THE OURNAL of the Kansas Bar Association JOctober 2007 • Volume 76 • No. 9

The Kansas Law Center Now Under Construction

The Past, Present, and Future of our Home

THE OURNAL of the Kansas Bar Association OctoberJ 2007 • Volume 76 • No. 9

ITEMS OF INTEREST REGULAR FEATURES 5 Kansas Law Center Receiving 4 President’s Message Much-Needed Addition and 6 Young Lawyers Section News Makeover 9 A Nostalgic Touch of Humor 11 Law Students’ Corner 13 Members in the News 16 Law Practice Management: In Memoriam 13 Dan’s Cartoon Five Tips in 5 Minutes 7 Hon. Dale L. Pohl 14 Obituaries By Larry N. Zimmerman KBA President 1988 – 1989 17 CLE Docket 34 Appellate Decisions 35 Appellate Practice Reminders 12 Deadline to Submit 2008 42 Classifieds IOLTA Grant Applications is Dec. 3, 2007 Cover design by David Gilham, KBA staff 18 BAPCPA: 17 Months of 22 A Practitioner’s Road map Reflection to Removal and Remand in Kansas Courts By Casey Tourtillott and 20 Thinking Ethics: Matt Corbin Information About Legal Services Mark your calendars! By Stanton Hazlett Renew your 35 Notice of Consideration of KBA Membership Reappointment of Magistrate Judge and Invitation for Public by December 31, 2007! Comment 28 October KBA Bookstore Specials: Kansas Annual Survey Bundle 40 10th Circuit Notice

Our Mission: The Journal Board of Editors The Kansas Bar Association is dedicated to advancing the professionalism and legal Assistant Executive Director: skills of lawyers, providing services to its members, serving the community through René Eichem advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice. Director of Bar Services: Susan McKaskle Terri Savely Bezek, Chair Topeka Michelle Reinert Mahieu Dodge City The Journal of the Kansas Bar Association is published monthly with combined issues for Anne L. Baker Topeka Hon. Tom Malone Topeka July/August and November/December for a total of 10 issues a year. Periodical Postage Julene Miller Topeka Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Hon. Monti L. Belot Wichita Bar Association (ISSN 0022-8486) is published by the Kansas Bar Association, 1200 Boyd Byers Wichita Hon. Lawton R. Nuss Topeka S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037; Phone: (785) 234-5696; Fax: Hon. Jerry Elliott Topeka Hon. James P. O’Hara Overland Park (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. J. Lyn Entrikin Goering Topeka Prof. John Peck Lake Quivira Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to Richard D. Ralls Kansas City, Mo. The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037. Connie Hamilton Topeka Mark D. Hinderks Overland Park Richard H. Seaton Manhattan The Kansas Bar Association and the members of the Board of Editors assume no Evan Ice Lawrence Marty M. Snyder Topeka responsibility for any opinion or statement of fact in the substantive legal articles Catherine A. Walter Topeka published in The Journal of the Kansas Bar Association. Katharine J. Jackson Manhattan Michael T. Jilka Overland Park Diane S. Worth Wichita For advertising information contact Suzanne Green at (800) 211-1344 or e-mail Casey Law McPherson Martha Coffman, board liaison Topeka [email protected]. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. Terri Bezek, Board of Editors chairperson, [email protected] COPYRIGHT 2007 Kansas Bar Association, Topeka, Kan. Susan McKaskle, director of bar services, [email protected] From the President Linda S. Parks R U Interested?

ne of my favorite movie lines is from “North by lawyer population.” They seek to make legal services available Northwest,” when Cary Grant is telling a federal 4ALL. And they have reached out to bar leadership in the agent why he refuses to help foil the bad guys. He other 49 states. They offer to provide a “starter kit” for any Osays, “I have a job, a secretary, a mother, two ex-wives, and associations who are interested in following their lead. They several bartenders who depend on me for their support. I do have already purchased Web site addresses for each state, in- not intend to disappoint them all by getting myself killed.” I cluding Kansas — www.4ALLKS.org — all we have to do is love that line. Occasionally I take liberties and use it myself. take it from there. Interested? As lawyers, we are all busy people. We have jobs, families, I heard from at least two bar organizations who have worked and friends that demand our time. There are many excuses not to raise money to establish Children’s Waiting Rooms at their to take on more, and we really should marvel at how much courthouses. So, for example, the mother of three children lawyers do above and beyond supporting their jobs, fami- under the age of 6, who has a domestic case or a traffic case, lies, and ex-husbands. Lawyers give a lot of money to worthy can come to court and leave the kids in the Children’s Wait- causes. Lawyers give a lot of their time as well. We volunteer ing Room. She can then go to the courtroom to deal with for charitable organizations, we join charitable organizations, her case — instead of her children. These waiting rooms are and we sit on boards of charitable organizations. These organi- fully staffed with licensed day care providers and are available zations range from the symphony to Old Cowtown Museum to all. The lawyers who have these facilities available at their to coaching children’s athletics to Junior League. courthouses say they are a tremendous help to the poor and And we also volunteer through the many bar associations truly do promote access to justice. Interested? and foundations that exist. In Wichita, bar members volunteer Another state bar association has established a Lawyer Ad- for the Mennonite Housing Repair Affair — where dozens of vertising Review Committee. We all have learned that lawyer lawyers assist Mennonite Housing in refurbishing homes for advertising is not unethical — but there are limits. And so, the poor. We speak to school kids about the Constitution for as a service to the community and to the bar, this committee Law Day. The Wichita Women Attorneys Association mem- is providing oversight and advice. The only real oversight we bers volunteer for the Protection from Abuse docket. And the have in Kansas is through the Disciplinary Administrator. It list goes on. might be nice to have some input and advice before things But I have just returned from the meeting of the Ameri- reach that stage. Interested? can Bar Association. And I come to you armed with NEW Over the course of approximately 18 months, the Okla- ideas. Please, keep reading. Don’t give up on me yet. I just homa Bar Association (OBA) lost one lawyer per month to want to share some of these ideas with Kansas Bar Association suicide. The statistics tell us that depression is a serious prob- members to see if anything catches. To see if someone says, lem challenging lawyers everywhere. To address the issue, the “Wow. Why didn’t I think of that? I want to see us take on OBA created a Work/Life Balance Committee to “help attor- that project.” I feel that way about a lot of the projects, but neys accomplish professional development and growth while I seek guidance, to see if the greater bar finds something of also achieving fulfillment in their personal lives.” In addition particular interest. to providing a forum for discussion of “how to” manage the So consider: demands of career, family, personal, and societal obligations, The North Carolina Bar Association (NCBA) has recently the OBA offers all bar members up to six hours of free, profes- launched the 4ALL Campaign. The focus of the 4ALL Cam- sional, confidential crisis counseling, available 24 hours a day. paign is to deal with the growing population of underprivi- Interested? leged folks who are simply unable to obtain legal services. The There are more ideas. But as I mentioned, time is short. four goals of the campaign are to “educate, legislate, donate, We are all using fax machines, laptops, electronic mail, and, participate.” By that, the NCBA is attempting to “(1) ensure of course, text messages to try to speed through our day. To that the legal community understands the legal needs of the “do it all.” There are lots of excuses for not taking on more. state’s poverty population, (2) increase state support of legal We are, after all, busy people. But, hey, we are not THAT services providers and loan repayment for legal services attor- busy. There are some GREAT ideas here. I’m interested. neys by legislative solutions, (3) increase donations to legal Are you? n services, and (4) increase pro bono volunteerism among the

Linda S. Parks can be reached by e-mail at [email protected] or by phone at (316) 265-7741. 4 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Executive Director’s Notes Jeffrey Alderman Kansas Law Center Receiving Much- Needed Addition and Makeover Rededication scheduled for 2008 Annual Meeting

As many members are aware, the Kansas Law Center in By expanding and improving the Kansas Law Center today, Topeka serves as the headquarters for both the Kansas Bar we are laying the foundation for enhanced member services Association and the Kansas Bar Foundation. tomorrow. The building was opened in October 1981, and for years the The photograph below shows the progress of phase one of Law Center has symbolized the Kansas Bar’s efforts during its the project, which is an expanded parking lot. The next phase decades of service to the bench, the bar, and the public. Since will be the building addition and is slated to begin later this that time, however, the legal profession has seen extraordinary month. The final phase will be a renovation of the existing and tremendous growth. building. In 1980, there were 5,500 licensed attorneys in Kansas and In addition to providing much needed room for bar activi- membership in the ties, the new building KBA was approximate- will include a law mu- ly 3,800. Continuing seum that will house legal education was numerous legal trea- voluntary. Kansas Bar sures and historical members had just eight law pieces. The cost of law practice sections the building construc- to choose from and a tion is largely being 10-member board gov- paid from funds raised erned the organization. during the recent Most importantly, Raising the Bar cam- lawyers practiced law paign, which received without the benefit of more than $1 million computers, faxes, the in pledges from various Internet, or e-mail. law firms and individ- Hard to imagine, I uals. We are indebted know. Certainly, times to these members for have changed. their generous support, and an updated donor Today: Phase one of the construction project expanded the bar headquarters list will appear in next parking lot and is nearly complete. month’s Journal. • There are nearly Members are still twice the numbers of licensed attorneys in Kansas, and able to support this endeavor by purchasing a brick that the KBA expects to recognize its 7,000th member later will be permanently displayed on the headquarters grounds. this month; Bricks, which can be engraved with a name or message, can • The KBA is the largest CLE provider in Kansas provid- be purchased for yourself or in honor or memory of friends ing thousands of hours of programming in all corners of and loved ones. the state and Washington, D.C.; Each brick costs only $1,000 and can be paid over a period • KBA members serve on 20 sections as well as 20 of three years. Thus, for a few cents a day, you can leave your committees; and mark on the legal profession forever! For more information, • The number of legislative bills affecting the judicial system please visit www.ksbar.org/RTB or call us. and the profession has increased significantly. A rededication is planned for Thursday, June 19, 2008, dur- ing the KBA Annual Meeting in Topeka, and all members will As a result, we’ve grown beyond the Center envisioned more receive a special invitation for what promises to be a memo- than 25 years ago. In response, the KBA Board of Governors rable evening. and KBF Board of Trustees commenced a plan to re-equip its As we proceed, I will provide regular updates about this home with the space, technology, and flexibility to meet the important project. n needs of its growing membership. You may contact Jeffrey Alderman by e-mail at [email protected] or by phone at (785) 234-5696. THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 5 Young Lawyers Section News The Path to Partnership By Amy Fellows Cline, Wichita, KBA Young Lawyers Section president

or this month’s column, I surveyed law partners from a 2. What are the two attributes variety of geographical locations and partnership sizes, you value most in an associate soliciting guidance for associates on achieving the goal attorney? Fof “making partner.” I received many helpful responses, and I Attorneys who responded to the thank all of those who took the time to provide such thought- survey generally value the same at- ful answers. tributes in a law partner as they do Before summarizing the information I received, I should in an associate attorney. Most likely, Amy Fellows Cline point out this goal is not shared by all attorneys. I do not want this is because associates often spend to encourage the stereotype that all associates must become their early years demonstrating whether they will become law partners in order to demonstrate their worth as attorneys. good law partners. However, associates must also spend those Some attorneys may just want to practice law and avoid the re- years developing into good lawyers. While skill development sponsibilities (and, at times, tedium) inherent in management certainly continues throughout an attorney’s career, it seems of a partnership and law office. Of counsel and senior associate almost embryonic in the first years. Certain attributes, such as employment arrangements, or even part-time employment, an eagerness to learn and the confidence to accept construc- can be mutually beneficial for that attorney and the partner- tive criticism as part of the learning process, can expedite this ship. The attorney can focus on serving clients and practicing process and evidence the associate’s potential future contribu- law, and the firm can reap the benefits of that attorney’s skills tions to the partnership and profession. without requiring additional managerial commitments. Some Some partners mentioned an associate should exhibit a attorneys asked me to encourage associates to be open with commitment to the partnership by assuming responsibili- their partners if they wish to follow such paths and not feel ties that advance the good of the partnership, rather than the they will be stigmatized for their choices. Luckily, the practice individual associate. This can involve participating on inter- of law has become more flexible and such arrangements can be nal committees that facilitate firm progress, such as develop- accommodated much easier today than in the past. ing form banks or updating a firm Web site. Other partners I applaud those attorneys who are able to adjust their prac- mentioned associates should commit to their community and tice and employment arrangements to accommodate their profession by becoming involved in community and bar as- particular goals, whether those goals include the traditional sociation activities and, at times, assuming leadership roles in partnership route. And, for those who choose to pursue the such activities. sometimes elusive “partnership track,” I offer the following Partners value good people skills, compassion, and ethics advice I received. in associate attorneys, as well as collegiality. Just as a partner’s 1. What are the two attributes you value most in a personality should mesh with other partners, an associate law partner? should have a pleasant demeanor and attitude and contribute Not surprisingly, attorneys are no different than partners in to a positive atmosphere in the office. any other business venture. Attorneys want partners whom 3. What are two short-term goals an associate should set they can trust and whose individual contributions promote in order to achieve the long-term goal of making partner the collective good of the partnership. They want partners in her/his law firm? who are hard working, intelligent, and motivated. Attorneys Principally, an associate should meet all objective standards want partners who focus on the future of the partnership and set by the partnership in terms of hours and billing. An asso- who will work together with other partners to formulate col- ciate should also take the time to turn out a quality, finished lective goals for the partnership and continually work toward product. Associates shouldn’t rely upon partners to proofread those goals. They want partners to whom they can, in good or complete a document to which they have been assigned conscience, refer clients and know those partners will provide — they should take the initiative to finalize the document so those clients with high-quality service. that it may be filed or sent to the client, opposing party, or Good judgment in setting priorities and completing tasks in counsel. Associates should be timely and responsive to their a timely manner, while juggling competing deadlines and cli- external (clients) and internal (partners) customers as well. ent demands, is another valued attribute. Obviously, the abil- A more indefinite, yet no less important, goal is to ascertain ity to bring in new clients and serve existing clients well is also a way (or ways) in which the associate can provide value to valued. A more intangible quality sought is a good personality the partnership. Associates must find their particular niche match with other partners in the firm. in the profession and/or partnership. This can involve iden- As one attorney explained, each partner represents the part- tifying and bringing in new clients or serving special needs, nership as well as each attorney in the partnership. Each part- which help retain existing firm clients. It can also entail spe- ner’s individual actions can tarnish or enhance the reputations cial education or training, such as obtaining a LLM or MBA, of the other partners and the partnership as a whole. Thus, attaining licensure in another state, or gaining expertise in a attorneys want partners whom they feel will represent them and the partnership in a positive light. (Continued on Page 41) 6 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION In Memoriam Hon. Dale L. Pohl KBA President 1988 – 1989 on. Dale L. Pohl was born May 19, 1936, in Empo- Pohl helped introduce the six-part Kansas Plan in 1988, ria, the son of Verna C. (Haake) and Gus O. Pohl. which was aimed at the problem of rural physicians leaving He died July 16 at his home in Las Cruces, N.M. small-town practice because of increasing medical malpractice HHe was 71. insurance premiums.2 The plan consisted of the (1) Fair Pre- Pohl graduated with honors from Emporia State University mium Policy, (2) Kansas Doctors-Lawyers Round Table, (3) in 1957 with his bachelor’s degree, Lawsuit Reduction Initiative, (4) which he completed in three years Health Care Stabilization Fund while working three part-time (HCSF) Phaseout, (5) Mandatory jobs. He earned his master’s degree Medical Malpractice Insurance in public education in 1959 from Phaseout, and (6) Litigation Cost the University of Kansas and then Containment Plan.3 Not all re- his juris doctorate from Washburn quired legislative action, but those University School of Law in 1963. that did, the phasing out of the Pohl spent 33 years in private HCSF and a movement toward an practice in Eureka. end of mandatory insurance for KBA President Linda Parks physicians, were enacted.4 said Pohl was a “lawyer’s lawyer” Pohl was a member of the KBA and was “thinking outside the Past Presidents, Awards, and box” before that phrase was ever Nominating committees and the coined. She can still recall Pohl Oil, Gas, and Mineral Law Sec- suggesting she try to negotiate tion. He was a Fellow silver with a settlement by telling the other the Kansas Bar Foundation and lawyer she would give him her also served as vice president of the client’s final number at the outset. board of directors of Blue Cross If the other lawyer would agree to Blue Shield of Kansas. In addi- take her word and either accept it tion to his public offices, he was or decline it, then they would go president of the Eureka School to trial. Board and the church council at “No negotiating, no nickel-and- Christ Lutheran and was on the diming,” Parks said. “Great con- board of many civic and charitable cept. I tried it and it failed, but it Hon. Dale L. Pohl organizations. was still a great idea. I learned a lot 1936 – 2007 In June 1999, Gov. Bill Graves from the experience.” appointed Pohl as a district judge “Dale was a good friend on whom I could count for a of the 13th Judicial District, a position he held until his retire- good cigar,” said Hon. Christel Marquardt, 1987 KBA presi- ment in 2004. dent. “With Dale and Diana at various KBA functions, it Pohl loved to golf, fish, hunt, hike, and travel and was an always promised to be a fun time. It was a real treat when he avid supporter of Jayhawk football and basketball. became a judge so that we could get together at the judicial He married his wife, Diana Darden, on July 27, 1980, and conference.” together they raised five children. Pohl served as the Eureka city attorney for 33 years and Pohl is survived by his wife; children, Pam Close and her also as the Greenwood County counselor. He served on the husband, Jay, The Woodlands, Texas, Scott Pohl and his wife, KBA Board of Governors, becoming president in 1988. In Kim, Wichita, Ken Pohl and his wife, Cynthia, Clearwater, a president’s message, Pohl wrote about being a small-firm Fla., Ryan Darden, New York, and Aaron Darden, San Fran- practitioner. cisco; and six grandchildren. n As a small-town, small-firm practitioner, I suspect I may have a broader range of clients and interests than FOOTNOTES my city brethern who specialize. Like many county seat 1. Dale L. Pohl, Information, Action Crucial to Resolving Tort Issues, J. lawyers, even though the effect of tort reform may be Kan. Bar Ass’n, August/September 1988, at 2. remote in terms of my own billing statements, I find 2. Dale L. Pohl, KBA’s “KANSAS PLAN” Seeks Cooperation With myself not only concerned with the problems the legal Doctors, J. Kan. Bar Ass’n, March 1989, at 2. 3. Id. at 2-3. profession faces in the broad context, but also thinking 4. Dale L. Pohl, 1988 Annual Report of the Kansas Bar Association, J. more seriously about these legislative issues and their Kan. Bar Ass’n, June 1989, at 3. illusive solutions.1

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 7 8 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION A Nostalgic Touch of Humor Password Hell 2007 Style By Matthew Keenan, Shook, Hardy & Bacon LLP, Kansas City, Mo. ur lives as lawyers are complicated these days. One house, an illustration from a children’s book, a painting thing that has significantly contributed to that reality at an art museum, etc. is dealing with security passwords. This column is a 2. Choose two terms from a memorable purchase. Oshort history of how we got here and what the future holds. 3. Look through a catalog and choose terms based on My research reveals that it had its start with Ali Baba, who fig- something you see. ured out he could open the secret cave by uttering the words 4. Lookup a random article on Wikipedia, and choose a “Open Sesame.” word found or related to a word you find in the article. Then Indiana Jones got into the act. Recall in the third Indy Imagine the 19-year-old IT geek standing over you, the se- episode, Harrison Ford was pursuing the Holy Grail. That led nior partner, and telling you to think of a drawing at your him to a Knight Templar whose job it was to guard it. To grandparents’ house, way back in 1952. Close your eyes for a get the grail you had to pick the right cup — the table had moment and now think of something worse. The year is 2020 like a hundred chalices on it. The bad guy stumbles in and and new associates have arrived at your firm. This is associate picks the cup that is glittering and gold. He drinks from it training. Forget billing time. They are in password training and bursts into flames. The Knight Templar pauses for a mo- for 90 days. And the IT geek tells them this: “Grab a catalog ment, and declares with a straight face, “He chose poorly.” — my favorite is IPOD DAILY — they are on the table in Next it was Indy’s turn. He picked up a wooden cup, tattered front of you. Spend the next eight hours choosing terms based and quite modest, which he says is a more accurate reflection on photos or articles. You need 120 passwords. They must be of the “cup of a Galilean carpenter” and drinks from it. And alpha, numeric, and include a Greek symbol, and then they SPOILER ALERT — the Knight Templar says, “You choose will change every 30 days.” wisely.” Indy gets the secret and solves the problem, and the The IT geek then continues, “Now here is a tip from the world is safe once again from the Nazis. IT department — the old guy who started this firm is quite So fast forward. Some nerd in the garage business came up old-fashioned. He reads things on paper and doesn’t think with the idea of garage code. It was a brilliant innovation. For e-mail is just as good as a face-to-face meeting. He doesn’t do like five minutes. Within a year, every suburban home on the Facebook or MySpace. He doesn’t own an iPhone. Avoid him. planet shared the same code, “123,” which bad guys figured He is really old — like 50 — and may retire soon.” out and started robbing homes. Then the automakers got into OK, now open your eyes. Your computer password is about the scene. Car doors could be opened with a few simple num- to expire. Think fast.n bers, which the garages thieves turned to next. Now, of course, you need passwords for a dozen different things. I read where one guy in the computer business recent- About the Author ly counted all the access codes he has to remember and came up with 53. And just when you have passwords memorized, Matthew Keenan grew up in Great some information technology (IT) geek, who thinks the Bar Bend and attended the University of Kansas, where he received his B.A. in Exam is something he did when he drank his first Budweiser, 1981 and his J.D. in 1984. For the says your passwords have “expired.” last 21 years, Keenan has practiced with Most of us have trouble remembering what day it is. So Shook, Hardy & Bacon LLP. He may then I read a survey by PC Magazine of the top passwords. be reached at [email protected]. For me, this was like a family reunion of old cousins. Here is the list:

Password: password Password: monkey

Password: 123456 Password: myspace1

Password: qwerty Password: password1

Password: abc123 Password: link182

Password: letmein Password: (your first name) So I Googled this topic. I found an article by the IT geek of geeks. No lawyer, obviously. He wrote a column about how to get secure passwords. This is what he wrote: 1. Choose two objects from a picture that you’ll always remember. For example, a drawing at your grandparents’

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 9

Law Students’ Corner Child Psychologist Learns the Law of Child Advocacy By Bud Dale, Ph.D., Washburn University School of Law ecoming an effective advocate for children and families the legal literature focuses on parental rights rather than the involved in the legal system was the personal goal that children’s best interests, especially in artificial insemination prompted me to enroll in Washburn University School cases. To illustrate, during oral argument one Justice asked, Bof Law. Twenty years of experience as a child psychologist, “What about the best interests of the child?” Mother’s attor- the first eight at Menninger Clinic and the next 12 in private ney replied, “The best interests of the child are not a part of practice, convinced me that system reform is needed if we are the analysis.” to consistently do what is best for these children and their Lesson No. 3: A little learning is a dangerous thing. I com- families. mitted to learn more about the law concerning the best inter- In September 2006, while enrolled in my first family law ests and rights of children by doing a directed research paper class, I was offered a unique opportunity. Professor Linda El- on children’s rights in artificial insemination cases. It seems rod asked for volunteers to prepare an amicus curiae brief on strange that the right to child support, which belongs to the behalf of Washburn’s Children and Family Law Center in an child1 and generally cannot be waived by parents,2 can be artificial insemination case. I volunteered. The case involved waived in artificial insemination cases. Why aren’t children twins conceived by artificial insemination. The mother and conceived by artificial insemination given the same due pro- the sperm donor disputed their respective parenting rights cess and equal protection right to the determination of their and obligations. Mother wanted to raise the children by her- parentage as other children?3 And why don’t children con- self; the donor claimed the mother agreed verbally that he ceived by artificial insemination have a fundamental right to would have rights as the biological father. The district court know their parentage?4 held that the donor lacked standing because he had no written Lesson No. 4: Statutes are not always clear and domestic agreement with the mother. The donor appealed. disputes are frequently characterized by bad facts and bad be- Four students met with professors Elrod and Nancy Max- havior. K.S.A. 38-1114(f) reads: well to discuss where additional legal arguments could assist the court in making a decision in this first impression case. The donor of semen provided to a licensed physician for Claudia Weaver organized the research and the legal argu- use in artificial insemination of a woman other than the ment. Andrea Rusch researched the legislative history of the donor’s wife is treated in law as if he were not the birth key statute. Eryn Wright researched adoption law relevant to father of a child thereby conceived, unless agreed to in writing by the donor and the woman. artificial insemination cases. I researched legal arguments fo- cusing on the best interests of the children. The language is deceiving. It seems to describe a binary de- After numerous drafts and rewrites, the brief was filed. On cision that everybody should understand. Either the donor Dec. 4, 2006, we observed oral arguments before the Kan- signs a written agreement and becomes a father, or he remains sas Supreme Court, which had transferred the case from the silent and does not. But his silence could mean he has implic- Court of Appeals. As this article goes to press, the case remains itly agreed with the mother to barter away the child’s right to undecided. support from the biological father. The statute also assumes I learned four valuable lessons working on this project. that the parties are honest, keep their promises, and never Lesson No. 1: Know the relevant law and the legal context. change their minds. The truth is often far different. Amidst I did not know enough law at the outset. As a 1L my abil- the confusion, children’s interests and rights are all too often ity to identify legal issues was lacking. I struggled with the ignored. But as a child psychologist, I already knew that. n group’s focus on the father’s legal standing. I concluded that the best way for a psychologist to research legal issues was to About the Author consult with people who know the law. So I made telephone calls. Ironically, one call resulted in the filing of another am- Bud Dale is a licensed psychologist with icus curiae brief. a clinical and forensic practice in Topeka. Lesson No. 2: Sadly, children’s best interests and legal rights He hopes to complete his law degree and are not always central to judicial determinations about chil- certificates in family law and advocacy at dren. To a child psychologist, the idea that children’s interests Washburn University School of Law in are best served by having two parents seems unassailable. Yet May 2009. He and Diane, his wife of 21 years, have two teenage sons, Andrew and FOOTNOTES William. 1. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787, 790 (1970). 2. Ferguson v. McKiernan, 855 A.2d 121 (Pa. Super. Ct. 2004). 3. Weber v. Aetna Cas. & Surety Co., 406 U.S. 164 (1972). 4. Ferguson v. Winston, 27 Kan. App. 2d 34, 39, 996 P.2d 841, 846 (2000).

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 11 Deadline to Submit 2008 IOLTA Grant Applications is Dec. 3, 2007

he Kansas Bar Foundation (KBF) is soliciting grant the Kansas Bar Association, the Kansas Supreme Court, the applications for the 2008 Interest on Lawyers’ Trust Kansas Trial Lawyers Association, the Kansas Association of Accounts (IOLTA) grant cycle that runs from April Defense Counsel, and the governor’s office. The committee T1, 2008, through March 31, 2009. The deadline to submit forwards its recommendations to the KBF Board of Trustees applications is Dec. 3, 2007. The KBF Board of Trustees will for final approval. make a decision on the applications in February 2008. In order to qualify for IOLTA funds, an organization The Kansas IOLTA program, approved by the Kansas Su- must: preme Court in 1984, is supported by more than 3,450 law- • be a 501 (c) (3) or 501 (c) (6) if a local bar association, yers across the state. The program collects interest from trust • use the funds for a specific charitable purpose, accounts in which funds are nominal in amount or are ex- • agree to an audit or a review of expenses, pected to be held for a short period of time. IOLTA grants are • provide quarterly and year-end reports as necessary, and primarily aimed at funding programs that provide civil legal • demonstrate fiscal responsibility and the ability to services for low-income people, law-related charitable public provide quality services. service projects, and improvements to the administration of justice, with the largest share going to provide direct legal ser- For more information or to request an IOLTA grant applica- vices for victims of domestic violence. tion for 2008, contact Meg Wickham, manager of public ser- Grant applications are reviewed by the KBF’s IOLTA Com- vices, at (785) 234-5696 or at [email protected] or visit mittee, which is comprised of appointees from the KBF, www.ksbar.org/public/kbf/iolta.shtml. n

12 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Members in the News CHANGING POSITIONS Brad M. Wilson has joined Edgar Law Patrick R. Nichols and Larry Rute, As- Jennifer Sue Brannan has joined the Firm LLC, Kansas City, Mo. sociates in Dispute Resolution LLC, Securities & Exchange Commission, Topeka, addressed the American Bar Washington, D.C. CHANGING PLACES Association annual meeting. Michael E. Callahan and Aaron M. Jennifer L. Benedict has started her own Teddi Lynn Ward, Wichita, has been House have joined Husch & Eppenberger practice, Legacy Business Center, 411 named a fellow of the American Academy LLC, Kansas City, Mo. W. Maple Avenue, Ste. F, Independence, of Matrimonial Lawyers. Eric V. Calvert and Kevin D. Chambers MO 64050. have joined Bever Dye L.C., Wichita. M. Joseph Kuhn has moved to 1410 E. Editor’s note: It is the policy of The Jour- Kyle M. Fleming has joined Pitsco Inc., Iron, Ste. 8, Salina, KS 67401. nal of the Kansas Bar Association to in- Pittsburg, Kan. The Law Offices of Kevin S. Cavanaugh clude only persons who are members of the Dean J. Gengler has joined ICM Inc., have moved to 11115 Ash St., Leawood, Kansas Bar Association in its Members in Colwich. KS 66211-1763. the News section. Nicholas R. Grillot and Charles R. Hay have joined Foulston Siefken LLP, MISCELLANEOUS Topeka. Lisa A. Brunner, of Husch & Eppengerger Tania D. Groover has joined the Office of LLC, Kansas City, Mo., will receive the the District Attorney, Wichita. 2007 Advocate of the Year award from the www.crashforensics.com Amy M. Gulinson has joined Quarles & American Civil Liberties Union of Kansas Brady LLP, Chicago. and Western Missouri in November. Connie S. Haden has joined Graves Bartle Edward G. Collister Jr., of Collister & & Marcus LLC, Kansas City, Mo. Kampschroeder, Lawrence, has been Sam F. Halabi has joined the U.S. District appointed by Gov. Kathleen Sebelius Court, Kansas City, Mo. to serve on the Kansas Criminal Code CRASH Richard W. Hird has joined Petefish Im- Recodification Commission. mell Heeb & Hird LLP, Lawrence. Nola T. Foulston, Sedgwick County Anthony T. Hunter has joined Pruitt district attorney, Wichita, received the FORENSICS Gushee P.C., Salt Lake City. Hope Award presented by the National Anne M. Kindling has joined Stormont- Multiple Sclerosis Society. Vail HealthCare Inc., Topeka. Leslie F. Hulnick, of Hulnick Stang & Brandon G. Kinney has joined McNabb Rapp P.A., Wichita, finished his term as .COM Pursley & Kinney LLC, Butler, Mo. dean of the National College for DUI Eric K. Lau has joined Halbrook Law Firm Defense. P.C., Kansas City, Mo. William N. Lacy, school attorney for Luanne C. Leeds has joined Heath & Humboldt U.S.D. No. 258, Yates Center, Kaplan P.A., Topeka. has been elected president of the Kansas www.crashforensics.com William F. LeMaster has joined the Na- School Attorneys Association. Jeffery A. tional Labor Relations Board, Overland Mason, of Vignery & Mason, Goodland, Park. has been elected to the board as Region 9 C. Michael Lennen has joined Westar representative. Energy Inc., Topeka. Jack D. McInnes V has joined Shugart Thomson & Kilroy P.C., Kansas City, Mo. Dan’s Cartoon by Dan Rosandich Jason J. Montgomery has joined the National Association of Intercollegiate Athletics, Kansas City, Mo. Matthew R. Moriarity has joined Kutak Rock LLP, Kansas City, Mo. Brad Allen Oliver has joined the Knight Law Firm LLC, Summerville, S.C. Kristie Remster Orme has joined McDow- ell, Rice, Smith & Buchanan P.C., Kansas City, Mo. Jeffrey A. Peterson has joined Gray Plant Mooty, Saint Cloud, Minn. Richard Stevens has joined Martin, Pringle, Oliver, Wallace & Bauer LLP, Wichita. Matthew B. Todd has joined the Office of Revisor of Statutes, Topeka. Blake E. Vande Garde has joined Hammer & Hanf P.C., Charlotte, N.C. Jerrod A. Westfahl has joined Purple Wave Inc., Manhattan. THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 13 Obituaries Schulz is survived by two daughters, Vicki Dyas, Santa Cruz, Calif., and Kim Schulz, Linwood; three grandchildren; Gene F. Anderson and two great-grandchildren. He was preceded in death by his first wife, Genevieve Fryberger; second wife, Helen Schwartz Gene F. Anderson, 67, Hays, died July 21 at Southwest Suellentrop; six brothers; and four sisters. Memorial Hospital in Cortez, Colo. He was born Nov. 26, 1939, in Russell County, the son of William Bud and Marga- Kathleen A. “Kathy” Wood ret Schmidt Anderson. Kathleen A. “Kathy” Wood, 41, Pratt, died July 29. She He earned his A.B. in 1970 and M.A. in 1993 from Fort was born Nov. 30, 1965, in Larned, the daughter of Norman Hays State University and his J.D. from Washburn University Elmer and Betty Giebler Wood. Wood obtained a B.S. in po- School of Law in 1973. He was a partner with Anderson & litical science from Fort Hays State University and a J.D. from Wichman Law Office, Hays. Washburn University School of Law. Anderson was a member of the Kansas and American bar She practiced with Stull & Wood LLC since 1991 and was associations and the Kansas Trial Lawyers Association. He was a member of the Kansas Bar Association, Business and Profes- also a veteran of the U.S. Air Force, where he served as a radar sional Women’s Association, and Park Hill Country Club. technician. Wood is survived by her husband, Steve Holmes, and chil- Survivors include his wife, Leota Lois, Hays; two sons, Matt, dren, Jacob, Zachary, and McKenzie, all of the home; three Lawrence, and Adam, Portland, Ore.; one brother; three sis- brothers; one sister; her mother; and many nieces and neph- ters; and five grandchildren. Anderson was preceded in death ews. She was preceded in death by her father. n by his parents and a sister. Arden K. Ensley Arden K. Ensley, 79, Topeka, died July 26 at Midland Hos- pice House. Ensley was born Sept. 25, 1927, in Tulsa, Okla., the son of Daniel D. and Sarah Henderson Ensley. He gradu- ated with a B.S. in 1951 from Kansas State University and an LLB in 1954 from Washburn University School of Law. Ensley was employed as a staff attorney for the League of Kansas Municipalities and as an attorney by the state of Kan- SAVE! SAVE! SAVE! sas, where he was the Revisor of Statutes. He was an Army vet- eran and was a member of the Philip Billard Post No. 1650, Veterans of Foreign Wars, Capitol Post No. 1 of the American As a member of the Kansas Bar Legion, and the Kansas and Topeka bar associations. He is survived by his wife, Rita Kinsel, Topeka; one daugh- Association you will save more ter, Charna Williams, Topeka; two sons, Jeff, Kansas City, than the cost of your membership Kan., and J.D., Topeka; one sister; and six grandchildren. His son, John, preceded him in death. with FREE access to Casemaker online legal research. Ray S. Schulz Ray S. Schulz, 94, died July 25 at the Great Bend Health and Rehabilitation Center. He was born April 4, 1913, near All you have to do is join! Seward, the son of Herman and Elizabeth Walters Schulz. He Simply visit www.ksbar.org or received both his bachelor’s (1941) and law (1943) degrees from Washburn University. call (785) 234-5696 and start sav- A lifetime area resident of Great Bend, Schulz was the first ing time and money by accessing assistant county attorney in Barton County and practiced law for 53 years. Casemaker and all the other great He was the founder and president of the Barton County members-only benefits available Historical Society; president of the Great Bend Tree Board; to you! a member of the Elks Club, Noon Lions Club, and all of the Masonic bodies; chapter chairman of the Barton County Red Cross; and past president of the Barton County Bar Associa- tion of Great Bend and the Kansas Native Sons and Daugh- ters. He also served on the Great Bend and Central Kansas Library System boards, was commander of the Argonne Post No. 180 of the American Legion and the 7th district, and was past state commander of the Department of Kansas of the American Legion. He was a lifetime member of the Kansas Bar Association, Veterans of Foreign Wars and VFW Post No. 3111, the Barton County and State of Kansas historical soci- eties, and the Kansas Ornithology Society. Schulz also served SAVE! SAVE! SAVE! in the U.S. Naval Reserve. 14 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Law Practice Management Tips & Tricks Five Tips in 5 Minutes By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka

saw the best lawyers of my generation destroyed by a. Password Safe (www.schneier.com) is a free program minutiae, starving hysterical nattering, dragging that provides a single place you can store all your login themselves through the office at dawn looking for an and password information for banking, legal research, “Iangry client’s file …” e-mail accounts, etc. Far safer than Post-it notes under So begins Allen Ginsberg’s lesser-known work, Lawyers’ your keyboard. Howl, an ode to the procrastination, disorganization, and b. PGP (www.pgp.com) is the granddaddy of military- alienation that mark generations of lawyers bright with legal grade encryption for the consumer market. PGP is a com- competence but burning out in practice. Both clients and the plete solution for e-mail encryption, digital signatures, and competition have grown in sophistication, and their demands file/disk encryption. It is not free ($199 for a perpetual require a new attention to the pragmatic details of practice. license), but it is the gold-standard of encryption tools. Even the newly amended ethics rules underscore the impor- 4. Take your office with you and be prepared anywhere. tance of practice management skills with revised supervisory Assume for a moment your average laptop bag and contents lawyer sections and a preamble, which warns that “virtually weigh in at 10 pounds and you commute to home and office all difficult ethical problems arise from conflict between a with said bag each weekday. Inside of one year, your shoul- lawyer’s responsibilities to clients, to the legal system, and to ders will have lugged more than 5,000 pounds (roughly the the lawyer’s own interest in remaining an ethical person while equivalent of a Hummer H3)! Give yourself a break. earning a satisfactory living.” a. Use GoToMyPC or LogMeIn (www.gotomypc.com or It is the mission of the Kansas Bar Association’s newly www.logmein.com) to have complete access to your office formed Law Practice Management (LPM) Section to equip or home computer, including the ability to print docu- lawyers throughout the state with tips, tricks, and best prac- ments to your location. Subscriptions run from free to $20 tices aimed at minimizing the conflict between practice and per month. legal theory, as well as to focus efforts on the preservation of b. PortableApps (www.portableapps.com) or U3-enabled lawyers’ sanity. thumb drives provide a complete system-on-a-stick with To that end, the KBA LPM section offers the following five your e-mail, Web, office applications, and data available on tips in five minutes: any machine with a USB port. 1. Be a better supervisor and manager of yourself and your 5. Maintain your legal knowledge and skill with audio staff by implementing “Getting Things Done” by David books, podcasts, and RSS feeds. Allen. Sharpen the saw while staring at your windshield or tray The essence of Allen’s organizational strategy is to move table with downloadable audio books (www.audible.com), commitments and projects from your head to your notepad. law-related podcasts (www.podcast.net), or CLE broadcasts n From there, Allen presents a process to work through your (www.abanet.org/cle/podcast). projects that is so simple it fits on a single page flowchart. Work moves off your desk quicker, projects stay on track, About the Author and creativity takes the place of worry in your head. (Peace of mind for just $8.99 from www.amazon.com.) Larry N. Zimmerman, Topeka, earned his BSE at Emporia State University in 1991 and his J.D. from 2. Keep your clients’ data safeguarded by implementing Washburn University School of Law in 2000. online backup and storage of key documents. He is a partner at Valentine & Zimmerman This can be as simple as opening a free e-mail account with P.A., where he implemented electronic fil- Google or Yahoo (comes with 2 gigabytes of storage) and ing at the firm (and the state) in 1997 and e-mailing key files to your account. Such a backup puts your case file imaging in 1999. His experience in files outside the reach of local or regional disaster and makes legal technology issues has led him back to your files available wherever you might travel. Sites like Washburn, where he is an adjunct professor www.Joyent.com can also provide off-site, encrypted backup, teaching law and technology. He has been a and storage for as little as $15 per month. speaker on legal technology issues at national 3. Preserve client confidences and secure your data with and state seminars since 1997. He is a mem- encryption. ber of the Kansas Collection Attorneys Association and the American, Preserving your clients’ confidences, as well as protecting Kansas, and Topeka bar associations. your own information, is vital to your practice (see KRPC 1.6). You must be proactive in securing data both at rest on To join the LPM Section or any other KBA section, you your system and in transit by Internet or portable media and may register online at www.ksbar.org or call (785) 234-5696. devices (cell phones, PDAs, and laptops).

16 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 17 BAPCPA: 17 Months of Reflection By Wesley F. Smith, Stumbo Hanson LLP, Topeka ct. 16, 2005, came on a Sunday. For many of us for- you weren’t scared before you called me, you are now.” Thus tunate enough to practice in a district that allowed began the true practice under the Bankruptcy Abuse Preven- electronic filing, we got to experience the true push tion and Consumer Protection Act (BAPCPA). Oof a full weekend of seeing bankruptcy debtors and getting After I asked them to produce about three reams of paper their rushed cases ready to file. Personally, I had started turn- worth of data, fill out a bunch of forms, and sign a contract ing away clients early enough to not have to work through with a lawyer that they have never seen or met before, I finally that weekend, but there were some in my office who were got these folks into my office. The meetings that used to take still filing cases on Saturday, if not Sunday. I did not take the one hour now take two to three. The files went from 1-1/2 time to look up the statistics, but approximately six to nine inches thick to a banker’s box full. We meet with these folks months’ worth of cases were filed in that last push before the and assimilate all of this data and then plug their income law changed. I filed more cases than I had in quite sometime. into the means test. (Has anyone ever failed the means test? However, Monday seemed a little like a post-apocalyptic day. It takes two hours to complete and everyone passes — this We had all rushed around, there had been a deadline, and does not remind me of calculus.) We ask people whether then there was silence. they have owned their house for 1,215 days. We ask ques- For the first 90 days or so, as far as the work load goes, tions like, “Have you had your car for more than 910 days?” not much changed. There were 341 meetings to attend, docu- (Would anybody care to guess how many fortnights are in ments to be gathered from hastily filed cases, and the clean- 910 days?) We also learned new words and phrases like “cur- ing up of some fights we wished we hadn’t started. The first rent monthly income” and started saying things like “Oh, three months or so we all busied ourselves with cases we had don’t worry, she’s below the line.” Does that refer to what filed before the law changed. We worked on getting paid from side of town she lives on? Possibly her limbo skills? those where, in a weak moment, we had agreed to file a case Even after all of the CLEs and all the study, one thing is for for either less up front than what we thought it was worth or certain: We can no longer predict results. Under the old law, for the promise of some money to come. I used to tell my clients that bankruptcy was a lot like riding Over the next 90 days, debtors’ attorneys started to feel like those Model Ts at an amusement park. You have to steer them no one liked us anymore. The phone didn’t ring; no more from side to side and there was some variation in the path you buzzes back to my office from the receptionist saying, “New took, but it was impossible to get off the track. Moreover, you bankruptcy on line three.” No one called. It was reminiscent would always end up at the station for the next person to have of the night I was stood up for the prom, but I won’t go into a turn. This is no longer the case, at least not until more cases that here. There just weren’t a lot of new cases. However, it are decided that we can use to advise our clients. wasn’t a total loss, as there were plenty of activities to bide our Once we survived the initial doldrums of no cases being filed time. CLEs! There were 9,000 CLEs on the new bankruptcy and the learning curve that accompanied those first cases we act by a smattering of prognosticators and pontificators who all filed, the volume seems to have picked up to “pre” pre-Oct. probably knew less about it than any of us did. But, we were 17, 2005, rush numbers. We are settling into our new jobs as all scared, so we went — in droves. We went to CLEs to learn debt relief agencies, and our phones are ringing again. Some this mythical new statute that we wondered if we would ever other sacrificial lambs have been slain by the new bankruptcy get to use again. These lectures should have all begun “... If act so that we can once again start to predict results. We are you ever get a new client, this is what you tell them.” These comfortable about talking about “910 cars” (it is not the new CLEs sort of reminded me of my college calculus class — lots model number of a Volvo). We are getting more comfortable of knowledge; we just needed somebody to use it on. with the means test. Then, over the next nine months or so, the volume picked Seriously though, I think lots of attorneys were scared of the up. Our phones began to ring again. It was a little bit like new law (some still are). Many were scared totally off. How- the day after the Grinch brings back all of the presents to ever, those who survived seemed to be settling in nicely and Whoville. Eager lawyers began to dust off their bankruptcy adapting well. Trustees, lawyers, and the courts are putting software. I could now stop getting traffic tickets fixed and re- out decided cases daily to give us some guidance. Everyone is move myself from the $45 an hour criminal appointments getting more comfortable with life after BAPCPA. Sure, law- list. Finally, people were calling. There was only one problem yers have to work harder per case, but we are presumably earn- — now we couldn’t talk to them. We had to explain to them ing more money per case. To some extent it is still a learning that we are now “Debt Relief Agencies.” I told these new cli- process, but we are all getting used to the practice. Anytime ents that I couldn’t even talk to them about their case until I there is change, lawyers are loathe to the process. It is human gave them some new disclosures. Conversations went as fol- nature to like what feels comfortable to you. Not many people lows: “I know you are scared. You have been sued by Mega- do like change, especially when you were allowed to practice lobank for $27,000, and they are garnishing your wages and in the “Six Flags, Tin Lizzy” environment in which we have your bank account; but first I have to get you to sign a con- all enjoyed in the District of Kansas. I don’t think anything tract and give you these menacing multipage disclosures. If about the collegial nature has changed. We are just going to

18 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Smith is a member of the Topeka and Kansas bar associations, BAPCPA the American Bankruptcy Institute, and the Sam A. Crow Amer- have to continue to learn ourselves and educate others as to ican Inn of Court. the way it is, rather than the way it was. He is president of the KBA Bankruptcy and Insolvency Law Sure, some things are different, but that is not always a bad Section. thing. n Editor’s note: This article first appeared in the 2007 sum- mer edition of The Premium newsletter, which is published by About the Author the KBA Bankruptcy and Insolvency Law Section. If you are interested in joining this or any other KBA Wesley F. Smith is a partner with Stumbo Hanson LLP in section, you may register online at www.ksbar.org or call Topeka. He is a graduate of Oklahoma State University, where (785) 234-5696. he earned his B.S. in agricultural econom- ics in 1991. He received his J.D. from the University of Kansas School of Law in 1997. While at KU, he served as the stu- dent articles editor for the Kansas Journal of Law and Public Policy. He is admitted to practice before the U.S. district courts for the District of Kansas and the Western District of Missouri, as well as the state of Kansas. He presently serves on the Bench-Bar Committee for the U.S. Bankruptcy Court for the District of Kansas.

1/4 page Membership ad

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 19 Thinking Ethics Information About Legal Services By Stanton A. Hazlett, disciplinary administrator

ansas Rules of Professional Conduct (KRPC) 7.1 There have not been significant disciplinary issues regarding through 7.5 address lawyer advertising. Although advertising in Kansas. Generally, if a technical violation of the dating myself a bit, when I began practicing law in rule does occur, the Disciplinary Administrator’s Office will K1977 lawyer advertising was not permitted. The prohibition notify the lawyer and ask that the violation be corrected. For regarding advertising changed as a result of Bates v. State Bar example, if the full name of a lawyer is not contained within of Arizona. This case made its way to the U.S. Supreme Court an ad the lawyer will be contacted and asked to correct that because the Arizona Bar sought to discipline John Bates and problem. Unfortunately, often the advertisement is contained Van O’Steen for advertising that they had opened a “legal in telephone books and cannot be corrected for one year. Be clinic” with “very reasonable fees.” The Supreme Court held cautious where telephone book advertising is involved, and that the bar would be violating the First Amendment rights feel free to contact this office if you have questions. of O’Steen and Bates if it prohibited the advertisement. How- Issues regarding communications about lawyer services in ever, advertising that was false, deceptive, or misleading was Kansas are essentially whether communications are false or still subject to restraint. misleading. A problem of this sort has occasionally arisen in The purpose of this article is to discuss two issues regarding connection with firm names. Some lawyers include the words the ethical restrictions on lawyer advertising: First, changes “And Associates” in their letterhead and ads when the lawyer in lawyer advertising rules as a result of the Kansas Supreme has no associates. Therefore, the firm name is a misleading Court’s adoption of new rules of professional conduct on July statement. 1, 2007; and second, issues that have arisen in Kansas regard- In my travels to present continuing legal education pro- ing lawyer advertising. grams I often review the telephone book advertising in the KRPC 7.1 Communications Concerning a Lawyer’s Ser- city I am visiting. One form of advertising I have encountered vices. This rule contains a general prohibition against making does violate KRPC 7.1. The comment to that rule states that false or misleading communications about a lawyer’s services, communication about a lawyer’s services is false or misleading which includes making a statement likely to create unjustified if it “is likely to create an unjustified expectation about results expectations about the results a lawyer may achieve. a lawyer can achieve.” The comment states that “unjustified KRPC 7.2 Advertising. This rule permits lawyer advertis- expectations” ordinarily would preclude advertisements about ing. The rule was changed in July 2007 to allow advertising results obtained on behalf of a client, including the amount of on the Internet, including communication by electronic mail. a damage award or the lawyer’s record in obtaining favorable The rule requires that a lawyer keep copies or recordings of verdicts. Also, advertisements containing client endorsements advertisements for two years after the last dissemination and are prohibited. The danger is that a client may believe that that any advertisement include the full name of at least one similar results might be obtained even though the ad makes lawyer responsible for the ad’s content. no reference to specific factual and legal circumstances. KRPC 7.3 Direct Contact With Prospective Clients. This Finally, there is one issue that is not addressed in the adver- rule addresses solicitation issues. Many lawyers are surprised tising rules, and that is the issue of good taste. On a recent that KRPC 7.3 permits a lawyer to solicit employment from trip to Nashville, Tenn., I saw an ad for a criminal lawyer a prospective client under certain circumstances. Written or whose slogan was “reasonable doubt at a reasonable price.” prerecorded communications are permitted in soliciting busi- While in Los Angeles some time ago, a lawyer who advertised ness; however, the lawyer must include the words “advertis- that he handled driving under the influence cases had a slogan ing material” as part of the solicitation. Solicitation by mail, of “friends don’t let friends plead guilty.” Advertising can be e-mail, or recorded communication is permitted on the the- helpful to a lawyer’s practice and benefit the public. Just keep ory that the person contacted in this fashion is not subject to it truthful, informative, and tasteful. n the lawyer’s persuasion that may overwhelm the client’s judg- ment. However, a lawyer may not solicit business in person About the Author or by a live telephone call, and the rule now prohibits real- time electronic contact, which would include participating in Stanton A. Hazlett, Topeka, received a chat room on the Internet. his BGS from the University of Kansas and KRPC 7.4 Communication of Fields of Practice. Prior his J.D. from Washburn University School to July, it was impermissible for a Kansas lawyer to indicate of Law. From 1977 through 1986 he was a special field of practice. KRPC 7.4(d) now allows a lawyer engaged in private practice in Lawrence. He who has been certified as a specialist by an organization ac- has been with the Disciplinary Administra- credited by the American Bar Association to identify the law- tor’s Office since 1986. In September 1997 yer as a specialist if the name of the certifying organization is he was appointed disciplinary administrator. clearly identified in the communication.

20 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION

LEGAL ARTICLE:

By Casey Tourtillott and Matt Corbin

tate court ... federal court ... justice is blind, so what’s road to federal court is narrow. What’s more, it can be full the difference? A common perception among lawyers of sharp curves, speed bumps, and potholes. A defense at- is that forum matters. A lot. Often plaintiffs’ attorneys torney should be aware of these obstacles, or he may find Slike to file cases in state court.1 Often defense attorneys are himself remanded to state court on a toll road. That said, looking for a way to remove the case to federal court.2 The a plaintiff’s attorney must be able to successfully maneuver reasons vary. Maybe a plaintiff’s attorney is more familiar the requirements for remand, or she may find herself on a with state court practice and procedures,3 or she may want permanent detour to federal court. to avoid application of federal expert witness law.4 A defense The purpose of this article is to guide Kansas practi- attorney might expect that federal courts will be more open tioners through the twists and turns of removal and remand.8 to granting summary judgment.5 Or perhaps an out-of- Although practitioners may remove both civil and criminal state defendant fears local bias in state court.6 Whatever the cases, this article focuses on civil actions. The ins and outs of reason, empirical data suggests that the perception may be criminal removal are on a map of their own. well founded: A 1998 study calculated that plaintiffs’ “win rate” in removed cases is less than 37 percent.7 Any study I. The Ticket to Federal Court: has weaknesses, and the forum is likely not the sole basis Types of Removable Cases for the low win rate. But the data should at least encourage lawyers to take a closer look at where they want to litigate A plaintiff’s case must qualify for removal before the de- their case. fendant can leave the state court parking lot. The concise Suppose an attorney represents a defendant in a Kansas rule of removability is this: An action is removable if the state court. The particular county is notorious for generous plaintiff could have originally brought the action in federal court.9 The party seeking removal bears the burden of es- jury verdicts, and the attorney decides that he needs to get 10 the case moved to federal court. Where does he begin? The tablishing federal jurisdiction. That burden, moreover, is a heavy one.11

Endnotes can be found following this article beginning on Page 29.

22 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: A PRACTITIONER’S ROAD MAP ... Most removable cases fall into two categories — federal are misaligned.40 A defendant may not realign itself, though question jurisdiction cases and diversity jurisdiction cases.12 A — realignment lies within the province of the court.41 number of federal statutes specifically permit removal13 and a 2. Amount in controversy number prohibit removal.14 While most of those statutes are The court determines the amount in controversy based on beyond the scope of this article, practitioners should bear in the petition or, where the petition is unclear, from the notice of mind that Congress may expand or limit the removability of removal.42 Take the situation where a plaintiff pleads an open- a case to federal court. ended amount in controversy (i.e., “more than $50,000”). A. Federal question jurisdiction In this instance, the defendant must prove by at least a pre- ponderance of the evidence that the amount in controversy The court evaluates whether it has federal question jurisdic- 43 tion based on the “well-pleaded complaint rule,”15 meaning exceeds $75,000. What if a plaintiff specifically claims an that it considers the claims in the plaintiff’s petition16 at the amount of damages less than $75,000? Then the defendant 17 18 must establish the jurisdictional amount by a reasonable cer- time of removal. The court ignores defenses and counter- 44 19 tainty. The value of any counterclaims is irrelevant in this claims. A defense is irrelevant to jurisdiction “even if both 45 parties admit that the defense is the only question truly at calculation. But the defendant may establish the amount in 20 controversy by showing its costs of complying with a potential issue in the case.” It serves no purpose for the petition to 46 anticipate that the answer will raise a federal question or for injunction. In Kansas, a useful tool for defendants is Kansas Supreme Court Rule 118, which allows a defendant to seek the removal notice to baldly declare that a federal question 47 exists.21 Nor does it help for a defendant to assert that the specific information about the plaintiff’s claimed damages. plaintiff’s claim is barred by a prior federal judgment.22 The court has a duty to independently assess its jurisdiction, The plaintiff is the master of her claims, and if she chooses which means that removal is not automatically proper, even to pursue only state claims (despite the availability of a federal if the parties agree that the amount in controversy exceeds $75,000.48 That said, a plaintiff is free to disclaim damages over remedy), the court will not exercise federal question jurisdic- 49 tion.23 A plaintiff may not, however, engage in “artful plead- a certain amount. A plaintiff who wants to prevent removal in 24 a case where the parties are diverse should consider disclaiming ing.” In other words, if resolution of a state claim involves 50 a “substantial federal question,” the federal court will accept damages more than $74,999 in the petition. Once a federal 25 court exercises diversity jurisdiction, a plaintiff cannot amend the case. Likewise, if federal law completely pre-empts state 51 law, a plaintiff cannot escape federal court.26 But both the her claimed damages to defeat federal jurisdiction. substantial federal question doctrine and the complete pre- emption doctrine are roads with light traffic that usually lead II. Following Directions: to dead ends. Courts use caution in identifying substantial Statutory Removal Procedures 27 federal questions, and the U.S. Supreme Court has only Courts strictly construe removal statutory procedures,52 em- found complete pre-emption in three areas: (1) Section 301 ploying a presumption against removability.53 This means that 28 of the Labor-Management Relations Act, (2) Section 502 of a single wrong turn by a defendant in removing a case can be 29 the Employee Retirement Income Security Act of 1974, and a one-way ticket back to state court. For example, District 30 (3) the National Bank Act’s usury provisions. of Kansas Local Rule 81.2 allows the court to remand a case Where a case contains one federal claim, the court may as- if the defendant fails to file a copy of all state court records 31 sert supplemental jurisdiction over tag-along state claims. within 20 days of filing the notice of removal. The following Even when the state claims do not qualify for supplemental section discusses what defendants must do to properly remove jurisdiction, the federal court may still retain “separate and a case. It goes without saying that only a defendant may re- 32 independent” claims pursuant to 28 U.S.C. § 1441(c). The move an action; once a plaintiff chooses to file her case in state separate and independent claim basis for removal (or remand) court, she may not remove her own case.54 is tricky, however, and courts rarely apply it.33 A. Filing requirements B. Diversity jurisdiction So what do defendants need to do? The notice of removal 1. The parties must contain a “short and plain statement of the grounds for Diversity jurisdiction in the removal context is more limit- removal, together with a copy of all process, pleadings, and ed than original diversity jurisdiction. By statute, a defendant orders served upon [the removing defendant(s)].”55 Defen- who lives in the “home state” of an action cannot remove the dants must sign the notice in accordance with Federal Rule case.34 Although the court may exercise diversity jurisdiction of Civil Procedure (Fed. R. Civ. P.) 11. Removing defendants when a plaintiff has voluntarily dismissed a nondiverse party also must: (1) promptly serve written notice of removal on all in state court,35 the court will not do so when the state court adverse parties,56 (2) file “forthwith” a copy of the notice of dismisses a nondiverse party.36 On the other hand, where a removal with the state court,57 (3) file a certificate in federal potential — not actual — defendant is nondiverse, a defen- court showing that all notices and filings in state court were dant need not negate his existence.37 Plaintiffs also may not served,58 and (4) comply with other federal and local rules for defeat diversity by naming John Does.38 commencement of actions.59 The removal is not effective until Defendants have a few arguments they may make when di- the removing defendants file a copy of the notice of removal versity is not apparent on the face of the petition: the plaintiff with the state court.60 The date removal is effective, of course, fraudulently joined a nondiverse party to keep the case out is key for timing requirements. of federal court,39 and/or diversity exists because the parties

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 23 LEGAL ARTICLE: A PRACTITIONER’S ROAD MAP ... B. Timing move the case within 30 days of the date C. Venue When do the actions need to be tak- he receives notice that the case contains Where do removing defendants need en? It depends, but it matters. While a removable claim.66 What constitutes to take these actions? Significantly, time limits are procedural requirements, “notice” differs depending on the stage the general venue statute, 28 U.S.C. § not jurisdictional requirements,61 courts of the case.67 1391, does not govern venue in removal do not hesitate to remand a case for un- 1. Cases that are removable upon cases.79 Venue in a removed action is in- timely removal.62 The parties may not filing stead controlled by 28 U.S.C. § 1441(a), extend the time for removal by consent, Where the original state court peti- which limits venue to “the district court and the court may not order an exten- tion includes a federal question, diverse of the United States for the district and sion of time.63 Neither does an extension parties with an amount in controversy division embracing the place where such of time to answer in state court extend exceeding $75,000, or another ba- action is pending.”80 Defendants should the time to remove to federal court.64 If sis for federal jurisdiction, a defen- reference District of Kansas Local Rule a defendant misses a removal deadline, dant must remove the case within 30 81.1(b) to determine which clerk’s office he might as well sit back and enjoy the days of being served with summons within the District of Kansas (Kansas ride in state court. One of the few sec- and a copy of the petition.68 In a City, Topeka, or Wichita) is the proper ond chances he may get is if the plain- multiple defendant case, the 30-day office to file the notice of removal. tiff in state court dismisses an originally time limit begins running at the time D. Multiple defendants removable case without prejudice, and 69 the first defendant is served. If the plaintiff has served multiple then refiles the case. In this instance, 2. Cases that become removable defendants at the time of removal, all the defendant gets to restart the removal later served defendants must consent to re- time clock.65 When a case becomes removable af- moval.81 Specifically, each defendant The clock starts ticking when the re- ter filing, the notice of the case’s remov- or someone acting on his behalf must movability of a case first becomes ascer- 70 ability must be clear and unequivocal. timely file a written indication that he tainable, whether that happens when A defendant has no duty to investigate consents to removal.82 One defendant the case is filed or after the case has whether facts would support removal if may not speak on behalf of other defen- been pending for a period of time. Ei- 71 the removability is not clear. If a de- dants — a representation that all defen- ther way, 28 U.S.C. § 1446(b) provides fendant learns from an “other paper” — dants join in the removal is insufficient.83 a general rule: The defendant must re- which includes interrogatories, requests Neither does merely filing an answer in for information, and depositions,72 as federal court satisfy the unanimity re- well as other documents — that a case quirement.84 The only way a defendant qualifies for removal, the time to remove can avoid the unanimity rule is to show begins when the defendant learned of that the nonjoining defendants are (1) the fact(s) authorizing removal. Service nominal, (2) fraudulently joined, or (3) of the “other paper” is unnecessary.73 A unserved.85 The removing defendants right to remove may also develop when must make “reasonably diligent” efforts a plaintiff amends the petition and (1) to determine who has been served.86 In voluntarily changes the parties in the situations where the plaintiff has served case,74 (2) amends the places of citizen- any defendant by publication, removing ship, (3) increases the amount in con- defendants should verify whether ser- troversy, and/or (4) adds a federal claim. vice is complete under Kansas law. If the Defendants who desire a federal forum publication has not run for the required should carefully review amended peti- time period, that defendant remains un- tions for these changes. But removal served, rendering his consent unneces- upon a motion to amend a petition is sary for removal.87 premature.75 And, generally, a defendant may only remove an amended petition E. Multiple removals when the original petition was not re- Suppose a defendant attempts to re- movable.76 An exception to this rule is move a case and fails. Is a return trip to the “revival exception,” where a plaintiff federal court out of the question? Not necessarily. Section 1446(b) allows for changes the nature of the case so drasti- 88 cally in an amended petition that it is more than one petition to remove. As as if she filed a new case.77 In no event, long as subsequent developments in the however, may a defendant remove a di- case make the case removable, and the versity case not previously removable basis for removal was neither adjudged more than one year after commence- nor could have been adjudged in the ment of the case.78 previous motion to remand, the defen- dant may remove a case again.89 Using a change in the law to try to remove again, however, will not work.90

24 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: A PRACTITIONER’S ROAD MAP ... F. A note about plaintiffs request for joinder and retain the case.105 ambiguity against the drafter.117 Unam- Finally, what about plaintiffs? A One District of Kansas court also held biguous clauses are “prima facie valid” plaintiff’s attorney who finds her case re- that remand was discretionary where the absent proof that enforcement would be moved to federal court should reference defendant failed to attach the summons unreasonable or unfair under the par- the local rules for obtaining admission to its notice of removal.106 The court ticular circumstances of the case.118 to practice in federal court if she is not characterized the defect in the removal A third, rarely litigated means of waiver already admitted.91 Both parties should procedure as “inadvertent,” “trivial,” and may arise from a defendant’s affirmative reference Fed. R. Civ. P. 81(c), which nonprejudicial, and allowed the defen- actions in state court. Liebau v. Colum- sets the time for filing an answer and de- dant to file an amended notice of remov- bia Casualty Co.119 is the only District manding a jury trial. al.107 Another District of Kansas court of Kansas decision that has provided a retained jurisdiction over a removed case framework for analyzing this aspect of III. The U-Turn: Remand to avoid wasting judicial resources when waiver. Simply stated, a court focuses on the petition did not contain a federal the defendant’s intent in filing a particu- A plaintiff who claims that the defen- question, but an independent basis for lar motion or pleading.120 Affirmative dant’s removal procedure was improper federal jurisdiction existed.108 actions that target the underlying merits has 30 days from the notice of removal92 93 A remand order is final once the feder- of a plaintiff’s claims or demonstrate a to seek remand. For procedural defects, al court forwards a certified copy of the willingness to litigate in state court will the court will not initiate a remand for 109 121 94 order to the clerk of the state court. likely operate as a waiver. On the oth- the plaintiff. But the district court can Some courts outside of Kansas will re- er hand, affirmative actions that (1) are remand a case based on lack of subject consider their remand orders before they dictated by Kansas state court rules, (2) matter jurisdiction at any time before become final.110 District of Kansas courts seek dismissal on a ground other than final judgment and may do so sua spon- 95 will not. They have held that regardless on the merits of a plaintiff’s claims, or te. This means that a recurring question of when the order becomes final, they (3) attempt to preserve the status quo or is whether a removal defect is procedural 96 lack jurisdiction to reconsider their re- the defendant’s right to contest the mer- or jurisdictional. Procedural bases for mand order.111 its of a plaintiff’s claims, are less likely to remand include untimely removal,97 98 Finally, it is worth noting that when failure to join all defendants, defects a district court remands a case for lack (Continued on next page) in the form or content of the notice, 99 of subject matter jurisdiction, the court failure to comply with the local rules, must vacate any orders it entered in the waiver of the right to remove, removal case.112 It is not as clear whether the despite statutory prohibition, violation court should vacate any orders entered of a contractual forum selection clause, 100 when removal was procedurally defec- and joinder of local defendants. Ju- tive.113 risdictional bases for remand are self- explanatory: lack of diversity, insufficient IV. Don’t Pack Your Bags Yet: amount in controversy, and absence of a federal question. Waiver Issues Once a court finds that a removal A litigant’s rights to removal or remand was improper, it must remand the en- should not be taken lightly. As with oth- tire case;101 dismissal is inappropriate, er legal rights, they are subject to waiver and the court should not consider any in certain circumstances. Moreover, the other motions or issues pending be- act of removal itself may lead to a defen- fore it. Futility is not an exception to § dant’s waiver of other substantive rights, 1447(c)’s command to remand.102 There such as venue or a state’s immunity to are a few situations, however, where re- suit in federal court. mand is discretionary: (1) where remov- A. Waiver of right to remove al was based on a federal question but the federal question is no longer part of A defendant’s statutory right to re- the case, the court may dismiss supple- moval is far from absolute. Obviously, a mental state law claims, remand them, defendant who fails to file a timely notice 103 of removal can leave his Federal Rules of or retain jurisdiction over them; (2) 114 where a case contains separate and inde- Civil Procedure book at home. The pendent claims, the court may remand same can be said for a defendant who contractually waives his right to remove the separate and independent state law 115 claims if they are governed primarily by through a forum selection clause. A defendant’s waiver on this basis must be state law, or the court may retain the 116 entire case;104 and (3) where a court has “clear and unequivocal.” Consistent diversity jurisdiction, the court may al- with this standard, the Tenth Circuit fo- low joinder of a nondiverse, dispensable cuses on the specific language of the fo- party and remand the case or deny the rum selection clause and construes any THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 25 LEGAL LEGAL ARTICLE: ARTICLE: A PRACTITIONER’S ROAD MAP ... result in waiver.122 In Liebau, the court applied these general be detrimental to her remand rights.128 District of Kansas au- parameters and held that the following litigation-based con- thority for litigation-based waiver of remand is sparse. In Todd duct did not constitute a waiver of removal: filing an answer v. DSN Dealer Service Network Inc., the court announced that in state court that raised various affirmative defenses, filing the extent of a plaintiff’s conduct in federal court is determi- a motion to dismiss for improper service of process, and at- native on the question of waiver and not necessarily whether tempting to overturn a prior default judgment.123 the plaintiff has filed any motions or other pleadings.129 Un- The lack of controlling authority in this area complicates der the facts of Todd, the court held that a plaintiff’s request matters for the Kansas practitioner. Does a defendant who for the clerk to issue a federal summons was an insignificant files a permissive counterclaim or engages in discovery thereby action and thus did not operate as a waiver.130 The decision waive the right to removal?124 Does it matter if the state court further implied that a plaintiff who participates in discovery has not ruled on the defendant’s potentially dispositive mo- prior to filing a motion to remand would be staying in federal tion at the time of removal? Affirmative action beyond filing court.131 an answer and short of filing a motion for summary judgment As before, the lack of case law in this area leaves a plain- on the merits falls into the murky case-by-case approach.125 tiff at the mercy of the case-by-case approach. To avoid the The safest route is to file the notice of removal as soon as it litigation-based waiver of remand, a plaintiff should examine becomes evident that the plaintiff’s case may be removed.126 the defendant’s removal notice as soon as it is served to deter- Otherwise, a defendant facing a waiver argument should be mine whether any grounds for remand exist.132 If the plaintiff mindful of the Liebau decision; research decisions from other deems it necessary to file any motions or pleadings, or to take courts; and, last but not least, emphasize the “clear and un- any other affirmative actions in federal court, she should si- equivocal” standard for waiver. multaneously file a motion to remand.133 B. Waiver of right to remand One final tip. The waiver ramp is accessible even after a dis- trict court denies a plaintiff’s motion to remand. Specifically, Waiver is not a one-way street. In fact, a plaintiff’s road to a plaintiff who amends her petition to add a federal cause of waiver of remand closely parallels a defendant’s road to waiver action or adds additional defendants to the litigation waives of removal. the right to later object to removal on appeal.134 A plaintiff automatically waives the right to challenge defects in a defendant’s removal procedure, i.e., nonjurisdictional de- C. Post-removal challenges to venue fects, after expiration of 28 U.S.C. § 1447(c)’s 30-day period Does a defendant’s removal to federal court waive the right to to file a motion to remand.127 Moreover, before that filing pe- assert that venue was improper in state court? In other words, riod ends, a plaintiff’s affirmative actions in federal court may can a defendant raise a post-removal venue objection on state Introducing Two New KBA Sections

Kansas is joining other states that Kansas is joining a growing list of states offer an Agricultural Law Section that have adopted Law Practice Man- devoted to specifically address the agement (LPM) sections. This section needs of the agricultural commu- is designed to help attorneys bet- nity, including farmers and ranch- ter manage their daily practice, ers, their lenders, suppliers, and which will improve their ability service businesses. to deliver the most efficient and highest-quality legal ser- This section plans to: vices to their clients. • Stimulate education programs (including CLE), • Develop and enhance referral arrangements LPM will be planning: among general practitioners and specialists, • Bi-annual CLEs (including ethics), • Consult with and assist existing organizations • Non-CLE programs on practical topics, that provide legal and other services to farmers • Classes on balancing life and work, and ranchers, and • “Tip of the Month” e-mails, • Much more! • An LPM list serve, and • Much more!

For more information, please contact Beth Warrington, committees and sections coordinator, at (785) 234-5696 or [email protected].

26 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: A PRACTITIONER’S ROAD MAP ... law grounds, or is any venue challenge waived once a defendant ment.153 Absent unusual circumstances, a district court should removes to the federal court “embracing” the state court where award costs and fees “only where the removing party lacked the action is pending?135 Unfortunately, the answer is unclear. an objectively reasonable basis for removal.”154 It is not neces- No Tenth Circuit or District of Kansas case has confronted the sary for the plaintiff to demonstrate that the removing party argument, and courts in other circuits are split.136 In any event, acted in bad faith.155 Rather, the plaintiff must show that the some venue relief remains available for a defendant unhappy removing party lacked a legitimate or fair basis for removal.156 with the District of Kansas: a request for a discretionary trans- Recent District of Kansas decisions have ordered the remov- fer of venue pursuant to 28 U.S.C. § 1404(a).137 ing party to pay costs and fees where not all defendants had joined the removal notice,157 the parties had agreed to litigate D. 11th Amendment immunity in state court pursuant to a forum selection clause,158 the de- Cases involving a state or state official may lead the parties fendant had relied on a counterclaim to establish federal juris- to the crossroads of removal and state sovereign immunity. diction,159 the defendant was a citizen of Kansas,160 or “lack of The 11th Amendment generally shields states from suit in fed- diversity jurisdiction was patently obvious.”161 eral court, absent either a waiver from the state or statutory A district court’s order awarding attorney fees and costs un- 138 abrogation of immunity. Hence, when a state (or arm of the der § 1447(c) is subject to appellate review regardless of the state)139 is a litigant and the action is removed to federal court, whether the district court’s remand order is reviewable.162 To one battleground often centers on whether the state retains or this end, the Tenth Circuit reviews the propriety of the award waives its immunity. for abuse of discretion, and the district court’s underlying le- Where a state purposefully removes a case from state to fed- gal analysis de novo.163 As long as the district court’s award eral court, the state waives its right to assert 11th Amendment reflects the costs and fees actually incurred by the plaintiff in immunity.140 Specifically, the Tenth Circuit has found waiver challenging the removal, the amount of the award will likely regardless of whether: (1) the state’s removal involved a case be upheld as reasonable.164 Thus, the most viable issue for the with state or federal claims,141 (2) the state actually litigated defendant to raise on appeal is whether the district court ap- the merits of the claims in federal court or promptly asserted plied the appropriate standard in awarding fees, i.e., whether 11th Amendment immunity upon removal,142 or (3) the at- the defendant possessed an objective basis for removal.165 torney general possessed the authority to remove the case to federal court.143 VI. Taking the High Road: Appellate Review of Even where a state involuntarily appears in federal court, Removal and Remand Orders the state’s right to assert 11th Amendment immunity may be subject to waiver. For example, a state that voluntarily files a A. Reviewability of remand order lawsuit in state court cannot later invoke the 11th Amend- A remand order ejects litigants from federal court and is, ment when a defendant removes the case to federal court,144 therefore, considered “final” for purposes of 28 U.S.C. § at least where no party has alleged claims against the state.145 A 1291.166 Nevertheless, a defendant who wishes to challenge different outcome may be warranted if: (1) the removal notice a remand order must first tackle whether the district court’s contained a counterclaim or cross-claim against the state or decision is reviewable at all.167 On its face, § 1447(d) provides (2) a party filed a counterclaim or cross-claim against the state that an “order remanding a case to the state court from which after removal.146 Arguably, these situations are distinguishable, it was removed is not reviewable on appeal or otherwise.”168 especially where a claim is not asserted against the state until Despite this broad language, the Supreme Court has instruct- after the case has been removed to federal court.147 The ar- ed that § 1447(d)’s bar to appellate review applies only when gument for waiver might be bolstered, however, if the state the district court’s remand order rests on one of the grounds has waived its immunity to the counterclaims or cross-claims set forth in § 1447(c): lack of subject matter jurisdiction or a in state court prior to removal of the action.148 Nevertheless, defect in removal procedure.169 Of course, the necessary corol- these issues remain open for debate in the Tenth Circuit. lary to this rule is that remand orders based on grounds out- side of those enumerated in § 1447(c) are reviewable.170 V. It’s no Freeway: Awards of Attorney Fees The Tenth Circuit strictly enforces § 1447(d)’s limitation 171 and Costs on appellate jurisdiction. The appellate court independently reviews the record to determine the actual grounds for the dis- A plaintiff who wins remand may seek costs and attorney trict court’s decision and to ensure that the district court ren- fees pursuant to 28 U.S.C. § 1447(c).149 The decision to award dered its decision in good faith.172 The upside for defendants costs and fees, as with other fee-shifting statutes, is commit- is that the district court’s mere mention of § 1447(c), subject ted to the sound discretion of the district court.150 Neverthe- matter jurisdiction, or a defect in removal procedure will not less, the U.S. Supreme Court and Tenth Circuit have outlined automatically preclude review.173 The downside? As long as specific standards governing the district court’s discretion that the district court’s decision was, to a “fair degree,” based on § effectively prohibit the removing party from being hit with 1447(c) grounds, then appellate review will be prohibited.174 151 costs and fees as a matter of course. This prohibition applies no matter how erroneous the district Before a district court may award costs and fees, the plain- court’s application of the legal principles may be.175 tiff, not surprisingly, must show that the removal was im- 152 The lesson for defendants: know whether the Tenth Cir- proper “ab initio” — from the beginning. A plaintiff who cuit will review the issue before filing an appeal. For example, satisfies this threshold inquiry, however, is not automatically an appeal will be dismissed if the district court remands the entitled to costs and fees, let alone a presumption of entitle- lawsuit because of lack of complete diversity between the par- THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 27 LEGALLEGAL ARTICLE:ARTICLE: A PRACTITIONER’S ROAD MAP ... ties,176 the absence of a federal question on the face of the Moreover, following directions the first time is key because plaintiff’s petition,177 the absence of a colorable federal defense appellate review is limited, even if a district court’s decision is or federal pre-emption,178 a defendant’s failure to file a notice erroneous. Statistical evidence indicates that a litigant’s choice of removal within the applicable time period, or the failure of of forum is a right worth protecting, so practitioners should all defendants to consent to removal.179 On the other hand, travel with care to arrive at their preferred destination. n the Tenth Circuit will consider the appeal when the district court remands the lawsuit based upon a forum selection NOTE: Endnotes begin on Page 29. clause,180 the availability of greater remedies in state court,181 a crowded court docket,182 or the abstention doctrines.183 The court will also review a district court’s discretionary remand of About the Authors supplemental or pendent state law claims.184 Matt Corbin is an associate in the busi- B. Reviewability of denial of motion to remand ness litigation department at Lathrop & What about a district court’s denial of a plaintiff’s timely Gage L.C. in Overland Park. Corbin motion to remand? The Tenth Circuit may review it if it is ac- previously served as a law clerk for the companied by the appeal of a final judgment.185 A few words Hon. Mary Beck Briscoe, U.S. Court of of caution: First, a plaintiff wanting to preserve appellate rights Appeals for the Tenth Circuit, and for should not amend her petition to add a federal cause of action the Hon. G. Thomas VanBebber, U.S. or additional parties subsequent to the district court’s order District Court for the District of Kansas. denying remand.186 Additionally, a plaintiff who demonstrates Corbin received his J.D. from the Uni- that the district court should have remanded the case due to versity of Kansas in 2003. a defect in a defendant’s removal procedure may still be left with an empty victory. The Tenth Circuit, citing efficiency Casey Tourtillott, Kansas City, Kan. is and finality considerations, will not remand a case to state a law clerk for the Hon. Carlos Mur- court as long as the district court possessed subject matter ju- guia, U.S. District Court for the Dis- risdiction when the final judgment was entered, whether ob- trict of Kansas, and a former law clerk tained through trial or a dispositive motion.187 The exception for the Hon. G. Thomas VanBebber. She is the plaintiff who also secures a reversal of the final judgment is a 2000 graduate of the University of on the merits.188 In that circumstance, remand to state court Missouri-Kansas City Law School and is appropriate because efficiency and finality concerns are no has previously authored and co-authored longer valid.189 articles for the UMKC Law Review and The Journal of the Kansas Bar VII. End of the Road: Conclusion Association. Although the road between state and federal court is well traveled, a practitioner must avoid setting the cruise control. The authors wish to thank Judge Monti Belot and Judge Donald Familiarity with the grounds, timing, and procedural steps Bostwick for editing the article. for removal and remand is essential to navigate potential haz- ards, such as waiver or an award of attorney fees and costs. OCTOBER KBA BOOKSTORE SPECIALS*

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28 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: A PRACTITIONER’S ROAD MAP ...

ENDNOTES 17. See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S. Ct. 347, 83 L. 1. See Howard B. Stravitz, Recocking the Removal Trigger, 53 S.C. L. Ed. 334 (1939); Michaelis v. Deluxe Fin. Servs. Inc., No. 06-2302-KHV, Rev. 185, 185 (2002). 2006 WL 2802344, at *1 (D. Kan. Sept. 28, 2006) (citations omitted). 2. See id. 18. Metro Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 95 3. See id. at 185 n.1. L. Ed. 2d 55 (1987); Warner Bros. Records Inc. v. R.A. Ridges Distrib. Co., 4. See Thomas A. Mauet, The New World of Experts in Federal and State 475 F.2d 262, 265 (10th Cir. 1973). Courts, 25 Am. J. Trial Advoc. 223, 234-235 (2001). 19. Holmes Group Inc. v. Vornado Air Circulation Sys. Inc., 535 U.S. 5. See Stravitz, supra note 1, at 185 n.1 (offering reasons why federal 826, 830-31, 122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002); Topeka Hous. courts are more likely to grant summary judgment). Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir. 2005). 6. See Victor E. Flango, Litigant Choice Between State and Federal 20. Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 Courts, 46 S.C. L. Rev. 961, 966 (1995). U.S. 1, 14, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). “[T]he required 7. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes federal right or immunity must be an essential element of the plaintiff’s Really Reveal Anything About the Legal System? Win Rates and Removal cause of action, and ... the federal controversy must be ‘disclosed upon Jurisdiction, 83 Cornell L. Rev. 581, 593 (1998). Compare this to a the fact of the complaint unaided by the answer or by the petition for win rate that is probably something close to 53 percent for plaintiffs in removal.’” Madsen v. Prudential Fed. Sav. & Loan Ass’n, 635 F.2d 797, 800 state court. See id. at 593-95 (citing Kevin M. Clermont & Theodore (10th Cir. 1980) (citation omitted). Eisenberg, Xenophilia in American Courts, 109 Harv. L. Rev. 1120, 1122 21. Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 692 (10th n.10 (1996) (finding a win rate of about 53 percent for plaintiffs who Cir. 1971). originally bring their cases in federal court and observing that win rates 22. Rivet v. Regions Bank of La., 522 U.S. 470, 472, 118 S. Ct. 921, are similar in federal and state court)). 139 L. Ed. 2d 912 (1998). 8. The article cites both published and unpublished decisions through- 23. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, out. Although an unpublished decision is not binding precedent, practi- 2429, 96 L. Ed. 2d 318 (1987); In re Universal Serv. Tele. Billing Prac- tioners may cite it for persuasive value. See 10th Cir. R. 32.1; Harris v. tices Litig., Nos. Civ. A. 02-MD-1468, 02-CV-1583, 02-CV-4007, Apfel, 152 F. Supp. 2d 1261, 1266 n.1 (D. Kan. 2001); see also D. Kan. 02-CV-4032, 02-CV-2459, 02-CV-2458, 02-CV-5972, 02-CV-6642, R. 7.6; Fed. R. App. P. 32.1. 02-CV-1052, 2002 WL 31929179, at *5 (D. Kan. Dec. 19, 2002) 9. 28 U.S.C. § 1441(a). The scope of federal jurisdiction is too broad (citing Caterpillar, 482 U.S. at 392). to be properly summarized here, but the article will cover a few important 24. Rivet, 522 U.S. at 475-476; Schmeling v. NORDAM, 97 F.3d 1336, aspects of federal jurisdiction, especially those that often arise in removed 1339 (10th Cir. 1996) (“Under the ‘artful pleading’ doctrine ... a plaintiff cases. may not defeat removal by failing to plead federal questions that are es- 10. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). sential elements of the plaintiff’s claim.”). 11. See Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 25. “[E]ven though state law creates [a party’s] causes of action, its 1982) (observing that “all doubts are to be resolved against removal”). case might still ‘arise under’ the laws of the United States if a well- 12. Sidney Powell & Deborah Pearce-Reggio, The Ins and Outs of Fed- pleaded complaint established that its right to relief under state law re- eral Court: A Practitioner’s Guide to Removal and Remand, 17 Miss. C. L. quires resolution of a substantial question of federal law....” Franchise Tax Rev. 227, 232 (1997) (citation omitted). Bd., 463 U.S. at 13; Rice v. Office of Servicemembers’ Group Life Ins., 260 13. See id. at 231 and n.30 (citing the following statutes: 28 U.S.C. § F.3d 1240, 1245 (10th Cir. 2001); see also Russell v. Sprint Corp., 264 F. 1442 (federal officers sued or prosecuted); 28 U.S.C. § 1442(a) (mem- Supp. 2d 955, 961-63 (D. Kan. 2003) (thoroughly discussing the sub- bers of armed forces sued or prosecuted); 28 U.S.C. § 1443 (civil rights stantial federal question doctrine). To determine whether a substantial cases); 28 U.S.C. § 1444 (foreclosure actions against the United States); federal question exists, “the question is, does a state law claim necessar- 12 U.S.C. §§ 1441(a)(1)(3) and 1819(b)(2)(D) (removal of actions by ily raise a stated federal issue, actually disputed and substantial, which a the Resolution Trust Corp. and Federal Deposit Insurance Corp.); 28 federal forum may entertain without disturbing any congressionally ap- U.S.C. § 1452 (claims related to bankruptcy cases); 12 U.S.C. § 632 proved balance of federal and state judicial responsibilities.” Grable & (cases concerning federal regulation of international and foreign bank- Sons Metal Prod. Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S. ing); 9 U.S.C. § 205 (arbitration agreement or award falling under the Ct. 2363, 162 L. Ed. 2d 257 (2005); see also Nicodemus v. Union Pac. Convention on the Recognition and Enforcement of Foreign Arbitral Corp., 440 F.3d 1227, 1235-1237 (10th Cir. 2006). In Grable & Sons, Awards); 22 U.S.C. § 286(g) (actions involving International Monetary the Supreme Court held that “the absence of a federal private right of ac- Fund or International Bank for Reconstruction and Development); 39 tion [should be treated] as evidence relevant to, but not dispositive of, the U.S.C. § 409 (actions in which postal service is a party); 28 U.S.C. § ‘sensitive judgments about congressional intent’ that § 1331 requires.” 1441(d) (actions against a foreign state)). 545 U.S. at 318. 14. See id. at 231-32 and n.31 (citing the following statutes: 15 U.S.C. 26. Caterpillar, 482 U.S. at 393; Franchise Tax Bd., 463 U.S. at 24; § 77v(a) (actions based on Securities Act of 1933); 28 U.S.C. § 1445(a) Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001). (actions against a railroad arising under the Federal Employee Liability 27. The Supreme Court has counseled that applying the substantial Act); 28 U.S.C. § 1445(b) (actions against common carriers); 28 U.S.C. federal question concept requires “principled, pragmatic distinctions” § 1445(c) (actions arising under states’ workers’ compensation laws); 46 and “careful judgments about the exercise of federal judicial power.” U.S.C. § 688 (Jones Act claims); 28 U.S.C. § 1333 (admiralty actions un- Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 813-14, 106 S. der “saving to suitors” clause); 46 U.S.C. § 761 (actions under Death on Ct. 3229, 92 L. Ed. 2d 650 (1986). The District of Kansas has con- the High Seas Act); 28 U.S.C. § 1445(d) (domestic violence actions)). sidered the theory few times, and has noted that it should be applied 15. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, with caution. See, e.g., Russell, 264 F. Supp. 2d at 962 (citing Almond v. 2429, 96 L. Ed. 2d 318 (1987) (“The presence or absence of federal- Capital Prop. Inc., 212 F.3d 20, 23 (1st Cir. 2000)) (noting “[p]erhaps question jurisdiction is governed by the ‘well-pleaded complaint rule,’ the best one could say is that [the substantial federal question doctrine] which provides that federal jurisdiction exists only when a federal question endures in principle but should be applied with caution and various appears on the face of the plaintiff’s properly pleaded complaint.”);Firstar qualifications”). Bank N.A. v. West-Anderson, No. 02-2224-CM, 2003 WL 21313849, at 28. 29 U.S.C. § 185. *2 (D. Kan. Apr. 22, 2003); Fielden v. Wal-Mart Stores Inc., No. 03-1009- 29. Id. at § 1132. WEB, 2003 WL 1751000, at *3 (D. Kan. March 27, 2003). 30. 12 U.S.C. §§ 85, 86. 16. Initial pleadings in Kansas state court actions are called “petitions.” 31. See 28 U.S.C. § 1367. Initial pleadings in federal court are called “complaints.” For consistency, 32. See Hudson v. Smith, 618 F.2d 642, 645 (10th Cir. 1980). The we will refer to initial state court pleadings as petitions, even after the court will use federal law to determine whether claims are separate and in- case has been removed to federal court. It is unclear whether an original dependent, and state law to examine the nature of the claims. See Justice v. petition ever becomes a complaint. Most cases, however, generically refer Atchison, Topeka & Santa Fe Ry. Co., 927 F.2d 503, 504 (10th Cir. 1991). to the state court petition as a complaint. The 10th Circuit applies the “single wrong” test to determine whether

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separate and independent claims exist: “A pleading, which alleges but one 49. See, e.g., Porter v. Merck & Co., No. 04-2572-GTV, 2004 WL wrong, for which single relief is sought, cannot constitute a separate and 3682055, at *2 (D. Kan. Dec. 28, 2004). independent claim, no matter how many defendants are said to be liable 50. Technically, a disclaimer of damages more than $75,000 would therefore, or how diverse their basis of liability.” Gray v. N.M. Military probably suffice, but the only District of Kansas case on the subject con- Inst., 249 F.2d 28, 32 (10th Cir. 1957). sidered a disclaimer of damages more than $74,999. See id. 33. See Heather R. Barber, Removal and Remand, 37 Loy. L.A. L. Rev. 51. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 1555, 1567, 1570 (2004). It is difficult to reconcile the “separate and in- S. Ct. 586, 82 L. Ed. 845 (1938); Harris v. Archer Daniels Midland Co., dependent” language with the familiar standards for “common nucleus of No. 06-2059-KHV, 2006 WL 963551, at *2-*3 (D. Kan. Apr. 13, 2006) operative fact” and “case and controversy.” 28 U.S.C. § 1367(a). Because (collecting cases). Likewise, the plaintiff may not increase her damages the standards don’t mesh well, courts have declined to find that state to create federal jurisdiction. Michaelis v. Deluxe Fin. Servs. Inc., No. 06- claims are “separate and independent” when they have asserted supple- 2302-KHV, 2006 WL 2802344, at *1 (D. Kan. Sept. 28, 2006). mental jurisdiction over the state claims. See, e.g., Busey v. Bd. of County 52. Syngenta Crop Prot. Inc. v. Henson, 537 U.S. 28, 32, 123 S. Ct. Comm’rs of Shawnee, Kan., 163 F. Supp. 2d 1291, 1296 (D. Kan. 2001); 366, 154 L. Ed. 2d 368 (2002); Farmland Nat’l Beef Packing Co. L.P. v. see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 354, 108 S. Ct. Stone Container Corp., 98 F. App’x 752, 755-56 (10th Cir. 2004). 614, 98 L. Ed. 2d 720 (1988) (stating that “pendent claims are not ‘sepa- 53. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995); Fajen rate and independent’ within the meaning of the removal statute”). v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982) (observing 34. 28 U.S.C. § 1441(b); Gaines-Tabb v. Mid-Kansas Co-op. Ass’n, 980 that “all doubts are to be resolved against removal”); see also Am. Fire & F. Supp. 1424, 1427 (D. Kan. 1997). Cas. Co. v. Finn, 341 U.S. 6, 17-18, 71 S. Ct. 534, 95 L. Ed. 702 (1951) 35. Am. Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 316, 35 S. Ct. (“[T]he [removal] jurisdiction of the federal courts is carefully guarded 355, 59 L. Ed. 594 (1915); DeBry v. Transamerica Corp., 601 F.2d 480, against expansion by judicial interpretation or by prior action or consent 487–88 (10th Cir. 1979); Engler v. Rapid-American Corp., No. 96-2349- of the parties.”). KHV, 1996 WL 772526, at *2 (D. Kan. Nov. 26, 1996). 54. See 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a state 36. Engler, 1996 WL 772526, at *2. court ... may be removed by the defendant or defendants....”); Baby C v. 37. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 126 S. Ct. 606, 610, 163 Price, 138 F. App’x 81, 84 (10th Cir. 2005); Alexander v. Tulsa Pub. Schs., L. Ed. 2d 415 (2005). 133 F. App’x 581, 582 (10th Cir. 2005). 38. Australian Gold Inc. v. Hatfield, 436 F.3d 1228, 1235 (10th Cir. 55. 28 U.S.C. § 1446(a). 2006). 56. Id. § 1446(d); D. Kan. R. 81.1(c). 39. See, e.g., Wolf Creek Nuclear Operating Corp. v. Framatome ANP 57. D. Kan. R. 81.1(c); see also 28 U.S.C. § 1446(d). Inc., 416 F. Supp. 2d 1081, 1085-86 (D. Kan. 2006); Loeffelbein v. Mil- 58. D. Kan. R. 81.1(c). berg Weiss Bershad Hynes & Lerach LLP, No. 02-2435-CM, 2003 WL 59. See, e.g., D. Kan. R. 3.1 (requiring a civil docket cover sheet); D. 21313957, at *4-*5 (D. Kan. May 23, 2003). To prove fraudulent join- Kan. R. 40.2 (requesting place of trial). der, the defendant must prove (1) failure to state a claim upon which re- 60. 28 U.S.C. § 1446(d); D. Kan. R. 81.1(c); Flying Cross Check LLC lief must be granted; and (2) that there is no possibility that [the plaintiff] v. Cent. Hockey League Inc., 153 F. Supp. 2d 1253, 1257-58 (D. Kan. would be able to establish a cause of action against the joined party in 2001). state court. Crow v. State Indus., No. 01-2555-GTV, 2003 WL 1053945, 61. See McShares Inc. v. Barry, 979 F. Supp. 1338, 1343 (D. Kan. at *3 (D. Kan. Feb. 27, 2003) (quoting Montano v. Allstate Indemnity, 1997). No. 99-2225, 2000 WL 525592, at *1-*2 (10th Cir. Apr. 14, 2000)). 62. See Henderson v. Holmes, 920 F. Supp. 1184, 1187 (D. Kan. 1996) Several District of Kansas courts have relied on the unpublished Montano (noting that courts strictly enforce the removal statutes). But see Farm & decision. See, e.g., City of Neodesha, Kan. v. BP Corp. N. Am. Inc., 355 F. City Ins. Co. v. Johnson, 190 F. Supp. 2d 1232, 1236-37 (D. Kan. 2002) Supp. 2d 1182, 1186-87 (D. Kan. 2005). (retaining an untimely removed case). 40. See, e.g., Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236, 1242- 63. First Nat’l Bank & Trust Co. v. Nicholas, 768 F. Supp. 788, 790 (D. 43 (D. Kan. 2001). Kan. 1991). 41. Green Tree Fin. Corp. v. Arndt, 72 F. Supp. 2d 1278, 1281-82 (D. 64. See Oldland v. Gray, 179 F.2d 408, 411 (10th Cir. 1950); Berkel Kan. 1999). & Co. Contractors Inc. v. AMEC Const. Mgmt. Inc., No. 03-2201-GTV, 42. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (hold- 2003 WL 21448873, at *3 (D. Kan. June 18, 2003). ing that the defendant’s analysis of the plaintiff’s damages, “prepared after 65. Runyan v. Mentor Corp., No. 94-2185-GTV, 1994 WL 374500, at the motion for removal and purporting to demonstrate the jurisdictional *1 (D. Kan. June 22, 1994). minimum, does not establish the existence of jurisdiction at the time the 66. See generally 28 U.S.C. § 1446(b). motion was made”). 67. The defendant may receive notice when he is served with summons 43. Green v. Harsco Corp., No. 99-5139, 2000 WL 745353, at *3 (10th and a copy of the petition. See Murphy Bros. Inc. v. Michetti Pipe Stringing Cir. May 25, 2000); see also Martin v. Franklin Cap. Corp., 251 F.3d Inc., 526 U.S. 344, 347-348, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999); 1284, 1290 (10th Cir. 2001) (assuming without deciding that the pre- Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236, 1239-40 (D. Kan. ponderance of the evidence standard applies). 2001). Or he may receive notice by an “other paper” filed in the proceed- 44. See, e.g., Firstar Bank N.A. v. West-Anderson, No. 02-2224-CM, ing. See 28 U.S.C. § 1446(b). 2003 WL 21313849, at *5 n.6 (D. Kan. Apr. 22, 2003) (citing Coca-Cola 68. Murphy Bros. Inc., 526 U.S. at 348. Mere receipt of the summons Bottling of Emporia Inc. v. S. Beach Beverage Co., 198 F. Supp. 2d 1280, without service, i.e., by courtesy fax, does not start the time clock. Id. at 1285 (D. Kan. 2002)). 347-48. 45. Dresser-Rand v. N. Natural Gas Co., No. 99-4165-SAC, 2000 WL 69. McShares Inc. v. Barry, 979 F. Supp. 1338, 1343 (D. Kan. 1997) 286733, at *2 (D. Kan. Jan. 19, 2000); Leader Mortgage Co. v. Earel, No. (citations omitted); Wakefield v. Olcott, 983 F. Supp. 1018, 1020 (D. 98-2302-GTV, 1998 WL 781225, at *2 (D. Kan. Nov. 4, 1998). Nota- Kan. 1997) (citations omitted). bly, this rule differs from Tenth Circuit indications that a court in original 70. Farmland Nat’l Beef Packing Co. L.P. v. Stone Container Corp., 98 F. jurisdiction may consider the value of a compulsory counterclaim. See, App’x 752, 755 (10th Cir. 2004); Huffman v. Saul Holdings Ltd. P’ship, e.g., Geoffrey E. MacPherson Ltd. v. Brinecell Inc., 98 F.3d 1241, 1245 n.2 194 F.3d 1072, 1077-78 (10th Cir. 1999); Akin v. Ashland Chem. Co., (10th Cir. 1996). 156 F.3d 1030, 1035 (10th Cir. 1998). 46. Justice v. Atchison, Topeka & Santa Fe Ry. Co., 927 F.2d 503, 505 71. Little Apple1 L.P. v. Panek Exteriors Inc., No. 05-4054-SAC, 2005 (10th Cir. 1991). WL 1863147, at *2-*4 (D. Kan. July 29, 2005). 47. Kan. R. Dist. Ct. 118; Honeycutt v. Dillard’s Inc., 989 F. Supp. 72. Huffman, 194 F.3d at 1077-78 (holding that the giving of tes- 1375, 1377 (D. Kan. 1997). timony in a deposition, not receipt of the written transcript, starts the 48. Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1079 n.4 30-day clock). (10th Cir. 1999); Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 73. Deborah Pearce Reggio, Removal and Remand: A Guide to Navigat- 1995). ing Between the State and Federal Courts, 23 Miss. C. L. Rev. 97, 119 (2004).

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74. The key is whether the change is voluntary or involuntary. In order non v. County of Shawnee, No. 01-4173-SAC, 2002 WL 436774, at *1-*2 to restart the time to remove, the plaintiff must voluntarily change the (D. Kan. Feb. 21, 2002) (stating that the court lacks the authority to parties. Dismissal of a nondiverse party by the court or manipulation of remand sua sponte after expiration of 1447(c)’s 30-day time period, but the litigation by the defendant will not restart the time to remove. See not addressing whether the court could remand sua sponte within the DeBry v. Transamerica Corp., 601 F.2d 480, 488 (10th Cir. 1979). time period). 75. Booth Theatre Found. Inc. v. McKiernan, No. 94-1039-PFK, 1994 95. 28 U.S.C. § 1447; Caterpillar Inc., 519 U.S. at 69; Franklin Sav. WL 114305, at *3 (D. Kan. Mar. 11, 1994); see also Subway Rest. Inc. Corp. v. United States, 180 F.3d 1124, 1128 (10th Cir. 1999) (citations v. Banks, No. 94-2017-GTV, 1994 WL 68745, at *2 (D. Kan. Feb. 24, omitted). 1994) (holding that motion to remand after motion to amend was grant- 96. See Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381, 392, 118 S. Ct. ed, but before amended complaint was served, was premature). 2047, 141 L. Ed. 2d 364 (1998) (“In substance, the section differenti- 76. Hoover v. Allied Van Lines Inc., 205 F. Supp. 2d 1232, 1234 (D. ates between removals that are defective because of lack of subject-matter Kan. 2002) (citations omitted). jurisdiction and removals that are defective for some other reason, e.g., 77. Henderson v. Midwest Refining Co., 43 F.2d 23, 25 (10th Cir. 1930); because the removal took place after relevant time limits had expired.”); Samuels v. Allstate Ins. Co., No. 05-2490-KHV, 2006 WL 449257, at Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1076 (10th Cir. *3-*4 (D. Kan. Feb. 23, 2006). 1999) (identifying “two types of improperly removed cases: those in 78. See 28 U.S.C. § 1446(b); Liebau v. Columbia Cas. Co., 176 F. Supp. which the federal court has no subject matter jurisdiction and those with 2d 1236, 1241-42 (D. Kan. 2001). defects in the removal procedure itself”). 79. Polizzi v. Cowles Magazines Inc., 345 U.S. 663, 665, 73 S. Ct. 97. See, e.g., Huffman, 194 F.3d at 1077-79; Patel v. Moore, 968 F. 900, 97 L. Ed. 1331 (1953) (“[O]n the question of venue, § 1391 has Supp. 587, 588-89 (D. Kan. 1997), abrogated on other grounds by Murphy no application to this case because this is a removed action.”); see also Bros. Inc. v. Michetti Pipe Stringing Inc., 526 U.S. 344, 119 S. Ct. 1322, Thermal Components Co. v. Griffith, 98 F. Supp. 2d 1224, 1231-32 (D. 143 L. Ed. 448 (1999); McCain v. Cahoj, 794 F. Supp. 1061, 1062 (D. Kan. 2002). Kan. 1992). 80. 28 U.S.C. § 1441(a). 98. Farmland Nat’l Beef Packing Co. L.P. v. Stone Container Corp., 98 81. See 28 U.S.C. §§ 1441(a), 1446(a); Harlow Aircraft Mfg. Inc. v. F. App’x 752, 756 (10th Cir. 2004) (citing cases for rule that failure to Dayton Mach. Tool Co., No. 04-1377-JTM, 2005 WL 1153600, at *2-*4 unanimously consent is procedural defect); Cornwall v. Robinson, 654 (D. Kan. May 16, 2005). Lack of unanimous consent is a procedural de- F.2d 685, 686 (10th Cir. 1981). fect, however — not a jurisdictional defect. Farmland Nat’l Beef Packing 99. Carrothers Constr. Co. v. USA Slide Inc., No. 98-2097-JWL, 1998 Co. L.P. v. Stone Container Corp., 98 F. App’x 752, 756 (10th Cir. 2004) WL 295602, at *1 (D. Kan. May 18, 1998) (remanding for failure to file (citing cases for rule that failure to unanimously consent is procedural state court record as required by local rule); Patel, 968 F. Supp. at 591, defect). abrogated on other grounds by Murphy Bros. Inc., 526 U.S. 344 (same). 82. Todd v. DSN Dealer Serv. Network Inc., 861 F. Supp. 1531, 1535 100. Note that the Eighth Circuit considers removal by a local de- (D. Kan. 1994) (citations omitted). Where an attorney represented fendant jurisdictional, not procedural. Horton v. Conklin, 431 F.3d 602, multiple defendants and inadvertently omitted some of the defendants’ 605 (8th Cir. 2005). The majority rule in the circuits is that the forum names from the signature block, but referenced their names in the body defendant rule is procedural, not jurisdictional. Hurley v. Motor Coach of the removal, one court held that removal was proper. King v. Knoll, Indus. Inc., 222 F.3d 377, 379 (7th Cir. 2000). 399 F. Supp. 2d 1169, 1173 (D. Kan. 2005). But the court also noted 101. Partial remands are not permitted, unlike under § 1441(c). The that both defendants filed a Notice of Consent and Intent to Join in the court must remand even third-party complaints that were originally filed Removal within § 1446(b)’s 30-day time limit. Id. in federal court. RMP Consulting Group Inc. v. Datronic Rental Corp, No. 83. Henderson v. Holmes, 920 F. Supp. 1184, 1186-87 (D. Kan. 1996) 98-5062, 1999 WL 617690, at *4 (10th Cir. Aug. 16, 1999). (citations omitted); see also Wakefield v. Olcott, 983 F. Supp. 1018, 1021 102. Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. (D. Kan. 1997) (citing Henderson, 920 F. Supp. at 1186-87). 72, 89, 111 S. Ct. 1700, 114 L. Ed. 2d 134 (1991); Cunningham v. BHP 84. Henderson, 920 F. Supp. at 1187 (citations omitted). Petroleum Gr. Brit. PLC, 427 F.3d 1238, 1245 (10th Cir. 2005); see also 85. McShares Inc. v. Barry, 979 F. Supp. 1338, 1341 (D. Kan. 1997) Fent v. Okla. Water Res. Bd., 235 F.3d 553, 558 (10th Cir. 2000). (citations omitted). 103. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S. 86. Harlow Aircraft Mfg. Inc., 2005 WL 1153600, at *4 (requiring Ct. 614, 98 L. Ed. 2d 720 (1988). “[I]n the usual case in which all attorney to inquire whether another defendant had been served when federal law claims are eliminated before trial, the balance of factors to be attorney represented both defendants and one company had recently ac- considered under the pendent jurisdiction doctrine — judicial economy, quired the other). convenience, fairness, and comity — will point toward declining to exer- 87. Cramer v. Devera Mgm’t Corp., No. 04-2102-JWL, 2004 WL cise jurisdiction over the remaining state law claims.” Id. at 350 n.7. 1179375, at *2-*3 (D. Kan. May 27, 2004); Godley v. Valley View State 104. 28 U.S.C. § 1441(c). The remanded claim must be “‘(1) a sepa- Bank, No. 99-2531-GTV, 2000 WL 1863375, at *1-*3 (D. Kan. Dec. rate and independent claim or cause of action, (2) joined with a federal 15, 2000). Service by publication is not complete until it has been made question, (3) otherwise nonremovable, and (4) a matter in which state “in the manner and for the time prescribed” in K.S.A. 60-307(d) and (e). law predominates.’” Busey v. Bd. of County Comm’rs of Shawnee, Kan., K.S.A. 60-307(f). 163 F. Supp. 2d 1291, 1296 (D. Kan. 2001) (quoting Eastus v. Blue Bell 88. O’Bryan v. Chandler, 496 F.2d 403, 410 (10th Cir. 1974). Creameries L.P., 97 F.3d 100, 104 (5th Cir. 1996)). 89. Id. 105. 28 U.S.C. § 1447(e). Note that allowing subsequent events to 90. Id. at 412. destroy diversity jurisdiction in a removed case is contrary to the general 91. See, e.g., D. Kan. R. 5.1(e) (discussing attorney appearances in re- rule that complete diversity must exist only at the time the complaint was moved cases); D. Kan. R. 84.5.4 (regarding pro hac vice appearances). filed. See Freeport-McMoRan Inc. v. KN Energy Inc., 498 U.S. 426, 428, 92. The time period begins running when the defendant files the notice 111 S. Ct. 858, 112 L. Ed. 2d 951 (1991) (“Diversity jurisdiction, once of removal in federal court, not state court. Farmland Nat’l Beef Packing established, is not defeated by the addition of a nondiverse party to the Co. L.P. v. Stone Container Corp., 98 F. App’x 752, 756 (10th Cir. 2004). action.”). 93. 28 U.S.C. § 1447; Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 106. Yellow Transp. Inc. v. Apex Digital Inc., 406 F. Supp. 2d 1213, S. Ct. 467, 136 L. Ed. 2d 437 (1996). 1219 (D. Kan. 2005). 94. Gorman v. Best W. Int’l Inc., No. 95-2343-DES, 1996 WL 459818, 107. Id. at *1 (D. Kan. July 23, 1996). The court will not remand sua sponte, 108. Enfinger v. Wolf Creek Nuclear Operating Corp., 95-4071-SAC, even for a misrepresentation in the Notice of Removal. See Green Tree 1996 WL 254609, at *2 (D. Kan. Apr. 12, 1996). Significantly, discovery Fin. Corp. v. Arndt, 72 F. Supp. 2d 1278, 1283 (D. Kan. 1999) (noting, in the case was completed, and the court had entered the pretrial order. however, that there was no actual misrepresentation in the case). But one Id. at *1. The court kept the case despite the presence of a local defendant. District of Kansas court left open the issue of whether it could remand Id. sua sponte for procedural defects within the 30-day time period. McKin- 109. 28 U.S.C. § 1447(c).

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110. See, e.g., Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 227 defendant who actively participates in state court does not waive the right (3d Cir. 1995); Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir. to remove). 1984). 127. See, e.g., Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 111. See Aetna U.S. Healthcare Inc. v. Hoechst Aktiengesellschaft, 67 F. 1077 (10th Cir. 1999); Am. Oil Co. v. McMullin, 433 F.2d 1091, 1095 Supp. 2d 1242, 1245 (D. Kan. 1999); see also Scherer v. Merck & Co., No. (10th Cir. 1970); Green Tree Fin. Corp. v. Arndt, 72 F. Supp. 2d 1278, 05-2019, 2006 WL 2255689, at *2-*3 (D. Kan. Aug. 7, 2006); Topeka 1283–84 (D. Kan. 1999). Hous. Auth. v. Johnson, No. 04-4062-SAC, 2004 WL 2457803, at *1 (D. 128. Todd v. DSN Dealer Serv. Network Inc., 861 F. Supp. 1531, 1536 Kan. Oct. 14, 2004). (D. Kan. 1994). 112. See Cunningham v. BHP Petroleum Gr. Brit. PLC, 427 F.3d 1238, 129. Id. (quoting Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 42 (5th 1239 (10th Cir. 2005). Likewise, if the district court retains a case over Cir. 1989)). which it lacks jurisdiction, the Tenth Circuit will reverse and remand 130. Id. to the district court with instructions to vacate all orders entered. RMP 131. Id. (citations omitted). Consulting Group Inc. v. Datronic Rental Corp, No. 98-5062, 1999 WL 132. Gregory M. Cesarano & Daniel R. Vega, So You Thought a Re- 617690, at *5 (10th Cir. Aug. 16, 1999). mand was Imminent?: Post-Removal Litigation and the Waiver of the Right 113. One circuit court has held that the district court’s dismissal of to Seek a Remand Grounded on Removal Defects, 74 Fla. Bar J. 22, 27-28 one defendant was improper because the defendants untimely removed (Feb. 2000). the case. See, e.g., Roe v. O’Donohue, 38 F.3d 298, 304 (7th Cir. 1994), 133. Id. abrogated on other grounds by Murphy Bros. Inc. v. Michetti Pipe Stringing 134. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998) Inc., 526 U.S. 344, 119 S. Ct. 1322, 143 L. Ed. 448 (1999). (citations omitted). 114. See, e.g., Samuels v. Allstate Ins. Co., No. 05-2490-KHV, 2006 WL 135. See 28 U.S.C. § 1441(a). 449257, at *2-*4 (D. Kan. Feb. 23, 2006). 136. See, e.g., Hollis v. Florida State Univ., 259 F.3d 1295, 1300 (11th 115. See, e.g., Am. Soda LLP v. U.S. Filter Wastewater Group Inc., 428 Cir. 2001) (“[A]s a matter of law, § 1441(a) establishes federal venue F.3d 921, 926 (10th Cir. 2005) (holding that a forum selection clause in the district where the state action was pending, and it is immaterial requiring disputes to be brought in “‘Courts of the State of Colorado” that venue was improper under state law when the action was originally excluded federal courts in Colorado and therefore remand was appropri- filed.”); PT United Can Co. Ltd. v. Crown Cork & Seal Co. Inc., 138 F.3d ate); Milk ‘N’ More Inc. v. Beavert, 963 F.2d 1342, 1345-46 (10th Cir. 65, 72 (2d Cir. 1998) (“A party who removes an action from state to 1992) (enforcing a forum selection clause that provided that Johnson federal court does not, in doing so, waive the defense of improper venue County, Kan., was the sole forum the parties could resolve disputes aris- as to the underlying state court action.”); Charles H. Brower II, 25th An- ing under their agreement). niversary of the Foreign Sovereign Immunities Act: Removal from State Court 116. Beavert, 963 F.2d at 1346 (citation and internal quotation Under the FSIA: Escape Hatch or Booby Trap?, 9 Willamette J. Int’l L. & marks omitted); see ORI Inc. v. Lanewala, No. 99-2402-JWL, 1999 WL Dispute Res. 1, 18-21 (2001) (collecting cases where federal courts have 1423068, at *3 (D. Kan. Nov. 30, 1999) (holding that “the forum selec- permitted and rejected objections to venue on state law grounds); Debo- tion clause drafted by plaintiff did not clearly and unequivocally waive rah Pearce Reggio, Removal and Remand: A Guide to Navigating Between defendant’s statutory right to remove th[e] action to federal court”). For the State and Federal Courts, 23 Miss. C. L. Rev. 97, 116 n. 146 (2004) a discussion on the difference between a mandatory and a permissive fo- (citation omitted) (“Venue in the federal court may even be proper if ven- rum selection clause, see Excell Inc. v. Sterling Boiler & Mech. Inc., 106 ue in the state court was not proper, as some courts construe the removal F.3d 318, 321 (10th Cir. 1997). to a particular federal court as a waiver of any venue challenges.”). 117. Beavert, 963 F.2d at 1346 (citations omitted). The Tenth Circuit 137. Thermal Components Co. v. Griffith, 98 F. Supp. 2d 1224, 1232- reviews the validity of a forum selection clause de novo. Am. Soda LLP, 33 (D. Kan. 2000). 428 F.3d at 925 (citation omitted). 138. See, e.g., Ramirez v. Okla. Dep’t of Mental Health, 41 F.3d 584, 118. Beavert, 963 F.2d at 1346 (citations omitted). The Tenth Circuit 588 (10th Cir. 1994) (citations omitted). has recognized at least three potential unfair or unreasonable circum- 139. See, e.g., Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. stances: evidence of “‘overreaching’ on the part of the plaintiff, proof that 2002) (citation omitted). the plaintiff possessed unequal bargaining power, or evidence that the fo- 140. Estes v. Wyo. Dep’t of Transp., 302 F.3d 1200 (10th Cir. 2002), rum chosen by the parties ‘would be a seriously inconvenient one for the 1205; McLaughlin v. Bd. of Trs., 215 F.3d 1168 (10th Cir. 2000), 1170; trial of the particular action.’” Excell, 106 F.3d at 321 (citation omitted). Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226 (10th Cir. 119. 176 F. Supp. 2d 1236 (D. Kan. 2001). 1999) 1233-34; Gallagher v. Cont’l Ins. Co., 502 F.2d 827 (10th Cir. 120. Id. at 1244 (quoting Bolivar Sand Co. Inc. v. Allied Equip. Inc., 1974), 830. The Tenth Circuit decisions are consistent with the Supreme 631 F. Supp. 171, 173 (W.D. Tenn. 1989)). Court’s holdings and dicta on this area of the law. See Lapides v. Bd. of 121. Id. at 1243-45; see also Cogdell v. Wyeth, 366 F.3d 1245, 1249 Regents, 535 U.S. 613, 616, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002) (11th Cir. 2004) (focusing on whether the defendant “took such ‘sub- (holding that a state waives 11th Amendment immunity where (1) it stantial offensive or defensive actions in state court’ that it waived its right removes an action involving state law claims and (2) the state had ex- to remove the lawsuit”) (citation omitted). pressly waived immunity for those claims in state court); Wis. Dep’t of 122. Liebau, 176 F. Supp. 2d at 1243-45 (citing Rose v. Giamatti, 721 Corr. v. Schacht, 524 U.S. 381, 393-98, 118 S. Ct. 2047, 141 L. Ed. 2d F. Supp. 906, 922-23 (S.D. Ohio 1989); Bolivar Sand Co. Inc. v. Allied 364 (1998) (Kennedy, J., concurring) (discussing, in dicta, the possibil- Equip. Inc., 631 F. Supp. 171, 173 (W.D. Tenn. 1986); Bedell v. H.R.C. ity that a state waives its 11th Amendment immunity by consenting to Ltd., 522 F. Supp. 732, 738 (E.D. Ky. 1981)); 14B Charles A. Wright et removal). al., Federal Practice & Procedure § 3721 (2003). 141. Estes, 302 F.3d at 1205-06; McLaughlin, 215 F.3d at 1170-72; 123. Liebau, 176 F. Supp. 2d at 124345; see Murray v. Edwards County Sutton, 173 F.3d at 1233-36. Sheriff’s Dep’t, No. 04-1298-JTM, 2005 WL 1266588, at *1 (D. Kan. 142. Id. May 16, 2005) (citing Liebau for the proposition that filing an answer in 143. McLaughlin, 215 F.3d at 1170-72; Sutton, 173 F.3d at 1233-36; state court does not amount to a waiver of the right to remove to federal see also Lapides, 535 U.S. at 621-23 (discussing authority of a state attor- court). ney general to waive 11th Amendment immunity); Schacht, 524 U.S. at 124. Christopher L. Frost, Carrie W. Mitchell & Brett Harrison, Be- 396-97 (Kennedy, J., concurring) (same). ware the Litigation-Based Waiver Trap: Protecting the Right to Remove in 144. Oklahoma ex rel. Edmondson v. Magnolia Marine Transp. Co., 359 the Eleventh Circuit, 66 Ala. Law. 380, 382-85 (Sept. 2005) (collecting F.3d 1237, 1240 (10th Cir. 2004); see also California ex rel. Lockyer v. litigation-based waiver cases in the Eleventh Circuit as well as other fed- Dynegy Inc., 375 F.3d 831, 848 (9th Cir. 2004) (same). eral district courts). 145. Edmondson, 359 F.3d at 1240. 125. Id. 146. Id. 126. See Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 147. See, e.g., Oregon v. City of Rajneeshpuram, No. 83-1892 FR, 1984 1998) (holding that, absent sufficient notice of the right to remove, a U.S. Dist. LEXIS 18336, at *14 (D. Or. Mar. 23, 1984).

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148. See Lapides, 535 U.S. at 616 (waiver found under facts where Cir. 2005); Albertson’s Inc. v. Carrigan, 982 F.2d 1478, 1480 (10th Cir. state conceded that state statute had waived the state’s immunity in state 1993). court). 171. See, e.g., Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir. 2001) 149. 28 U.S.C. § 1447(c). (observing that the Tenth Circuit firmly adheres to § 1447(d)’s bar to 150. See, e.g., Suder v. Blue Circle Inc., 116 F.3d 1351, 1353 (10th Cir. review of remand orders). 1997). 172. Dalrymple v. Grand River Dam Auth., 145 F.3d 1180, 1184 (10th 151. Martin v. Franklin Capital Corp., 546 U.S. 132, 126 S. Ct. 704, Cir. 1998); Archuleta v. Lacuesta, 131 F.3d 1359, 1362 (10th Cir. 1997). 708, 163 L. Ed. 2d 547 (2005); Excell Inc. v. Sterling Boiler & Mech., 106 173. Kennedy, 273 F.3d at 1297; Dalrymple, 145 F.3d at 1184; Ar- F.3d 318, 322 (10th Cir. 1997). chuleta, 131 F.3d at 1362; Flores v. Long, 110 F.3d 730, 732 (10th Cir. 152. Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 F. App’x 775, 1997). 776-77 (10th Cir. 2005); Suder, 116 F.3d at 1352. 174. Kircher, 126 S. Ct. at 2153 (citations omitted); Dalrymple, 145 153. Martin, 126 S. Ct. at 708-09. F.3d at 1184; Archuleta, 131 F.3d at 1362; Flores, 110 F.3d at 733. How- 154. Id. at 711. In Martin, the Supreme Court cited two examples of ever, the Tenth Circuit will review (and reverse) a remand order if the unusual circumstances, which might warrant a denial of attorneys’ fees: district court lacked authority under § 1447(c) to enter the order because (1) a plaintiff’s delay in seeking remand, and (2) a plaintiff’s failure to the plaintiff’s motion to remand based on procedural defects in the re- disclose facts necessary to determine jurisdiction. Id. moval notice was untimely filed. Farmland Nat’l Beef Packing Co. L.P. v. 155. Excell, 106 F.3d at 322; Daleske v. Fairfield Communities Inc., 17 Stone Container Corp., 98 F. App’x 752, 755-56 (10th Cir. 2004). F.3d 321, 324 (10th Cir. 1994). 175. Kircher, 126 S. Ct. at 2153 (citations omitted); Dalrymple, 145 156. Suder, 116 F.3d at 1353; Daleske, 17 F.3d at 324. F.3d at 1184; Archuleta, 131 F.3d at 1362; Flores, 110 F.3d at 733. 157. Star Fuel Ctrs. Inc. v. Full Stop Inc., No. 06-2207-CM, 2006 WL 176. Colo. Intergovernmental Risk Sharing Agency v. Northfield Ins. Co., 2038052, at *2 (D. Kan. July 19, 2006). 183 F. App’x 771, 774-75 (10th Cir. 2006). Thus, a district court’s re- 158. Id. mand order based on the absence of fraudulent joinder is not review- 159. Kansas ex rel. Kline v. Price, No. 06-4082-JAR, 2006 WL able because the decision relates to the court’s subject matter jurisdiction. 2795492, at *1-*2 (D. Kan. Sept. 26, 2006); Star Fuel Ctrs. Inc., 2006 Nerad v. AstraZeneca Pharms. Inc., No. 05-6128, 2006 WL 2879057, at WL 2038052, at *2. *2-*3 (10th Cir. Oct. 11, 2006). 160. Emery Sapp & Sons Inc. v. Pulte Homes of Greater Kan. City Inc., 177. Dalrymple, 145 F.3d at 1184. No. 06-2258-KHV, 2006 WL 3026172, at *2 (D. Kan. Oct. 23, 2006). 178. Id. 161. Shannon v. Mejias, No. 06-1191-MLB, 2006 WL 3201118, at 179. Fed. Deposit Ins. Corp. v. OKC Partners LTD., No. 91-6300, 1992 *6 (D. Kan. Nov. 3, 2006); see also Frederick v. DaimlerChrysler Corp., WL 73005, at *4-*5 (10th Cir. Apr. 10, 1992). No. 05-2085-JWL, 2005 WL 1319135, at *4 (D. Kan. May 12, 2005) 180. Milk ‘N’ More Inc. v. Beavert, 963 F.2d 1342, 1344-45 (10th (awarding fees where it was evident from plaintiff’s petition that the Cir. 1992); see also SBKC Serv. Corp. v. 1111 Prospect Partners L.P., 105 amount in controversy requirement for diversity jurisdiction was not sat- F.3d 578, 580-81 (10th Cir. 1997) (determining remand order based on isfied); City of Neodesha v. BP Corp. N. Am. Inc., 355 F. Supp. 2d 1182, choice of venue provision reviewable). 1190 (D. Kan. 2005) (awarding fees where the defendants essentially 181. Sheet Metal Workers Int’l Assoc. v. Seay, 693 F.2d 1000, 1002 (10th argued that the plaintiff fraudulently joined a nondiverse, but proper de- Cir. 1982). fendant) (citation and quotation marks omitted). 182. Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 340-41, 96 162. Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir. S. Ct. 584, 46 L. Ed. 2d 542 (1976). 2005). However, it is important to note that “[a]n award of attorneys’ fees 183. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710-12, 116 is not final and appealable within the meaning of 28 U.S.C. § 1291 until S. Ct. 1712, 135 L. Ed. 2d 1 (1996) (reviewing remand order based on it is reduced to a sum certain.” Am. Soda LLP v. U.S. Filter Wastewater abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, Group Inc., 428 F.3d 921, 925 (10th Cir. 2005) (citing Phelps v. Washburn 87 L. Ed. 1424 (1943)). Univ. of Topeka, 807 F.2d 153, 154 (10th Cir. 1986)). 184. Dalrymple v. Grand River Dam Auth., 145 F.3d 1180, 1184 (10th 163. Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128, 1131 (10th Cir. 1998). A district court’s decision to retain the federal claim(s) provid- Cir. 2001); Suder v. Blue Circle Inc., 116 F.3d 1351, 1352 (10th Cir. ing the original basis for removal and to remand the pendent state law 1997). claims is reviewed for an abuse of discretion. Westinghouse Credit Corp. v. 164. Huffman, 262 F.3d at 1134-35. Thompson, 987 F.2d 682, 684-85 (10th Cir. 1993). 165. See, e.g., Martin v. Franklin Capital Corp., 393 F.3d 1143, 1147- 185. Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S. Ct. 467, 136 48 (10th Cir. 2004), aff’d, 546 U.S. 132, 126 S. Ct. 704, 163 L. Ed. 2d L. Ed. 2d 437 (1996) (citation omitted); Setzer v. Farmers Ins. Co., 185 547 (2005). F. App’x 748, 752 (10th Cir. 2006). The Tenth Circuit reviews de novo 166. Farmland Nat’l Beef Packing Co. L.P. v. Stone Container Corp., 360 a district court’s denial of a motion to remand. Setzer, 185 F. App’x at F.3d 1216, 1219-20 (10th Cir. 2004); First Union Mortg. Corp. v. Smith, 752. 229 F.3d 992, 994 (10th Cir. 2000). 186. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998) 167. SBKC Serv. Corp. v. 1111 Prospect Partners L.P., 105 F.3d 578, (citations omitted). 580 (10th Cir. 1997) (citing Westinghouse Credit Corp. v. Thompson, 987 187. Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1079-80 F.2d 682, 683 (10th Cir. 1993)). A district court’s remand order is re- (10th Cir. 1999) (following the rationale of Caterpillar Inc. v. Lewis, 519 viewed de novo. Excell Inc. v. Sterling Boiler & Mech. Inc., 106 F.3d 318, U.S. 61, 64, 117 S. Ct. 467, 136 L. Ed. 2d 437 (1996)); see also Springer 320 (10th Cir. 1997) (citing Milk ‘N’ More v. Beavert, 963 F.2d 1342, v. Hustler Magazine, No. 99-5117, 1999 WL 979242, at *1 (10th Cir. 1345 (10th Cir. 1992)). Oct. 28, 1999) (same). 168. 28 U.S.C. § 1447(d). Section 1447(d) “does not prohibit appel- 188. Huffman, 194 F.3d at 1080 (citing Prize Frize Inc. v. Matrix (U.S.) late review of a collateral order underlying a remand where the collateral Inc., 167 F.3d 1261, 1265 (9th Cir. 1999)). order ‘in logic and in fact’ preceded the remand order.” Hanna v. Naegele, 189. Id.; see also Springer, 1999 WL 979242, at *1, *3 (concluding Nos. 93-2313 & 94-2004, 1995 WL 723597, at *2 (10th Cir. Dec. 7, remand unnecessary where district court’s summary judgment order 1995) (quoting City of Waco v. U.S. Fidelity & Guar. Co., 293 U.S. 140, affirmed). 143, 55 S. Ct. 6, 79 L. Ed. 244 (1934)). 169. See, e.g., Kircher v. Putnam Funds Trust, 126 S. Ct. 2145, 2153, 165 L. Ed. 2d 92 (2006); Things Remembered Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S. Ct. 494, 133 L. Ed. 2d 461 (1995); Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976). 170. Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006); Am. Soda LLP v. U.S. Filter Wastewater Group Inc., 428 F.3d 921, 924 (10th

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 33 Appellate Decisions

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appeal he claimed: (1) district court’s dismissal of juror without a Attorney Discipline hearing violated Davis’ right to be present at critical stage of trial; (2) IN RE RAWLEY J. DENT permitting prosecutors to read back preliminary hearing testimony ORIGINAL PROCEEDING IN DISCIPLINE of witness later declared to be unavailable denied Davis a fair trial; DISBARMENT (3) state failed to prove he entered into an agreement to commit NO. 08,915 – AUGUST 22, 2007 aggravated robbery; (4) district court’s instruction to jury regarding FACTS: Respondent, an attorney from Independence, wrote to burden of proof, presumption of innocence, and reasonable doubt the clerk of the appellate courts surrendering his license to practice was clearly erroneous; (5) cumulative error denied Davis a fair trial; law pursuant to Kansas Supreme Court Rule 217. At the time of the and (6) district court failed to make requisite findings in ordering re- surrender, respondent was scheduled for a disciplinary hearing on a imbursement to State Board of Indigents’ Defense Services (BIDS). formal complaint that alleged violations of KRPC 1.15(a) and (d) ISSUES: (1) Releasing juror, (2) preliminary hearing testimony, (preserving the separate identity of property or funds of another) (3) sufficiency of the evidence, (4) jury instruction, and (5) BIDS and 8.4(b), (c), and (g) (misconduct involving a criminal act, dis- reimbursement honesty, fraud, deceit, or misrepresentation and conduct adversely HELD: Davis had right to be present when district court had ex reflecting on fitness to practice law). parte conversation with juror, and due process challenge could have HELD: The Court reviewed the files of the disciplinary adminis- been avoided if hearing had been conducted. Under facts, any error trator’s office and found that the surrender should be accepted and was harmless. the respondent disbarred. Presentation to jury of unavailable witness’ prior testimony by having one prosecutor read questions from transcript and another IN RE JAN P. HELDER JR. prosecutor read transcribed responses from the witness stand did ORIGINAL PROCEEDING IN DISCIPLINE not, standing alone, create additional prejudice to Davis or deny DISBARMENT him a fair trial. NO. 14,440 – AUGUST 24, 2007 Agreement element of a conspiracy charge may be supported by FACTS: Respondent wrote a letter to the clerk of the appellate circumstantial evidence. Under facts, there was sufficient evidence courts surrendering his license to practice law pursuant to Kansas to convict Davis of conspiracy to commit aggravated robbery. Supreme Court Rule 217. He had faced a hearing before a disciplin- District court gave PIK Crim. 3d 52.02 instruction with “until ary panel that issued its report in May 2007. The panel found clear you are convinced” language instead of the later modified and im- and convincing evidence of a violation of KRPC 8.4(b) (miscon- proved language of “unless you are convinced.” Nevertheless, the duct involving a criminal act) and recommended disbarment. The instruction given was not clearly erroneous. findings were based on respondent’s federal conviction and Missouri No multiple errors found to apply cumulative error doctrine. state court plea for using the Internet to attempt to entice a minor Case remanded to district court for assessment of Davis’ financial to engage in illegal sexual activity. At the time of the surrender, the resources and the nature of the burden that reimbursement of BIDS matter was on the Court’s September docket. will impose. HELD: The Court examined the files of the disciplinary adminis- STATUTES: K.S.A. 2006 Supp. 21-4603d(i), 22-3405(1), trator’s office and ordered respondent disbarred. -3412(c), -4512, -4513(b); and K.S.A. 21-3426, -3427 Civil Criminal STATE V. DAVIS STATE V. STALLINGS WYANDOTTE DISTRICT COURT – AFFIRMED IN PART, WYANDOTTE DISTRICT COURT REVERSED IN PART, AND REMANDED CROSS-APPEAL SUSTAINED NO. 95,523 – AUGUST 3, 2007 NO. 93,879 – AUGUST 10, 2007 FACTS: Davis convicted of premeditated first-degree murder, ag- FACTS: Stallings convicted of capital murder counts. State sought gravated robbery, and conspiracy to commit aggravated robbery. On death penalty. Over state’s objection, district court allowed Stall- ings to address sentencing jury, without being sworn or subject to 34 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION cross examination, on issue of mitigation of punishment. When jury did not agree on death penalty, district court sentenced Stallings Notice of Consideration of to consecutive hard 50 life sentences. Stallings appealed, but later withdrew his appeal. State cross-appealed on question reserved as to Reappointment of Magistrate Judge whether a defendant has a right to allocution before the jury during and Invitation for Public Comment the death penalty phase of a capital murder trial. ISSUE: Allocution in death penalty The current term of the office of U.S. Magistrate Judge James P. HELD: State’s cross-appeal is sustained. District court had no statutory authority to permit Stallings to make unsworn and un- O’Hara of Kansas City, Kan., is due to expire on April 16, 2008. challenged statements to the jury. General allocution statutory pro- The U.S. District Court is required by law to establish a panel of visions do not make an exception for death penalty cases. A capital citizens to consider the reappointment of the magistrate judge to murder defendant is entitled to the same right of allocution before a new eight-year term. the sentencing court, not the sentencing jury. Legislature did not The duties of a magistrate judge position include the provide a mechanism for the defendant to make an unsworn, un- following: challenged statement to the death penalty jury. Any common law or (1) conduct of most preliminary proceedings in criminal cases; other right a person may have to plead to the jury to spare his or her (2) trial and disposition of misdemeanor cases; life has been pre-empted by the Legislature. The Kansas statutory (3) conduct of various pretrial matters and evidentiary scheme of allocution and death penalty sentencing does not violate proceedings on delegation from the judges of the district a capital murder defendant’s constitutional rights to due process and court; and equal protection. DISSENT (Rosen, J., joined by Davis, J.): Disagrees with ma- (4) trial and disposition of civil cases upon consent of the jority’s narrow interpretation of “court” in K.S.A. 22-3424(e) as litigants. meaning only the sentencing judge, and believes the term includes Comments from members of the bar and the public are invited the sentencing jury as well when the Legislature has given the jury as to whether the incumbent magistrate judge should be recom- the jurisdiction and power to sentence offenders for capital murder. mended by the panel for reappointment by the court and should This interpretation would preserve Legislature’s intent to allow all be directed to Ingrid A. Campbell, Acting Clerk, U.S. District defendants an opportunity of allocution prior to the determination Court, 259 Robert J. Dole U.S. Courthouse, 500 State Ave., Kan- of their sentences. sas City, KS 66101. STATUTES: K.S. A. 2006 Supp. 21-4602, -4624 sections (a)-(f), Comments must be received by 4:30 p.m., Nov. 15, 2007. 22-3602(b)(3); and K.S.A. 21-3101 et seq., -4601, -4625, 22-2102, -2103, -2201, -2201(2), -3422, -3424(e), -4601, -4625

Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office The Record on Appeal: An Attorney’s Responsibility

There is no more critical step in briefing a case on appeal than assuring that the record on appeal is complete and accurate. Soon after an appeal is docketed, the clerk of the district court compiles the record on appeal and sends a table of contents to counsel. See Rule 3.02. Counsel should immediately check the table of contents to verify that all parts of the entire re- cord, which should be included in the record on appeal, have been included. This should be done even if counsel anticipates seeking an extension of time in which to file the brief. Additions to the record on appeal are much simpler when the record is still in the district court. The party seeking the addition simply serves the clerk of the district court with a written request for the addition. No court order is required. If the record has been transmitted to the appellate courts, permission must be sought to add to the record. See Rule 3.02. Permission may be denied at that late date. The record on appeal is transmitted to the appellate courts after all briefing is completed. The clerk of the district court arranges that transmittal WITH THE EXCEPTION OF EXHIBITS OF UNUSUAL BULK OR WEIGHT. It is always the attorney’s responsibility to arrange transportation of those exhibits. See Rule 3.07. An attorney does not want to discover on the day of argument that the appellate court has not seen exhibits critical to consideration of the issues. Supreme Court Rules 6.02(d) and 6.03(c) require that the facts of the case be keyed to the record on appeal by volume and page number. There is a very practical reason for this requirement. All attorneys of record, court research staff, and ap- pellate justices and judges need to be able to quickly verify the accuracy of a statement that has been made in a brief. Any confusion in citation distracts from the legal arguments at the very least and may, at worst, result in the appellate court presuming the statement to be without support in the record. At the conclusion of the appeal when the mandate issues, the clerk of the appellate courts will return the record to the clerk of the district court. It is worthwhile noting that exhibits of unusual bulk or weight will not be returned to the district court. It is the attorney’s responsibility to contact the clerk of the appellate courts to arrange return transportation. For questions about these practices or appellate court rules, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 35 Court of Appeals

COMPARATIVE IMPLIED INDEMNITY Civil AND NEGLIGENCE ADMINISTRATIVE LAW AND PROCEDURE DODGE CITY IMPLEMENT INC. ET AL. V. MIDWEST CRANE & RIGGING INC. V. THE BOARD OF COUNTY COMMISSIONERS OF THE KANSAS CORPORATION COMM’N COUNTY OF BARBER ET AL. JOHNSON DISTRICT COURT – AFFIRMED BARBER DISTRICT COURT – AFFIRMED NO. 97,214 – AUGUST 3, 2007 NO. 96,784 – AUGUST 24, 2007 FACTS: Kansas Corporation Commission (KCC) issued show FACTS: In 2003, a freight train operated by Burlington Northern cause order to Midwest Crane & Rigging Inc. (Midwest Crane) as and Santa Fe Railway (BNSF) struck a truck owned by Dodge City to why it should not be sanctioned for refusing to allow an inspec- Implement (DCI) and driven by its employee, Justin Slattery, at a tion of its cranes. Midwest filed declaratory judgment action seeking railroad grade crossing in Barber County. BNSF filed an action in a determination that KCC lacked authority to regulate it because federal court for damages sustained to its engine, train, and cargo it was not a motor carrier under Kansas law, and an injunction to during the collision. After BNSF settled its claims with DCI, DCI restrain KCC from attempting to regulate Midwest Crane. District brought a new action in Barber District Court against the Board court dismissed the action based on lack of subject matter jurisdic- of County Commissioners of the County of Barber and Moore tion after finding Midwest Crane had not exhausted administrative Township seeking recovery under theories of negligence, implied remedies. Midwest Crane appealed. indemnity, and comparative implied indemnity, based upon alleged ISSUES: (1) Administrative remedies and (2) subject matter negligence in the construction and maintenance of the railroad jurisdiction grade crossing. The district court dismissed DCI’s claim reasoning HELD: Trial court properly dismissed Midwest Crane’s action for that DCI could not maintain its comparative implied indemnity failure to exhaust administrative remedies before resorting to the claim because neither Moore Township nor Barber County were courts. named as a defendant or joined in the underlying lawsuit in federal STATUTE: K.S.A. 44-324(a), 66-1,108 et seq., -1,108(e), court. The court also concluded DCI could not maintain an action -1,108(f), -1,129a(a), 77-501 et seq., -601 et seq., -603(a), -606, for negligence or negligence per se because they failed to indicate -622(b) the amount of monetary damages sought and thus did not comply with proper notice. ADOPTION – PARENT AND CHILD ISSUES: (1) Comparative implied indemnity and (2) negligence IN RE D.M.M. HELD: Court held that a defendant seeking to minimize its lia- DONIPHAN DISTRICT COURT – APPEAL DISMISSED bility in a comparative fault situation not involving a chain of distri- NO. 97,876 – AUGUST 31, 2007 bution or similar commercial relationship must do so by comparing FACTS: D.M.M., adjudicated as a child in need of care, lived the fault of other defendants pursuant to K.S.A. 60-258a in order with grandmother who had adopted D.M.M.’s sister and brother. to reduce its own share of liability and damages. If the defendant District court granted grandmother’s petition to terminate paren- chooses to settle and obtain release of common liabilities involving tal rights, placed D.M.M. in care and custody of Social and Reha- other parties whom the plaintiff did not sue, the defendant does bilitation Services (SRS), and granted SRS authority to consent to not have an action for comparative implied indemnity or post- adoption. SRS working on adoption by grandmother, but later re- settlement contribution for damages caused by other tortfeasors. moved D.M.M. from grandmother’s home based on inappropriate Court also held that under the facts of this case, the district court care. Magistrate judge denied grandmother’s petition for review of properly dismissed the plaintiff’s claims of negligence and negligence SRS’ emergency removal. District court questioned its jurisdiction per se pursuant to K.S.A. 2006 Supp. 12-105b where the plaintiff’s to review the magistrate judge’s decision, and granted grandmother’s notice of claim failed to indicate the name and address of the claim- motion for interested party status. Following an evidentiary hearing ants or the claimant’s attorney, the nature and extent of the injury it denied grandmother’s motion for change of placement. Grand- claimed, or the amount of monetary damages sought. mother appealed. STATUTES: K.S.A. 2006 Supp. 12-105b; and K.S.A. 60-214(a), ISSUE: Appellate jurisdiction -258a, -513 HELD: Under Revised Kansas Code for Care of Children, an ap- CONTRACTS AND COVENANTS pellate court is without jurisdiction to consider an appeal of a dis- NORTH COUNTRY VILLAS HOMEOWNERS ASS’N trict court’s order changing placement of a child after termination of V. KOKENGE parental rights. Appeal dismissed in this case because there is no ap- SHAWNEE DISTRICT COURT – AFFIRMED IN PART pealable order under K.S.A. 2006 Supp. 38-2273(a). Two published AND REVERSED IN PART appellate cases are cited involving disputes over placement of a child NO. 97,018 – AUGUST 3, 2007 for adoption after termination of parental rights, but issue of juris- diction not addressed by parties or appellate court in either case. FACTS: Nations Development Corp. (NDC), original developer STATUTES: K.S.A. 2006 Supp. 38-2201 et seq., -2242, -2243, of North Country Villas subdivision of single family homes and -2255, -2258, -2259, -2266 et seq., -2273, -2273(a); and K.S.A. duplexes, sold lots to Kokenges and Clampitt-Hersh Development 38-1591 LLC. NDC then assigned its rights as declarant to Kokenges and Clampitt-Hersh who revoked Declaration of Covenants, Restric- tions, and Easements (declaration) as to their land and began build- ing a fourplex. Homeowners held a meeting, elected officers and

36 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION board of directors, and filed petition for declaration that Kokenges HABEAS CORPUS and Clampitt-Hersh were subject to declaration’s restrictions and for MCPHERSON V. STATE an injunction to prevent the fourplex. District court granted sum- DOUGLAS DISTRICT COURT – AFFIRMED mary judgment to North Country and homeowners and enjoined NO. 96,314 – AUGUST 10, 2007 Kokenges and Clampitt-Hersh from building any structure con- FACTS: To receive anticipated two-thirds sentence reduction, trary to the declaration. Kokenges and Clampitt-Hersh appealed, McPherson entered into plea bargain in 2000 and pled no contest claiming district court erred in finding: (1) NDC could not assign to attempted second-degree unintentional murder and kidnapping. it rights under the declaration, (2) Kokenges could not revoke or In 2001, McPherson moved to withdraw his plea. District court amend the declaration as to properties they owned, and (3) North denied the motion, and McPherson dismissed his appeal after filing Country’s officers and directors were properly elected. pro se 60-1507 motion. District court denied the 1507 motion, ISSUES: (1) Assignment of rights under the declaration, (2) revo- and McPherson never docketed his appeal. In 2004, McPherson’s cation or amendment, and (3) election of officers and directors attorney filed 1507 motion to vacate McPherson’s conviction and HELD: No Kansas case specifically addresses the assignment of sentence for a nonexistent crime. District court denied the 1507 the declarant’s rights under a homeowners association declaration. motion, finding in part that McPherson forfeited any challenge Because the rights under the declaration were not personal, NDC to attempted second-degree unintentional murder conviction by could freely assign its rights as the declarant and Class B member to entering a knowing and voluntary plea. District court also denied other parties. District court erred in finding NDC could not assign McPherson’s claim of ineffective assistance of trial counsel after find- its rights under the declaration. ing the 1507 motion was successive. McPherson appealed, claiming Restatement (Third) of Property, Servitudes § 6:21 (1998), is ad- the was no jurisdiction to accept a plea to a nonexistent crime, and opted as the law of Kansas. A developer may not exercise a power no sentence was specified under the Kansas statutes. He also claimed to amend or modify the declaration in a way that would materi- trial counsel was ineffective in failing to challenge jurisdiction. ally change the character of the development or the burdens on the ISSUES: (1) Effect of plea, (2) legality of sentence, (3) successive existing community members unless the declaration fairly apprizes motion, (4) waiver of defects, and (5) effectiveness of trial counsel purchasers that the power could be used for the kind of change pro- HELD: No dispute that attempted second-degree unintentional posed. Because the general power to amend the declaration in this murder is not a recognized crime under Kansas law, but under facts case did not fairly apprize the purchasers of the drastic change at- of case, the three requirements in Spencer v. State, 24 Kan. App. tempted by the Kokenges and Clampitt-Hersh, district court prop- 2d 125 (1997), affirmed on other grounds, 264 Kan. 4 (1998), are erly found this particular amendment was unenforceable. satisfied. McPherson made a knowing and voluntary plea to receive District court did not err in finding North Country’s officers and a favorable plea bargain and traded the possibility of a sentence of directors were properly elected. Under facts, district court properly almost 300 months for the certainty of a 100-month sentence. No found that for meeting at issue, Kokenges and Clampitt-Hersch had error in district court’s denial of relief. voluntarily surrendered their Class B memberships. District court followed the statutory formula and did not impose STATUTES: None an illegal sentence. Current 1507 motion is successive. McPherson’s jurisdiction ar- FALSE ARREST gument is dismissed. SOTO V. CITY OF BONNER SPRINGS Because McPherson’s appeal raises a procedural rather than juris- WYANDOTTE DISTRICT COURT – AFFIRMED dictional defect, he waived his complaint by entering a no contest NO. 96,011 – AUGUST 31, 2007 plea. FACTS: In November 2003, Soto was stopped because his license Claim of ineffective assistance of counsel fails. Trial counsel’s per- plate was loose and hanging. Dispatch told the officer that the license formance did not fall below an appropriate standard. plate did not match the make and model of the registered vehicle. STATUTES: K.S.A. 2006 Supp. 22-3602(d); K.S.A. 21-3301(c), Soto provided a driver’s license for Jose M. Soto. An arrest warrant -3401, -3401(a), -3420, 22-22-3208(3), -3504(1), -3602(d), 60- in Johnson County had been issued for Jose L. Soto. Investigation 259(F), -1507, -1507(a); and K.S.A. 1998 Supp. 21-3402, -3402(a), revealed that the driver’s license given to the officers by Soto had the -4704 same number as the driver’s license provided by dispatch. Officers arrested Soto, and he was held in the Wyandotte County jail. After PARENT AND CHILD two days in the county jail, Soto was transported to Johnson County, IN RE CATHEY and he pointed out that he did not look like the person pictured on JOHNSON DISTRICT COURT – AFFIRMED IN PART, the warrant. Soto was released. In January 2004, Soto filed a law- REVERSED IN PART, AND REMANDED suit for false arrest. The trial court granted summary judgment in NO. 96,822 – AUGUST 24, 2007 favor of Bonner Springs and Johnson County finding Soto’s petition FACTS: Rebecca, daughter of Holli and Steven, was cared for was barred by the one-year statute of limitation, there was probable by Holli’s parents during periods of protection from abuse orders cause to believe there was a valid warrant for Soto’s arrests, and the against Steven, and after Holli’s death while her divorce was pend- discretionary function exception under the Kansas Tort Claims Act ing. When Steven unilaterally terminated communication between (KTCA) provided immunity from liability against Johnson County. grandparents and Rebecca, grandparents filed petition for visita- ISSUE: False arrest tion. District court ordered visitation subject to broad restrictions HELD: Court stated it was undisputed that Soto’s driver’s license proposed by Steven, and found Steven’s proposed plan was not to- number was the same as the one listed on the warrant. The birth tally unreasonable. It also ordered grandparents to pay more than dates, heights, and weights were quite similar; the warrant was still $12,000 in attorney fees and costs, including expert witnesses for valid. Wyandotte County properly held Soto until Johnson County both parties. Grandparents appealed. could retrieve him. Court stated there is a large amount of discre- ISSUES: (1) Grandparent visitation and (2) attorney fees and tion when determining whether an individual is actually the person costs identified in a warrant. Court held the facts of his case fell squarely HELD: No Kansas appellate case holds that a parent’s grandparent within the discretionary function of the KTCA. visitation plan must be totally unreasonable before it can be rejected, STATUTE: K.S.A. 2006 Supp. 75-6104 and such a standard is not adopted here. When deciding the reason- THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 37 ableness of visitation with a child’s grandparents whose daughter UNIDENTIFIED MOTORIST AND is deceased, trial court is to consider totality of circumstances and DISINTERESTED WITNESS determine what is in best interests of child and whether there is RUSSELL V. FARMERS INSURANCE a substantial relationship between the child and the grandparents. JOHNSON DISTRICT COURT – REVERSED Here, trial court’s restrictions were not reasonable. Trial court’s de- AND REMANDED WITH DIRECTIONS cision on this issue is reversed and case is remanded to a different NO. 96,416 – AUGUST 10, 2007 judge for further action. FACTS: Russell was injured when he tripped and fell outside CONCURRING SEPARATE OPINION: (Green, J.): Concurs a grocery store. He reported the accident to Farmers two months with majority opinion to reverse the trial court’s adoption of the later claiming he was injured while avoiding a vehicle driven by an father’s grandparent visitation plan. Separate opinion entered to af- unidentified motorist. Following an investigation, Farmers denied firm trial court’s award of costs and fees to Steven. Grandparents Russell’s claim without mentioning his claims of a disinterested wit- driving up cost of litigation is cited. Trial court’s judgment on this ness. The trial court denied summary judgment to Farmers finding issue was not an abuse of discretion. Farmers failed to notify Russell that he failed to comply with the CONCURRING (Malone, J.): Concurs with majority to reverse policy condition that the accident must be verified by someone else. and remand trial court’s judgment on grandparent visitation. Con- The case proceeded to trial, and the jury returned a verdict in favor curs with separate opinion by Judge Green affirming trial court’s of Russell. award of costs and attorney fees. ISSUES: (1)Unidentified motorist and (2) disinterested witness DISSENT TO SEPARATE OPINION: (Marquardt, J.): requirement Dissents from majority on issue of costs and attorney fees. Under HELD: Court reversed the jury verdict. Court stated that an in- circumstances, trial court’s order rewards Steven for stopping all sured’s failure to comply with an insurance policy condition may be communication with grandparents’ about visitation and then pro- waived, but generally waiver and estoppel will not expand an insur- posing totally unreasonable visitation conditions. Justice and equity ance policy’s coverage. Under an exclusion or limitation of insurance should require Steven to pay his own costs and attorney fees. coverage based on K.S.A. 40-284(e)(3), an insured is not covered for STATUTE: K.S.A. 39-129 et seq., -129(b), -131 a noncontact accident caused by a negligent unidentified driver in the absence of evidence to prove the facts of the accident by a dis- OIL AND GAS, IN-HOUSE RESERVES, AND JURISDICTION interested witness. The purpose of K.S.A. 40-284(e)(3) is to prevent CIMAREX ENERGY V. SEWARD BOARD OF COUNTY fraud. Under the facts of this case, without a disinterested witness to COMMISSIONERS the accident, the insurer had no way to refute the insured’s claim that SHAWNEE DISTRICT COURT – REVERSED his injury was caused by the negligence of an unidentified motorist. NO. 96,657 – AUGUST 10, 2007 STATUTE: K.S.A. 40-284(e)(3) FACTS: Cimarex brought equalization proceedings before Board of Tax Appeals (BOTA) concerning the valuation of one of its oil WORKERS’ COMPENSATION AND BRIGHT-LINE producing properties and five of its gas producing properties in LAST-DAY-WORKED RULE Seward County for the 2002 tax year. During the course of this FLETCHER V. U.S.D. NO. 229 ET AL. administrative proceedings, the county sought and obtained a sub- WORKERS’ COMPENSATION BOARD – AFFIRMED poena for Cimarex to produce documents concerning its in-house NO. 97,519 – AUGUST 31, 2007 oil and gas reserve estimate. Cimarex failed to produce all docu- FACTS: Fletcher was a custodian for the Blue Valley School Dis- ments. BOTA issued an order granting the county’s motion to com- trict. She began experiencing tingling in her hands in 1998 or 1999. pel discovery and denied Cimarex’s motion to quash finding the She had cubital tunnel release surgery on her elbows in 2002, and she information was relevant because it could be probative of the fair was released to return to work without restrictions in April 2003. In market value of Cimarex’ oil and gas producing properties. The trial November 2003, Fletcher had bilateral carpal tunnel release on both court upheld BOTA’s order compelling discovery but limited the wrists. On July 1, 2004, Blue Valley became self-insured for workers’ disclosure to the reserves information for Cimarex’s wells in Seward compensation claims. Blue Valley was previously insured through County that were at issue. the Kansas Association of School Boards Workers’ Compensation ISSUES: (1) Oil and gas, (2) in-house reserves, and (3) Fund. Fletcher continued to work with ongoing symptoms until jurisdiction Feb. 8, 2005, her last day of employment. The following day she HELD: Court held that BOTA’s decision on the county’s motion injured her lower back in an automobile accident, which prevented to compel discovery was a final agency decision. Court held that be- her from returning to work. The administrative law judge ordered cause Cimarex’s confidential in-house reserves information was never Blue Valley’s insurer to pay benefits up to June 30, 2004, and then used by either Cimarex or the county in their valuation processes Blue Valley as self-insured was order to pay benefits thereafter. and because the Oil and Gas Appraisal Guide does not prescribe the ISSUES: (1) Workers’ compensation and (2) bright-line use of such information in valuing oil and gas-producing properties, last-day-worked rule the information was not relevant to the proceedings before BOTA. HELD: Court found no error by the board in applying the last- Court stated the county appraiser may deviate from the guide on an day-worked rule to Fletcher’s injury. Kansas case law makes clear individual piece of property only upon a showing of just cause and in that it is irrelevant that Fletcher left her employment at Blue Val- a manner consistent with establishing fair market value. Court held ley because of an unrelated accident, not because of her carpal tun- because the county in this case never showed “just cause” to deviate nel syndrome. The bright-line rule is not limited to situations in from the valuation method prescribed by the guide, Cimarex’s confi- which the claimant can no longer continue employment because of dential in-house reserves information was not relevant to a valuation a medical condition. Court held the board correctly ruled that Feb. of the property. Therefore, BOTA’s finding of “relevance” was not 8, 2005, was the date of injury. Court found substantial, competent supported by substantial evidence, and its discovery was contrary to evidence to support the board’s functional impairment rating. K.S.A. 79-1456. Court reversed BOTA’s order compelling Cimarex STATUTES: K.S.A. 2006 Supp. 44-556(a) and K.S.A. 77-601 to disclose its in-house reserves information. STATUTES: K.S.A. 60-245(b); K.S.A. 74-2426; K.S.A. 77-331, -529, -607(a), (b), -621; and K.S.A. 79-1448, -1456, -1606, -1609 38 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION ISSUES: (1) Sentencing and (2) habitual criminal act Criminal HELD: Court vacated Kimsey’s sentencing finding that Kimsey’s STATE V. CHILSON article 34 convictions cannot be used to enhance his article 37 con- JACKSON DISTRICT COURT – REVERSED viction for aggravated burglary. Court also found the trial court in- AND REMANDED correctly applied the HCA to Kimsey based on his prior convictions NO. 96,418 – AUGUST 24, 2007 of aggravated robbery and robbery by assault from Texas. Court held FACTS: Chilson’s father called police upon finding marijuana in that under K.S.A. 1989 Supp. 21-4504, Kimsey’s sentence could house he shared with son and Chilson becoming angry and flushing not be enhanced by convictions from other jurisdictions. the marijuana. Police responded and separated Chilson and father STATUTES: K.S.A. 1989 Supp. 21-4504; and K.S.A. 21-3716, according to domestic disturbance protocol. Police arrested Chilson -3427 after father consented to search of house and trace amounts of mari- juana were found in toilet. District court denied Chilson’s motion STATE V. MARTINEZ to suppress that drug evidence, but later granted the motion pursu- BARTON DISTRICT COURT ant to new Supreme Court case, Georgia v. Randolph, 547 U.S. 103 AFFIRMED IN PART, (2006). State filed interlocutory appeal. SENTENCED VACATED, AND ISSUE: Co-occupant’s consent to search REMANDED WITH DIRECTIONS HELD: Cases in other jurisdictions applying Randolph are exam- NO. 96,613 – AUGUST 17, 2007 ined. Under facts of case, absent evidence that Chilson expressly FACTS: After a controlled drug buy, Martinez plead guilty to an objected to the search, or that officers specifically removed Chilson amended charge of possession of cocaine and endangering a child. from the home for the sake of avoiding a possible objection, father’s Martinez is an illegal alien. At sentencing, the court stated that it consent satisfied the consent exception to Fourth Amendment’s pro- could not follow the sentencing guidelines because if Martinez was hibition against warrantless searches and seizures. granted probation, he would violate the terms of his probation im- STATUTE: K.S.A. 22-3216, -3603 mediately because of his illegal status and the violation of federal and/or state law. The trial court imposed an upward dispositional STATE V. INKELAAR departure sentence by denying presumptive probation and sen- SEDGWICK DISTRICT COURT – AFFIRMED IN PART tenced Martinez to prison based on Martinez’ illegal alien status as AND DISMISSED IN PART a substantial and compelling reason for departure. The court also NO. 95,737 – AUGUST 17, 2007 ordered Martinez to reimburse Board of Indigent Defense Services FACTS: District court placed Inkelaar on probation in 2004 and (BIDS) for his attorney fees. ordered Board of Indigent Defense Services (BIDS) reimbursement. ISSUES: (1) Sentencing, (2) departure, and (3) illegal alien Probation revoked in 2005 based on circumstantial evidence that HELD: Court stated that if a defendant’s continued presence in Inkelaar stole money from his employer. Inkelaar appealed, claim- the United States is in violation of federal immigration law, that fact ing district court erred in revoking probation where municipal court alone may constitute a substantial and compelling reason to deny had dismissed Inkelaar’s criminal theft charge without prejudice and presumptive probation. However, court found that the trial court where no money was found on Inkelaar after theft was discovered. made no finding whether Martinez had previously been deported, He also claimed error in BIDS assessment of fees. and the court remanded to the trial court for such a finding. Court ISSUES: (1) Sufficiency of evidence and (2) appellate jurisdiction stated that the district court did not engage in an adjudication of HELD: Under facts and circumstances, state showed it was more Martinez’ immigration status, but simply recognized that counsel likely than not Inkelaar stole money from his employer. No abuse of volunteered the information that Martinez was not legally in this discretion in district court’s revocation of probation. country. Court held that on remand the trial court is permitted to Because Inkelaar did not file notice of appeal within 10 days of consider whether Martinez has been deported in the past in deter- sentencing, there was no jurisdiction to consider his appeal on the mining his amenability to probation. Court also held the trial court BIDS assessment claim. Appellate court had jurisdiction to consider failed to give adequate notice of its intent to depart. Court stated whether district court properly revoked jurisdiction, but it had no that when the sentencing judge gave notice of her intent to depart, jurisdiction to review the underlying convictions or sentences. Martinez was not provided an adequate opportunity to marshal and STATUTES: K.S.A. 2006 Supp. 22-4513; and K.S.A. 22-3504, present his arguments against departure before sentence was pro- -3602(a), -3608(c), -3716 nounced. Court also vacated the order for BIDS fees and remanded for compliance with State v. Robinson, 281 Kan. 538. STATE V. KIMSEY STATUTES: K.S.A. 2006 Supp. 20-345, -346; and K.S.A. 2006 SEDGWICK DISTRICT COURT – SENTENCE VACATED Supp. 21-4513, 4610, -4716(c), -4718(a)(3) AND CASE REMANDED WITH DIRECTIONS NO. 96,494 – AUGUST 17, 2007 STATE V. MCCALL FACTS: In 1990, Kimsey pled no contest to aggravated burglary, JOHNSON DISTRICT COURT – AFFIRMED kidnapping, aggravated assault, and aggravated robbery. Prior to NO. 93,259 – AUGUST 3, 2007 sentencing, the state filed a motion to impose the Habitual Crim- FACTS: McCall convicted of two counts of identity theft. Dur- inal Act (HCA), and the court granted the motion. Kimsey was ing bench trial, McCall proceeded pro se after district court granted sentenced to 10 to 40 years for aggravated burglary, six to 20 years state’s motion for competency evaluation, and McCall was found for aggravated assault, 30 years to life for kidnapping, and 30 years competent to proceed. On appeal, he claimed trial court violated to life for aggravated robbery. In 2004, Kimsey challenged his sen- Sixth Amendment by failing to appoint counsel for competency tence claiming it was illegal because the trial court used an article 37 hearing and competency determination was tainted by his pro se offense (aggravated burglary) to enhance offenses listed in other status. McCall also claimed a hearing should have been held on mo- chapters of the Kansas Criminal Code. The trial court summar- tion to suppress confession to Kansas officer after his arrest in Mis- ily dismissed Kimsey’s motion. On appeal, Kimsey claims the trial souri, claimed the trial court erred in ordering restitution without court incorrectly applied the 1987 version of the HCA even though considering McCall’s ability to pay, and claimed trial court violated his crimes were committed in 1990. McCall’s constitutional rights by using criminal history score to en- THE JOURNAL OF THE KANSAS BAR ASSOCIATION OCTOBER 2007 – 39 hance base sentence when those convictions had not been proven to ISSUES: (1) Intent to defraud, (2) statute of limitations, and (3) a jury beyond a reasonable doubt. evidence of victim’s credit problems ISSUES: (1) Competency hearing, (2) voluntariness of confes- HELD: Crime of identity theft does not require proof of econom- sion, (3) restitution, and (4) sentencing ic loss to the victim but only proof of the defendant’s intent to de- HELD: No reported Kansas case addresses issue of pro se repre- fraud for his or her economic benefit. The economic benefit element sentation at a competency hearing. No bright-line rule is entered of the crime can be satisfied with evidence that the defendant used in this case because under facts, McCall’s rights were protected by documents, such as a Social Security card bearing the Social Secu- trial court’s findings relating to McCall’s waiver of counsel and the rity number of another person, in order to cause a prospective em- mental health evaluation report. ployer to hire the defendant and thereby invested the defendant with Under facts of case, trial court was not obligated to inquire further certain property rights and benefits that attached to the job. Under into the voluntariness of McCall’s confession. facts, there was substantial evidence to support Meza’s conviction. No error in failing to consider McCalls’ ability to pay when order- Nature of identity theft involves more than the surreptitious ing restitution. Plain language of K.S.A. 2006 Supp. 21-4603d(b)(1) acquisition of a victim’s personal information. It includes the mul- does not require such a finding. titude of injurious acts, which flow from the acquisition of that Under controlling Kansas precedent, use of criminal history score information. In enacting K.S.A. 2004 Supp. 21-4018(a), the Leg- to enhance McCall’s base sentence did not violate his constitutional islature considered identity theft to be not a single act but a con- rights. tinuous course of criminal conduct. Thus the two-year limitations STATUTE: K.S.A. 2006 Supp. 21-4603d(b)(1) period for prosecution of identity theft commences to run when the continuous course of criminal conduct ends. Here, prosecution of STATE V. MEZA Meza for this continuing course of criminal conduct was brought BOURBON DISTRICT COURT – AFFIRMED within the limitations period. NO. 96,502 – AUGUST 3, 2007 Trial court was right for wrong reason. Evidence of victim’s credit FACTS: Meza purchased Social Security card and Kansas ID in problems was properly admitted as relevant and related to crime at name of a Texas resident and used them to secure employment in issue. Kansas in 1998. When the Texas resident received threatening calls STATUTES: K.S.A. 2004 Supp. 21-3106(8) and (10), -3110(9), from debt collection agencies and discovered an outstanding liabil- -4018, -4018(a); and K.S.A. 60-455 ity for unpaid taxes, Meza was arrested and convicted on identity theft charge. On appeal, Meza claimed the state failed to prove the “intent to defraud for economic benefit” required by K.S.A. 2004 Supp. 21-4018(a) and claimed the prosecution was time-barred. She also claimed the district court erred in admitting evidence of the Texas resident’s credit problems as res gestae.

10th Circuit Notice Effective Jan. 1, 2008, the court will amend its local rules. In addition, there is one change to the Federal Rules of Appellate Procedure, which will take effect on Dec. 1, 2007. Below are links to our Web site and specifically to a memo regarding the proposed rules changes, as well as redlined and nonredlined versions of the proposed amendments. Interested parties are in- vited to submit comments on the proposed changes to the clerk of court. The comment period will extend through the close of business on Wednesday, Oct. 10, 2007. We’re not just showing off! Comments may be submitted in writing to the Tenth Circuit Clerk’s Office, 1823 Stout St., Denver, CO, But we are proud as a peacock about all the 80257, or via e-mail to 10th_Circuit_Clerk@ca10. wonderful member benefits available when uscourts.gov. you join the Kansas Bar Association. From Casemaker to discounts on CLE and handbooks, http://www.ca10.uscourts.gov/downloads/2008_ rules_memo.pdf join our flock today and enjoy them all! http://www.ca10.uscourts.gov/downloads/2008_ Proposed_Rules.pdf http://www.ca10.uscourts.gov/downloads/2008_ Proposed_Rules_Redlined.pdf

40 – OCTOBER 2007 THE JOURNAL OF THE KANSAS BAR ASSOCIATION The Path (Continued from Page 6) If partnership is your goal, I hope this information helps particular field — whether in law or business — which can you focus your efforts to achieve that goal. Please contact me if assist partners or clients. you are interested in more in-depth responses to the survey. n 4. Is the rumor true — do partners generally expect asso- ciates to annually generate fees which equal 2.5 times their Amy Fellows Cline, Triplett, Woolf & Garretson LLC, Wichita, annual salary, to cover costs and earn a profit for the firm? may be reached at (316) 639-8100 or at [email protected]. The vast majority of responses affirmed this general rule of thumb. Obviously, there are exceptions. Some partners expect a certain percentage of billable hours to be collected each year Forensic Document Examiner (i.e., 1,400 in the first year; 1,600 in the second; 1,800 in Plum Creek Forensic Laboratory, LLC the third and beyond). Others pay an associate a certain per- Darla McCarley-Celentano centage of whatever fees that associate collects in each year, P.O. Box 21 which, presumably, incorporates the accepted overhead and Castle Rock, CO 80104-0021 profit margin assigned to each associate. Some partners en- Phone/Fax: (303) 663-2450 courage their associates to spend their early years developing Cell Phone: (303) 229-8002 good lawyer skills, regardless of fee generation, with an expec- E-mail: [email protected] tation that a good attorney will eventually be profitable for Specialization: Identification and/or elimination through the partnership. These partners simply expect an associate to examination and comparison of handwriting, typewriters, collect enough fees to cover their own salary and benefits in photocopiers, printing processes, paper and inks. Forensic their early years. document apprenticeship with the Colorado Bureau of Investigation.

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