGEE SYPHILIS STUDY: THE REAL STORY AND work, a military spouse bar association, and resides north of BEYOND (NewSouth Books)(1998); FRED D. GRAY, THE CHILDREN COMING ON: A RETROSPECTIVE OF THE MONTGOMERY BUS BOYCOTT Nashville, Tennessee with her active-duty Army husband. (Willy S. Leventhal ed., Black Belt Press)(1998).

Kansas Bar Association LEGISLATIVE View our offi cial Bill Tracking stance on current and past legislation

Visit www.ksbar.org/bill_tracking

www.ksbar.org | April 2018 35 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 2018. Your commitment and invaluable contribution are truly appreciated.

Greg Bauer, Bauer, Pike, Bauer, & Wary, LLC, Great Bend Stana Martin, ACSIA Partners, LTC Insurance Solutions Specialist, Liberty, MO David Berson, Berson Law Group, LLP, Overland Park Anne McDonald, Kansas Lawyers Assistance Program, Susan A. Berson, Berson Law Group LLP, Overland Park Topeka

Brendan Burke, Norton, Wasserman, Jones, & Kelly, LLC, Robert McFadden, Foulston Siefken LLP, Wichita Salina Angela Meyer, Meyer Law Firm, LLC, Pittsburg Dennis Davidson, Thompson, Arthur, Davidson & Katz, Russell Humaira Mirza, The Mirza Law Firm, LLC, Overland Park

Karl Hesse, Foulston Siefken LLP, Wichita Joseph Molina, III, Kansas Bar Association, Topeka

Benjamin C. Jackson, Jackson Legal Group, LLC, John Pike, Withers, Gough, Pike & Pfaff, LLC, Wichita Scott City Sara Rust-Martin, Kansas Bar Association, Topeka Lynn R. Johnson, Shamberg, Johnson & Bergman, Kansas City, MO Matthew Salzman, Stinson Leonard Street LLP, Kansas City, MO Robert Jones, Norton, Wasserman, Jones, & Kelly, LLC, Salina Hon. Robert Schmisseur, Ret., Schmisseur Law, Pratt

Hon. Phillip B. Journey, 18th Judicial District, Div. 1, Joseph Schremmer, Depew Gillen Rathbun & McInteer, LC, Wichita Wichita

Erika Jurado-Graham, Jurado Graham Immigration Law Todd Sheppard, Charlson & Wilson Bonded Abstracters, Inc, Firm, Kansas City, MO Manhattan

Shawn Jurgeson, Special Counsel to the Chief Justice, Hon. Kevin M. Smith, 18th Judicial District-Juvenile Divi- Topeka sion, Wichita

Michael J. Kuckelman, Kuckelman Torline Kirkland, Amanda Stanley, The League of Kansas Municipalities, Overland Park Topeka

Callie Marks, Charlson & Wilson Bonded Abstracters, Inc, Tyler Turner, Jeter Turner Sook Baxter, LLP, Hays Manhattan substance and style

1 by Joyce R. Rosenberg

n February 2018, a major trade secrets case, Waymo L.L.C. Although emojis present some special interpretive challeng- v. Uber Technologies, Inc., was tried in the U.S. District es, judges and juries are well-equipped to determine meaning Court for the Northern District of California.2 An inter- and intent based on the context of any given communica- Iesting detail emerged as the evidence came in. The evidence tion.14 In a recent article, law professor Eric Goldman explores of the parties’ communications and intent probably signals the legal issues related to widespread use of pictographic com- larger things to come. munications.15 To improve advocacy when dealing with emo- Much of the evidence in Waymo v. Uber involved electronic jis, Prof. Goldman suggests, lawyers can be mindful of several communications between members of the parties’ executive key pitfalls of interpretation: teams. And predominant in many of the emails, text mes- 1. Fluid Meaning sages, and instant messages were emojis3 and emoticons. One key piece of evidence early in the trial was a text between two Emojis mean different things to different people, often executives that consisted exclusively of the emoticon ;-) and a depending on the situation.16 Consider this face: . Is it a link to a YouTube video.4 menacing, tooth-baring grin? A rictus of anxiety? A grimace Of course, emojis, and their more-primitive brethren emoti- of pain—and if so, physical pain or emotional? The Unicode cons, are those modern hieroglyphics that writers use to convey definition, “grimacing face,” does not clarify its deeper mean- feelings in written messages. Emoticons, such as :-), have ex- ing.17 Is a face with tears of joy (its Unicode definition), or isted since at least 1982.5 Emojis, the tiny, standardized cartoon a face laughing to the point of tears (a common usage)? If it’s images of faces, people, and things, came to the United States in the latter meaning, is it a reaction to something truly hilari- 2010 or 2011.6 There are now over a thousand emojis in use.7 ous, or is it meant to deride something not funny at all? As The problem for legal readers, writers, and advocates is one part of the circumstances of a larger communication, an emoji of interpretation. Exactly what does any given emoji mean? can be one data point in determining the parties’ meaning. “Just like non-verbal acts, which have various meanings, But by itself, an emoji is inscrutable without more informa- emoticons and emojis have no standard definitions. They can tion about the context and the writer’s intent. be used literally or ironically and can be interpreted by the Some studies have begun attempting to describe commonly- sender and recipient in very different ways.”8 understood meanings for emojis.18 It seems unlikely, however, Courts generally treat emojis as admissible parts of the that they can account for the creativity of expression afforded circumstances of the entire communication.9 Just a few ex- by emojis’ variety. Even if we have some hope of interpreting amples: In a trial in the U.S. District Court for the South- the tiny facial expressions, how do we assign meaning to the 19 20 21 ern District of New York, prosecutors initially omitted the dancing lady , the hammer , or the avocado ? Prof. emojis as they read the defendant’s internet posts aloud to Goldman proposes the need for a widely-accepted, searchable 22 the jury.10 U.S. District Judge Katherine B. Forrest correct- emoji dictionary. But a dictionary would describe common ed the omission, instructing the jury that it had to consider uses, not prescribe exclusive ones. A dictionary could not ac- the emojis along with the text as “part of the evidence of the count for people’s innovative or nonstandard uses and under- document.”11 The Delaware Court of Chancery held that the standings of emojis. inclusion of a smiley-face emoticon at the end of the plain- tiff’s text message was evidence “he was amused by yet another 2. Easy Misidentification opportunity to harass” the defendant, despite the plaintiff’s Due to their size, emojis may be hard to see.23 Many of claims to the contrary.12 And the Michigan Court of Appeals them are similar, varying by only very tiny details. For ex- held that in a defamation case, a statement that included the ample, and look almost identical, but their differing eye emoticon :P “cannot be taken seriously as asserting a fact . . shapes suggest potentially different meanings. Especially when . . [A] :P emoticon is used to represent a face with its tongue viewed on a small screen, it would be easy for a drafter to se- 13 sticking out to denote a joke or sarcasm.” lect the wrong one or for a reader to misidentify the emoji.24

www.ksbar.org | April 2018 37 substance and style

Worse, emojis vary slightly across platforms, so that the 1 . In text, this essay might be called “Thinking About Emojis.” same emoji looks different when viewed on an Apple product 2. Waymo, L.L.C. v. Uber Technologies, Inc., No. 3:17-cv-00939-WHA than on a PC. Here is the “face with tears of joy” as it appears (N.D. Cal. filed Feb. 23, 2017). The parties settled mid-trial. The case involved self-driving car technology. For complete coverage of the trial, on iOS: . Here is how it appears on Windows: . The see Sarah Jeong, The Battle of the Damning Emails Begins With Waymo v. differences may seem insignificant, but conveying emotional Uber Opening Statements, THE VERGE (Feb. 5, 2018), https://www.thev- meaning with pictures is difficult and subtle. The differences erge.com/2018/2/5/16975878/waymo-v-uber-trial-opening-statements- across platforms can cause misunderstandings as the drafter travis-kalanick-emails and related articles. sends one type of face, but the reader receives something else.25 3. “Emojis” is the correct plural form in English, although “emoji” is also acceptable. Celeste Mora, Are You Sending Emoji or Emojis?, GRAM- MARLY (July 14, 2016), https://www.grammarly.com/blog/emojis-emoji/. 3. Publication and Research Challenges This essay uses “emojis” as a simpler, more-standard English pluralization. The common electronic databases do not include emojis 4. “I REPEAT, THE JURY IS GOING TO SEE A TEXT THAT when they publish cases and secondary sources in their stan- IS COMPOSED OF A WINKY EMOTICON AND A LINK TO A 26 YOUTUBE CLIP OF MICHAEL DOUGLAS'S GREED IS GOOD dard format. That exclusion creates problems for legal re- SPEECH FROM WALL STREET,” Sarah Jeong (@sarahjeong), searchers. It is impossible to search for emojis or emoticons TWITTER (Feb. 7, 2018, 9:56 AM), https://twitter.com/sarahjeong/sta- to find prior opinions discussing their meaning.27 And it is tus/961267372735660032. difficult for secondary sources to include the illustrations nec- 5. Mora, supra note 3. 6. Id. Apple devices put emojis in the general public’s hands by 2011 essary for full exploration of issues of meaning and interpreta- with iOS 5, and other manufacturers followed. tion. As these issues begin to arise more frequently, it will be 7. Amanda Hess, Exhibit A: ;-), SLATE (Oct. 26, 2015), http://www. important for LexisNexis, Westlaw, and others to find a way Slate.com/articles/technology/users/2015/10/emoticons_and_emojis_ to fix that omission. Likewise, courts will need to consider as_evidence_in_court.html. how to include emojis in published opinions when necessary 8. Megan E. Boyd, Emojis, Emoticons, & Evidence, LADY (LEGAL) 28 WRITER (Nov. 12, 2015), http://ladylegalwriter.blogspot.com/2015/11/ to fully convey determinative facts. emoticons-emojis-and-evidence.html. Eventually, emojis will become just one more ordinary 9. See Eric Goldman, Surveying the Law of Emojis 14, 56 Santa Clara component in the endless variety of human communication. Univ. Sch. of Law Legal Studies Research Paper, Ser. No. 8-17, May 2017, https://ssrn.com/abstract=2961060. While they are relatively novel, it is a good idea to keep in 10. Benjamin Weiser, At Silk Road Trial, Lawyers Fight to Include Evi- mind their potential for confusion, as well as for expressive- dence They Call Vital: Emoji, N.Y. TIMES A22 (Jan. 29, 2015). ness. We can remind our clients that including emojis in their 11. Id. communications can insert ambiguity or may not have the 12. In re Shawe v. Elting LLC, 2015 WL 4874733 at *23 (Del. Ch. intended effect. And we will need to keep these ideas in mind 2015). 13. Ghanam v. Does, 845 N.W.2d 128, 145 (Mich. Ct. App. 2014). for what is surely the next frontier in interpretation of extra- For more examples of cases considering the meaning of emojis and emot- textual meaning: Writers of text messages and online posts icons, see Goldman, supra note 9, at 15. have begun including short, repeating videos (commonly 14. “Courts have always had to interpret nonverbal cues, like shrugs known as .gifs) in an attempt to convey humor or deeper and winks, that arise in face-to-face conversations.” Hess, supra note 7. emotions. n 15. Goldman, supra note 9. 16. Id. at 17. 17. Unicode Standard includes standardized descriptive names for each emoji. But those standard labels may or may not reflect the user’s intent. Hess, supra note 7. Unicode definitions can be found at EMOJI- PEDIA, https://emojipedia.org/. Discover an emoji’s name by hovering a computer cursor over the emoji. 18. Hess, supra note 7 (citing Petra Kralj Novak, et al., Sentiment of Emojis, ARXIV.ORG (Sept. 25, 2015), https://arxiv.org/abs/1509.07761). 19. It could mean literal dancing—but it could also mean, for ex- ample, that the writer is feeling happy, carefree, or dismissive. About the Author 20. The hammer could conceivably signify, for instance, hard work, power, or a threat. Joyce R. Rosenberg is a clinical associate 21. The avocado could mean almost anything, or nothing at all. See professor at KU Law School, where she teaches also Hess, supra note 7, discussing “positive” and “negative” uses for the Lawyering Skills. She is a 1996 graduate of KU bento box and the panda face . Even if researchers can identify Law. She served as editor in chief of the Kansas how people tend to use a given emoji, the reason why an emoji is more Law Review before there were emojis. “positive” or “negative” remains mysterious. Id. 22. Goldman, supra note 9, at 34. [email protected] 23. Id. at 15. 24. Id. at 16. 25. Id. at 25. 26. Geoff Adlam,Emojis and the Law, NEW ZEALAND LAW SOCIETY (May 25, 2017), https://www.lawsociety.org.nz/news-and-communica- tions/latest-news/news/emojis-and-the-law. 27. Id.; see also Goldman, supra note 9, at 51. 28. See Goldman, supra note 9, at 51.

38 The Journal of the Kansas Bar Association Save the Date

The President and Board of Trustees of the Kansas Bar Foundation Cordially invite you to attend its Annual Recognition Dinner

Thursday, June 14, 2018 A LEGACY OF DoubleTree by Hilton Seattle Ballroom EXCELLENCE

10100 College Blvd Providing superior Overland Park, KS legal services throughout Kansas... FOR OVER Hosted cocktail bar 5:30 p.m. 70 YEARS Dinner and cash bar 6:30 p.m.

Black Tie Optional A Full-Service Law Firm www.MorrisLaing.com WICHITA • TOPEKA

www.ksbar.org | April 2018 39 Etched in Digital Stone: Nonconsensual Pornography in Kansas, and a Web That Never Forgets.

By Christopher Teters etched in digital stone

I. Introduction ou walk into the office one morning and you notice your coworkers are treating you differently. A few fail to stifle a laugh, or they avoid eye contact as you walk past. Your boss asks you to come to her office. She tells you that someone found photographsY of you on the Internet and management is concerned. She turns to her computer monitor and you see images; photos created two years ago when you trusted the wrong person. Your ex promised the photos would be deleted, that no one would ever see them. Your ex lied. Now your most intimate moments are exposed. Congratulations. You’ve become the victim of “revenge porn.” The term revenge porn sparks salacious mental images of scorned and angry lovers looking to shame or torment their former partners. However, this term can be mislead- ing and too limiting in scope. To better capture the concept of revenge porn along with other, similar invasions of privacy, some scholars and commentators use the term “nonconsensual pornography.”1 Nonconsensual pornography, at the most general level, is the distribution of a sexually graphic depiction2 of an individual without the individ- ual’s consent.3 The distribution makes for splashy national headlines, with cases involv- ing movie stars,4 Playboy models,5 Kardashians,6 and even the United States Marine Corps.7 For the victims of nonconsensual pornography, the immediate fallout can lead to sexual harassment, extreme anxiety with attacks, eating disorders, depression, an inability to work, physical violence and death.8 And worse yet, attempts to end the illicit distribution of the intimate images is nigh on impossible.9 To better grasp how nonconsensual pornography intersects with the law, it is im- portant to understand that nonconsensual pornography includes depictions produced without consent, for example, through the use of hidden cameras.10 Many states bar this type of nonconsensual pornography through statutes prohibiting voyeurism;11 however, many of these statutes are limited in scope by subject matter of the depictions, location of the victim, requirements that the offender must have a specific intent, or requirements that the offender trespass or otherwise breach a person’s private space.12 In contrast with voyeurism, revenge pornography, a subset of nonconsensual por- nography, includes depictions created consensually by romantic partners for their personal use, which are later distributed without the consent of one or both of the partners.13 Modern couples, especially younger couples, are more frequently recording their intimate moments.14 In one recent study, as many as 55% of the surveyed 18- to 25-year-olds reported sending their partner a sexually suggestive photo or video.15 The act of distribution of these consensually generated depictions by one of the partners or a third-party, without the consent of everyone involved in the depiction, constitutes nonconsensual pornography. Until recently, many states did not expressly protect their citizens from this latter form of nonconsensual pornography.16 Recent efforts by privacy and sexual crime victim advocates have led to 38 states and the District of Columbia adopting specific statutes that can be used to criminally prosecute individuals who distribute this second category of nonconsensual pornography.17 Kansas joined in the wave of states implementing criminal nonconsensual pornography statutes in 2016.18

www.ksbar.org | April 2018 41 etched in digital stone

This article will focus on broader concepts of invasion of century.32 In 1960, renowned legal scholar William L. Prosser privacy, the act of nonconsensual distribution of consensually noted that over 300 cases had reviewed, interpreted, applied, created sexual depictions, and the new Kansas revenge porn and shaped Warren and Brandeis’ right of privacy.33 As a result criminal statute. For the sake of distinguishing this specific of his analysis of the Warren and Brandeis progeny, Prosser act from the broader term of nonconsensual pornography, identified four specific invasion of privacy causes of action: this article will use the term “nonconsensual distribution.” 1. Intrusion upon the plaintiff’s seclusion or solitude, or Part II of the article begins with a brief history of privacy into his private affairs. laws, including a short examination of Kansas privacy laws 2. Public disclosure of embarrassing private facts about the including the legislative history of the new statute. The sec- plaintiff. tion then discusses some recent nonconsensual distribution 3. Publicity which places the plaintiff in a false light in the events and prosecutions. Part III will introduce the new Kan- public eye. sas statutes and compare the Kansas approach to some of the 4. Appropriation, for the defendant’s advantage, of the surrounding states. Part IV will discuss some of the challenges plaintiff’s name or likeness.34 of protecting individuals from the damage of nonconsensual distribution. That section will additionally identify some of Prosser’s work, like Warren and Brandeis’ before him, the specific weaknesses of the Kansas statute. Finally, Part V proved to be pivotal in crafting what most now regard as the 35 will offer some concluding thoughts on the status of Kansas’ right to privacy torts. Prosser later incorporated his four pri- protections for its citizens. vacy actions into the Restatement (Second) of Torts, and as of today, a vast majority of states have adopted his articulation of II. Privacy and the Rise of “Revenge Porn” at least one of the privacy actions.36 A. The Birth of the Right of Privacy Contemporary to Prosser’s work, both the Supreme Court of the United States and Congress continued incorporating 19 20 Since the advent of the Internet, many legal, political, more privacy protections into American law.37 For the Su- 21 and media commentators have warned that privacy rights preme Court, the 1960s and 1970s were a time of discovery have substantially weakened. So before addressing new stat- for a number of privacy concepts, with the landmark decisions utes criminalizing a specific invasion of privacy, a brief exami- of Griswold v. Connecticut,38 Katz v. United States,39 and Roe v. nation of the “right of privacy” may be helpful. As a broad Wade.40 Congress, in the late 1960s and continuing through 22 legal concept, the right of privacy is relatively modern. the modern era, implemented data privacy laws, regulating During the colonial and post-revolution periods in America, the manner in which data about individuals could be collect- the privacy concerns of most citizens and leaders dealt only ed and distributed, for a variety of contexts.41 However, since with unrestrained government intrusion into the daily lives the start of the post-Prosser privacy push, there have also been 23 of the populace. While this concern led to the adoption of a number of statutory,42 judicial,43 and executive44 erosions to the Bill of Rights, there is no mention in the United States the privacy right. Constitution of any clear right of privacy.24 However, early in American history, the United States Congress statutorily B. Breach of Privacy Protections in Kansas guaranteed a privacy right in mailings by criminalizing the invasion of a citizen’s mail.25 After the invention of the tele- Similar to many of the other states, Kansas has also long graph, some states further acted to protect the privacy of wire protected some privacy rights. Kansas criminal law has pro- correspondence by criminalizing wiretaps and other forms tected the mail of its citizenry since the founding of the terri- 26 tory, when the territorial statutes made reading or publishing of communication interference. In 1918, Congress passed 45 an act prohibiting wiretapping or divulging of private infor- another’s mail a misdemeanor offense. The Kansas Supreme mation transmitted over telephone and telegraph wires.27 By Court recognized a right to privacy as early as 1918, deter- mining that a store owner could not use a woman’s image 1928, forty-one states had banned wiretapping and disclosure 46 of telephone and telegraph messages.28 in advertising without her permission. Furthermore, Kansas courts have recognized the four distinct categories of privacy In 1890, Samuel D. Warren and Louis D. Brandeis, per- torts outlined by Prosser.47 Kansas law additionally criminal- haps in response to the overly curious nature of the contem- izes a number of invasions of privacy besides interference with 29 porary press, published The Right of Privacy and articulated the mail, including wiretapping telephone communications, a privacy interest at common law distinct from the interests eavesdropping and voyeurism.48 Kansas’ nonconsensual distri- 30 of property, tort, or contract. Part of the motivation for the bution statute further expands this list of criminal invasions article came from the invention of “instantaneous photogra- of privacy.49 phy,” which assisted the distribution of candid photos using the press.31 Following the Warren and Brandeis article, recog- The Kansas nonconsensual distribution statute began as nition of privacy torts started growing in the early twentieth House Bill 2501, introduced by the Kansas House of Rep-

42 The Journal of the Kansas Bar Association etched in digital stone

resentatives Committee on Corrections and Juvenile Justice, as a simple bill to amend the statute defining a crime com- mitted with an electronic device.50 On February 18, 2016, Representative Sydney Carlin successfully amended the bill to add, among other changes, the nonconsensual distribu- tion language.51 The bill passed through the House by a wide margin and went to the Kansas Senate.52 The Kansas Senate added additional elements to the nonconsensual distribution crime.53 Thereafter, the bill passed in the Kansas Senate, and, after both bodies reconciled the differences between the two versions, the legislature sent the bill to the Governor.54 On May 17, 2016, Kansas Governor Sam Brownback signed HB 2501 into law.55

C. Nonconsensual Pornography Legislation Elsewhere In early 2014, only six states had criminalized nonconsen- sual distribution.56 In the intervening years, the majority of states have adopted statutes addressing nonconsensual distri- bution.57 At the time of this writing, over 38 states and the District of Columbia have laws addressing nonconsensual dis- tribution.58 However, Congress has not yet matched this ex- plosive growth of state legislation. That is not to say Congress has been entirely silent; between 2015 and early 2017, United States Representative Jackie Speier introduced two pieces of legislation, one for civilians59 and one for military members,60 attempting to address nonconsensual distribution. Congress unauthorized distribution of intimate or sexually graphic de- took no action on either bill.61 Not to be deterred, in late pictions.68 2017 a bipartisan group of United States Senators introduced Another famous nonconsensual distribution incident was the Ending Nonconsensual Online User Graphic Harassment 69 62 the Apple iCloud celebrity photo leak of 2014. In one night, (ENOUGH) Act. However, it is not yet clear whether Con- hundreds of photos and videos of numerous celebrities, which gress will advance the ENOUGH Act. had been stored within the celebrities’ individual iCloud ac- counts, were released depicting the celebrities in various stages D. Famous Recent Examples of Nonconsensual of undress or sexual activity.70 Two years later, the hacker re- Pornography vealed that he acquired the login credentials for the various Nonconsensual distribution has rapidly grown in attention iCloud accounts through social engineering and stolen pass- over the last few years, in part due to a number of recent scan- words.71 The breach and subsequent release of nonconsensual dals and incidents. One of the most egregious and frequently pornographic depictions impacted Apple’s iCloud business72 discussed involved the United States Marines.63 In March and hurt Apple’s stock prices at the time,73 but the celebrities 2017, the United States Naval Criminal Investigate Service themselves were not likely damaged significantly by the leak.74 began investigating reports that active-duty and retired service Finally, a Michigan woman’s case against an ex-boyfriend members of the United States and British armed services were gained notoriety due to the large damages award.75 A photog- using a Facebook group to distribute photos of women in a rapher, who took intimate modeling photos of the woman, 64 state of nudity or sexual activity. Despite the discovery of the inadvertently gave the woman’s photos to an imposter.76 The group, some Marines continued to distribute photos through imposter, who turned out to be the woman’s ex-boyfriend, 65 other social media platforms and websites. As a result of the posted the images online.77 The woman discovered that her 66 practice, at least one Marine received a court martial. In ex-boyfriend had posted her images on multiple websites, and response, some members of Congress sought to criminalize she spent months attempting to get the images removed.78 The 67 “revenge porn” in the military. Ultimately, Congress incor- woman sued her ex-boyfriend and won a $500,000 judgment porated its desire to punish military members for noncon- in what is believed to be Michigan’s first monetary award for sensual distribution into a defense spending bill, which calls revenge porn. for a court-martial punishment for troops who engage in the These three incidents are examples of the scale of the non-

www.ksbar.org | April 2018 43 etched in digital stone

6101(a)(8) within five years of the first conviction is a severity level five, person felony.86 The subsequent conviction carries a sentence range of between 31 months of probation to 136 months of prison time.87 Note, however, that HB 2501 did not amend the Kansas Offender Registration Act to add vio- lations of K.S.A. 21-6101(a)(8) to the list of acts requiring registration, so individuals convicted under the new law are likely not required to register as sex offenders.88 Before going further, it is worth making a distinction be- tween this crime and a voyeur crime. Similar to the new stat- ute, K.S.A. 21-6101(a)(6) & (7) make it a crime to distribute images, photos, films, videos, or recordings, of a person who is naked or undressing in a place that they have a reasonable expectation of privacy.89 Consent of the subject of the record- ing distinguishes the voyeur crimes from the new noncon- consensual distribution problem, which cuts through differ- sensual distribution crime. To be a criminal act under K.S.A. ent cultures, groups, and economic levels of society. The ex- 21-6101(a)(6), the victim must not consent to or know about amples demonstrate the significant costs to the victims, and to the depiction.90 Under K.S.A. 21-6101(a)(8), the depiction is society, of nonconsensual pornographic distribution. consensually made, but the distribution is without consent.91 III. Legislative Approaches to Nonconsensual The elements of the crime needed to prove guilt may pres- Pornography ent significant difficulty to prosecutors. Using the Kansas pattern instruction as a guide, the elements of this particular A. Kansas Approach breach of privacy crime are: House Bill 2501 updated four existing laws dealing with (1) the defendant knowingly and without lawful author- nonconsensual distribution, child pornography, blackmail, ity disseminated a videotape, photograph, film, or image in and crimes committed with electronic devices.79 HB 2501, in which the victim is identifiable; large part, amended the law to avoid harshly punishing teen- (2) the victim was 18 or more years old at the time the agers, above the age of consent, who distribute or share nude media was produced; or sexual depictions of themselves with their partners80 (com- monly called "sexting").81 This part of the article will focus on (3) the victim was nude or engaged in sexual activity in the addition of K.S.A. 21-6101(a)(8), the new criminalization the media; of distributing nonconsensual pornography.82 (4) the victim had a reasonable expectation of privacy at K.S.A. 21-6101(a)(8) reads: the time the media was produced; (5) the victim did not consent to the dissemination of (a) Breach of privacy is knowingly and without the media; lawful authority: (6) the dissemination of the media was done with the intent to harass, threaten, or intimidate the victim; and, . . . (7) the act occurred within the jurisdiction of the pros- (8) disseminating any videotape, photograph, film ecution.92 or image of another identifiable person 18 years of age Two of the above elements may be particularly difficult to or older who is nude or engaged in sexual activity and prove: the specific intent element and the reasonable expecta- under circumstances in which such identifiable person tion of privacy element. A separate question—the "identifi- had a reasonable expectation of privacy, with the intent ability" of the victim—is a broader issue and will be discussed to harass, threaten or intimidate such identifiable per- further in Part IV. son, and such identifiable person did not consent to such dissemination.83 i. Specific Intent The Kansas nonconsensual distribution crime in- Under the new law, the first violation is a severity level eight, cludes a specific intent requirement. In Kansas, when a statute 84 person felony, which, in 2017, carried a sentence range of requires a person to act "intentionally" or "with intent," the between seven months of probation to twenty-three months prosecutor must prove that the defendant acted with a "con- 85 of prison time. Any subsequent conviction under K.S.A. 21- scious objective or desire to engage in the conduct or cause the

44 The Journal of the Kansas Bar Association www.ksbar.org | March 2018 44 etched in digital stone

result."93 To prove a defendant committed the crime of non- Beyond defining and proving the intent element, defen- consensual distribution, the prosecutor must prove that the dants facing specific intent charges also can raise voluntary defendant distributed the depiction with the specific "intent intoxication as a defense.104 According to the pattern instruc- to harass, threaten, or intimidate."94 Crimes requiring specific tion, "voluntary intoxication may be a defense to the charge intent of harassment, threats, or intimidation are notoriously of [nonconsensual distribution] when such intoxication im- difficult to prove.95 paired the defendant's mental faculties to the extent that [the 105 To illustrate the challenge of this element, imagine in which defendant] was incapable of forming the necessary intent..." a man and woman consensually record an intimate encounter While this is not an absolute defense sufficient to throw out and then go their separate ways. The man, particularly proud the case, the defendant is allowed to present evidence of in- of the encounter and wanting to brag, shares the video with toxication at trial as an affirmative defense. a group of friends, one of whom, unknown to the man, was Returning to the previous example, assume that the man the woman's immediate supervisor. The woman's relationship knew the woman's supervisor was in the group, and the man with the supervisor is forever damaged, and she is forced to wanted to embarrass the woman. If the state can prove the find a new job. Under K.S.A. 21-6101(a)(8), the state could man’s specific intent, then the man may be guilty of crimi- have a hard time proving that the man had any intent to ha- nal nonconsensual distribution. But if the man was drinking rass, threaten, or intimidate the woman. The fact pattern in- heavily, and his mental faculties were greatly impaired, he may dicates the man only had the intent to brag to his friends and be able to raise the defense of voluntary intoxication, arguing did not consider the damage that distributing the depiction he had no idea what he was doing when he showed the video could do to the woman. Negligent? Definitely. Perhaps even to the supervisor. Still, if the man is successful, the damage reckless. But the man's actions do not seem to rise to the level is done to the woman and the man escapes criminal liability. of criminal intent. Thus, the new crime offers no refuge or ii. Reasonable Expectation of Privacy protection for the woman. The state may also find difficulty in proving that the victim The difficulty posed by the specific intent element is exac- had a reasonable expectation of privacy. The introduction of erbated by the fact that the statute does not define "harass, this element may open the door to issues arising from the intimidate, or threaten." No other Kansas statute requires the lineage of cases interpreting and defining a reasonable expec- exact same specific intent; however, a few statutes include simi- tation of privacy following the United States Supreme Court’s lar specific intent elements that may be useful in helping to decision in Katz v. United States.106 In the Fourth Amendment 96 establish a definition. K.S.A. 21-5415, Kansas’ criminal threat context, a person has a reasonable expectation of privacy if statute, includes the specific intent to "place another in fear, "first, the person has exhibited an actual (subjective) expecta- or to cause the evacuation, lock down or disruption in regular, tion of privacy and, second, that the expectation be one that ongoing activities of any building, place of assembly or facility society is prepared to recognize as 'reasonable.'"107 While there of transportation, or in reckless disregard of the risk of causing is a significant difference between the Katz context, which such fear or evacuation, lock down or disruption in regular, on- deals with invasions by government actors, and the noncon- 97 going activities." Multiple Kansas courts have interpreted the sensual distribution context, which deals with invasions by evidence necessary to support a conviction under this intent private actors, some analysis on what has been considered element, and practitioners may find those interpretations help- a reasonable expectation of privacy may be helpful. Kansas 98 ful during nonconsensual distribution cases. courts have not addressed directly whether the Katz line of Unlawful distribution of nonconsensual pornography has a similar intent element to the intent elements found in K.S.A. 21-6206, harassment by telecommunication device.99 K.S.A. 21-6206 includes multiple variants with specific intent el- ements requiring the offender to act with either "intent to abuse, threaten or harass" or simply an intent to harass.100 Likewise, unlawful transmission of a visual depiction of a child includes the element "with the intent to harass, embar- rass, intimidate, defame or otherwise inflict emotional, psy- chological or physical harm."101 However, that intent element is broader in scope, and the crime includes a presumption of specific intent when the depiction is distributed to multiple people.102 While beyond the scope of this article, practitioners may further want to examine the other intimidation crimes defined in Kansas with similar intent elements.103

www.ksbar.org | April 2018 45 etched in digital stone

cases applies to breach of privacy claims, and there is at least person makes the depiction in an offline or physical manner, room for debate on the proper analysis.108 but that is not the only method to create a depiction. Sex- Under the Katz progeny, a person has little expectation of ting—the transmission of nude or sexual media between part- ners—is common and can lead to nonconsensual distribution privacy in public spaces. When we drive or walk in public, we 117 may be photographed numerous times by government and of those images. Sexting involves the creation of an image private security cameras, and thus, have no expectation of pri- or other digital file depicting sexual content and the transmis- vacy on our streets.109 The United States Supreme Court held sion of that depiction to another person via the Internet or in United States v. Knotts,"[w]hen [a man] travelled over the some other electronic communication method. The transmis- public streets he voluntarily conveyed to anyone who wanted sion of an otherwise private image in this manner presents to look the fact that he was travelling over particular roads in another major issue: does the creator of the media have a rea- a particular direction, the fact of whatever stops he made, and sonable expectation of privacy when he or she transmits the the fact of his final destination when he exited from public media over a digital method? Think about how that media file roads onto private property."110 Therefore, applying the same transmits from creator to recipient. First, the creator makes reasoning to nonconsensual distribution case, a person who the media file and saves it in some fashion on a computer, cell phone, or other device. At this point, there is likely to be a makes his or her sexual depiction in a public space likely has 118 no reasonable expectation of privacy at the time of the cre- reasonable expectation of privacy as to the device. To deliver ation of the depiction. the file to the intended recipient, the creator will send the file, in the simplest case, to the recipient’s device.119 Through that Assuming that the Katz line applies, then the scope of "rea- process, the file will wind its way through multiple entities sonable expectation of privacy" narrows. Where the person is before it reaches the intended recipient.120 Thus, at any stage at the time the depiction is made becomes of utmost impor- along the transmission, the creator’s expectation of privacy in tance. While a depiction made in public is likely not protect- the file, in theory, is diminished and could be lost. ed, if the person makes the depiction in a bedroom or private space in a home, then there is likely a reasonable expectation Consider this example. Two men are in a romantic relation- of privacy.111 If the person makes a depiction in a car, the situ- ship. Man A decides to send a nude photo to Man B through ation becomes a closer call, in part due to the windows of the the text-messaging app on his cell phone. Man A has Fake- car.112 Furthermore, if the person makes the depiction in a Mobile as his cell service provider, and Man B has Horizon. space shared with other people, even if it is a home, there like- When Man A sends the photo, his cell phone transmits the 113 photo to the nearest cell phone tower and then to a central- ly is a diminished expectation of privacy. Similarly, if they 121 114 115 ized location for Fake-Mobile. Fake-Mobile then sends this recorded in a barn or an open field with no one around, 122 the reasonableness of the expectation of privacy may be up photo over the Internet to Horizon's centralized location. Along the way, the photo may pass from one Internet service for debate at the time of trial. Finally, the method of invading 123 a person’s privacy can determine whether an expectation of provider to another until it reaches Horizon. Horizon then privacy is reasonable. For example, the United States Supreme passes the photo to Man B, and the photo is saved, at least Court has held (by a plurality in the case of a helicopter) that a temporarily, onto Man B's device. person had no reasonable expectation of privacy from inspec- Under the third-party doctrine established from the Katz tion of property that requires no physical invasion, and thus, line of case, Man A may have lost any expectation of privacy there is no reasonable expectation of privacy against a police he had in the photo. Man A has no reasonable expectation helicopter or plane flying over a fenced-in yard and taking of privacy in information he voluntarily conveys to a third- photographs.116 party,124 so the simple act of sending the photo to Man B may TheKatz rabbit hole contains over fifty years of cases outlin- defeat any reasonable expectation of privacy claim he could ing the reasonable expectations of privacy in various settings make. Furthermore, the mere act of transmitting the photo and contexts and may serve as a fertile ground for analogies through the hands of numerous service providers may have defeated Man A's privacy considerations, though this is an on- and analysis on whether the victim, at the time of the de- 125 piction’s creation, had a reasonable expectation of privacy. A going legal issue that is not yet resolved. K.S.A. 21-6101(a) (8) requires proof that the creator had a reasonable expecta- court may also decide that the reasonable expectation of pri- 126 vacy analysis need not be bound by Katz, and instead, find tion of privacy at the time the depiction was produced. that the difference in actor (private instead of governmental), Thus, there is an open question of whether Man A, in the example above, had a reasonable expectation of privacy when means that the expectation of the person who makes the de- 127 piction may be reasonable against one actor but not against he created the depiction to transmit it to a third party. the other. iii. Other Statutory Considerations Before moving on, there is another wrinkle to consider: There are a few other minor potential problems for prosecu- the Internet. This article has focused on examples where the tors using the new statute. First, the statute requires a showing

46 The Journal of the Kansas Bar Association etched in digital stone

After HB 2501, the threat of distribution to compel another to act is covered under black- mail.132 It is worth noting that threatening to disseminate nonconsensual pornography for gain or to compel another to act is codified as a more severe criminal action, a severity level four person felony, than actual dissemination of nonconsensual pornography, which is codi- fied as, at a maximum, a severity level five per- son felony.133

B. Regional Approaches to Criminalizing Nonconsensual Distribution Kansas is not the only state in the region to criminalize nonconsensual distribution. At the time of this writing, Colorado,134 Okla- homa,135 Iowa,136 and Texas137 have all passed statutes barring nonconsensual distribution. that the defendant disseminated a "videotape, photograph, Missouri138 has not passed specific statutes on film, or image."128 This language is specific, and does not in- nonconsensual distribution, but the same activity may already clude anything to indicate that the list is not intended to be be criminalized under the state’s harassment statutes.139 Each exhaustive.129 Kansas courts must interpret statutes by their of these particular approaches are examined in more detail plain language first, and may only resort to statutory inter- below.140 130 pretation when the language is unclear or ambiguous. The i. Missouri language of "a videotape, photograph, film, or image" is clear, but it may be too limiting to protect victims. For example, the As of this writing Missouri has not yet enacted a specific 141 statute does not prohibit the distribution of audio recordings law directly addressing nonconsensual distribution. How- or text messages, although both may be just as damaging to a ever, the Missouri harassment statutes are broad in scope, and victim as a visual depiction of an intimate moment. Further- theoretically could be used to pursue perpetrators of noncon- 142 more, defendants may try to argue that the statute does not sensual distribution. Missouri criminal law defines first- prohibit the distribution of digital video recordings that do degree harassment as an action, without good cause, “with not use film or tape. Unlike K.S.A. 21-6101(a)(6) or K.S.A. the purpose to cause emotional distress to another person, 21-5611, the nonconsensual distribution statute does not, on and [which] does cause such person to suffer emotional dis- 143 its face, seem to consider digital recordings or reproductions, tress.” Furthermore, Missouri defines second-degree harass- and a defendant may argue that distribution of cell phone ment as an act by a person, without good cause, “with the pur- 144 footage is not prohibited. Such videos likely would fit under pose to cause emotional distress to another person.” While the "image" prohibition, but this could be a point of conten- the language defining these two crimes is broad, and could tion in prosecutions. theoretically prohibit nonconsensual distribution, there do not appear to be any cases in which the statutes were used to Next, the statute does not define or explain what is meant by prosecute nonconsensual distribution. A conviction for first- “identifiable.” While this issue may be easy enough to resolve degree harassment and a second conviction for second-degree if the victim is willing to testify that they are in fact depicted harassment carry a sentence “not to exceed four years,” while in the media, as is discussed in Part IV, victims are not al- the initial second-degree conviction carries a maximum sen- ways so willing to identify themselves as the person in a sexual tence of one year.145 depiction. Furthermore, the statute does not clarify whether identifiability must be discerned from the media alone or if The Missouri Legislature is working on implementing a the victim may also be identified by the surrounding context new statute criminalizing the nonconsensual distribution of 146 of the media. For example, if Woman A takes a photo of her- private sexual images. The proposed crime, similar to the self with her face covered and with no distinctive marks on Kansas statute, requires that the victim consent to the cre- her body, is the photo sufficiently “identifiable” if the photo is ation, but not the distribution, of the image. However, there posted with the Woman’s name? This issue may be a source of are some key differences between the proposed Missouri law deep contention by individuals prosecuted under this statute. and the Kansas statute. First, the Missouri bill under consider- ation expressly criminalizes the distribution of a broader class Finally, the nonconsensual distribution statute requires of depictions, defining “image” as “a photograph, film, video- actual distribution and not just the threat of distribution.131

www.ksbar.org | April 2018 47 etched in digital stone

The elements of the Colorado crime differ substantially from the Kansas statute. The specific intent element of the Colorado harassment crime, which requires the distribution of a depiction, “[w]ith the intent to harass the depicted per- son and inflict serious emotional distress upon the depicted person,” requires additional evidence of the intent to cause emotional harm.157 Furthermore, the pecuniary statute, which requires that the offender act “with the intent to ob- tain a pecuniary benefit from any person as a result of the posting, viewing, or removal of the private image,” is more limited than the Kansas blackmail statute, as the Kansas stat- ute covers both pecuniary gain as well as gains from forcing someone to act against their will.158 The Colorado statutes further limit the criminalized behav- ior to the distribution of a depiction through social media or tape, digital recording, or other depiction or portrayal of an ob- 159 ject, including a human body.”147 The bill, while also requiring a website. Thus, while any distribution is outlawed in Kan- the depictions to be identifiable, defines an identifiable image as sas, distribution on a physical medium is not covered by the one where the person is identifiable in the image itself or from Colorado nonconsensual distribution statutes. The Colorado “information displayed in connection with the image.”148 statutes further require the depiction to depict a person’s “pri- vate intimate parts.”160 In contrast to Kansas, the Colorado Perhaps the biggest differences, however, are in the privacy statutes have broader definitions of the depiction element, in- and the mens rea components. The Missouri bill avoids the cluding depictions in the form of “any photograph, video, or reasonable expectation of privacy language and instead fo- other image.”161 Finally, the Colorado statutes, similar to the cuses on the method the offender used to initially acquire Missouri bill, focus on whether the offender knew or should 149 the depiction. The bill requires a prosecutor to prove that have known that the “depicted person had a reasonable expec- the offender “[o]btain[ed] the image under circumstances in tation that the image would remain private.”162 Both Colo- which a reasonable person would know or understand that rado crimes carry misdemeanor sentences, with maximum 150 the image was to remain private....” This language focuses sentences of eighteen months imprisonment and a $10,000 on the offender’s knowledge of the depiction’s creation (which fine.163 may carry its own problems), rather than requiring an exami- nation of the victim’s intent and expectations. While the Colorado statutes were welcomed with much fanfare,164 the exact impact remains unclear. A recent analysis Finally, the proposed language has a general, rather than by the Denver Post revealed that, as of September 24, 2017, specific, intent element, as it requires that the offender knew prosecutors in the state had brought 192 misdemeanor charg- or should have known that they did not have permission to es under the new statutes, but only around one-third of those 151 distribute the image. This avoids most of the debate about charges had produced convictions.165 What’s more, the same the motive of the offender in distributing the image. report indicates that none of the victims had yet utilized the At the time of this writing, the bill has passed the Missouri civil cause of action, which could lead to awards of at least House of Representatives and is awaiting action in the Mis- $10,000 in damages for the victim.166 souri Senate.152 It is unclear at the time of this writing whether iii. Oklahoma the bill will ultimately become law. Oklahoma passed SB 1257, outlawing the nonconsensual ii. Colorado dissemination of certain images, on May 5, 2016. The Okla- On May 29, 2014, Colorado Governor John Hickenlooper homa statute addresses many of the above-outlined concerns signed into law HB 14-1378, an act concerning prohibiting with the Kansas statute. Oklahoma, like many of the states, the posting of a private image on social media without con- defines “image” broadly to include, “a photograph, film, vid- sent to cause serious emotional distress.153 The bill established eotape, digital recording or other depiction or portrayal of two new criminal statutes and two civil causes of action.154 an object, including a human body.”168 The act criminalized COLO. REV. STAT. § 18-7-107 criminalizes nonconsensual dis- the nonconsensual distribution of depictions of an individual tribution for harassment purposes, while COLO. REV. STAT. § who was engaged in a sexual act or “whose private parts are 18-7-108 criminalizes the same behavior when the offender exposed, in whole or in part,” and who was identifiable by the intended to obtain a pecuniary benefit from anyone as a result image or the “information displayed in connection with the of the distribution.155 Both statutes also create a civil cause of image.”169 action against the offender.156

48 The Journal of the Kansas Bar Association etched in digital stone

As in Kansas, the Oklahoma statute contains a specific intent Texas criminal statute, like Missouri’s first-degree harassment, element requiring proof that the offender intended “to harass, has the fairly unusual requirement that the victim suffer actu- intimidate or coerce the person....”170 But unlike Kansas, the al harm.185 Furthermore, the statute includes similar “remain specific intent element also allows a showing that the offender private” language found in other statutes.186 was “under circumstances in which a reasonable person would Other elements of the statute, however, are somewhat know or understand that dissemination of the image would 171 broader and more encompassing than those of other state stat- harass, intimidate or coerce the person.” Furthermore, the utes examined herein.187 Texas uses the term “visual material” statute also uses the potentially broader “remain private” lan- to describe the victim’s depiction, and the term is defined as: guage found in Colorado and in the Missouri bill.172 “(A) any film, photograph, videotape, negative, or In a unique move, the state expressly grants the courts the slide or any photographic reproduction that contains or in- authority to order the defendant to remove the distributed corporates in any manner any film, photograph, videotape, depiction if the defendant has the power to do so, though the negative, or slide; or statute does not specify from where or how the defendant is to remove the depiction.173 A conviction under this statute is “(B) any disk, diskette, or other physical medium classified as a misdemeanor, with a maximum sentence of one that allows an image to be displayed on a computer or other year imprisonment in the county jail and a $1,000 fine.174 video screen and any image transmitted to a computer or oth- er video screen by telephone line, cable, satellite transmission, iv. Iowa or other method.”188 In July 2017, Iowa’s nonconsensual distribution stat- Likewise, the statute, which requires that the victim be 175 Iowa added nonconsensual distribution to ute took effect. identifiable in the depiction, defines the identifiability ele- its existing harassment statute as an alternate means for com- ment to include accompanying or subsequent information mitting the crime.176 As in most of the other states, Iowa’s and information provided by a third-party in response to the statute includes a specific intent element, requiring the of- distribution of the depiction.189 fender to act “with intent to intimidate, annoy, or alarm,” the victim.177 The Iowa law, however, has some significant differ- The criminal statute also incorporates a blackmail compo- ences. First, the law does not require the victim to be identifi- nent, though the Texas crime is more similar to the Colo- able in the depiction. Second, unlike most of the other states rado pecuniary statute than to the Kansas blackmail statute.190 in the region, Iowa does not require the victim to be over 18 Texas also goes beyond most other states by expressly targeting years old. This has led some to worry that that statute will “promoters” of nonconsensual distributions, who “procure, sweep up teens who sext each other.178 manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, Interestingly, the law does not consider the reasonable ex- present, exhibit, or advertise” nonconsensual distributions.191 pectation of privacy of the victim at the time the depiction This seems to target revenge porn businesses, which profit was created. Instead, the law takes an inverse approach and from the purchase and sale of nonconsensual pornography. excludes any depiction made “in public or commercial set- Finally, the statute classifies all offenses as state jail felonies, 179 This may, in practice, lead to the same analysis of tings.” which carry a sentence of between 180 days to 2 years in a whether the victim had a reasonable expectation of privacy state jail, with a fine of not more than $10,000.192 when the depiction was created, but the difference in struc- ture shifts the burden of determining privacy. In Kansas, the IV. The Struggle to Protect Nonconsensual state must prove that the victim had a reasonable expectation of privacy.180 In Iowa, it seems the defendant must argue that Distribution Victims the victim created the depiction in public to exclude the ap- While the majority of this article is dedicated to the crimi- plication of the law. nal law approach to protecting nonconsensual distribution Finally, a violation of the Iowa law is considered first-degree victims in Kansas and the region, that approach represents harassment, which is an aggravated misdemeanor.181 Defen- only part of the picture. Victims of nonconsensual distribu- dants convicted under this law face up to two years of prison tion have some alternatives to seek redress. However, as is dis- and fine between $625 and $6,250.182 cussed below, these alternative approaches are awash in diffi- culties, limitations, and barriers to access, such that they may v. Texas not provide the hoped-for comfort or relief. Furthermore, In June 2015, after intercession by victims of nonconsensu- similar to many other harassment and domestic abuse accusa- al distribution and victim’s rights advocates, Texas Governor tions, victims of nonconsensual distribution face societal hur- Greg Abbott signed SB 1135 into law.183 As in the Colorado dles before any remedy or criminal conviction can be sought. law, the Texas bill created a civil cause of action along with the This part will examine those impediments to relief. criminal prohibition of nonconsensual distribution.184 The

www.ksbar.org | April 2018 49 etched in digital stone

A. Limitations of Alternate Remedies depiction includes more than one person. Determining own- ership of the depiction likely will subject the depiction, and As mentioned, victims of nonconsensual distribution may thereby the victim, to greater scrutiny and may exacerbate the be able to seek noncriminal relief from offenders, provided emotional or reputational damage from the distribution. they have the resources to pursue the appropriate cause of ac- tion.193 Victims, depending on the jurisdiction, have a variety Copyright law, however, is likely not much relief for non- of tort remedies that provide the ability to recover damages consensual distribution victims. Copyright law can be com- from the offender.194 Furthermore, victims may be able to plicated, and utilizing the self-help features of the law can be claim copyright in the depictions, and thus, have remedies onerous for a victim dealing with the fallout from noncon- under various copyright laws.195 Finally, victims may find sensual distribution.209 Attempting to take down photos can some relief if the state offers specific protection or restrain- develop into a perverse game of whack-a-mole, as the photos ing orders.196 The benefits and limitations of these options are move from one website to another, consuming the victim’s discussed below. time, energy, and resources.210 And if the website does not i. Tort Remedies respect the take-down notice, the only recourse is a civil suit, with all the financial and time investments required as de- As this article mentioned in Part II, privacy law began with scribed above.211 the recognition of private causes of action against the inva- iii. Protective and Restraining Orders sion of privacy.197 A victim has a variety of potential tort ac- tions from general tort law, including intentional infliction of Victims may also try to seek protection under some form of emotional distress, false light, defamation, public disclosure a protective order. In states such as Texas212 and Vermont,213 of private facts, appropriation of an individual’s likeness, and the nonconsensual distribution statutes allow the victim to intrusion on seclusion.198 If the victim is in a state such as seek restraining orders to prevent the distribution of noncon- Texas or Colorado, they may even have specific state-based sensual pornography. Options such as temporary restraining tort claims available.199 Each of these theories are fact specific orders may also be available, depending on the jurisdiction and whether a victim of nonconsensual distribution finds re- and the factual nature of the case.214 Victims have won this lief will depend on the implementation of these torts in a par- type of relief in some circumstances.215 However, even with ticular jurisdiction. a restraining order, the offender, or third-parties who already had acquired the depictions, may continue to distribute the Some victims have found success seeking compensatory 200 depictions, continuing to hurt the victim. That requires the damages under tort law. Victims may also be able to recover victim to actively seek enforcement of the order. Furthermore, punitive and injunctive relief on top of compensatory dam- to transition from a temporary to a permanent restraining or- ages.201 However, like any civil case, pursuing damages can be 202 der will likely involve attorney’s fees, which increases the costs costly and time consuming. Furthermore, plaintiffs must and time commitment to protect the victim. typically use their real names, which exposes the victim’s inti- mate depictions to further publicity unless the court is willing For any of those alternate relief approaches, if the victim and able to seal the proceedings.203 Defendants in these types does not have the resources, time, or knowledge to privately of civil cases also have access to the traditional privacy tort enforce their rights, they will find no relief. Furthermore, each claim defenses, such as truth or the lack of a reasonable ex- of those approaches take time before the depictions will be pectation of privacy.204 Finally, while damages and injunctive removed. As the depictions remain public and in circulation, relief are helpful, defendants are often judgment proof due to the victim continues to face risk of external injury to reputa- the lack of resources or lack of ability to remove the intimate tion and risk of physical and mental injury. depictions from certain publication platforms.205 B. The Reluctant Reporter ii. Copyright In Part III, one of the potential issues identified with the Victims also may find some relief in the realm of copyright Kansas law was the requirement that the victim be identifi- law. Federal copyright law provides copyright owners the right able in the depiction.216 While this article is focused on non- to submit a take-down notice to individuals publishing copy- consensual distribution specifically, victims of nonconsensual right-protected material, provided the owner has registered distribution experience similar societal and emotional damage the copyright.206 If the victim of nonconsensual distribution as those found in sexual harassment and domestic violence owns the copyright of the depiction,207 the victim owns the cases.217 Victims of nonconsensual distribution face sexual ha- rights of distribution and reproduction of their depiction, and rassment and threats of physical harm, economic losses due thus, any individual distributing the depiction without autho- to employers avoiding individuals targeted by nonconsensual rization is violating copyright law.208 However, determining distribution, and increases in stress, depression, and anxiety.218 ownership of the depiction may be difficult if the subject of Victims often withdraw from society and feel isolated from the depiction did not personally create the depiction or if the their communities.219

50 The Journal of the Kansas Bar Association etched in digital stone

Tech companies, however, are trying to offer the next best thing. Google offers a mechanism to allow victims to remove nonconsensual pornography links from search results, making it more difficult to find the depictions with Google and disas- sociating the depiction from the victim’s identity.223 Facebook is also experimenting with new technologies to automati- cally prevent the distribution of nonconsensual pornography through its platforms.224 Furthermore, one of the largest por- nography websites is taking steps to make it easier for victims to identify and remove nonconsensual distributions.225 While these advancements are helpful, due to the distributed nature of the internet, it is impossible to ensure that every copy of a depiction is removed from all servers. Still, Kansas practi- tioners should be aware of these options to assist victims of nonconsensual distribution regain control of their depictions. Victims almost certainly face the above consequences should they report the nonconsensual distribution.220 To do V. Conclusion so ends up highlighting the existence of the depiction and thus drawing attention to it when it otherwise might have Kansas has taken a strong first step in addressing noncon- had a limited or no impact. The Kansas statute may amplify sensual distribution. The criminal statute offers significant this reluctance further due to the vague identifiability require- punishment for damaged victims; however, prosecutions un- ment. For example, imagine a situation where Woman A and der the new crime face hurdles due to the specific intent and Woman B are in a relationship but hid this information from privacy elements. While the statute is comparable to those the rest of the community. The couple makes an intimate vid- found in other nearby states, the Kansas law has unique eo in Woman A’s bedroom. The video does not record either quirks. Yet, the emotional and social damage caused by non- woman’s face, but a distinct piece of art is clearly visible, as consensual distribution, combined with the limitations of the is a distinct birthmark visible on Woman A’s body. Woman noncriminal remedies, may result in few prosecutions and B then posts the video online to harass Woman A, without victims being reluctant to report. Any attorney working on Woman A’s consent, but the video does not list the names of nonconsensual distribution cases should be aware of the dif- either woman. ficulty associated with prosecution, the pitfalls (both actual and potential) that victims face, and the noncriminal reme- Woman A would be able to identify herself based on the dies available to victims as they attempt to regain normalcy. n art and the birthmark, as would a few close friends and rela- tives; however, the rest of Woman A’s community would not be able to identify her from the video. Woman A is now pre- sented with difficult questions: does she ignore the video and hope that the handful of people who could recognize her do not see it, or does she report the video and reveal both her About the Author relationship and the video’s existence to the community at large? If she spoke with an attorney, what should the attor- Christopher Teters graduated from the University ney advise as the best course of action? When faced with a of Kansas School of Law in 2016. During law reluctant reporter, practitioners and prosecutors may need to school, he served as the Executive Articles Editor on Volume 25 of the Kansas Journal of Law and consider how to best resolve each victim’s dilemma. Public Policy. Since graduation, Christopher has worked as a research attorney for the Hon. David C. Etched in Digital Stone E. Bruns of the Kansas Court of Appeals. He is grateful for Richard Ralls of the KBA Board of Finally, a consideration that may seem obvious but is worth Editors and for his friends, family, and colleagues for their edits and 221 stating: the internet never forgets. The ubiquitous and comments during the drafting of this article. He also thanks Judge instantaneous nature of the internet has led to an environ- Bruns for his encouragement to seek out this writing opportunity. ment that is hard to regulate and impossible to tame. Files are hosted, downloaded, and re-hosted in a blink of an eye, and [email protected] this is all-too-true for victims of nonconsensual distribution. Victims can fight to limit the damage, but there is no way to guarantee that an image will be forever removed from the internet.222

www.ksbar.org | April 2018 51 etched in digital stone

1. See Danielle Keats Citron and Mary Anne Franks, Criminalizing 22. Samuel D. Warren and Louis D. Brandeis, The Right of Privacy, Revenge Porn, 39 Wake Forest L. Rev. 345, 346 (2014); see also Ari Ezra 4 Harv. L. Rev. 193 (1890). While early Americans certainly recognized Waldman, A Breach of Trust: Fighting Nonconsensual Pornography, 102 some privacy concepts, such as privacy of the mail, legal scholars often IOWA L. REV. 709 (2016); and Alexandrea Scott, What is Nonconsensual point to Warren and Brandeis’ article as the birth of the “right of privacy” Pornography, NAT’L COUNCIL OF JUV. & FAM. CT. JUDGES (Feb. 21, 2017), concept. See Vernon Valentine Palmer, Three Milestones in the History of https://www.ncjfcj.org/TDVAM-Scott. Privacy in the United States, 26 Tul. Eur. & Civ. L.F. 67, 70-71 (2011); 2. For the purposes of this article, depiction shall mean any image, set and Daniel J. Solove, A Brief History of Information Privacy Law, in PROS- of images, photograph, video, or audio recording, in which a person is KAUER ON PRIVACY 1-10 to 1-11 (Christopher Wolf ed., 2006), http:// shown or displayed. scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=facu 3. Citron and Franks, supra note 1, at 346. However, for a discus- lty_publications. sion about why Citron and Frank’s broad definition may be inappropriate 23. Solove, supra note 22, at 1-4 to 1-5. when drafting criminal legislation, see SCOTT R. STROUD AND JONATHAN 24. Id.; Palmer, supra note 22, at 71-72. HENSON, What is Revenge Porn or Nonconsensual Pornography?, IN “SOCIAL 25. Solove, supra note 22, at 1-6 to 1-7. Solove notes that, despite MEDIA, ONLINE SHARING, AND THE ETHICAL COMPLEXITY OF CONSENT this early statute, mail in America was not always secure. Congress was IN REVENGE PORN,” ONLINE CONSUMER BEHAVIOR: THE DARK SIDE OF required to act again in 1825 by passing an additional statute making it SOCIAL MEDIA (Angeline Close Scheinbaum ed., forthcoming publica- clearer that tampering with the mail was a federal crime. Id. at 1-7. tion), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828740. 26. Note, The Right of Privacy in Nineteenth Century America, 94 Harv. 4. Dan Kedmey, Hackers Leak Explicit Photos of More than 100 Celeb- L. Rev. 1892, 1901 (1981). rities, TIME (Sept. 1, 2014), http://time.com/3246562/hackers-jennifer- 27. GINA MARIE STEVENS AND CHARLES DOYLE, CONG. RESEARCH lawrence-cloud-data/ (last visited Mar. 12, 2018). SERV., R.7-5700, PRIVACY: AN OVERVIEW OF FEDERAL STATUTES GOVERN- 5. Bill Chappell, Charges Filed Against ‘Playboy’ Model Who Body- ING WIRETAPPING AND ELECTRONIC EAVESDROPPING 2 (2009). Shamed Woman at Gym, NPR (Nov. 5, 2016), http://www.npr.org/sec- 28. Id. tions/thetwo-way/2016/11/05/500831536/charges-filed-against-playboy- 29. Palmer, supra note 22, at 70-71. model-who-body-shamed-woman-at-gym. 30. See generally Warren and Brandeis, supra note 22; Palmer, supra 6. Richard Winton, Revenge Porn? Rob Kardashian Posts Sexually Ex- note 22, 75-77. plicit Images Supposedly of Blac Chyna on Social Media, L.A. TIMES (July 31. Warren and Brandeis, supra note 22, at 195. “Instantaneous pho- 6, 2017), http://www.latimes.com/local/lanow/la-me-ln-revenge-porn- tographs and newspaper enterprise have invaded the sacred precincts of kardashian-20170705-story.html. private and domestic life; and numerous mechanical devices threaten to 7. Jesse J. Holland, Some Marines Being Investigated for Sharing make good the prediction that ‘what is whispered in the closet shall be Nude Photos, AP (Mar. 6, 2017), https://apnews.com/86e13c2d0afd4 proclaimed from the house-tops.’” 798abbae31336c3333b/Some-Marines-being-investigated-for-sharing- 32. See generally, Palmer, supra note 22, 75-80. nude-photos?utm_campaign=SocialFlow&utm_source=Twitter&utm_ 33. William L. Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960). medium=AP. 34. Id. 8. See Citron and Franks, supra note 1, at 351-52. 35. See Palmer, supra note 22, at 82-85. 9. Id. at 357-60. 36. Id. at 91-92. 10. Id. at 346. 37. Id. at 93-96; see Corken, supra note 19, at 289-91. 11. Id. at 347. 38. 381 U.S. 479 (1965) (articulating the “zones of privacy” found in 12. Margot E. Kaminski, Regulating Real-World Surveillance, 90 WASH. the penumbras of the Bill of Rights). L. REV. 1113, 1145-46 (2015). 39. 389 U.S. 347 (1967) (establishing, in Justice Harlan’s concurring 13. Citron and Franks, supra note 1, at 346. opinion, the “reasonable expectation of privacy” distinction in fourth 14. Harris, Love, Sext, Magic: The Good and Bad Views of Sexting, amendment cases). THE CRIMSON WHITE (Sept. 26, 2016 at 12:06pm), http://www.cw.ua. 40. 410 U.S. 113 (1973) (finding that the right to an abortion exists as edu/article/2016/09/sexting-feature?platform=hootsuite. an extension of a woman’s right of privacy). 15. Robert S. Weisskirch et al., Relational Anxiety and Sexting, 54 J. SEX 41. Corken, supra note 19, at 290-303. RESEARCH 685, 690 (2016). 42. See e.g., Jason M. Breslow, With or Without the Patriot Act, Here’s 16. Citron and Franks, supra note 1, at 371 (noting that as of 2014, How the NSA Can Still Spy on Americans, PBS (June 1, 2015), http://www. only six states criminalized the disclosure of consensually generated inti- pbs.org/wgbh/frontline/article/with-or-without-the-patriot-act-heres- mate images). how-the-nsa-can-still-spy-on-americans/. 17. 38 States + DC Have Revenge Porn Laws, CYBER CIVIL RIGHTS INI- 43. See e.g., Adam Liptak, Supreme Court Agrees to Hear Cellphone TIATIVE, https://www.cybercivilrights.org/revenge-porn-laws/. Tracking Case, N.Y. TIMES (June 5, 2017), https://www.nytimes. 18. Bryan Lowry, Brownback Signs Bill Outlawing “Revenge Porn”, com/2017/06/05/us/politics/supreme-court-cellphone-tracking.html. WICHITA EAGLE (May 18, 2016), http://www.kansas.com/news/politics- 44. See e.g., Edward Snowden: Leaks that Exposed US Spy Programme, government/article78430247.html. BBC (Jan. 17, 2014), http://www.bbc.com/news/world-us-cana- 19. See e.g., Erin Corken, The Changing Expectation of Privacy: Keeping da-23123964. Up With the Millennial Generation and Looking Toward the Future, 42 N. 45. KAN. TERR. STAT. 1855, ch. 53, §40-42. Ky. L. Rev. 287, 289-91 (2015). . 46. Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918). 20. See e.g., Bernie Sanders on Privacy & Digital Rights, FEEL THE BERN, 47. J. Lyn Entrikin, “The Right to be Let Alone: The Kansas Right of http://feelthebern.org/bernie-sanders-on-privacy-and-digital-rights/. Privacy,” 53 WASHBURN L.J. 207, 214–15 (2014). 21. See e.g., Kimberly Kindy, How Congress Dismantled Federal Inter- 48. K.S.A. 21-6101. net Privacy Rules, WASH. POST (May 30, 2017), https://www.washing- 49. K.S.A. 21-6101(a)(8). tonpost.com/politics/how-congress-dismantled-federal-internet-privacy- 50. H.B. 2501, 2015-2016 Leg., 2016 Gen. Sess. (2016) (as intro- rules/2017/05/29/7ad06e14-2f5b-11e7-8674-437ddb6e813e_story. duced Jan. 21, 2016). html?utm_term=.c4519d8a0b20. 51. H. JOURNAL, 2015-2016 Leg., 2016 Gen. Sess. 2091–93 (2016);

52 The Journal of the Kansas Bar Association etched in digital stone

http://www.kslegislature.org/li_2016/b2015_16/measures/documents/ CLOUDWARDS.NET (Sept. 18, 2014), https://www.cloudwards.net/a-look- fa_2016_hb2501_h_3542.pdf (last visited Mar. 12, 2018). into-the-aftermath-of-the-icloud-hack/. 52. HB 2501, KS LEGISLATURE, 2015-2016 LEGISLATIVE SESSION, 73. Justin Wm. Moyer, Apple Stock Plunges Amid Celebrity Hacking, http://www.kslegislature.org/li_2016/b2015_16/measures/hb2501/ (last Ahead of Purported iWatch Announcement, WASH. POST (Sept. 4, 2014), visited Mar. 12, 2018). https://www.washingtonpost.com/news/morning-mix/wp/2014/09/04/ 53. S. JOURNAL, 2015-2016 Leg., 2016 Gen. Sess., 2046 (2016); apple-stock-plunges-amid-celebrity-hacking-ahead-of-purported-iwatch- http://www.kslegislature.org/li_2016/b2015_16/measures/documents/ announcement/?utm_term=.8226df22fdb7. cr_2016_hb2501_s_3880.pdf (last visited Mar. 12, 2018) (the senate 74. Brent Lang, Celebrities’ Hacked Private Photos Won’t Hurt Their amendments added a requirement that the offender have a specific intent Careers, Experts Say, BOS. HERALD (Sept. 10, 2014), http://www.boston- while committing the crime and that the victim had a reasonable expecta- herald.com/inside_track/celebrity_news/2014/09/celebrities_hacked_pri- tion of privacy when the depictions were created). vate_photos_wont_hurt_their_careers; Allison Grande, Celebs Face Long 54. Supra note 52. Odds in Nude-Photo Leak Battle With Apple, LAW360 (Sept. 8, 2014 8:55 55. Id. Johnson County, Kansas, has already charged someone under p.m.), https://www.mccarter.com/files/Uploads/Documents/Law360Ce- the new statute. Melissa Stern, Revenge Porn Victim Says She’s Embarrassed, lebsFaceLongOddsPhotoLeakBattleWithApple_9-8-14.pdf. Feels Betrayed as Merriam Man Faces Felony Charge, FOX4KC.COM (July 75. Katrease Stafford, Michigan Woman Gets $500K in Revenge-Porn 17, 2017 8:04 p.m.), http://fox4kc.com/2017/07/17/revenge-porn-vic- Case, DETROIT FREE PRESS (Aug. 26, 2016 3:40 p.m.), https://www.usa- tim-says-shes-embarrassed-feels-betrayed-as-merriam-man-faces-felony- today.com/story/news/nation-now/2016/08/26/michigan-revenge-porn- charge/. verdict/89393884/. 56. Citron and Franks, supra note 1, at 371. 76. Id. 57. CYBER CIVIL RIGHTS INITIATIVE, supra note 17. 77. Id. 58. Id. 78. Id. 59. Steven Nelson, Lawmakers Unveil Proposal to Take Nip Out of Re- 79. KAN. LEG. RESEARCH DEP’T, SUMMARY OF LEGISLATION, CRE- venge Porn, U.S. NEWS (July 14, 2016 2:07 p.m.), https://www.usnews. ATING CRIMES REGARDING VISUAL DEPICTION OF A CHILD; AMEND- com/news/articles/2016-07-14/lawmakers-lay-bare-proposal-to-take-nip- ING CRIMES OF BREACH OF PRIVACY AND BLACKMAIL; AMENDING THE out-of-revenge-porn. DEFINITION OF A CRIME COMMITTED WITH AN ELECTRONIC MONITOR- 60. Hope Hodge Seck, Lawmaker to Introduce Bill Criminalizing Mili- ING DEVICE; HB 2501 (2016),http://www.kslegislature.org/li_2016/ tary “Revenge Porn”, MILITARY.COM (Mar. 15, 2017), http://www.military. b2015_16/measures/documents/summary_hb_2501_2016.pdf (last com/daily-news/2017/03/15/lawmaker-introduce-bill-criminalizing-mili- visited Mar. 12, 2018). tary-revenge-porn.html. 80. H.B. 2501, 2015-2016 Leg., 2016 Gen. Sess. § 1-2, 4 (2016). 61. H.R. 5896, 114th Cong. (2015); H.R. 1588, 115th Cong. (2017). 81. Sexting: Do You Know the Risks?, NHS.UK (Dec. 4, 2016), https:// 62. Sasha Lekach, ‘Revenge Porn’ Bill Would Criminalize Post- www.nhs.uk/Livewell/Sexandyoungpeople/Pages/sexting-images-risk- ing Nude Photos Without Consent Nationwide, MASHABLE (Nov. 28, young-people.aspx. 2017), http://mashable.com/2017/11/28/revenge-porn-bill-kamala- 82. K.S.A. 21-6101(a)(8). harris/#aEug9ES0lOqW. 83. Id. 63. Alex Ward, Exposing the Marine Corps’ Revenge Porn Hasn’t Made 84. K.S.A. 21-6101(b)(2)(A). It Go Away, VOX (July 12, 2017 4:50 p.m.), https://www.vox.com/ 85. Actual sentence depends on criminal history and the nature of the world/2017/5/29/15619574/marine-corps-women-sexual-harassment. crime. K.S.A. 21-6804(a). 64. Jesse J. Holland, Some Marines Being Investigated for Sharing 86. K.S.A. 21-6101(b)(2)(B). Nude Photos, AP (Mar. 6, 2017), https://apnews.com/86e13c2d0afd4 87. Actual sentence depends on criminal history and the nature of the 798abbae31336c3333b/Some-Marines-being-investigated-for-sharing- crime. K.S.A. 21-6804. nude-photos?utm_campaign=SocialFlow&utm_source=Twitter&utm_ 88. Supra note 80; K.S.A. 22-4902. medium=AP. 89. K.S.A. 21-6101(a)(6) & (7). K.S.A. 21-6101(a)(6) actually goes 65. Ward, supra note 63. further than K.S.A. 21-6101(a)(8), by making the act of recording or in- 66. Ryan Browne, First Marine Tied to ‘Marines United’ Facebook stalling devices to record the victim a crime. Group Court-Martialed, CNN (July 10, 2017 5:56 p.m.), http://www.cnn. 90. K.S.A. 21-6101(a)(6). com/2017/07/10/politics/marines-united-facebook-group-court-martial/ 91. K.S.A. 21-6101(a)(8). index.html. 92. PIK Crim. 4th 61.032 (2017). 67. Leo Shane III, Congress Poised to Outlaw Revenge Porn in the Mili- 93. K.S.A. 21-5202(h). tary, ARMY TIMES (Sept. 20, 2017), https://www.armytimes.com/news/ 94. K.S.A. 21-6101(a)(8). pentagon-congress/2017/09/20/congress-poised-to-outlaw-revenge-porn- 95. For the federal civil court context, see Danny Cevallos, What Makes in-the-military/. Sex Harassment Cases Tough to Win, CNN (July 19, 2014 11:07 a.m.), 68. Amy Bushatz, Trump Signs 2018 Defense Bill: Here’s What it Means http://www.cnn.com/2014/07/19/opinion/cevallos-yahoo-sexual-harass- for You, MILITARY.COM (Dec. 12, 2017), https://www.military.com/daily- ment-lawsuit/index.html; United States. v. Infante, 782 F. Supp. 2d 815 news/2017/12/12/trump-signs-defense-bill-heres-what-it-means-you.html. (2010); A.B. v. Indiana, 885 N.E.2d 1223, 231 Ed. Law Rep. 921 (Ind. 69. Rick McCormick, Hack Leaks Hundreds of Nude Celebrity Pho- 2008); Ohio v. Ellison, 178 Ohio App. 3d 734, 2008-Ohio-5282, 900 tos, THE VERGE (Sept. 1, 2014 2:29 a.m.), https://www.theverge. N.E.2d 228 (1st Dist. Hamilton County 2008). com/2014/9/1/6092089/nude-celebrity-hack. 96. K.S.A. 21-5415. 70. Id. 97. K.S.A. 21-5415(a)(1). 71. Haje Jan Kamps, Prosecutors Find that “Fappening” Celebrity Nudes 98. See State v. Williams, 303 Kan. 750, 368 P.3d 1065 (2016); State v. Leak Was Not Apple’s Fault, TECHCRUNCH (Mar. 15, 2016), https:// Hurd, 298 Kan. 555, 316 P.3d 698 (2013); State v. White, 2016 53 Kan. techcrunch.com/2016/03/15/prosecutors-find-that-fappening-celebrity- App. 2d 44, 384 P.3d 13 (2016). nudes-leak-was-not-apples-fault/. 99. K.S.A. 21-6206. 72. Victoria Kazz, A Look Into the Aftermath of the iCloud Hack, 100. K.S.A. 21-6206(a)(1)(B)-(D).

www.ksbar.org | April 2018 53 etched in digital stone

101. K.S.A. 21-5611(b)(1)(A). video picture, digital or computer-generated image or picture made or 102. K.S.A. 21-5611(d). produced by electronic, mechanical or other means." 103. See Intimidation of a Witness, K.S.A. 51-5909(a); Terrorism, 130. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). K.S.A. 21-5421(a)(1); Criminal Use of an Explosive, K.S.A. 21-5814(a) 131. K.S.A. 21-6101(a)(8). (2). 132. K.S.A. 21-5428(a)(2). 104. K.S.A. 21-5205 133. K.S.A. 21-5428(b)(2); K.S.A. 21-6101(b)(2)(A). 105. PIK. Crim. 4th 52.060 (2017). 134. COLO. REV. STAT. § 18-7-107 & -108 (2017). 106. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). Jus- 135. OKLA. STAT. tit. 21, § 1040.13b (2017). tice Harlan, in his famous concurring opinion, outlined the modern two- 136. IOWA CODE § 708.7(1) (2017). pronged Fourth Amendment reasonable expectation of privacy test. 137. TEX. PENAL CODE ANN. § 21.16 (2017). 107. Id. at 361. 138. Missouri has considered criminalizing nonconsensual pornogra- 108. State v. Gilliland, 294 Kan. 519, 276 P.3d 165 (2012) indirectly phy, but it has not yet done so. Tessa Weinberg, “Revenge Porn” Bill Receives applies the Katz line of cases to a case where a prisoner alleged a violation Renewed Attention Amid Greitens Investigation, KAN. CITY STAR (Jan. 26, of the breach of privacy statute when his phone calls from within a prison 2018 10:38 a.m.), http://www.kansascity.com/news/politics-government/ were intercepted. The Court determined that Gilliland consented to the article196814029.html. interception of his phone calls, and thus, triggered an exception to the 139. MO. REV. STAT. § 565.090 – .091 (2017). breach of privacy statute. Gilliland, at 537-38. However, the case dealt 140. Nebraska’s statutes are not reviewed in this article. Nebraska has with a prisoner, and there is a limited expectation of privacy in a prison. not passed a specific nonconsensual distribution statute, and the state’s 109. 460 U.S. 276, 281, (1983). harassment statutes require a pattern of harassment, which likely does not 110. Knotts, at 281-82. cover the same activity as the other laws discussed in this article. See NEB. 111. Oliver v. United States, 466 U.S. 170 (1984). REV. STAT. § 28-311.02(2)(a) (2017) & NEB. REV. STAT. § 28-311.03 112. See Arizona v. Gant, 556 U.S. 332 (2009); United States v. Marti- (2017). nez-Fuerte, 428 U.S. 543 (1976). 141. Kevin Ko, Lack of Revenge Porn Laws Leave Missouri Victims with 113. See Georgia v. Randolf, 547 U.S. 103 (2006). Again, this has more Few Options, KOMU (Oct. 3, 2017 5:15 p.m.) http://www.komu.com/ to do with the authority of the police to search a common area, rather news/lack-of-revenge-porn-laws-leave-missouri-victims-with-few-options. than the expectation of privacy directly. But, the implication is that the 142. Mo. REV. STAT. § 565.090 – .091 (2017). roommates or others who share a common living space have lowered ex- 143. Mo. REV. STAT. § 565.090(1) (2017). pectations of privacy against each other in the common areas, and that 144. Mo. REV. STAT. § 565.091(1) (2017). implication could be used in a Kansas breach of privacy case. 145. Mo. REV. STAT. § 565.090(2) & .091(2) (2017); MO. REV. 114. United State v. Dunn, 480 U.S. 294 (1987). STAT. § 558.01. The actual sentence a person may receive could be higher 115. Id. than these “maximums” depending on their individual criminal history. 116. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 146. H.B. 1558, 99th Gen. Assemb., 2nd Reg. Sess. (Mo. 2018). 476 U.S. 207 (1986). 147. Id. 117. Haley Goldberg, Revenge Porn: When Domestic Violence Goes Vi- 148. Id. ral, SELF.COM (Mar. 21, 2017), https://www.self.com/story/revenge-porn- 149. Id. domestic-violence. 150. Id. 118. See United States v. Runyan, 275 F.3d 449, 458 (5th Cir. 2001). 151. Id. 119. See Brent Rose, The Crazy Journey of an MMS from Your Phone 152. H.B. 1558, HOUSE.MO.GOV, https://house.mo.gov/Bill.aspx?bill to Your Friend, GIZMODO (Oct. 9, 2012 2:20 p.m.), https://gizmodo. =HB1558&year=2018&code=R (last visited Mar. 12, 2018). com/5947906/this-is-how-your-mobile-data-travels-the-world. 153. Posting Intimate Photos on the Internet, DENVER POST, http://ex- 120. Id. tras.denverpost.com/app/bill-tracker/bills/2014a/hb_14-1378/ (last vis- 121. Id. ited Mar. 12, 2018) [hereinafter Colorado Bill]; David Migoya, Colorado’s 122. Id. Revenge Porn Law Brings Nearly 200 Charges, but Getting Convictions is a 123. Jon Brodkin, See Which ISPs Google, Microsoft, and Netflix Trade Challenge, DENVER POST (Sept. 25, 2017 12:31 p.m), http://www.denver- Internet Traffic With, ARS TECHNICA (May 21, 2014 11:00 a.m.), https:// post.com/2017/09/25/colorados-revenge-porn-law-brings-200-charges- arstechnica.com/information-technology/2014/05/see-which-isps- convictions-challenge/. google-microsoft-and-netflix-trade-internet-traffic-with/. 154. Colorado Bill, supra note 153. 124. Smith v. Maryland, 442 U.S. 735, 743-44 (1979). 155. COLO. REV. STAT. § 18-7-107 & -108 (2017). 125. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010); c.f. 156. COLO. REV. STAT. § 18-7-107(4) & -108(4) (2017). United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007). See also 157. COLO. REV. STAT. § 18-7-107(1)(a)(I) (2017). Ann K. Wooster, Expectation of Privacy in Discovery of Social Networking 158. Compare COLO. REV. STAT. § 18-7-108(1)(a)(I) (2017); with Web Site Postings and Communications, 88 A.L.R. 6th 319 (2013). K.S.A. 21-5428(a)(2). 126. K.S.A. 21-6101(a)(8). 159. COLO. REV. STAT. § 18-7-107(1)(a) & -108(1)(a) (2017). 127. These issues are further complicated by the concept of live video 160. Id. streaming. Man A could, in theory, broadcast a live video stream of himself 161. Id. Distribution of nonconsensual pornography on a physical in a sexual context to Man B. Man B could then, during the broadcast, medium may be covered under Colorado’s obscenity law, but the applica- secretly record Man A’s depiction. Man A’s expectation of privacy in this tion of the law to nonconsensual pornography specifically remains unclear. video depiction is likely reduced, but whether his video should be pro- COLO. REV. STAT. § 18-7-102 (2017). tected is a difficult, fact-specific question. 162. COLO. REV. STAT. § 18-7-107(1)(a)(II)(B) & -108(1)(a)(II)(B) 128. K.S.A. 21-6101(a)(8). (2017). 129. Compare with K.S.A. 21-6101(a)(6), "to secretly videotape, film, 163. COLO. REV. STAT. § 18-7-107(1)(b)–(c) & -108(1)(b)–(c); 18- photograph, or record, by electronic or other means . . . [emphasis add- 1.3-501(1)(a) (2017). ed]" and K.S.A. 21-5611, "'visual depiction' means any photograph, film, 164. See Ivan Moreno, Revenge Porn Penalties Among New Colorado Laws,

54 The Journal of the Kansas Bar Association etched in digital stone

CBS LOCAL (June 30, 2014), http://denver.cbslocal.com/2014/06/30/ WL 2319052 (D. Colo. June 13, 2012); Taylor v. Franko, Civil No. 09- revenge-porn-penalties-among-new-colorado-laws/; Ian Farrell et al., Col- 00002, 2011 WL 2746714 (D. Haw. July 12, 2011) (unpublished opin- orado’s New Revenge Porn Statute is Good Law and Sound Policy, HUFFPOST ion); Bridgette Dunlap, 3 Ways Revenge Porn is Already Illegal, ROLLING (Aug. 4, 2014 11:25 a.m.), https://www.huffingtonpost.com/ian-farrell/ STONE (Sept. 26, 2016), http://www.rollingstone.com/culture/news/3- colorados-new-revenge-por_b_5427703.html. ways-revenge-porn-is-already-illegal-w441928. 165. Migoya, supra note 153. 201. See Doe, 2012 WL 2319052, and Taylor, 2011 WL 2746714. 166. Id.; COLO. REV. STAT. § 18-7-107(4) & -108(4) (2017). 202. Citron and Franks, supra note 1, at 358–59. 167. OK SB1257, LEGISCAN, https://legiscan.com/OK/bill/ 203. Id. SB1257/2016 (last visited Mar. 12, 2018). 204. Larkin, supra note 198, at 80–83. 168. OKLA. STAT.. tit. 21, § 1040.13b(A)(1) (2017). 205. Citron and Franks, supra note 1, at 358–59. 169. OKLA. STAT. tit. 21, § 1040.13b(B)(1)(b) & (c) (2017). Interest- 206. 17 U.S.C. § 512(c) (2012). ingly enough, “intimate parts” is defined as “the fully unclothed, partially 207. This may not always be clear. If the victim created the depiction unclothed or transparently clothed genitals, pubic area or female adult on their own, he or she likely has sole copyright ownership in the depic- nipple.”OKLA. STAT.. tit. 21, § 1040.13b(A)(2) (2017). The male adult tion. 17 U.S.C. § 102(a)(5) & 201(a) (2012). However, if the depiction nipple does not appear to be considered an “intimate part” under the was made with a partner, or the partner created the depiction, the victim Oklahoma law. likely has either a shared copyright interest or no interest in the depiction 170. OKLA. STAT. tit. 21, § 1040.13b(b)(2) (2017). at all. 171. Id. 208. Katlyn M. Brady, Revenge in the Modern Times: The Necessity of 172. OKLA. STAT. tit. 21, § 1040.13b(b)(3) (2017). a Federal Law Criminalizing Revenge Porn, 28 HASTING WOMEN’S L.J. 3, 17-18 (2017). 173. OKLA. STAT tit. 21, § 1040.13b(G) (2017). 209. Id., at 18–19. 174. OKLA. STAT. tit. 21, § 1040.13b(F) (2017). 210. Id. at 19. 175. Steffi Lee, Iowans Who Post “Revenge Porn” to Face Harsher Pun- 211. Id.; Citron and Franks, supra note 1, at 359–60. ishments, KCCI (May 27, 2017 2:30 p.m.), http://www.kcci.com/article/ 212. TEX. CIV. PRAC. & REM. CODE § 98b.004(a) (2017). iowans-who-post-revenge-porn-to-face-harsher-punishments/9941808. 213. VT. STAT. AN. TIT. 13, § 2606(e) (2017). 176. IOWA CODE § 708.7(1)(a)(5) (2017). 214. See K.S.A. 60-903 (2017). 177. IOWA CODE § 708.7(1)(a) (2017). 215. See Elahe Izadi, “Total Victory”: Blac Chyna Granted Restraining 178. See Karen Thalacker, New “Revenge Porn” Law Could Snag Sex- Order After Rob Kardashian Posted Explicit Photos, WASH. POST (July 10, ting Teens, DES MOINES REG. (July 11, 2017 6:53 a.m.), http://www. 2017), https://www.washingtonpost.com/news/arts-and-entertainment/ desmoinesregister.com/story/opinion/columnists/iowa-view/2017/07/10/ wp/2017/07/10/blac-chyna-devastated-after-rob-kardashian-posted-ex- new-revenge-porn-law-could-snag-sexting-teens/465718001/. plicit-photos-online-files-restraining-order/?utm_term=.366703b1fa11; 179. IOWA CODE § 708.7(6)(a) (2017). c.f. Venkat Balasubramani, Court Denies Restraining Order Against Ex- 180. K.S.A. 21-6101(a)(8). Boyfriend Who Threatened to Post Revenge Porn – EC v. CBT, TECHNOLOGY 181. IOWA CODE § 708.7(2)(a)(2)(2017). & MARKETING LAW BLOG (May 24, 2013), http://blog.ericgoldman.org/ 182. IOWA CODE § 903.1(2) (2017). archives/2013/05/court_denies_re.htm. 183. Liz Crampton, Taking New Steps to Put an End to “Revenge 216. Supra, Part III(A)(iii). Porn”, TEXAS TRIB. (Aug. 21, 2015 6:00 a.m.), https://www.texastribune. 217. Citron and Franks, supra note 1, at 347. org/2015/08/21/texas-law-criminalizing-revenge-porn-goes-effect/. 218. Id. at 347–52. 184. TEX. PENAL CODE ANN. § 21.16; TEX. CIV. PRAC. & REM. 219. Id. at 352. Id. Law Students’ “Revenge Porn” Bill Would Protect Vic- CODE § 98b.001 et seq. (2017). 220. at 358; tim Privacy, UNIV. OF THE PACIFIC (June 16, 2014), http://www.pacific. 185. TEX. PENAL CODE ANN. § 21.16(b)(3) (2017). edu/About-Pacific/Newsroom/2014/May-August-2014/Law-students- 186. TEX. PENAL CODE ANN. § 21.16(b)(2) (2017). revenge-porn-bill-would-protect-victim-privacy.html. 187. Similar to Oklahoma, the Texas statute defines “intimate parts,” 221. David Siesage, Puking in a Loo? Silly Drunken Tweet? Lock Up used in the description of the acts depicted in the protected visual mate- Your Social media Accounts Otherwise It’ll Come Back To Haunt You, Argues rial, as, “naked genitals, pubic area, anus, buttocks, or female nipple.” TEX. David Siesage, INDEPENDENT.CO.UK (Aug. 28, 2013), http://www.inde- PENAL CODE ANN. § 21.16(a)(1) (2017). pendent.co.uk/student/istudents/the-internet-never-forgets-so-be-careful- 188. TEX. PENAL CODE ANN. § 21.16(a)(5) (2017). what-you-put-on-it-8787706.html. 189. TEX. PENAL CODE ANN. § 21.16(b)(4) (2017). 222. Charlotte Alter, “It’s Like having an Incurable Disease”: In- 190. Compare TEX. PENAL CODE ANN. § 21.16(c) (2017), with COLO. side the Fight Against Revenge Porn, TIME (June 13, 2017), http://time. REV. STAT. § 18-7-108(1)(a)(I) (2017) and K.S.A. 21-5428(a)(2). com/4811561/revenge-porn/. 191. TEX. PENAL CODE ANN. § 21.16(a)(2), (d) (2017). 223. Jeff John Roberts, Google to Remove “Revenge Porn” Links at Vic- 192. TEX. PENAL CODE ANN. §§ 12.35, 21.16(h) (2017). tim’s Request, FORTUNE (June 19, 2015), http://fortune.com/2015/06/19/ 193. Theodore Z. Wyman, Litigation of Liability for Internet Posting of google-revenge-porn-removal/. “Revenge Porn’,” 147 AM. JUR. TRIALS 319 (2016). 224. Megan Rose Dickey, Facebook’s testing a New Method to Prevent 194. Id. at § B. Revenge Porn that Requires Uploading your Nudes, TECHCRUNCH (Nov. 7, 195. Id. at § C. 2017), https://techcrunch.com/2017/11/07/facebook-revenge-porn-strat- 196. See e.g. Clark v. Maine, 86 A.3d 655, 2014 ME 18 (Me. 2014). egy-involes-sending-nudes-to-self/; Megan Rose Dickey, Facebook Address- 197. Supra Part II. es Revenge Porn with Tech to Prevent People from Re-Sharing Intimate Im- 198. Paul J. Larkin, Jr., Revenge Porn, State Law, and Free Speech, 48 ages, TECHCRUNCH (Apr. 5, 2017), https://techcrunch.com/2017/04/05/ LOY. L.A. L. REV. 57, 76–80 (2014). facebook-addresses-revenge-porn-with-tech-to-prevent-people-from-re- shaing-intimate-images/. 199. TEX. CIV. PRAC. & REM. CODE § 98b.001 et seq. (2017); COLO. 225. David Moye, Pornhub Makes it Easier to Remove Revenge Porn, REV. STAT. § 18-7-107(4) & -108(4) (2017). HUFFPOST (Oct. 14, 2015 6:40 p.m.), https://www.huffingtonpost.com/ 200. See Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. entry/pornhub-revenge-porn-removal_us_561eb29fe4b0c5a1ce61bf3f. 1984); Doe v. Hofstetter, Civil Action No. 11-cv-02209-DME-MJW, 2012

www.ksbar.org | April 2018 55 members in the news

Members in the News

New Positions Bryant Parker joined Klenda Austerman Law Firm. His areas of expertise include city planning, zoning, growth and eco- Richard Buck was elected Interim County Attorney for Ot- nomic development. tawa County due to the resignation of Jason Parks, who left the position on March 2. Buck is a graduate of Kansas State Evan Rosell, a graduate of Baylor University with a law de- University and of the Washburn University School of Law. gree from the Washburn University School of Law, and for- He is experienced in working with juvenile offenders and as mer chief of staff for Missouri Attorney General Josh Hawley, assisted the Ottawa Co. Attorney’s office in the past. has accepted the position of lead staff for Project Wichita. Project Wichita is an effort of the Greater Wichita Partner- Remington Dalke became Rice County Attorney but will ship to develop a 10-year plan for the city. Rosell is a native continue to work a second job with Bush, Bush and Shanelec. of Wichita. His wife, Jessica is also an attorney, and they have Jorge De Hoyos has joined Patterson Legal Group. three small boys. Jason Gorden joined Mann Conroy Law Firm in February 2018 to head up the firm’s patent practice and deepen the firm’s technology practice. A computer engineering gradu- New Locations ate of the University of Missouri-Columbia, Gorden earned Adam Jones Law Firm, P.A., based in Wichita, has opened an his juris doctor from the University of Missouri-Columbia office in El Dorado at 112 N. Star. Shareholder attorney Jason School of Law. He brings to the firm more than 15 years of Reed staffs the office and handles probate, estate planning, experience in complex intellectual property issues. real estate transactions and general business transactions. Michael E. Griffin has joined the law firm of McDowell Rice John M. Parisi announced the opening of The Parisi Law Smith & Buchanan, PC, as a shareholder. Griffin is a mem- Firm at 7944 Santa Fe Drive in Overland Park, Kan. 66204. ber of the firm’s Corporate and Business Transactions Group, Parisi’s practice focuses primarily on plaintiff’s personal injury Tax Law Group, and Wills, Trusts & Estate Planning Group; law. A graduate of the University of Missouri-Kansas City he brings more than 25 years of experience in these practice School of Law, John has been listed in Best Lawyers since areas. Griffin graduated from Loyola University with a B.A. 2010 and has been selected to Super Lawyers every year since in English and obtained his J.D., with distinction, from The 2005. University of Missouri-Kansas City, School of Law. Lynn Koehn was appointed city attorney for Liberal in Febru- ary. Koehn also serves as county attorney for Haskell County Notables and city attorney for Sublette, Satanta and Copeland. Before The law firms of Baker Sterchi Cowden & Rice (BSCR) and earning his juris doctor at the University of South Dakota Williams Venker & Sanders (WVS) are pleased to announce and passing the bar in Kansas, Koehn had plans to become a their merger effective July 1, 2018. chiropractor. But after his first semester at Fort Hays State, he The merged firm will continue to be known as Baker Sterchi changed his plan and majored in criminal justice, which has Cowden & Rice and will be headquartered in Kansas City, served him well. Missouri. Scott Kreamer will remain Managing Member, re-

56 The Journal of the Kansas Bar Association members in the news

sponsible for the day-to-day operations and long-term plan- of speech. Platt, with the Manhattan firm of Clark & Platt, ning of the firm. Mike Hunter will serve as the manager in Chtd., is a member of the National College for DUI Defense, charge of the merged firm’s St. Louis and Illinois offices. National Ass’n. of Criminal Defense Lawyers, NORML, the The combination increases the number of attorneys at BSCR Kansas Ass’n. of Criminal Defense Lawyers, the KBA and the to over 50. It also increases the number of locations to 5 cities Riley Co. Bar Ass’n. of which he is President-Elect. in Kansas, Missouri and Illinois. Kansas City area attorneys Tom Stanton, Reno County Deputy District Attorney, has and staff will operate out of BSCR’s Crown Center office loca- been named Drug Prosecutor of the Year and the Reno Coun- tion in Kansas City, Mo. St. Louis area attorneys and staff will ty Drug Enforcement Unit as the Outstanding Kansas Drug operate out of WVS’s downtown office location in St. Louis, Enforcement Unit for 2017 by the Kansas Narcotics Officer Mo. Association. The awards were presented on March 6th. Stan- announced her candidacy for the Kansas ton has been with the Reno Co. DA’s office since 2001. He is congressional seat currently held by Rep. Kevin Yoder. Davids a graduate of The University of Kansas School of Law. is a member of the Ho-Chunk Nation and worked as legal Ken Strobel, who passed away on Jan. 13 of this year at the counsel on a South Dakota Indian reservation before serving age of 78 (see Obituaries page in this issue of The Journal as a White House fellow during the Obama administration. of the KBA), was fondly remembered in a lengthy feature in If elected, Davids will be the first female Native American the Dodge City Daily Globe on Jan. 19. The profile outlined to serve in Congress and the first openly gay member of the Strobel’s many contributions to the community and warm Kansas delegation. Five other Democrats are also challenging tributes from his contemporaries in the community. Yoder for the seat. Joseph Welsh, Attorney at Law, sought out the expertise and Euler Law Firm of Troy, Kan., was recognized as one of the creativity of the Sublette (Kan.) High School Computer Ap- oldest continuous supporters of the U.S. Highway 36 Asso- plication class when he needed a logo for his new office in ciation as part of its 50th Anniversary. Jack Euler served as downtown Sublette. He selected a logo created by student president of the association for 2 years, and his son, Joel, con- Breanna Quillin, a freshman, and threw a pizza party for both tinues to support it. Computer Applications Classes. What wonderful publicity Robert “Bob” Green, Kansas University Law School Class of for Welsh and his practice AND for the high school! 1967 ( undergraduate degree from the KSU Arts and Sciences Tristen Woods and his fiancée and law partner, Lauren Si- Honors Program), retired in January from his position on the erra Kruskall were featured in the February 26 issue of the Board of Directors of Peoples, Inc., the holding company for Kansas City Star under the headline: “Meet Tarzan, the lawyer all Peoples Banks in Kansas, Colorado and New Mexico. He and former model who fights for animal rights.” His firm, served on the Board for eight years and received the Chair- Jungle Law Group, specializes in criminal defense, auto ac- man’s Award for outstanding service in 2017. Bob retired cidents, DUIs and animal rights. The Tarzan moniker took from his law practice in 2016 after 48 years in the same loca- hold when Woods grew his signature long blonde locks when tion in Ottawa, starting with Wint Winter, Sr. in the firm he was 17. He worked as a model in Abercrombie & Fitch and of Winter and Green, later with Tom Sachse as Green and Polo Ralph Lauren ad campaigns, and had a small, recurring Sachse, and most recently as senior partner with Green, Finch role in the ABC soap opera “Port Charles.” The couple’s Tar- & Covington. zan in the jungle-themed billboard located on I-35 in down- Dan Monnat of Monnat & Spurrier, Chartered has been town Kansas City has garnered a great deal of attention for the recognized as one of the world’s leading practitioners in the couple and their practice. Investigations sector. Who’s Who Legal, in collaboration with Coleman Younger, a graduate of the Washburn University Global Investigations Review, identifies the world’s leading School of Law employed by the Marysville law firm of Gal- lawyers, forensic accountants and digital forensics experts. A loway, Wegers and Brinegar, PA, is also the current associate graduate of California State University, Monnat received his head coach of the KSU Inline Hockey Team. He learned the J.D. from Creighton University School of Law and is a gradu- university had a hockey team when he was a freshman and ate of Gerry Spence’s Trial Lawyer’s College. was given a walk-on spot. When the goalie suffered a broken Jeremiah L. Platt delivered a talk on “The Constitutional foot before the first game, Younger stepped in — and held Limit of Police Use of Force” as part of a project at KSU to that position for four years. Younger works with head Coach promote understanding of the First Amendment and freedom John Truman to coach this club sport.

www.ksbar.org | April 2018 57 Obituaries

Robert "Bob" Paul Aylward, 99, died Sunday, March 4, N. Roosevelt, Wichita, KS, 67208; Good Shepherd Hospice, 2018. He was born on the farm in Stonington, IL on July 15, 7829 E. Rockhill S-403, Wichita, KS, 67206. His Southern 1918. His family moved to Greenville, Mississippi when Bob hospitality, his easy charm, his love of family and friends, and was 10. Bob graduated from Mississippi State College with his religious core will live forever in our hearts. a degree in Aeronautical Engineering. He was a member of the Kappa Sigma fraternity. In 1940 Bob moved to Wichita, KS to work for Beechcraft. Bob became a Senior Project En- Dr. Andria Leigh Cooper, 44, an assistant professor of gineer working on many projects and serving as President of criminal justice at Wayne State College in Nebraska, died Feb. the Supervisor's Club. Bob worked at Beechcraft/Raytheon 5, 2018 at Providence Medical Center, Wayne, Neb. She was until his retirement in 1983. He then continued his career as born Nov. 27, 1973, in Alamosa, Colo., to Larry and Sandra an expert witness for the Martin Pringle Law Firm, and then (Wood) McNames. She graduated from Beatty High School as an engineer for J.B. Dwerlkotte Associates. Robert married in Nevada, receiving her undergraduate studies from Fort Mariana Wetterhold on June 1, 1944 at the Cathedral of the Hays State University and graduated law school from Uni- Immaculate Conception in Wichita, KS. Bob was preceded versity of Kansas in Lawrence. She earned her Juris Doctorate in death by his parents, Phillip and Katherine Aylward; sis- degree in 2000 from the University of Kansas School of Law ters, Katherine and Ione; brothers, Philip Leo, Francis, and and bachelor’s degree from FHSU. She married John Cooper Howard; first wife, Mariana Wetterhold Aylward, and second on July 30, 1999, in Colby. wife, Allene Fogelstrom Boston Aylward. Bob is survived by She was an assistant professor in the Department of Crimi- his daughters, Suzanne Montgomery, Sally Leyba, and Cyn- nal Justice at Wayne State College. Before teaching at WSC, thia Dawson (Jon); sons, Philip Aylward (Linda), Michael she sat as a New Mexico state level district court judge after Aylward, and Patrick Aylward (Mary Muset); grandchildren, serving as an attorney, primarily in the area of criminal law. Douglas Cramer (Amy), Katy Cramer Dorrah (Brent), Da- She has served as a prosecutor and a criminal defense attorney vid Montgomery (Karen), Lindsay Aylward, Vanessa Aylward and also has experience in the areas of civil rights, constitu- Rohlman (Ryan), Ashley Aylward (Jonathan Martin), Samuel tional law, victim advocacy, and general areas of legal practice. Leyba, Matthew Leyba, Jennifer Dawson Cardelus (Arturo), She has trained law enforcement and other criminal justice Christine Dawson Williams (Ben); great-grandchildren, professionals in the areas of arrest, search and seizure, report Drew and Livi Cramer, Addie Dorrah, Grace Cardelus, Lyn- writing, warrant preparation, juvenile justice, fraud investiga- don Brewer, Myles Martin. Bob enjoyed operating planes and tion and prevention, domestic violence investigation and vic- gliders, organic gardening, camping and water skiing with the tim advocacy and sat on a governor’s domestic violence fatality kids, refinishing antiques, learning Spanish, and genealogy. review board. She was an advisor of Delta Upsilon, a chapter Bob volunteered as a frequent blood donor, Meals on Wheels of the National American Criminal Justice Association, which deliverer, preparer of tax returns for the needy, Eucharistic participates in regional and national competitions on criminal Minister, church lector, member of Knights of Columbus, and justice knowledge, agility, firearms and crime scene competi- Serra Club. Rosary will be at 6:30 p.m., Wednesday, March tions. She also creates mock crime scenes and mock trials for 7, 2018, at Downing & Lahey East Mortuary; Funeral Mass classes, which allows students to present cases at trial, testify as will be at 10:00 a.m., Thursday, March 8, 2018, at Blessed witnesses, listen to the case as jurors or assume other criminal Sacrament Church. In lieu of flowers, memorials have been justice roles in the courtroom. established with: Blessed Sacrament Catholic Church, 124

58 The Journal of the Kansas Bar Association obituaries

She was a member of the American Criminal Justice As- merce, serving as president and vice-president and many years sociation, Justice Clearinghouse and Pi Gamma Mu (a social as one of the board of directors. He was a member and chair- sciences honor society). She also was a consultant on Faculty man of Ford County/Dodge City Development Corporation Row, and was involved in several committees on campus and Board of Directors. Ken played a pivotal role in bringing es- the Wayne community as well. She has been honored as an sential air service to southwest Kansas. Other organizations outstanding professor (2005) and outstanding advisor (2005), where he held leadership positions include the Trinity As- as well as received a faculty appreciation award from Sigma sociation; Dodge City Public Library Board; the Red Cross Chi (2007). She has received service awards from the Kansas Board and American Heart Association; Boot Hill Board of Coalition Against Sexual and Domestic Violence (2004) and Directors; Dodge City Athletics; Kansas West Conference the Northwest Kansas Family Shelter (2003). Her teaching Health Ministry Board; the Mental Health Association; state interests include criminal law and procedure, criminal evi- and local legal groups; and the Kansas State School Board As- dence, report writing and trial techniques for criminal justice sociation and was a founding member of Dodge City's Op- professionals, civil liability in criminal justice, comparative timist Club. He was an active member of the Dodge City justice systems, and all legal aspects of other criminal justice First United Methodist Church and Keystone Sunday School disciplines. Her research interests include civil rights, espe- Class. cially privacy advocacy, search and seizure, and the Second Survivors include his wife of 58 years, Carol; four sons, T. Amendment. She also enjoyed scholarly work in constitu- Craig Strobel and wife Ann and daughters, Roseanne and tional issues involving federalism and separation of powers. husband Leon, and their daughter Raelynn, Jenna and Kaylee Survivors include her husband; two daughters, Devon Coo- of New Port Richey, Florida; Christopher S. Strobel and wife per, Clayton, N.M., and Skylar Cooper, Wayne; her parents, Janelle and sons, Tasker and Spencer of Avon, Indiana; Wm. Palco; two brothers, Ryan McNames and Neal McNames, Connan Strobel and wife Robin and daughters Jaden and hus- both of Palco; her grandmother, Veda Wood, Oberlin; her band Justin, Taryn, Brooklyn, and son Daxton of Andover; parents-in-law, C.W. and Pat Hamilton, Levant and Galen Geo. Corbin Strobel and wife Emily and daughters, Peyton Cooper, Goodland; her brother-in-law, Trey Hamilton, Hays; and Maggie of Hutchinson, Kansas; and one daughter, Kend- her grandmother-in-law, Margaret Chick, Colby; and nieces all C. Hackerott and her husband Kevin and their daughters, and nephews. She was preceded in death by a grandparents. Kennedy, Kade and Karsyn of Wichita. He was preceded in Services were held at Wayne State College Fine Arts Build- death by his parents and grandparents, Mr. and Mrs. Cortes ing Ramsey Theater, Wayne. hosted by her criminal justice Phillips and Mr. and Mrs. John Strobel. students. Visitation was held before the service at the theater. Memorials were suggested to the Cooper family for later des- Funeral service will be held at the First United Method- ignation. Hasemann Funeral Home, Wayne, is in charge of ist Church in Dodge City on Saturday, January 20, 2018 at arrangements. 10:00 AM with Rev. Jerre Nolte presiding. Burial will follow at Maple Grove Cemetery in Dodge City. Visitation will be at Swaim Funeral Chapel in Dodge City on Friday January 19, Ken William Strobel(1939 - 2018) Ken William Strobel, 2018 from 12:00 PM to 8:00 PM. Memorials are suggested 78, died January 13, 2018 in Dodge City. He was born on to the Keystone Sunday School Class of the United Methodist September 11, 1939 at Trinity Hospital in Dodge City, the Church in care of the funeral home. Thoughts and memories son of William H. and Marie D. (Phillips) Strobel. may be shared in the online guest book at www.swaimfuner- Ken was seven years old when the family moved to Great alhome.com. Bend. He married Carol Kaiser of Great Bend on August 29, 1959. After graduating from Great Bend High School in 1958, he attended Southwestern College in Winfield for three years and then Wichita State University for one year where he earned a degree in 1962. In 1965, he graduated from Washburn Law School in Topeka, and was part of the first class to receive a Juris Doctorate degree. Following law school, he joined Wil- liams, Larson and Voss Law Firm in Dodge City where he practiced law for forty-three years. At the age of 68, he as- sumed the dual role of city manager/legal counsel of the City of Dodge City. Ken was active in the Dodge City Area Chamber of Com-

www.ksbar.org | April 2018 59 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 and market services at [email protected] or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org Supreme Court law). Haley's license to practice law in Missouri was suspend- Attorney Discipline ed in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registra- ORDER OF DISBARMENT tion requirements in Kansas, and his Kansas law license was IN THE MATTER OF KENNETH J. GENIUK suspended. It was not until Haley began to explore reinstate- NO. 118,226—FEBRUARY 23, 2018 ment that the Kansas disciplinary administrator learned of FACTS: After a formal complaint was filed, and after Ge- Haley's misconduct suspension in Missouri. Haley's Missouri niuk failed to respond or answer, a hearing panel determined license was reinstated in 2015, although he was placed on pro- that Geniuk violated KRPC 5.5(a) and (b) (unauthorized bation. But he never addressed the reciprocal discipline issues practice of law); 7.1(a) (communications concerning a law- that existed in Kansas. yer's services); 8.3(a) (reporting professional misconduct); HEARING PANEL: Most of the conduct addressed by the 8.4(d) (engaging in conduct prejudicial to the administra- hearing panel occurred in Missouri. But Haley did self-report tion of justice); Rule 207(c) (failure to report action); 208(c) one instance of unauthorized practice which occurred when (failure to notify Clerk of the Appellate Courts of change of he prepared a codicil for his mother's will. While Haley's ex- address); and 211(b) (failure to file answer in disciplinary pro- perience with the practice of law was an aggravating factor, ceeding). Geniuk was admitted to the Kansas bar in 2007 and there were significant mitigating factors including mental the Missouri bar in 2008. His Kansas license was suspended in health conditions and Haley's cooperation with the process. 2013 for failure to comply with all annual licensure require- The disciplinary administrator recommended that Haley be ments. Despite the suspension, Geniuk continued to practice suspended for one year, with that suspension stayed so that in Kansas. After a Kansas judge asked Geniuk about his status, Haley could complete a term of probation. The hearing panel Geniuk informed the court that he was licensed in Missouri. agreed with the disciplinary administrator and made that rec- The court did not believe that any rule allowed Geniuk to ommendation to the court. appear in Kansas and he was asked to leave the court. After a complaint was filed and during the investigation, it was dis- HELD: After considering the hearing report, the court im- covered that Geniuk's web site advertised that he provided posed a one-year disciplinary suspension. If Haley is able to legal services in Kansas. satisfy all administrative requirements to end his administra- tive suspension, he will be allowed to petition the court for an HEARING PANEL: After considering the aggravating fac- order to suspend the disciplinary suspension and the imposi- tors and the lack of mitigators, the hearing panel unanimously tion of a two-year probation period. recommended that Geniuk be indefinitely suspended. HELD: Geniuk did not appear at the hearing before the court. Because he filed no exceptions, the hearing panel's re- ORDER OF DISCHARGE FROM PROBATION port was admitted. Geniuk's failure to appear was considered IN THE MATTER OF ELIZABETH ANNE HUEBEN to be an additional aggravating factor, and a majority of the NO. 113,928—MARCH 1, 2018 court ordered that he be disbarred. A minority of the court FACTS: In October 2015, the court stayed the imposition would have imposed the lesser sanction of indefinite suspen- of a two-year suspension and placed Hueben on probation for sion. two years, with specific conditions. In November 2017, Hue- ben filed a motion for discharge from probation along with ORDER OF SUSPENSION evidence of her compliance. That compliance was confirmed IN THE MATTER OF LANCE M. HALEY NO. 118,378—MARCH 2, 2018 by the Office of the Disciplinary Administrator. FACTS: A hearing panel determined that Haley violated HELD: After reviewing the motion, affidavits, and recom- KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (un- mendation of the disciplinary administrator, the motion is authorized practice of law), 8.4(d) (engaging in conduct prej- granted. Hueben is discharged from probation and this mat- udicial to the administration of justice), and 8.4(g) (engaging ter is closed. in conduct adversely reflecting on lawyer's fitness to practice

60 The Journal of the Kansas Bar Association appellate decisions

ORDER OF INDEFINITE SUSPENSION all parties negligently failed to provide adequate warnings and IN THE MATTER OF EDGAR HULT barricades. The district court granted summary judgment to NO. 118,204—FEBRUARY 16, 2018 the township, finding that it had no legal duty to erect any sig- FACTS: The Disciplinary Administrator's Office filed a for- nage or barricades. As to the county, the district court found mal complaint against Hult alleging multiple violations of the that the county was immune under the Kansas Tort Claims KRPC. A hearing panel determined that Hult violated KRPC Act for failing to post an advisory speed plaque. But the dis- 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), trict court refused to enter judgment on the issue of whether 1.5 (fees), 1.15(a) (safekeeping property), 1.16(d) (termi- the county was negligent for failing to place a "Dead End" or nation of representation), 3.2 (expediting litigation), 3.4(c) "No Outlet" sign at the end of the pavement. The court simi- (fairness to opposing party and counsel), 8.4(d) (engaging in larly failed to find immunity under the KTCA's recreational conduct prejudicial to the administration of justice), 8.3(a) use exception. Patterson and the county were each allowed to (reporting professional misconduct), Rule 207(c) (failure to pursue interlocutory appeals. The court of appeals affirmed report action), and Rule 211(b) (failing to file an answer in a that the county was not entitled to the recreational use or in- disciplinary proceeding). The complaints involved Hult's im- spection immunity but reversed the district court's ruling on migration practice, and subsequent discipline, in Iowa as well the county's discretionary function immunity. The Supreme as in Kansas. Court granted review. HEARING PANEL: The hearing panel found that, through ISSUES: (1) Township duty to install traffic-control de- a pattern of misconduct, Hult injured his clients. Although vices; (2) county duty to conduct an engineering study; (3) the hearing panel did determine that Hult suffers from anxiety county discretionary function immunity; and depression, it agreed with the disciplinary administrator that indefinite suspension would be an appropriate sanction. HELD: The township had no statutory duty to place or maintain traffic-control devices. And there is no statute that HELD: After noting that Hult stipulated to the violations, provides the township with the authority to adopt ordinances the Court considered the appropriate discipline. Hult agreed or regulations relating to vehicular traffic. In that absence, the that indefinite suspension was an appropriate sanction, and township had no duty to erect traffic-control devices and was the court imposed that discipline. entitled to summary judgment. The Manual on Uniform Traf- fic Control Devices does not require periodic surveys of the ORDER OF DISBARMENT county's roadways that are meant to preemptively spot trou- IN THE MATTER OF KEVIN M. MANZ ble. All traffic-control devices placed by local authorities must BAR DOCKET NO. 10687—FEBRUARY 14, 2018 comply with the MUTCD. In this case, the MUTCD did FACTS: In a letter signed January 29, 2018, Kevin M. not require the signs sought by Patterson. In the absence of a Manz voluntarily surrendered his license to practice law. At mandate, the county's failure to post a sign was a discretionary the time of surrender, a disciplinary compliant was pending function and entitled to immunity. Because claims against the which alleged that Manz committed misconduct after being county are resolved, it is unnecessary to address analysis of the convicted for three felony convictions of grand theft. recreational use and inspection immunity defenses. HELD: The court accepted the surrender and Manz was STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), disbarred. -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307 Civil riminal IMMUNITY—NEGLIGENCE—TORTS C PATTERSON V. COWLEY COUNTY COWLEY DISTRICT COURT—COURT OF APPEALS IS CRIMINAL LAW—CRIMINAL PROCEDURE—SENTENC- AFFIRMED ES—STATUTES DISTRICT COURT IS AFFIRMED IN PART AND RE- STATE V. BUELL VERSED IN PART SHAWNEE DISTRICT COURT—REVERSED, SENTENCE NO. 114,705—MARCH 16, 2018 VACATED, REMANDED FACTS: Jason Patterson and Cortney Brewer drowned COURT OF APPEALS—REVERSED when they drove their vehicle off a roadway and into the Ar- FACTS: Buell convicted of robbery and attempted kidnap- kansas River. The road, which was located in Bolton Township ping. In calculating Buell’s criminal history, sentencing court in Cowley County, abruptly ended at the river. The county classified Buell’s two prior Florida burglary juvenile adjudica- placed a "Pavement Ends" sign where the road transitioned tions as person felonies. Buell appealed, arguing the Florida from paved, county road to unpaved, township road. Beyond adjudications should not have been classified as person felo- that, there was no signage to warn drivers that the road ended nies because Kansas had no comparable offense. Court of ap- and the river began. After the accident, Patterson's widow peals affirmed Buell’s criminal history and sentence, finding filed suit against the county and the township, claiming that the burgled structure requirements in the Kansas and Florida

www.ksbar.org | April 2018 61 appellate decisions

statutes were comparable, and it was irrelevant that the intent ment would be in place for the rest of Daniel's life, while element in the Florida statute differed from the specific intent Daniel's counsel argued for a 10-year registration period. The required for the Kansas offense. 52 Kan.App.2d 818 (2016). parties briefed the issue for the court, and Daniel's counsel Buell’s petition for review granted. conceded that the registration requirement was not "punish- ISSUE: Classification of out of state conviction ment", meaning a lifetime term was constitutionally permis- sible. After receiving a sentence which included a lifetime reg- HELD: Panel’s single-element view of comparability is re- istration requirement. Daniel appealed. The court of appeals jected. Meaning of “comparable offense” as determined in refused to reach the merits of Daniel's arguments, finding State v. Wetrich (decided this same day) is applied, finding that Daniel invited error by conceding that the registration Buell’s prior Florida burglary juvenile adjudications had no requirement was not a punishment. The Supreme Court ac- comparable offense in the Kansas criminal code when Buell cepted Daniel's petition for review. committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Florida adjudications must be scored as non- ISSUE: Invited error person felonies. Sentence is vacated, and matter is remanded HELD: Generally, constitutional claims cannot be raised for resentencing. for the first time on appeal. In this case, Daniel failed to set STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); out an exception to this general rule. The court of appeals is K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, affirmed on the ground that Daniel's claim was never pre- -6804, -6810(a), -6811(e) served for appeal. STATUTE: K.S.A. 2011 Supp. 22-4906(d)(9), -4906(d)(12) SELF-REPRESENTATION STATE V. BUNYARD CRIMINAL PROCEDURE—GUILTY PLEA SEDGWICK DISTRICT COURT—COURT OF APPEALS IS STATE V. DEANDA REVERSED, DISTRICT COURT IS REVERSED FINNEY DISTRICT COURT—AFFIRMED NO. 112,645—FEBRUARY 16, 2018 NO. 11828—FEBRUARY 23, 2018 FACTS: Bunyard was arrested after allegedly choking and FACTS: DeAnda entered guilty plea to first-degree murder breaking the jaw of his girlfriend. During a pre-trial hear- in exchange for State dismissing charges of rape and aggra- ing, Bunyard interjected and asked to address the court. The vated criminal sodomy District court accepted the plea and judge denied that request, telling Bunyard that he could have imposed hard-50 life sentence. Sentence vacated on appeal counsel communicate or he could represent himself. Bunyard and remanded for resentencing under Alleyne v. United States, made an "unequivocal" request to represent himself. The dis- 570 U.S. 99 (2013). Prior to resentencing DeAnda filed mo- trict court refused to consider this oral motion. A jury found tion to withdraw his plea, claiming: ineffective advocacy by Bunyard guilty as charged. The court of appeals considered trial counsel; the plea process and competency evaluation Bunyard's argument on his request to represent himself and conspired to take advantage of his fragile mental state; and determined that no error occurred. His convictions were af- his plea was not free, knowing, and understandable. District firmed and the Supreme Court granted review. court denied the motion, finding none of the three factors in ISSUE: Right of self-representation State v. Edgar, 281 Kan. 30 (2006), were satisfied. DeAnda appealed. HELD: After filing multiple pro se motions, Bunyard made an unequivocal request to represent himself. But the district ISSUE: Motion to withdraw a plea court did not follow up, counsel Bunyard, or try to determine HELD: No abuse of district court’s discretion in its assess- his informed wishes. Bunyard had no way to comply with the ment of the Edgar factors. Case record of the entire plea pro- direction to file a written motion, and the demand for such cess, including the plea agreement, counsel’s advice, and the left Bunyard without recourse. The district court's error in not plea colloquy, does not support any of DeAnda’s claims. Dis- allowing Bunyard to self-represent was structural and requires trict court’s denial of DeAnda’s motion to withdraw his plea a reversal of all of Bunyard's convictions. is affirmed. STATUTES: No statutes cited. STATUTES: K.S.A. 2016 Supp. 22-3210(d), -3210(d)(1), -3601(b); K.S.A. 21-4635, 60-2010(b) APPELLATE PROCEDURE—CONSTITUTION STATE V. DANIEL CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL JOHNSON DISTRICT COURT—COURT OF APPEALS IS PROCEDURE—FIFTH AMENDMENT—IMMUNITY—JU- AFFIRMED, DISTRICT COURT IS AFFIRMED RISDICTION—STATUTES NO. 107,963—FEBRUARY 16, 2018 STATE V. DELACRUZ FACTS: Daniel pled no contest to attempted kidnapping RENO DISTRICT COURT—REVERSED AND SENTENCE and domestic battery. At sentencing, Daniel learned that he VACATED—COURT OF APPEALS—REVERSED would be required to register under the Kansas Offender Reg- NO. 111,795—MARCH 2,2018 istration Act. The State contended that registration require- FACTS: Victim murdered in robbery committed by Dela-

62 The Journal of the Kansas Bar Association appellate decisions cruz and four others, including Waller. Delacruz convicted HELD: Statute defining unintentional second-degree mur- of aggravated robbery. Thereafter, State subpoenaed Delacruz der is not unconstitutionally vague. Gonzalez’ arguments as witness at Waller’s murder trial. Delacruz refused court or- regarding State v. Deal, 293 Kan. 872 (2012), are rejected. ders to testify, claiming in part the immunity offered did not The amended definition of “recklessly” in the 2010 recodifica- protect his Fifth Amendment right against self incrimination. tion of Kansas Criminal Code does not alter the rationale in State filed accusation of contempt, and jury found Delacruz State v. Robinson, 261 Kan. 865 (1997), that a difference be- guilty of direct criminal contempt of court. A 108-month tween unintentional second-degree murder and involuntary sentence imposed, consecutive to his 83-month aggravated manslaughter is one of degree and not one of kind. Finally, robbery sentence. Delacruz appealed on his Fifth Amendment Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. claim, and challenged the length of his sentence. Court of ap- 2551 (2015), is misplaced because Johnson does not invali- peals affirmed the contempt conviction and sentence. 52 Kan. date Robinson’s rationale. App.2d 153 (2015). Jury’s verdict was supported by sufficient evidence which ISSUES: (1) Subject matter jurisdiction, (2) fifth amend- established not only reckless behavior, but also circumstances ment right against self incrimination manifesting extreme indifference to the value of human life. HELD: Court considered sua sponte whether contempt or- Gonzalez’ constitutional and statutory rights to be present der was void for lack of jurisdiction. District court’s journal were violated when trial court prepared the jury question re- entry failed to comply with the compulsory statutory proce- sponse without Gonzalez or his attorney being present, but dure in K.S.A. 20-1203 for direct contempt, but Delacruz that error was harmless beyond a reasonable doubt in light of failed to challenge the district court’s jurisdiction and a deci- the entire record. Gonzalez waived or abandoned any chal- sion on the merits is especially clear. Court presumes, without lenge to panel’s analysis that trial court’s written response deciding, that district court did not lose jurisdiction to find did not violate Gonzalez’ right to a public trial, and Kansas Delacruz in direct contempt of court through a deficient jour- Supreme Court declines to address the public trial question. nal entry. District court did not abuse its discretion by referring the jury State granted Delacruz mere use immunity, rather than de- back to the given instructions. rivative immunity. Delacruz had a valid Fifth Amendment Panel correctly held the district court did not err in failing right to refuse to testify because the immunity granted to him to give a limiting instruction. The evidence at issue was admit- was not coextensive with his constitutional right against self- ted independent of K.S.A. 2016 Supp. 60-455. incrimination. The order of contempt is reversed, and the sen- STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), tence imposed is vacated. -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. CONCURRENCE: (Johnson, J.) Concurs in the result. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b) STATUTES: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425 CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— STATUTES STATE V. HAYES APPEALS—CONSTITUTIONAL LAW—CRIMINAL ATCHISON DISTRICT COURT—AFFIRMED LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY NO. 116,717—MARCH 2, 2018 INSTRUCTIONS—STATUTES STATE V. GONZALEZ FACTS: Hayes was convicted in 1994 of first-degree mur- POTTAWATOMIE DISTRICT COURT—AFFIRMED; der, aggravated robbery, and conspiracy to commit robbery. COURT OF APPEALS—AFFIRMED Convictions affirmed on direct appeal, 258 Kan. 629 (1995). NO. 112,841—MARCH 9, 2019 In 2015 Hayes filed pro se motion to correct an illegal sen- FACTS: Gonzalez was convicted of unintentional second- tence. District court summarily dismissed the motion, finding degree murder for a shooting death. On appeal Gonzalez no merit or legal basis. Hayes appealed, claiming district court claimed for first time that the statute defining unintentional denied him due process by failing to hold a hearing on the second-degree murder is unconstitutionally vague. He also motion without Hayes being present, as required by the plain claimed insufficient evidence supported the conviction; al- language of K.S.A. 22-3504. leged the trial court erred in answering a jury question that ISSUE: Motion to correct an illegal sentence sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and HELD: Hayes’ statutory argument is defeated by holding claimed the trial court should have sua sponte given a limit- in State v. Campbell, 307 Kan. 130 (2017), that a district ing instruction about evidence of Gonzalez aiming gun at a court’s preliminary examination of a motion to correct an il- passerby some 15 minutes before fatally shooting the victim. legal sentence does not trigger the movant’s right to be pres- State Court of Appeals affirmed in an unpublished opinion. Gon- ent. Hayes’ due process claim is defeated by holding in v. Swafford zalez’ petition for review granted. , 306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence ISSUES: (1) Constitutionality of unintentional second-de- does not run afoul of the Fourteenth Amendment’s due pro- gree murder, (2) sufficiency of the evidence, (3) jury question, cess guarantee. (4) limiting instruction www.ksbar.org | April 2018 63 appellate decisions

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), But before Johnson could be sentenced he was charged with -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 22- another count of possession of methamphetamine with in- 3504 tent to sell. Neither the state nor Johnson's counsel became aware of this charge until Johnson was being sentenced. At this sentencing hearing, Johnson moved to withdraw his plea, SENTENCING arguing that he was innocent and wanted a jury trial. After a STATE V. IBARRA counsel change, a new agreement was reached, and Johnson SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED withdrew his motion to withdraw plea. After his sentences NO. 108,576—FEBRUARY 16, 2018 were affirmed on direct appeal, Johnson moved to withdraw FACTS: Ibarra pled guilty to two counts of aggravated in- his plea on grounds that trial counsel was ineffective. That decent liberties. Prior to sentencing, Ibarra moved for both motion was denied, and the court of appeals affirmed that dispositional and durational departures from the presumptive decision. Johnson's petition for review was granted. sentence. He claimed that his age, the consensual nature of ISSUE: Withdrawal of plea the relationship, and his ongoing treatment warranted leni- HELD: Johnson cannot carry his burden to show that the ency in sentencing. The district court granted only the motion district court abused its discretion, and he similarly cannot for downward durational departure, finding that Ibarra suf- show that he was misled into pleading guilty. For these rea- fered from a mental impairment which affected his judgment. sons, the district court is affirmed. Ibarra was also ordered to register as a sex offender for the remainder of his life. Ibarra appealed, arguing that the district STATUTES: K.S.A. 2016 Supp. 22-3210(a)(2), -3210(d) court erred by denying his motion for dispositional departure (2); K.S.A. 22-4902(a)(11)(C), -4905(b)(1), -4906(a)(2) and that the lifetime registration requirement violated the Ex Post Facto Clause. The court of appeals summarily affirmed CRIMINAL LAW—CRIMINAL PROCEDURE—SENTENC- the registration requirement, finding that the ex post facto ar- ES—STATUTES gument was improperly raised for the first time on appeal. STATE V. MOORE The rest of the appeal was dismissed for lack of jurisdiction be- SEDGWICK DISTRICT COURT—REVERSED, SENTENCE cause the district court had not departed adversely to Ibarra. VACATED, REMANDED The petition for review was granted. COURT OF APPEALS—REVERSED ISSUES: (1) New constitutional issue on appeal; (2) review- NO. 113,545—MARCH 9, 2018 ability of sentence FACTS: Moore was convicted of aggravated indecent lib- erties with a child. In calculating Moore’s criminal history, HELD: Generally, constitutional issues cannot be raised sentencing court classified Moore’s 1984 Oregon burglary for the first time on appeal. Although Ibarra did put forth conviction as a person felony. Moore later filed a motion to an exception to that rule, he loses on the merits because the correct an illegal sentence, arguing his pre-1993 out-of-state registration requirement is not a punishment. The court of burglary conviction should have been scored as a nonperson appeals erred by declining jurisdiction over Ibarra's departure felony. District court summarily denied the motion. Moore sentence issue. But the claim fails on the merits. The district appealed. Court of appeals affirmed the denial, finding the court did not err by denying the motion for dispositional de- burgled structure in the Oregon crime comparable to the parture. dwelling in the Kansas burglary statute, notwithstanding DISSENT: (Beier, J., joined by Rosen and Johnson, JJ) The other disparities in the respective crimes’ elements. Moore v. dissent is based on the justices' on-going belief that registra- State, 52 Kan.App.2d 799 (2016). Review granted. tion is punishment. ISSUE: Classification of out of state conviction STATUTE: K.S.A. 2010 Supp. 21-3504(c), -4704 HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding CRIMINAL PROCEDURE—PLEAS Moore’s 1984 Oregon conviction did not have any comparable STATE V. JOHNSON offense in the Kansas criminal code when Moore committed RENO DISTRICT COURT—COURT OF APPEALS IS AF- the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), FIRMED, DISTRICT COURT IS AFFIRMED the Oregon conviction must be scored as a nonperson felony. NO. 111,550—FEBRUARY 16, 2018 Sentence is vacated, and matter is remanded for resentencing. FACTS: Johnson was charged with one count of posses- STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e) sion of methamphetamine with intent to sell, one count of (3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, criminal possession of a firearm, and other drug-related of- -4710(a) fenses. Johnson agreed to plead guilty to the possession of methamphetamine with intent to sell charge and the firearm charge. In exchange for his plea, the State agreed to dismiss APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— the remaining counts and make concessions at sentencing. PROSECUTORS—SENTENCES—STATUTES STATE V. STURGIS

64 The Journal of the Kansas Bar Association appellate decisions

SEDGWICK DISTRICT COURT—AFFIRMED IN PART first-degree murder, to run concurrently with the155-month AND REVERSED IN PART, SENTENCE VACATED, RE- concurrent on-grid sentences for the remaining two counts. MANDED Following Alleyne v United States, 570 U.S. 99 (2013), and COURT OF APPEALS—AFFIRMED IN PART AND MODI- State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sen- FIED IN PART tence was vacated and case remanded for resentencing. On NO. 112,544—MARCH 9, 2018 remand, state sought a lesser sentence that did not consti- FACTS: Sturgis was convicted of theft and criminal posses- tutionally require impaneling a jury. District court imposed sion of firearm. In calculating Sturgis’ criminal history, sen- Hard 25 sentence, and ordered all sentences to run consecu- tencing court classified a prior Michigan conviction for third- tively. Warren appealed, arguing State v. Guder, 293 Kan. 763 degree home invasion as a person offense. Sturgis appealed (2012), and the Kansas Sentencing Guidelines Act (KSGA), claiming: (1) error by prosecutor’s comments during closing barred district court from changing the two non-vacated sen- argument, and (2) error in sentencing court’s classification tences in length and sequence. of the prior Michigan conviction. In unpublished opinion, court of appeals found prosecutor misstated the evidence and ISSUE: Resentencing on remand improperly commented on drug use, but there errors were HELD: Holding in Guder is affirmed. KSGA statutory harmless. Panel also determined the elements of the Michigan changes to sentencing abrogated the common law author- offense were broader than the Kansas person felony crime of ity of district courts to modify any sentences not vacated on burglary of a dwelling, but district court should have con- appeal, barring the need to alter a non-vacated as a matter ducted a modified categorical approach to determine which of of law to avoid an illegal sentence. Applying Guder to facts the Michigan statute’s alternative elements formed the basis of of this case, district court on remand improperly modified Sturgis’ conviction. Sturgis’ petition for review granted. While the off-grid sentence to run consecutive to Warren’s on-grid appeal was pending, state filed change-of-status letter in Sep- sentence. District court made improper de facto modification tember 2017 of Sturgis’ release in June 2016. to sentences that had not been vacated on appeal, and acted ISSUES: (1) Custodial status, (2) prosecutorial misconduct, inconsistently with the service of sentence sequence contem- (3) classification of out of state conviction plated by K.S.A. 21-4720(b)(2). Remanded for resentencing. District court is ordered to reinstate the original 155-month HELD: State did not argue that the issues presented for re- concurrent on-grid sentences and to run it concurrent with view are moot, thus issue of mootness is deemed abandoned. the new Hard 25 off-grid sentence. Each allegation of prosecutorial error is examined. Pros- STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), ecutor’s comment on Sturgis’ testimony was fair comment to -4720(b)(5), 22-3601(b)(3) point out inconsistencies and weaknesses, rather than imper- missibly comment on Sturgis’ credibility. Prosecutor misstat- ed Sturgis’ testimony, but that error was not a game-changer. CONSTITUTIONAL LAW—COURTS—CRIMINAL PRO- Prosecutor’s improper comment implying drug use cuffed the CEDURE—SENTENCES—STATUTES line of reversibility, but panel’s finding of harmless error is STATE V. WETRICH affirmed. JOHNSON COUNTY DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED Meaning of “comparable offense” as determined in State v. COURT OF APPEALS—AFFIRMED Wetrich (decided this same day) is applied, finding Sturgis’ NO. 112,361—MARCH 9, 2018 Michigan home invasion conviction was not comparable to FACTS: Prior to sentencing on Kansas offenses, Wetrich the Kansas burglary of a dwelling offense as it existed when unsuccessfully tried to challenge the criminal history scoring Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 of his 1988 Missouri burglary as a person felony. Court of Supp. 21-6811(e), the Michigan conviction must be scored appeals reversed and ordered district court to conduct a re- as a nonperson felony. Convictions are affirmed, sentence is sentencing hearing. District court again scored the Missouri vacated, and matter is remanded for resentencing. conviction as a person felony, finding “dwelling” in Kansas STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); statute was comparable with “habitable structure” in the Mis- K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e) souri statute. In unpublished opinion, court of appeals va- cated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, APPEALS—CRIMINAL PROCEDURE—SENTENCES— citing a split of authority among Court of Appeals panels re- STATUTES garding the comparability of the Missouri burglary statute. STATE V. WARREN WYANDOTTE DISTRICT COURT—SENTENCE VACAT- ISSUE: Classification of out-of-state burglary conviction ED, REMANDED HELD: The extent to which recent United States Supreme NO. 115,972—MARCH 9, 2018 Court decisions constitutionally mandate the federal iden- FACTS: Warren was convicted of premeditated first-degree tical-or-narrower rule is not examined because issue in this murder, second-degree murder, and attempted first-degree case is resolved by statutory interpretation. For an out-of-state murder. Hard 50 life sentence was imposed for the off-grid conviction to be comparable to an offense under the Kansas

www.ksbar.org | April 2018 65 appellate decisions

criminal code, the elements of the out-of-state crime cannot tation jury instruction; (3) prosecutorial misconduct; (4) in- be broader than the elements of the Kansas crime. Comparing tent instruction elements of the Missouri and Kansas burglary offenses, two ele- HELD: Wright's absence from the courtroom at the con- ments are broader in the Missouri statute—the specific intent tinuance hearing violated his constitutional rights. But that required and the structure involved. Wetrich’s prior Missouri absence did not result in reversible error, because Wright's conviction should have been classified as a nonperson felony. presence would not have made a difference in the outcome. Reversed, sentence vacated, and case remanded for resentenc- The jury instruction given by the court was a correct state- ing. ment of the law and the court did not err by including that STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d) language in the premeditation instruction. At the instructions (1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp. conference, the prosecutor made a legally erroneous claim in 21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), asserting that case law directed certain language to be used in -3715, -3715(a), -4711, -4711(d)(1), -4711(e) an instruction. But any error that resulted was harmless. Any issue regarding the intent instruction was not properly pre- served. But even if addressed on the merits it does not show CRIMINAL PROCEDURE—JURY INSTRUCTIONS— reversible error. PROSECUTORIAL MISCONDUCT STATE V. WRIGHT CONCURRENCE: (Johnson, J. joined by Luckert, J.) SEDGWICK DISTRICT COURT—AFFIRMED Justice Johnson does not believe that Wright's absence from NO. 112,635—FEBRUARY 16, 2018 the courtroom during the continuance hearing was harmless FACTS: Wright was convicted of first-degree premeditated error. But because statutory speedy trial rights are not of con- murder and conspiracy to commit murder. In a previous pro- stitutional magnitude, the outcome of this decision is appro- ceeding, the issue arose about whether Wright's constitutional priate. rights were violated when he was not physically present at a STATUTE: K.S.A. 2016 Supp. 21-5202(h) continuance hearing. After his conviction, Wright raised sev- eral issues on appeal. ISSUES: (1) Presence at continuance hearing; (2) premedi- Kansas Court of Appeals

rier" and was not under KCC jurisdiction when driving the Civil truck. Instead, Carlson was merely delivering a vehicle to its purchaser. Because Carlson was not subject to registration, the ADMINISTRATIVE LAW—STATUTORY INTERPRETA- fine should be reversed. TION CARLSON AUCTION SERVICE, INC. V. KANSAS CORPO- STATUTE: K.S.A. 2016 Supp. 8-143(b)(4), 66-1,108(f), RATION COMMISSION -1,108(i), -1,108b, -1,109, -1,109(q), -1,115, 77-603, SHAWNEE DISTRICT COURT—AFFIRMED -621(c)(4) NO. 117,750—FEBRUARY 16, 2018 FACTS: After she was alerted by a citizen, a Highway Pa- ATTORNEY FEES—EVIDENCE—FRAUD—WILLS trol officer stopped Carlson's driver while he was delivering a IN RE ESTATE OF EARL O. FIELD truck from Topeka to Kansas City. During an inspection, the ELLIS DISTRICT COURT—AFFIRMED IN PART, RE- trooper noticed that the truck did not have a USDOT num- VERSED IN PART ber. Carlson alleged that it did not need to register its vehicles, NO. 116,456—FEBRUARY 16, 2018 but the driver was ticketed for failure to pay Unified Carrier FACTS: After the death of his spouse, Field prepared a will Registration Act fees. The KCC then sent Carlson a notice that left the bulk of his sizeable estate to Fort Hays State Uni- of violation for failure to register with USDOT and pay the versity. Field met Wanda Oborny, and he eventually offered her UCR fee. Carlson objected but the fee was upheld through a job as his bookkeeper. In that capacity, Oborny had access to the administrative process. After Carlson filed a petition for Field's funds, and she received hundreds of thousands of dol- judicial review, the district court reversed the fee. It deter- lars from him. After Field's death, Oborny claimed that she mined that since the property being delivered was the vehicle, found a codicil to Field's will that left half of his estate to her. it was not necessary to pay the UCR fee. The KCC appealed. The codicil bore no witness signatures, but two of Oborny's ISSUE: Necessity of fee payment friends claimed that they saw Field sign and codicil. They died prior to trial, but their testimony was admitted via videotaped HELD: Carlson did not meet the definition of "motor car- deposition. After a lengthy hearing, the district court denied

66 The Journal of the Kansas Bar Association appellate decisions

Oborny's attempt to admit the codicil to probate. But upon OPEN RECORDS—STATUTORY INTERPRETATION her motion, the district court granted Oborny's motion for CLARK V. USD 287 attorney fees in the amount of $1 million. Oborny appealed FRANKLIN DISTRICT COURT—REVERSED AND RE- regarding the codicil, and FHSU appealed the attorney fees. MANDED NO. 117,343—MARCH 9, 2018 ISSUES: (1) Admission of the codicil to probate; (2) at- FACTS: Gene Hirt was barred from school district property torney fees after district officials alleged that he behaved inappropriately HELD: As the proponent of a testamentary instrument, at a school board meeting. After reading about the incident, Oborny had the burden to make a prima facie case that Field Clark became concerned about the letter that Hirt received, had the capacity to duly execute the codicil. Field's testamen- and he wanted to know the exact source and meaning of the tary capacity was not at issue, he was clearly competent prior district's policy. Clark filed a Kansas Open Records Act request to his death. And on its face, the codicil appears to comply seeking any disciplinary action concerning Hirt as well as any with statutory requirements. Because Oborny met her obliga- reference to Hirt in official district memorandum. The district tions, the burden shifted to FHSU to prove that the codicil denied the request on grounds that it could not disclose corre- was invalid. Fraud must be proven by clear and convincing spondence between the district and a private individual. Clark evidence. And abundant evidence supports the conclusion then filed a second KORA request seeking copies of proce- that the codicil was not signed by Field. It was an error of fact dures and guidelines that applied to members of the public. to conclude that Oborny acted in good faith when attempt- The district sent some materials to Clark, but Clark did not ing to admit the codicil to probate. The award of attorney fees believe the materials were responsive to his request, so he filed to Oborny was an abuse of discretion and that decision was a complaint in district court. The district court agreed with reversed. the district that the letter to Hirt was exempt from disclosure. The district court believed that the district's disclosure of the STATUTE: K.S.A. 59-606, -1504, -2224. 84-1-201(19) other materials was appropriate, but that a delay in respond- ing was a technical violation. The court awarded Clark nomi- CONSTITUTIONAL LAW—FORFEITURE—FOURTH nal damages and costs. Both Clark and the district appealed. AMENDMENT—SEARCH AND SEIZURE ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) STATE V. ONE 2008 TOYOTA TUNDRA damages and costs GEARY DISTRICT COURT—AFFIRMED NO. 117,571—FEBRUARY 23, 2018 HELD: Although it is undisputed that Clark now has the FACTS: Officer stopped a Toyota Tundra for partially ob- letter to Hirt, this appeal is not moot because a question per- structed vehicle license. K-9 alert to drugs resulted in seizure sists regarding whether the district's refusal to provide the let- of the truck, $84,820 in currency, and 11.9 grams of mari- ter was allowed under KORA. Although the letter between juana. State filed civil forfeiture action against the seized prop- the district and Hirt was correspondence regarding a private erty, giving notice to the driver and passenger as parties who individual, an exception to this exception exists. The district's might have ownership interest. District granted the passen- power to ban a citizen from its property came from the legisla- ger’s motion to suppress this evidence, finding the officer un- tive mandate that school boards are allowed to control their reasonably prolonged the stop beyond its original purpose by property. Because of this power, the district's refusal to provide requesting a criminal check on the driver and thereby allow- the letter to Clark violated KORA. Although the district did ing time for the K-9 search. State filed interlocutory appeal. technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either ISSUE: Fourth Amendment - Traffic Stop damages or costs. The district court made no finding that the HELD: Fourth Amendment exclusionary rule applies to district acted in bad faith, and the record shows a good-faith civil forfeiture actions. Validity of the initial traffic stop is not effort to comply with Clark's numerous KORA requests. For challenged, but under facts of this case, the officer’s request those reasons, the award of damages and fees was inappropri- of dispatch to conduct a criminal history check of the driver ate and must be reversed. was unjustified and it unreasonably prolonged the stop. At STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, the time of that request, tasks associated with the stop had -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), been completed, and any safety concerns associated with the -3216(d); K.S.A. 2015 Supp. 45-221(a)(14); K.S.A. 45-216, stop no longer existed. Kansas Supreme Court has not directly -218(a), -218(d) addressed impact of Rodriguez v. United States, 575 U.S. __ , 135 S.Ct.1609 (2015), on the duration of a routine traffic stop. Panel declines state’s invitation for a bright-line rule that all traffic stops permit criminal history checks as part of a traf- fic violation. District court’s conclusion that the seizure that occurred during the dog sniff violated the Fourth Amend- ment is affirmed. STATUTE: K.S.A. 60-4101 et seq.

www.ksbar.org | April 2018 67 appellate decisions

He is unpersuaded that the search-incident-arrest exception Criminal provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and CONSTITUTIONAL LAW—CRIMINAL LAW—EVI- Fourth Amendment violations. DENCE—FOURTH AMENDMENT - STATE V. PERKINS STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. ELLIS DISTRICT COURT—AFFIRMED 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), NO. 112,449—MARCH 2, 2018 -1567(a)(3), -1567(b)(1)(B) FACTS: Officer stopped Perkins for traffic infraction, con- ducted field sobriety tests, and arrested him for driving under CONSTITUTIONAL—TRAFFIC—SENTENCING the influence of alcohol. Result of agreed-to breath test was STATE V. WILLIAMS over the legal limit. Perkins moved to suppress the breath test SEDGWICK DISTRICT COURT— REVERSED IN PART, results, claiming consent was coerced and involuntary, and VACATED IN PART breath test was an unreasonable search that violated Fourth NO. 116,068— MARCH 9, 2018 Amendment. District court denied the motion and convicted FACTS: Williams was charged with refusing to submit to a Perkins on stipulated facts. Perkins appealed. Court ordered breath test, felony DUI, and failure to maintain a single lane. supplemental briefing to address rulings by the United States Because he was charged with a felony, the complaint refer- and Kansas supreme courts while this appeal was pending. enced a prior DUI conviction from municipal court. Williams State argued the warrantless breath test result was constitu- filed a motion to dismiss the refusal to test count, claiming tionally admissible as a result of a search incident to an arrest. that the statute unconstitutionally criminalized his failure to Alternatively, state argued for application of the good-faith submit to a breath test. He also claimed that his prior felony exception to the exclusionary rule. conviction could not be used to enhance his sentence. After ISSUES: (1) Search incident to arrest, (2) good-faith excep- that motion was denied, the case was tried, and Williams was tion to the exclusionary rule found guilty. He objected at sentencing to the enhancement. He appealed his conviction and sentence. HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 ISSUES: (1) Validity of conviction for failure to submit to a (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d breath test; (2) Constitutionality of sentence on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was HELD: Because K.S.A. 2016 Supp.8-1025 was found to be coerced because he was told it was a crime to refuse the test, unconstitutional, Williams' conviction for failure to submit but officer was permitted to conduct the breath test in this to a breath test must be vacated. There is a clear difference case as a lawful search incident to arrest. between the municipal ordinance that served as the basis for Additionally, the breath test result was admissible because Williams' prior conviction and the state statute. The Wichita the officer, in good faith, acted in reliance on the implied con- ordinance was broader than the state statute, which means sent statute before it was ruled unconstitutional by the Kansas that convictions obtained under the ordinance cannot be used Supreme Court. to enhance a punishment. CONCURRENCE (Atcheson, J.): Agrees the good-faith STATUTES: K.S.A. 2016 Supp. 8-1014, -1025, -1485, exception to the exclusionary rule applies here, and district -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 21- court’s denial of the suppression motion should have been 6811(c), -6811(e); K.S.A. 2012 Supp. 8-1025 affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement.

68 The Journal of the Kansas Bar Association appellate decisions

Appellate Practice Reminders From the Appellate Court Clerk's Office

April Fools and Follies - PART I. In the Appellate Clerk's Office, we are sometimes tickled with the use of words by pro se litigants and even attorneys. Make sure you understand the following legal terms and use them correctly. Moot point = When an issue or argument will not affect the outcome of a case. Mute Point = This phrase really doesn't exist, unless your profession happens to be that of a street mime. Per se = Literally means "by itself" but in the law it has specific definitions (e.g. "negligence per se"). Pro se = When a litigant represents himself or herself in a legal matter. Due process = A legal term that generally means that a person was given notice and an opportunity to be heard. Due diligence = The work necessary to protect a client in a transaction. Commonly misused as "do process" and "do diligence". Tortious = Relating to a tort or civil wrong. "Tortious conduct" refers to actions that make a person legally culpable of a tort. Tortuous = Means "twisted" and is often used to describe someone's argument if it isn't straight-forward. Torturous = Characterized by, involving, or causing excruciating pain or suffering. Hopefully your arguments are not Tortuous AND Torturous. Dilly. Dilly. Stay tuned next month for a second list of commonly misused words we have heard in the Appellate Clerk's Office. n

For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts. (785) 296-3229, Douglas T. Shima, Clerk.

The ABA and the KBA have partnered up to save you money! KBA members will receive a 15% discount on most all ABA books! To get your savings code or for more information visit: http://www.ksbar.org/booksforbars

www.ksbar.org | April 2018 69 ABA FREE LEGAL ANSWERS

WHAT IS ABA FREE LEGAL ANSWERS? ABA Free Legal Answers increases pro bono opportunities: ABA Free Legal Answers allows users to pose legal • Convenient pro bono opportunity that attorneys can fit into their questions to be answered by volunteer attorneys: schedule • Users will need to meet income eligibility guidelines • Attorneys can log in and provide answers 24/7/365 • Questions must be regarding civil legal matters • Reaches volunteer populations with restricted time in which to • Answers will be provided by volunteer attorneys in the users’ provide pro bono, such as stay-at-home parents, corporate respective states attorneys, and government attorneys • Links will be provided to lawyer referral and other legal services projects for those not eligible or who need more in-depth legal The American Bar Association offers: representation • No cost to participating states • Malpractice insurance for all volunteer attorneys will be provided ABA Free Legal Answers increases services to low-income • Web hosting will be provided populations: • A national staff person to maintain the site, manage the queue, • Allows users in rural areas to access legal resources from across and collect and analyze data the state • Provision of brief advice allows legal services staff attorneys to QUESTIONS? focus on full representation If your state is not already participating and you are interested • Provision of brief advice can prevent larger legal crises from in learning more, contact Tali Albukerk at 312.988.5704 or developing [email protected]. • OnlineTNjustice.org—the Tennessee model for ABA Free Legal Answers—has, in its few years of service, received over 10,000 legal questions

CAN I PARTICIPATE AS A PRO BONO ATTORNEY? Yes, as long as you are licensed in a participating state and in good standing. Scan the QR code below or go to abafreelegalanswers.org and click on “Attorneys Volunteer Here.”

abafreelegalanswers.org © 2016 ABA, All Rights Reserved.

70 The Journal of the Kansas Bar Association BECAUSE... your firm deserves the best protection for the greatest value. more state bars, including yours, endorse ALPS than any other carrier. if you get a claim, your claim will be handled by licensed attorneys. BECAUSE BAD THINGS CAN HAPPEN TO G O O D L A W Y E R S

Find out more about your KBA-endorsed carrier at: www.alpsnet.com/kbajournal

THE NATION’S LARGEST DIRECT WRITER OF LAWYERS’ MALPRACTICE INSURANCE

(800) 367-2577 www.alpsnet.com [email protected]

www.ksbar.org | April 2018 71 classified advertisements

Classified Advertisements

Positions Available City of Wichita, Kansas • Assistant City At- ation to the attn. of Alisia at info@probasco- torney III The City of Wichita Department law.com or via fax (785) 233-2384. Advocate – Disability Crime Victims Unit of Law is currently accepting applications Help obtain justice for victims of crime for an Assistant City Attorney III. We are Wanted Immediately: Attorney specializing with disabilities. Advocate sought by Dis- seeking a highly qualified attorney with dem- in Criminal Defense Research & Writing to ability Rights Center of Kansas to advo- onstrated experience in public sector employ- join fast-paced, 32-year-young criminal de- cate for crime victims with disabilities. 40 ment law and labor relations for public safety fense firm with a vision for the future and a hour a week position, yearly pay is approx agencies. Requirements include a minimum state and federal national practice, including $32K, but depends on experience. Para- of four years’ experience in professional legal white collar. Telecommuting option avail- legals encouraged to apply. Great benefits. work, graduation from an accredited school able. Please send resume and 3 writing sam- Employer-paid BCBS health insurance, of law, and admittance to practice before the ples to Monnat & Spurrier, Chartered, 200 KPERS retirement, etc. Questions? Need an Supreme Court of the State of Kansas. Apply West Douglas, Suite 830, Wichita, Kansas alternative format? Contact DRC: 1-877- online at www.wichita.gov 67202, email to receptionroom@monnat. 776-1541 for [email protected]. Get the com or fax to 316-264-4785. full job description & application at www. Crow & Associates, Leavenworth, seeks drckansas.org/about-us/jobapp associate attorney. Benefits include health/ Attorney Services dental insurance. Salary negotiable. Send Appellate attorney with >275 published resume to [email protected] Appeals. Experienced trial and appellate opinions available to work on brief counsel- attorney available for state and federal ap- ing, brief writing, oral argument, and oral Kennedy Berkley Yarnevich pellate case referrals. Licensed before state argument preparation. Contact Steve Ober- & Williamson, Chtd. seeks an attorney courts of Kansas and Colorado, U.S. Su- meier at (913) 205-1584, or steve.obermei- with at least five years’ experience in domes- preme Court, and various circuit courts of [email protected]. tic and civil litigation practice. Please send appeals including the Tenth Circuit Court Attorney/Administrator–Disability introductory letter and resume for consider- of Appeals. Listed, Who’s Who in Ameri- Crime Victims Unit Help obtain justice for ation to [email protected]. can Law. Work featured in The New York victims of crime with disabilities. Licensed McPherson firm seeks an associate attor- Times and The Washington Post. Author of attorney sought by Disability Rights Center ney. Our firm is engaged in general practice numerous legal articles and Am. Jur. Trials of Kansas to provide legal services to crime in a community of approximately 13,000. treatise on constitutional tort law. Trial per- victims with disabilities & to administer Salary is negotiable. Must reside in McPher- spective at the appellate court level. Reason- the federal grant. Experience administer- son. Please send introductory letter and re- able rates, fee arrangements. Contact John ing grant programs a plus. Salary approx. sume to: [email protected] B. Roesler, Attorney at Law, PO Box 604, $62,500, but depends on experience. Great Lawrence, Kansas 66044, (303) 929-2244, benefits. Employer-paid BCBS health insur- Overland Park Law Firm. Ferree, Bunn, [email protected]. ance, KPERS retirement, etc. Questions? Rundberg & Ridgway seeking attorney ex- perienced in complex Estate Planning and Contract brief writing. Experienced brief Need an alternative format? Contact DRC: writer is willing to take in appellate pro- 1-877-776-1541 or [email protected]. Probate work. Must be licensed in Missouri and Kansas. If interested, please forward in- ceedings for any civil matter. Attorney has Get the full job description & application briefed approximately 40 cases before the atwww.drckansas.org/about-us/jobapp troductory letter and resume for consider- ation to [email protected] Kansas Court of Appeals and 15 briefs be- Attorney Position Available. Arn, Mullins, fore the Tenth Circuit, both with excellent Unruh, Kuhn & Wilson LLP, established Overland Park/Corporate Woods Law Firm. results. If you simply don’t have the time Wichita law firm seeks associate and/or lat- Jones & McCoy, P.A. seeking experienced to help your clients after the final judgment eral hire. Minimum two (2) years’ experi- associate attorney with 3+ years of civil comes down, call or email to learn more. ence in Civil, Family, Litigation and Gen- litigation experience in business, estates and Jennifer Hill, (316) 263-5851 or email eral Practice. Attractive benefits, including trust, family law, personal injury and other [email protected]. health insurance, 401(k), disability/life in- civil matters. Must have Kansas and Mis- surance. Please forward resume, introduc- souri licenses. Great opportunity for the Contract brief writing. Former federal law tory letter and writing sample(s) to: Kris J. right person to learn and grow their prac- clerk and Court of Appeals staff attorney Kuhn ([email protected]). tice. Please send cover letter and resume to available to handle appeals and motions. [email protected]. Attorney has briefed numerous appeals in Attorney Position Available. Young, Bogle, both the Kansas and federal appellate courts. McCausland, Wells & Blanchard, a down- Part-Time Legal Assistant. A private law Contact me if you need a quality brief. town Wichita law firm seeks associate or firm in Topeka has an immediate opening Michael Jilka, (785) 218-2999 or email lateral hire. At least three years’ experience for a qualified Legal Assistant processing [email protected]. in civil litigation/general practice and must collections. Experience in general office ad- be admitted to the Kansas Bar. Equal op- ministration required and legal office experi- Estate & trust litigation. Available to as- portunity employer. Competitive benefits, ence is preferred. Only applicants meeting sist you in probate and trust litigation in including health insurance. Email resume, specific criteria will be considered; please Kansas, Missouri and other states. www. introductory letter, writing sample, and nicholsjilka.com. salary requirements to Paul McCausland, contact for duties and requirements. Please [email protected]. send resume and cover letter for consider-

72 The Journal of the Kansas Bar Association classified advertisements

Florida legal needs. I’m here to help. Flor- ference rooms, kitchen, high-speed internet, ida Bar board certified appellate lawyer and postage services, copier/fax all included. For experienced trial lawyer. Contact tom@ more information or to schedule a viewing, twylaw.com or visit www.TomAppeals.com. contact Bryson Cloon at (913) 323-4500 Also admitted to active practice in Kansas, Leawood Law Office.Looking for office 10th and 11th Circuit Courts of Appeal, sharing and/or work sharing arrangement, and U.S. Supreme Court. ideally with estate planning/probate attor- QDRO Drafting. I am a Kansas attorney ney, although any civil practice is welcome. and former pension plan administrator with Conference room, phone system, internet, years of experience in employee benefit high-speed copier/printer, and lunchroom. law. My services are available to draft your Plenty of surface parking. In a great area in QDROs, communicate with the retirement south Leawood—bright and modern space plans, and assist with qualification of your on second floor of bank building. Contact DROs or other retirement plan matters. Let Paul Snyder (913) 685-3900 or psnyder@ me help you and your client through this snyderlawfirmllc.com. technically difficult process. For more in- Office for Rent. 12' x 15' office space for formation call Curtis G. Barnhill at (785) rent at I-435 and Nall Ave., Overland Park, 856-1628 or email [email protected]. Kansas. Receptionist provided. Internet ac- Security Expert Witness. Board Certified cess and conference rooms are available. Protection Professional and former Senior Rent $850 per month, with the possibil- Police Commander providing forensic ity of trading rent for work on some cases. consulting to both plaintiff and defense Possibility for referrals from three other at- counsel in all areas/venues of security torneys in the suite. For more information, negligence. A comprehensive CV, impeccable contact Samantha Arbegast at 913-652- reputation and both criminal and civil 9937 or [email protected] experience equate to expert litigation support. Professional office space available,for Michael S. D’Angelo, CPP. Secure Direction lease. The available space consists of one Consulting, LLC. www.securedirection.net. to two offices and an administrative staff (786) 444-1109. [email protected] bay, in a larger office building. No cost use Veterans services. Do you want to better of reception area, conference rooms, and serve your veteran clients without going to high-speed internet. Located in southwest the trouble of dealing with the VA? I am a Topeka. Competitive rent. For more infor- VA-accredited attorney with extensive expe- mation, call 785-235-5367 or write Law rience applying for various VA benefits, in- Office, P.O. Box 67689, Topeka, KS 66667. cluding Improved Pension. I regularly con- Seeking Office Space: Bilingual Immigra- sult with attorneys (and their clients) about tion attorney with over 10 years of experi- the various services attorneys can offer their ence, looking to rent a conference room clients to help qualify veterans and their or office once or twice a month in Garden families for various VA programs. As soon as City, Kansas. No services needed other than a client is in position to qualify, I can further a place to meet clients. We have served the assist by handling the entire application to immigrant community in Western Kansas the VA for you. For more information about for 9 years and have an ample client base. my various consultation and application ser- Our office is a great source of referrals for a vices, please contact the Law Office of Scott family or criminal attorney as we only prac- W. Sexton P.A. at (785) 409-5228. tice immigration. Please reply to: erika.jura- Office Space Available [email protected]. 2 Updated Office Spaces for Lease—601 Selling full sets of the Kansas Reports and N. Mur-Len Rd. Ste. 20, Olathe, KS 66062. the Kansas Court of Appeals books. Also Office 1) Large window with large ledge; willing to donate them to a charity, govern- Office 2) Storage closet and large picture ment or quasi-government agency. Contact window. *Coffee bar, waiting area and re- Douglas G. Waters, Jr., (913) 682-7343 or ceptionist/paralegal area. *Fax, Wifi and [email protected] ground floor parking. Call Chris Fletcher: (913) 390-8555 Large office space now available at One Hallbrook Place in Leawood, KS. Two con-

www.ksbar.org | April 2018 73 74 The Journal of the Kansas Bar Association www.ksbar.org | April 2018 75 A TRADITION OF SUCCESS

Scott E. Nutter

Matthew E. Birch

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

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

The choice of a lawyer is an important decision and should not be based solely on advertisements.